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GRANTING ELECTORAL RIGHTS TO FOREIGN CITIZENS LIVING ABROAD

© S. A. Khvalev, E. I. Starovoitova, 2016  

The Speransky Institute of Legislation and Legal Information, Irkutsk city


The issues of electoral integration of foreign citizens in their host countries are studied in the article.
The author marks out the main approaches, regarding enshrining in the law of foreign countries the possibility to exercise electoral rights at national, regional and local levels.
International normative legal acts, which guarantee foreign citizens' participation in the management of State affairs, are studied here.
 
Key words: electoral right; the right to vote; political rights; foreign citizens; guarantees of citizens' rights.

It is commonly considered that electoral rights as political rights derive from person's having citizenship, which in its turn, is a form of legal connection between the given person and a certain country. Though the ideas of legal transboundariness and caused tendency of cultural mix, steadily progressing all over the world, have resulted in an urgent need of unification and standardization of foreigners' involvement in the political sphere in their host countries, and as a result of it, the necessity to grant to foreign citizens a complex electoral right or certain electoral powers during local and regional elections in their country of residence. Granting electoral rights to foreign citizens in democratic countries in the modern world shows significant attitudinal changes, occurring in the society towards the role of migration processes and the special statuses caused by these processes under conditions of gradual blurring of the boundaries between countries.
Historical analysis of the forms of democracy points out, that even in antiquity only the citizens had a right to participate in the political life of the country. The legal systems of Ancient Greece and Ancient Rome included the norms about visiting representative assemblies, taking an elective office by individuals who have citizenship status. For instance, Athens legislation prescribed to exclude from the lists of people, participating in the elections, those "who were not born from a citizen father and citizen mother" [1].

Prevalence of the principle of citizenship (nationality) as a condition for participation in elections is typical for the Middle Ages too. For example, when forming local government authorities in Italy, citizens with full rights, such as knights, rear vassals and merchants who owned land, were granted electoral rights [2]. However, we cannot deny the participation of foreigners in the medieval election process. For instance, the office of 'podesta' (a governor who headed a commune in Italy) presupposed nomination of a candidate from a number of foreigners, aged 30 years old and had a knighthood and good reputation [3]. A. K. Dzhivilegov explained such a peculiarity of Italian electoral system by the reason that "a foreigner who is far from likes and dislikes towards political parties, was a much more unprejudiced judge and administrator than local consuls" [4].
The participation of people of foreign origin in elections was not excluded in the later foreign legal acts either. For example, French Constitution of 1793 granted electoral rights to the foreigners, aged 21 year old, living for one year in France, living through their labor, owned property, married a French women, adopted a child or supporting a dependent older person. At the same time, V. V. Maklakov highlights an "extraordinary for the modern perception" norm about granting French citizen's rights to every foreigner who had made sufficient contributions to humanity, included into article 4 of the Constitution [5]. It is obvious that those rights included electoral rights too. However, the given example is an exception from the common rule. As V. V. Viskulova noted the participation of foreigners in elections of any level was not typical up to the middle of the 20th century [6].
Alongside with that, internationalization processes occurring at the international level help to gradual extend of political rights to people who have no civil relations with their host country. In particular, Recommendation of Parliamentary Assembly of the Council of Europe 1500 (2001) "Participation of immigrants and foreign residents in political life in the Council of Europe member states" [7] points out that the respect for human rights in Europe is independent of citizenship and country of origin. Principles of non-discrimination have been laid down in numerous international instruments binding for Council of Europe member states.
Moreover, according to Paragraph 4 of the mentioned Recommendation, democratic legitimacy requires equal participation by all groups of society in the political process, and that the contribution of legally resident non-citizens to a country’s prosperity further justifies their right to influence political decisions in the country concerned.
