...continued

B.       Position of the State

50.     The State argues that the Petitioners' petition should be considered inadmissible based upon two grounds.  The State first claims that the petition was brought to the Commission prior to the initiation of any equivalent action in the U.S. courts and therefore that the Petitioners have failed to exhaust domestic remedies.  In this regard, in its first response to the Petitioners' petition, the State claimed that the Petitioners "have not cited a single case brought before domestic courts in which it was alleged (much less determined) that the rights of District residents to equal protection under the law or to due process were violated by virtue of lack of representation in the Congress of the United States.” [35]   In addition, the State specifically rejects the Petitioners’ contention that Article I of the U.S. Constitution is somehow exempt from the other provisions of the Constitution. Rather, the State argues that United States court decisions make plain that all other constitutional commands apply as much to the District of Columbia as they do to other areas of the country, and that Congress has the discretion to create institutions of government for the District and to define their responsibilities only so long as it does not contravene any other provision of the Constitution. [36]

51.     Accordingly, the State submits that a claim that the treatment of the residents of the District of Columbia has violated the Fifth and Fourteenth Amendments to the U.S. Constitution would present complex issues of constitutional interpretation and, far from being futile, could readily be litigated in domestic courts.

52.     As its second ground for the inadmissibility of the Petitioners' petition, the State contends that the complaint fails to state a claim under the American Declaration.  In this regard, the State argues that the decision of the drafters of the U.S. Constitution to make the District of Columbia a separate enclave rather than a state was not motivated by animus against a group of citizens, nor did it reflect an effort to disenfranchise its residents.  Rather, the decision was a consequence of a federal structure of the United States, of the division of responsibilities between the states and the federal government, and, more specifically, of the desire to protect the center of federal authority from undue influence of the various states. [37]

53.     According to the State, the decision to provide Congress with control over the federal District was also motivated by concerns that residents of the District might enjoy disproportionate influence on government affairs by virtue of their contiguity to, and residence among, members of the national government.

54.     In these respects, therefore, the State contends that the special status given to the District of Columbia was based on geography alone rather than any individual characteristics such as race, gender, creed and the like, and therefore does not constitute a human rights violation.  Rather, in the State’s view, the District status is a justifiable and important aspect of the federal system of government freely chosen by the citizens of the United States. [38]

55.     With regard to Article XX of the Declaration, the State contends that no where in this or any other Article of the Declaration is the modalities of participation in government specified.  The Declaration does not, for example, indicate that participation should be effected through states or whether elections should be by legislative majority or proportionate rule, through a parliamentary system, federalism or the like.  The State emphasizes in this regard that these are “complex issues over which unanimous agreement hardly can be reached within a single country, let alone in a multi-national setting.  Instead, matters relating to the governmental structure ought to be determined by the citizens of each nation.” [39]   Considered in this light, the State submits that the decision in the United States that only states shall be directly represented in the House of Representatives and Senate, and that the seat of the federal government shall not be a state, is a matter properly within the discretion of nations.

56.     Moreover, the State argues that the residents of the District of Columbia are not excluded from the political process in the United States.  To the contrary, the State claims that District residents participate in the U.S. political processes through a variety of means, including voting in presidential elections, electing a mayor and city council, choosing a non-voting delegate in the House of Representatives who enjoys such benefits as floor privileges, office space, committee assignments and committee voting rights, and, since 1990, electing two non-voting senators and one non-voting representative whose roles are to advocate the cause of statehood.  Moreover, the State emphasizes that District residents have freely and openly debated issues regarding the District's status in the government, through proposed constitutional amendments and other legislation. [40]

57.     Finally, the State claims that it recognizes that the inability of District of Columbia residents to select voting members of Congress is for many a significant political issue.  The State considers, however, that the matter involves “delicate issues of constitutional law and federal structure that call into question the very organization of the United States” and therefore should be left in the realm of political debate and decision-making.

IV.      ANALYSIS 

A.      Competence of the Commission

58.     The State is a Member State of the Organization of American States that is not a party to the American Convention on Human Rights, as provided for in Article 20 of the Commission's Statute and Article 23 of the Commission's Rules of Procedure.  The United States deposited its instrument of ratification of the OAS Charter on June 19, 1951. [41]

59.     While the situation upon which the Petitioners' complaint is based in part upon legislation that was enacted prior to the State’s ratification of the OAS Charter, namely the U.S. Constitution of 1789 and the Organic Act of 1801, the violations of the Declaration alleged have continued and remained current after the date of ratification of the OAS Charter by the United States.  That alleged violations of this nature fall within the scope of the Commission’s competence to apply the American Declaration is consistent with the Commission’s practice and that of other international human rights tribunals of applying human rights instruments to alleged violations that arose prior to the ratification of those instruments but which are continuing in nature and whose effects persist after the instruments’ entry into force. [42]

60.     Finally, the Petitioners are natural persons and the violations are said to have occurred within the territory of the United States.  The Commission therefore concludes that it is competent to examine this petition. 

B.       Admissibility of the Petition

61.     The Commission has not previously determined the admissibility of the complaints in the Petitioners’ petition.  In light of the length of time for which the petition has been outstanding and the numerous opportunities available to the parties to provide observations on the admissibility and merits of the claims raised in the Petitioners’ petition, the Commission has decided to consider the admissibility of the Petitioners’ claims together with their merits.

1.       Duplication of Procedures

62.     The Petitioners have claimed that no other petition or complaint raising the allegations in their petition is pending in any other international forum, and that the violations alleged have not been previously considered by the Commission, in accordance with Article 33 of the Commission's Rules of Procedure. [43]   The State has not contested the issue of duplication of procedures.  The Commission therefore finds no bar to the admissibility of the petition under Article 33 of the Commission's Rules of Procedure.

2.       Exhaustion of Domestic Remedies

63.     Article 31(1) of the Commission's Rules of Procedure specifies that, in order for a case to be admitted, the Commission must verify whether the remedies of the domestic legal system have been pursued and exhausted in accordance with the generally recognized principles of international law.

64.     The record in the present case indicates that certain residents of the District of Columbia including members of the Statehood Solidarity Committee have pursued remedies in the domestic courts of the United States in respect of various aspects of the claims in the Petitioners' petition.  In particular, the information provided by the Petitioners indicates that in the consolidated cases of Adams v. Clinton and Alexander et al. v. Daley, the claimants argued, similar to the matter presently before the Commission, that they as residents of the District of Columbia were entitled to enjoy equal Congressional representation and full self-governance under the provisions of the Fifth [44] and Fourteenth [45] Amendments to the U.S. Constitution protecting the rights to equal protection of the law and to a republican form of government.  The record also indicates that in a 68-page majority decision dated March 20, 2000, the U.S. District Court rejected the claimants’ claims and that the U.S. Supreme Court affirmed the U.S. District Court's decision in a judgment dated October 16, 2000.

65.     In its observations of April 25, 1994, the State made the general allegation that the Petitioners had failed to cite any cases brought before the domestic courts in which the violations alleged in the petition were raised before domestic courts, and suggested that it would be possible for the situation alleged in the Petitioners' petition to be challenged before domestic courts under the Fifth and Fourteenth Amendments to the U.S. Constitution.  The State has subsequently made no observations on the issue of exhaustion of domestic remedies in this matter.  Rather, the State indicated in its communications of October 17, 1996 and June 2, 2000 with the Commission that it had nothing further to submit in the case.

66.     Based upon the information available, the Commission is satisfied that the Petitioners have exhausted domestic remedies.  In particular, in the consolidated cases of Adams v. Clinton and Alexander et al. v. Daley, the absence of Congressional representation for residents of the District of Columbia has been unsuccessfully challenged before the U.S. District Court and the U.S. Supreme Court under the civil rights provisions of the U.S. Constitution, including the right to equal protection of the law and to a republican form of government.  The State has failed to establish that additional effective remedies remain for the Petitioners to exhaust.  Consequently, the Petitioners' petition is not barred from consideration under Article 31 of the Commission's Rules of Procedure.

3.       Timeliness of the Petition

67.     In accordance with Article 32(1) of the Commission's Rules of Procedure, the Commission shall consider those petitions that are lodged within a period of six months following the date on which the alleged victim has been notified of the decision that exhausted domestic remedies.