The necessity to grant electoral rights to foreigners is usually determined by the fundamental right of every person for participation in making the decisions which directly affect his/her life, as well as by the imperative to eradicate everywhere discrimination and unequal treatment whatever the reason. Indeed, foreigners are involved into the same social and economic relations as the citizens of a country. Both are equally subject to the national laws, necessity to pay taxes and other duties, even to serve in the armed forces. However, immigrants are often deprived of the key opportunity to influence the political decisions made in the host country (region, city), because they have no basic political rights [8]. Resolution of Parliamentary Assembly of the Council of Europe 1459 (2005) "Abolition of restrictions on the right to vote" points out that "all legal residents are normally obliged to pay local taxes and their lives are directly affected by the decisions of local authorities. The right to vote and to stand as candidates in local elections should therefore be granted to all legal residents having lived long enough in the country, regardless of their nationality or ethnic origin" [9]. 
It is considered that granting electoral rights to foreign citizens will help to develop the real people's will in future and can be the next step to upgrading the level of democracy standards. It is also worth mentioning that in A. Z. Stepanyan's opinion, such granting is connected with preventing the abuse of the rights and, probably, it should be accompanied by the system of qualifications [10].
Many modern sources of international law confirm the tendency of more frequent participation of 'non-citizens' in definite election campaigns. As A. S. Chesnokov truly notes, many international conventions which were joined by the most countries, directly point out that the right to participate in elections, as well as the right to participate in the work of professional and other economic, social and political unions, including political parties, the right to freely express one's opinion (including political issues), the right to participate in public events (strikes, pickets, demonstrations etc.) are not connected with citizenship in fact. To be precise, citizenship of the host country provides a person with more opportunities and powers for achieving and protecting his/her interests, though the lack of citizenship does not eliminate these opportunities but just put more or less limits on them [11].
The Universal Declaration of Human Rights of 1948, article 21 proclaimed the major inherent political rights of a person:  the right to take part in the government of his country, directly or through freely chosen representatives, the right of equal access to public service in his country. The will of the people shall be the basis of the authority of government and "this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures" [12].
The subject for granting these rights is a person, but not a citizen, that underlines generality of these rights. The provision, stipulating that "everyone has the right to take part in the government of his country", proves that if to refer to the institution of citizenship, the given norm is not equal to it by the scope of application, but even likely to be wider. This way, the problem of migrants' (foreigners' and other individuals') participation in the government of their host country was identified even in 1948 [13].
It is interesting that some universal international instruments provide for participation of definite categories of foreign citizens in elections. For instance, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, article 41 provides for the right of the above mentioned people to participate in public affairs of their State of origin and to vote and to be elected at elections of that State, in accordance with its legislation [14].
The Convention on the Participation of Foreigners in Public Life at Local Level  adopted in 1992 is one of the most important international instruments regulating political rights of foreign citizens and its Chapter C is actually called "the right to vote and stand as candidates in local authority elections". Article 6 of this Chapter obliges the countries to provide all the foreign residents with the right to vote and to be elected in local authority elections on conditions that they meet the same legal requirements as the local citizens and beside it, permanently and legally live in the host country during the five-year period preceding the elections [15]. However, the same article allows the member states which have accepted the obligations under Convention, to grant "only the right to vote" to foreign residents. It is obvious that restriction on passive voting rights is mentioned here.
Integrative tendencies in the post-Soviet context rise the problem of participation of foreigners in political life of CIS countries. Recommendation of Parliamentary Assembly of CIS Countries on elections monitoring of 2002, Paragraph 1.1 proves this fact when stipulates that "the state may seek to grant the right to vote and to be elected in local authority elections (local government authorities) to foreign citizens and stateless persons who permanently and legally live in its territory, providing that these persons meet the same requirements as the state citizens" [16].