68.     In the present case, the Petitioners' petition was not lodged beyond six months from the date on which the Petitioners were notified of the decision that exhausted domestic remedies, namely the October 16, 2000 decision of the U.S. Supreme Court dismissing the appeal in the consolidated cases of Adams v. Clinton and Alexander et al.  v. Daley.  The State has not contested the timeliness of the Petitioners' petition.  Consequently, the Commission concludes that the Petitioners' petition is not barred from consideration under Article 31 of the Commission's Rules of Procedure.

4.       Colorable Claim

69.     Articles 34(a) and 34(b) of the Commission's Rules of Procedure require the Commission to declare inadmissible any petition when the complaint does not state facts that tend to establish a violation of the rights under the Convention or other applicable instruments, or where the statements of the petitioner or of the State indicate that the petition is manifestly groundless or out of order.

70.     The Commission has outlined in Part III of this Report the substantive allegations of the Petitioners, as well as the State's responses to those allegations to the extent that such responses have been provided.  After carefully reviewing the allegations in light of the information provided by both parties, the Commission does not find the Petitioners’ complaints to be manifestly groundless or inadmissible.  In reaching this conclusion, the Commission has been particularly mindful of the fundamental role that representative democracy has played in the formation and development of the Organization of American States and in securing the protection of human rights in this hemisphere. [46] Accordingly, the Commission concludes that the Petitioners' petition is not inadmissible under Article 34 of the Commission's Rules of Procedure.

5.       Summary

71.     In accordance with the foregoing analysis of the requirements of the applicable provisions of the Commission’s Rules of Procedure, the Commission decides to declare as admissible the claims presented by the Petitioners with respect to Articles II and XX of the Declaration, and to proceed to examine the merits of the case.

C.      Merits

1.       The Petitioners and Representation in the U.S. Congress

72.     Based upon the observations of the Petitioners and the State in this matter, it is evident that the determination of the Petitioners’ complaint requires at the outset a summary of the structure of the U.S. federation and the status of the District of Columbia within that structure.

73.     In this regard, the Commission notes that the United States is a federal republic, with governments at the federal and state level.  Under the U.S. Constitution and judicial interpretations thereof, exclusive and concurrent jurisdiction over particular areas of governance has fallen to each of the federal and state jurisdictions. [47]   The federal government, for example, has specifically enumerated powers under article I, section 8 of the Constitution. [48] These powers include the broad authority under the “necessary and proper” clause of the U.S. Constitution [49] to pass laws implementing its enumerated powers for the full effectuation of national goals, such that any state legislation that might interfere with the exercise of these federal powers is invalid. [50]   State legislatures, on the other hand, have residual authority over powers that are not delegated to the United States by the Constitution nor prohibited by it to the States. [51]

74.     The U.S. federal government in turn is composed of an executive branch in the form of the President, [52] a legislative branch in the form of the U.S. Congress [53] and a judicial branch composed of one supreme court and such inferior courts as Congress has from time to time established. [54]   The U.S. Congress is bicameral, being comprised of a House of Representatives and a Senate.  The House of Representatives consists of members elected every second year by people of the States and apportioned on the basis of population. [55] The Senate is composed of two senators from each state elected for six year terms. [56]

75.     At issue in the present case is the role of the residents of the District of Columbia in the legislative branch of the federal government.  As illuminated by the observations of the parties and domestic judicial decisions relating to this issue, it appears undisputed that individuals who live in the District of Columbia and would otherwise be eligible to vote in U.S. federal elections may cast a vote for the U.S. President [57] but may not vote for or elect full members of the House of Representatives or the Senate.  This circumstance stems from the terms of the U.S. Constitution as well as the federal legislation through which the District of Columbia was subsequently created.

76.     In particular, the preclusion of the right on the part of residents of the District of Columbia to elect members of the House of Representatives is derived from Article 1, section 2, clause 1 of the U.S. Constitution, which provides:

The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

77.     Judicial authorities in the United States have interpreted this provision, in light of its text, history and judicial precedent, as only permitting states to elect members of the House of Representatives, and have held that the District of Columbia cannot be considered a “state” within the meaning of the provision. [58]

78.     Similarly with respect to the U.S. Senate, as originally provided under Article I, section 3 of the U.S. Constitution the Senate was to be “composed of two Senators from each State,” chosen not “by the People of the several States,” as in the case of the House, but rather “by the Legislature thereof.” [59] In 1913 the Seventeenth Amendment granted to the people of “each State,” rather than their legislatures, the right to choose Senators [60] and after that change the provisions concerning qualifications and vacancies for the Senate have essentially paralleled those for the House. [61] As with the House of Representatives, the U.S. courts have concluded that the framers of the Constitution did not contemplate allocating two Senators to the District of Columbia, as the Senate was expressly viewed as representing the states themselves.  Further, the guarantee of two senators for each State was an important element of the “Great Compromise” between the smaller and larger states that ensured ratification of the Constitution, such that the smaller states were guaranteed equal representation notwithstanding their smaller population. [62]

79.     The findings of the U.S. judiciary as to the absence of Congressional voting rights for D.C. residents have also been based upon the terms of the so-called “District clause” in the Constitution, as well as by the Organic Act of 1801 by which the District of Columbia was created.  According to Article I, section 8, clause 17 of the U.S. Constitution, Congress is expressly granted the power to “exercise exclusive Legislation in all Cases whatsoever” over the district that would become the seat of government. [63] When the District of Columbia was ultimately created from land ceded by Maryland and Virginia through the passage of the Organic Act of 1801, [64] it appears to have been generally accepted that once Congress assumed jurisdiction over the District, individuals residing in the District would lose their right to vote for Congress. [65] Likewise, since February 1801 District residents have been unable to vote in either Maryland or Virginia. [66]

80.     As to the purpose underlying the treatment of the District of Columbia, it appears to be generally accepted that the historic rationale for the District Clause was to ensure that Congress would not have to depend upon another sovereign for its protection. [67] In particular, authorities claim that the District Clause was adopted in response to an incident in Philadelphia in 1783 in which a crowd of disbanded Revolutionary War soldiers, angry at not having been paid, gathered to protest in front of the building in which the Continental Congress was meeting under the Articles of Confederation.  As described by the U.S. District Court:

Despite requests from the Congress, the Pennsylvania state government declined to call out its militia to respond to the threat, and the Congress had to adjourn abruptly to New Jersey. The episode, viewed as an affront to the weak national government, led to the widespread belief that exclusive federal control over the national capital was necessary.  “Without it,” Madison wrote, “not only the public authority might be insulted and its proceedings be interrupted, with impunity; but a dependence of the members of the general Government, on the State comprehending the seat of the Government for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the Government, and dissatisfactory to the other members of the confederacy.” [68]

81.     The record before the Commission indicates that since the inception of the District, numerous initiatives have been attempted to provide residents of the District with representation at the local and federal levels.  These have included: a constitutional amendment allowing for participation by residents of the District in Presidential elections in 1960; passage of the District of Columbia Delegate Act [69] in 1970 which provided the District with one non-voting delegate in the House of Representatives who enjoys floor privileges, office space, committee assignments and committee voting rights but was not empowered to vote on legislation brought before the House of Representatives; passage of the District of Columbia Self-Government and Governmental Reorganization Act, or Home Rule Act, [70] in 1973 which led to the election of a city council and mayor; the election by the District since 1990 of “shadow” representatives, namely two non-voting senators and one non-voting representative whose role is to advocate the cause of statehood; [71] and the granting in 1993 to the District delegate and all territorial non-voting delegates the right to vote in Congress’ Committee of the Whole. [72] With respect to this latter development, it is the Commission’s understanding based upon the parties’ information that the vote of the District’s delegate in the Committee of the Whole is subject to a “saving clause” that prevents the District and territorial delegates from casting a deciding vote on the passage of any Congressional legislation in the Committee of the Whole. [73]

82.     Based upon the record before it, therefore, the Commission finds that the Petitioners, as residents of the District of Columbia, are not permitted to vote for or elect members of the U.S. Senate.  While the Petitioners are permitted to elect a member of the House of Representatives, that member cannot cast a deciding vote in respect of any of the matters coming before the House.  This is in contrast to the residents of States in the United States, who have the right under the U.S. Constitution to elect members of both the Senate and the House of Representatives.  The Commission also finds that the basis for this distinction lay with the desire of the original framers of the Constitution to protect the center of federal authority from undue influence of the various States, and at the same time avoid the possibility that the residents of the District might enjoy a disproportionate influence on governmental affairs by virtue of their contiguity to, and residence among, members of the federal government.