As we can see, there is international legal ground for granting electoral rights to foreign residents in their host countries. Though, as it often happens, norms of international nature are extremely abstract, they do not provide for fully-fledged models of implementing the relevant right, but leave it to the discretion of national legislators. Whereas, as the conducted research showed, the national legislator tends not to fully implement the above mentioned international norms in its national election law system. Existing diversity in the approaches (models) to granting electoral rights to foreign citizens in their host countries is described not only by difficulty of complying with international regulations, but also by the whole complex of conceptual and practical problems. 
In our opinion, the main conceptual difficulties of this issue are the matters of national security and independence of political life from the one side, and the matter of national identity and value of citizenship as a special legal connection between an individual and its country, from the other side.
The matter of national security and independence of political life rises the question about the level of  protection of a society as a whole from the treat of gradual invasion, decrease of its independence level with regard to sovereignty of other countries. For instance, one of the aspects of legal sovereignty of a country is legally-based imbalance in rights in favor of the individuals who have the country's citizenship. This imbalance appears overwhelmingly in the sphere of political rights, and it is expressed by the certain legal preferences given to the nationals of a definite country. Under the conditions of foreigners' involving into political life these preferences come to nothing and as a result, we can find weakening of national security and independence.
If we analyze the situation over the long term, we can conclude that under conditions of full foreigners' involvement into political life of their host country, sooner or later such country would become unable to encourage its citizens by legal, social, informational or other means, that would lead to elimination of the need for the national state apparatus. In some way it is international law which leads to such development, as it declares impossibility of any discrimination, including the sphere of foreigners' political rights. It is likely that over the long term the civilized world will be ready for full absence of national jurisdictions and sovereignties. However,  in the foreseeable future such a prospective does not seem to be acceptable.
The problem of national identity and value of citizenship is closely connected with the above mentioned one. Though it is based on inner, individual motivation of a citizen and his/her sense of belonging to the society, understanding that his/her national status is enormously more valuable for a certain society than a status of an external individual (a foreign citizen). From a legal point of view, such national status is expressed through legal interaction of a citizen and society (state) which is controlled citizenship. In most cases the fact of belonging to a certain country is value, a benefit for an individual. In its turn the state as a subject which creates this benefit (citizenship), takes care of its holders (citizens) in all possible ways, identifies them as exceptional legal subjects in the definite social relations. In case of granting political rights to foreigners, this citizen's perception of his/her place in a certain society and his/her identification for the relevant social environment and state are no more special conditions for the person's being, while the society loses feeling of its borders, loses its specific cultural identity.
Apparently, until the advantages of transboundary world order are precisely formulated, conceptual problems of granting electoral rights to foreigners in their host countries will become clear.
However, it is not only conceptual difficulties that impede the transboundariness of electoral rights. There are also practical difficulties in granting electoral rights to foreign citizens. Certainly, practical problems vary depending on the state, but in general they consist of, at first, the difficulty to define the scope of electoral powers for foreign citizens, secondly, the difficulty to set fair requirements for obtaining electoral rights by foreign citizens.
The problem to define the scope of electoral powers for foreign citizens has background of the conceptual difficulties we discussed earlier. While understanding the necessity of non-discrimination against foreigners, still in most cases states are not ready to grant to foreigners the ability to influence the situation at national level [17].
This way, we can define the following approaches to solving the problem to define the scope of electoral powers for foreign citizens.
– Prescribing the kind of elections in which foreigners can participate. In most cases foreigners are given the right to participate in the lower-level elections (local elections). This practice is steady trending and it allows to solve nonpolitical issues connected with the life in a certain region. Besides, it contributes to political integration of an immigrant into the local community. For instance, such approach is used in Ireland, where the citizens of non-members of the European Union have a right to participate in local elections [18]. Also the abilities to exercise electoral rights at local level are provided in China, South Korea, Israel, Argentina, Columbia, the Netherlands, Luxembourg, Belgium [19].
It should be noted that in the USA many states are discussing the necessity to restore the practice of non-citizens' participation in local elections which existed from the last third of the 18th century up to 1920's in the most states. Currently, in a number of municipalities in Maryland permanent foreign citizens have the right to vote in local elections. Similar initiatives were undertaken by some deputies of the legislative assemblies during the 1990-2000's in the states of California, Connecticut, Maine, Massachusetts, Minnesota, New York, Texas and the Federal District of Columbia [20].
We can also find the examples in the world when foreigners have the right to exercise electoral rights not only at local level, but also at a higher level of government. For instance, in Switzerland the questions related to the possibility and the details of foreign citizens' participation in elections are delegated from the national to the regional and local levels. The federal legislation of this country does not allow foreigners to participate in national elections, however, for example, in the cantons of Neuchatel, Jura, Vaud, Fribourg and Geneva permanent foreigners are allowed to participate in regional elections.
– Prescribing a limited set of electoral powers, which foreigners can use during elections for the national authorities of the host country. For instance, in Venezuela, foreigners in the elections of parochial, municipal and state governments are given only the right to vote [21].
The background, which makes worse the problem of providing fair conditions for obtaining electoral rights by foreign citizens, is the absence of any clear international standard in this field, as well as at least minimum of practically tested national experience in determining such conditions.
In this regard, it seems that when determining such conditions, states rely on the idea of identifying the most worthy foreigners who have at least minimal social and legal connection with their host country. In our opinion, here it is fair to get a confirmation that the relevant foreigner would be interested in exercising the electoral right granted to him/her for the purpose intended.
To solve the problem under our consideration, states implement a certain system of qualifications, which often include the following conditions:
 – the residence condition that presupposes the legal residence of a foreigner in the country concerned for a certain uninterrupted period. In Venezuela, in particular, foreigners are eligible to participate in local elections provided that they have resided in the Republic for at least 10 years [22]. In Chile and Uruguay, this period of residence is 5 years. Belgium since 2004, Denmark since 1981, Luxembourg since 2003, the Netherlands since 1983, Sweden since 1975 (and, remarkably, some Swiss cantons, such as Neuchatel, Vaud, Fribourg, Geneva) give the right to vote to all persons who live in their territory for a certain time: usually several years. The minimum residence requirement in these countries ranges from 3 to 5 years [23];
– the condition of law-abiding, presupposing a foreigner's conflict-free living in the territory of a certain country. For example, in Chile foreigners aged 18, obtain certain electoral powers only if they do not serve a prison sentence according to a court verdict [24]. In Uruguay, well-behaved foreigners can become possible voters, and they obtain the right to vote with no prior naturalization required [25]. In Venezuela, foreigners are eligible to participate in elections only if they are not deprived of civil rights and not subjected to political disqualification [26];
– the condition that a foreigner belongs to a certain state, that is, in some cases having citizenship of  a certain country is sufficient for granting the right to vote to the foreigner in the host country. This qualification is used, for example, in Spain, where the citizens of the Netherlands, Denmark, Norway and Sweden are allowed to vote. Since 1988 in Spain the citizens of Argentina, since 1990 – the citizens of Chile, since 1992 – the citizens of Uruguay have such rights. In Ireland, citizens of the United Kingdom can also take part in elections even at the national level (except for presidential ones). In the United Kingdom, Irish citizens have the same electoral rights as the citizens of the United Kingdom at all levels: national, regional and local ones [27].