2.       Articles II and XX of the American Declaration – Interpretation and Application of the Right to Equal and Effective Participation in Government

83.     As particularized above, the Petitioners have alleged that the United States is responsible for violations of Articles II and XX of the American Declaration in respect of the members of the Statehood Solidarity Committee and other residents of the District of Columbia.  This allegation is based on the contention that the Petitioners, unlike residents elsewhere in the United States, have no meaningful representation in the federal House of Representatives and no representation whatsoever in the Senate, and are therefore denied effective participation in the national legislature.  They also contend that these limitations are manifestly arbitrary and that the State has failed to provide any adequate justification for them.

84.     Articles II and XX of the American Declaration provide:

Article II.  All persons are equal before the law and have the rights and duties established in this Declaration, without distinction as to race, sex, language, creed or any other factor.

Article XX.  Every person having legal capacity is entitled to participate in the government of his country, directly or through his representatives, and to take part in popular elections, which shall be by secret ballot, and shall be honest, periodic and free.

85.     The Commission has long recognized the significance of representative democracy and associated political rights to the effective realization and protection of human rights more broadly in the hemisphere.  According to the Commission

[t]he participation of citizens in government, which is protected by Article XX of the Declaration forms the basis and support of democracy, which cannot exist without it; for title to government rests with the people, the only body empowered to decide its own immediate and future destiny and to designate its legitimate representatives.

Neither form of political life, nor institutional change, nor development planning or the control of those who exercise public power can be made without representative government.

[…]

The right to political participation leaves room for a wide variety of forms of government; there are many constitutional alternatives as regards the degree of centralization of the powers of the state or the election and attributes of the organs responsible for the exercise of those powers.   However, a democratic framework is an essential element for establishment of a political society where human values can be fully realized. [74]

86.     The central role of representative democracy in the inter-American system is evidenced in the provisions of the system’s founding instruments, including Article 3(d) of the Charter of the OAS [75] which confirms that “solidarity of the American states and the high aims which are sought through it require the political organization of those States on the basis of the effective exercise of representative democracy.” Resolutions adopted by the Organization’s political organs have likewise reflected the indispensability of democratic governance to the stability, peace and development of the region.  In OAS General Assembly Resolution 837, for example, OAS member states reaffirmed the “inalienable right of all of the peoples of the Americas freely to determine their political, economic and social system without outside interference, through a genuine democratic process and within a framework of social justice in which all sectors of the population will enjoy the guarantees necessary to participate freely and effectively through the exercise of universal suffrage.” [76] Citing these and other similar instruments, the Commission recently reaffirmed that “there is a conception in the inter-American system of the fundamental importance of representative democracy as a legitimate mechanism for achieving the realization of and respect for human rights; and as a human right itself, whose observance and defense was entrusted to the Commission.” [77] According to the Commission, this conception implies protecting those civil and political rights in the framework of representative democracy, as well as the existence of institutional control over the acts of the branches of government, and the rule of law. [78]

87.     The Commission is therefore of the view that those provisions of the system’s human rights instruments that guarantee political rights, including Article XX of the American Declaration, must be interpreted and applied so as to give meaningful effect to exercise of representative democracy in this Hemisphere.  The Commission also considers that insights regarding the specific content of Article XX of the Declaration can properly be drawn from Article 23 of the American Convention and the Commission’s previous interpretation of that provision, [79] which parallels in several fundamental respects Article XX of the Declaration.   Article 23 provides as follows:

1.         Every citizen shall enjoy the following rights and opportunities:

            a.          to take part in the conduct of public affairs, directly or through freely chosen representatives;

            b.         to vote and to be elected in genuine periodic elections, which shall be by universal and equal suffrage and by secret ballot that guarantees the free expression of the will of the voters; and

            c.          to have access, under general conditions of equality, to the public service of his country.

2.         The law may regulate the exercise of the rights and opportunities referred to in the preceding paragraph only on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings.

88.     In interpreting Article 23 of the American Convention, the Commission has recognized that a degree of autonomy must be afforded to states in organizing their political institutions so as to give effect to these rights, as the right to political participation leaves room for a wide variety of forms of government. [80]   As the Commission has appreciated, its role or objective is not to create a uniform model of representative democracy for all states, but rather is to determine whether a state’s laws infringe fundamental human rights. [81]   The Commission has similarly recognized that not all differences in treatment are prohibited under international human rights law, and this applies equally to the right to participate in government. [82]

89.     This does not mean, however, that the conduct of states in giving effect to the right to representative government, whether by way of their constitutions or otherwise, [83] is immune from review by the Commission.  Rather, certain minimum standards or conditions exist respecting the manner in which this right is given effect which must be shown to have been satisfied.  These standards or conditions relate primarily to the nature of permissible limitations that may be imposed on the exercise of such rights.  The Commission has noted in this regard that Article 23(2) of the American Convention provides an exhaustive list of grounds upon which states may properly base limitations of the exercise of the rights and opportunities referred to in Article 23(1) of the Convention, namely on the basis of age, nationality, residence, language, education, civil and mental capacity, or sentencing by a competent court in criminal proceedings. [84]

90.     More generally, the Commission has held that its role in evaluating the right to participate in government is to ensure that any differential treatment in providing for this right lacks any objective and reasonable justification. [85] In this connection, in securing the equal protection of human rights, states may draw distinctions among different situations and establish categories for certain groups of individuals, so long as it pursues a legitimate end, and so long as the classification is reasonably and fairly related to the end pursued by the legal order. [86]   And as with other fundamental rights, restrictions or limitations upon the right to participate in government must be justified by the need of them in the framework of a democratic society, as demarcated by the means, their motives, reasonability and proportionality. [87]   At the same time, in making these determinations, the Commission must take due account of the State’s degree of autonomy in organizing its political institutions and should only interfere where the State has curtailed the very essence and effectiveness of a petitioner’s right to participate in his or her government. [88]

91.     This approach to the interpretation and application of the right under Article 23 of the American Convention and Article XX of the American Declaration to participate in government is consistent with jurisprudence from other international human rights systems concerning similar treaty protections.  The European Court of Human Rights, for example, had occasion to interpreting Article 3 of Protocol I to the European Convention [89] in the context of a complaint challenging Belgian legislation that transitionally demarcated the territory of Dutch-speaking and French-speaking regions of Belgium and placed linguistic restrictions upon representation and membership for minority language groups in the Community and Regional Councils and Executives of those regions. [90] In disposing of the complaint, the European Court indicated that the rights encompassed in Article 3 of Protocol I are not absolute, but rather that there is room for “implied limitations.” [91] Moreover, the Court proclaimed that states have a “wide margin of appreciation” in implementing the rights under Article 3 of Protocol I, but that

[i]t is for the Court to determine in the last resort whether the requirements of Protocol Nº 1 (P1) have been complied with; it has to satisfy itself that the conditions do not curtail the rights in question to such an extent as to impair their very essence and deprive them of their effectiveness; that they are imposed in pursuit of a legitimate aim; and that the means employed are not disproportionate.  In particular, such conditions must not thwart ‘the free expression of the opinion of the people in the choice of the legislature.’” [92]

92.     According to the European Court, any electoral system must also be assessed in the light of the political evolution of the country concerned, for, in its view, “features that would be unacceptable in the context of one system may accordingly be justified in the context of another, at least so long as the chosen system provides for conditions which will ensure the “free expression of the opinion of the people on the choice of the legislature.” [93]   In ultimately dismissing the applicants’ complaint, the Court emphasized that

[i]n any consideration of the electoral system in issue, its general context must not be forgotten.  The system does not appear unreasonable if regard is had to the intentions it reflects and to the respondent State’s margin of appreciation within the Belgian parliamentary system – a margin that is all the greater as the system is incomplete and provisional. [94]

93.     Similar principles governing the right to political participation have been elucidated in the UN human rights system.  Article 25(b) of the International Covenant on Civil and Political Rights provides that “[e]very citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: […] (b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.” Like the European Court and this Commission, the UN Human Rights Committee has recognized that the rights protected under Article 25 of the ICCPR are not absolute, but that any conditions that apply to the right to political participation protected by Article 25 should be based on “objective and reasonable criteria.” [95] The Committee has also found that in light of the fundamental principle of proportionality, greater restrictions on political rights require a specific justification. [96]