It should also be noted that the constitutions of Spain and Portugal stipulate that the right to vote may be granted to foreign nationals on the basis of reciprocity [28];
– the condition of the foreigner's host country being a member of a certain international intergovernmental association, one of which functions is to equalize the rights and duties of persons who migrate within this international association. The European Union is the most famous and excellent example for this case. Thus, in 1995 Denmark adopted the Law on Local Elections, which equalized the citizens of the European Union member states in the local elections [29]. The rights of voters in France are directly enshrined in the Constitution: constitutional law No. 92-554 of June 25, 1992 [30] added a new Chapter 14 "European Communities and the European Union" to the Constitution. The article 88-3 of this Chapter states that the right to vote and the right to be elected in the local elections can only be granted to Union citizens residing in France. Although there are some restrictions that these citizens cannot serve as a mayor, and also participate in the nomination of electors to the senate and the elections of senators. This way, in France the requirement for participation in the local elections is the fact of residence on the territory of France and having the citizenship of the Union. In Germany, the parliaments (landtags) of Hamburg and Schleswig-Holstein had granted such a right to foreigners, but the Federal Constitutional Court in 1990 decided that such a permit was incompatible with the Fundamental Law. It is noteworthy that in 1994 Part 1 of Article 28 of the Fundamental Law was amended in connection with the adoption of Directive 94/80 [31]. The amendments reflected the opportunity to elect and be elected to the representative bodies of the lands, communities and counties for the Union citizens. Citizens of the member states of the European Union have the right to participate in elections in the United Kingdom both at local and regional levels [32].
Membership of a state in an international association as a condition for granting electoral right to a citizen of another member state of this association is also used in other state unions. For example, there is such a practice in member states of the Commonwealth of Nations. Thus, citizens of member states of the Commonwealth of Nations who live for a certain period in the relevant country have the right to participate in the parliamentary elections in Antigua and Barbuda, Barbados, Belize, Dominica, Grenada, Jamaica, Malawi, Mauritius, Namibia, St. Kitts and Nevis, Saint Lucia, Saint Vincent and the Grenadines; in the local elections – in Guyana and New Zealand.
In the Nordic Council, citizens of all member states of the organization (Iceland, Denmark, Finland, Norway, Sweden) residing in any of the union member state, have the right to participate in elections at the local level.
In the United Kingdom, all citizens of member states of Commonwealth of Nations have the same electoral rights as the citizens of the United Kingdom at all levels: national, regional and local ones [33].
Citizens of any of the member states of the  Community of Portuguese Language Countries (CPLP), permanently residing in Cape Verde, have the right to participate in local elections in that state [34];
– the condition of submitting an application for conferring electoral rights on a foreigner who resides in a certain state. This specific condition is found in Brazilian legislation, and it establishes that Portuguese citizens permanently residing in Brazil, have the right to obtain full scope of political rights in this country by submitting a special request to the Ministry of Justice [35];
– other specific conditions for acquisition of electoral rights by a foreigner. We would like to mention as an interesting case the regulation established in Uruguay, which stipulates that foreigners who own any capital or property in the Republic or who are professionally engaged in science, art or production are eligible to be voters.
It should be noted that the above-mentioned groups of conditions for the acquisition of electoral rights by foreign citizens in their host states are almost not used as they are, but are used in various combinations. Moreover, in the vast majority of cases a foreigner can obtain an electoral status only if he meets the fundamental requirements (age, legal capability, place of residence) set for the citizens of the country concerned.
As a conclusion, it is necessary to agree that it is social and political organizations of immigrants that help the authorities of the host country to implement various integration projects successfully: from distributing general information on various aspects of social, cultural and economic life in the host country, organization of assistance in employment and education, to informing foreigners about their rights and duties, and, in particular, promoting electoral and civic engagement among non-citizens and naturalized citizens.
It should be highlighted that not always and not everywhere political rights are a popular instrument of immigrants' integration into the host society. Usually the scope of social and economic rights granted to immigrants along with a permanent residence permit is sufficient for a life worth living [36]. However, it is political rights that are the mechanism used to carry out administrative functions in a society. Consequently, granting political (including electoral) rights to immigrants clearly indicates not only the integration level of immigrants in their host society, but also the readiness of this society to accept them.
Obviously, along with the further intensification of globalization processes, which requires free movement not only for goods, capital and services, but also for people, the problem of liberalization of immigration policy, naturalization and citizenship, assimilation and integration will become even more acute than it is today. It seems that we should agree with the assertion that the civilized countries of the modern world have no choice but to integrate immigrants into national political spheres [37]. Consequently, the only solution in the context of international integration is to work out the most acceptable scheme of electoral powers for foreign citizens. As the study of this problem has shown, still there is no common model used for the electoral rights of foreigners in their host country.