94.     The Commission also observes that in affording individuals the rights prescribed under Article XX of the Declaration, they must do so on the basis of equality and without discrimination as mandated by Article II of the Declaration.  As with permissible restrictions under Article XX itself, Article II of the Declaration allows for differential treatment but only when that treatment is based upon factual differences and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule under review, due account being taken of the State’s prerogative in choosing its political institutions. [97]

95.     In evaluating the circumstances of the present case in light of the above principles, the Commission must first address whether the rights of the Petitioners under Article XX of the American Declaration to participate in their government have, on the evidence, been limited or restricted by the State.  In this respect, the State does not contest that the U.S. Constitution, by its terms and as interpreted by the courts in the United States, does not permit the Petitioners and other residents of the District of Columbia to elect representatives to their national legislature.

96.     Nevertheless, the United States appears to suggest that District residents are afforded an adequate right to participate in the government of the United States and to take part in popular elections in compliance with Article XX of the Declaration, by reason of other political activities that are open to them.  According to the State, these include their ability to vote in Presidential elections, to elect a mayor and city council, and the presence of one non-voting delegate in the House of Representatives and three “shadow” representatives in Congress.  The State also points to the fact that the District’s status is freely and openly debated in the government through, for example the presentation of statehood bills in Congress.  The State therefore contends that by any measure, District residents have been able to take part in “healthy and robust debate” concerning all issues of national concern, including the status of the District itself.

97.     Upon consideration of the parties’ observations on the record of the case, the Commission must conclude that the Petitioners’ rights to participate in the federal legislature of the United States have been limited or restricted both in law and in fact.  As noted, it is agreed that as a matter of domestic constitutional law the Petitioners are not afforded the right to elect members of either chamber of Congress.  While the State has contended that the District of Columbia elects a delegate to the House of Representatives who has the right to vote upon legislation in the Committee of the Whole, [98] the record indicates that the delegate is prohibited from casting a deciding vote in respect of any legislation that comes before Congress.  On this basis, the State’s own courts have proclaimed that the vote extended to the District of Columbia delegate in the Committee of the Whole has no chance of affecting the ultimate result of matters coming before the Committee and is therefore “meaningless.” [99]   Accordingly, the Commission cannot accept this arrangement as providing the Petitioners with effective participation in their legislature.  For similar reasons, the ability of the Petitioners to elect representatives to other levels and branches of government and to participate in public debates on the status of the District of Columbia cannot be considered equivalent to the nature of participation contemplated by Article XX of the Declaration, which, in the Commission’s view, entitles the Petitioners to a meaningful opportunity, directly or through freely elected representatives, to influence the decisions of government that affect them, including those of the federal legislature.

98.     Therefore, to the extent that each of the Petitioners, unlike similarly-situation citizens elsewhere in the United States, does not have the right to vote for a representative in their national legislature who has an effective opportunity to influence legislation considered by Congress, the Commission considers that they have been denied an equal right under law in accordance with Article II of the Declaration to participate in the government of their country by reason of their place of residence, and accordingly that their right under Articles XX of the Declaration to participate in their federal government has been limited or restricted.  In this respect, the Commission has noted the Petitioners’ allegations regarding the existence of a Congressional intent to discriminate against a particular racial group in light of the considerable African-American majority that has evolved in the District’s population over the past 40 years.  The Commission is concerned that these circumstances raise the possibility that the absence of Congressional representation for the District of Columbia has had a disproportionately prejudicial impact upon a particular racial group, namely the African-American community residing in the District.  After careful consideration of the record before it, however, the Commission does not find the allegations regarding the existence of a racially discriminatory intent on the part of Congress to have been adequately briefed so as to enable it to make a specific determination on this issue.

99.     The Commission must next consider whether this restriction or limitation on the rights under Article XX and II of the Declaration to vote and to participate in government with equality under law is nevertheless justified when analyzed in the general political context of the State concerned and thereby permissible under these articles of the Declaration.  As noted above, this entails evaluating whether the restrictions imposed by the State may be considered to curtail the very essence and effectiveness of the Petitioners’ right to participate in their government and whether the State has offered a reasonable, objective and proportionate justification for the restrictions.

  continued...

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