 

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  2. Essays on the history of elections and suffrage /Edited by Y. A. Vedeneeva, N. A. Bogodarova. Kaluga; Moscow city, 1997. P. 117.
  3. Noted above. P. 118.
  4. A. K. Djivelegov. Medieval cities in the Western Europe. St. Petersburg city, 1902. P. 123.
  5. V. V. Maklakov. The Electoral Law of France //Collection of normative legal acts of foreign elections legislation / responsible editor A. A. Veshnyakov. Moscow city, 2004. P. 181.
  6. V. V. Viskulova. On the issue of granting electoral rights to foreign citizens // Constitutional and municipal law, No. 8 (2005). № 8. P. 23.
  7. Recommendation of Parliamentary Assembly of the Council of Europe 1500 (2001) "Participation of immigrants and foreign residents in political life in the Council of Europe member states" [web source]. URL: http://www.coe.int/T/r/Parliamentary_Assembly/%5BRussian_documents%5D/%5B2001%5D/ %5BJan2001%5D/Rek1500.asp
  8. Hayduk R. Non-citizen voting: pipe-dream or possibility? Drum Major Institute for Public Policy. New York, 2002. October 2.
  9. Resolution of Parliamentary Assembly of the Council of Europe 1459 (2005) "Abolition of restrictions on the right to vote". Council of Europe and Russia. No. 1(2005). Pp. 21-22.
  10. A. Z. Stepanyan. Legal regulation of elections within the European Union, thesis, PhD in Law. Moscow city, 2008. P. 50.
  11. A. S. Chesnokov. Participation of non-citizen immigrants in the political processes of their host countries // Social life and power. No. 4 (2009). P. 49.
  12. Universal Declaration of Human Rights, adopted by Resolution 217 A (III) of the UN General Assembly of December 10, 1948 // International Public Law: coll. doc. Moscow city, 1996. Chapter 1. Pp. 460-464.
  13. A. Z. Stepanyan. Noted above. P. 33.
  14. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 1990. // International Electoral Standards: coll. doc. / responsible editor A. A. Veshnyakov; science editor V. I. Lysenko. Moscow city, 2004.
  15. Convention on the Participation of Foreigners in Public Life at Local Level // International Electoral Standards: coll. doc. P. 559.
  16. Recommendations of Parliamentary Assembly of the CIS Member States for International Observers of the Commonwealth of Independent States on Election Monitoring, 2002 // International Electoral Standards: coll. doc. P. 894.
  17. Earnest D. C. Noncitizen Voting Rights: A Survey of an Emerging Democratic Norm. Paper prepared for delivery at the 2003 annual convention of the American Political Science Association, Philadelphia, Pennsylvania, 2003. August 28–31.
  1. A. S. Chesnokov. Noted above. P. 51.
  2. A. S. Chesnokov. Immigrants in political processes in their host countries: the problems of electoral incorporation [Web source] // Electronic archive of the Ural Federal University. URL: www.elar.urfu.ru/ bitstream / 10995 /18409/1/iuro?2011?94?06.pdf.
  3. A. S. Chesnokov. Participation of non-citizen immigrants... P. 51.
  4. Modern electoral systems. Issue No. 4: Australia, Venezuela, Denmark, Serbia / [science editor A. V. Ivanchenko, V. I. Lafitsky]. Moscow city, 2009. P. 160.
  5. Noted above. P. 160.
  6. A. Z. Stepanyan. Noted above. P. 120.
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  8. Modern electoral systems. Issue No. 5: India, Iraq, Uruguay, South Africa / science editor A. V. Ivanchenko, V. I. Lafitsky. Moscow city, 2010. Pp. 351-352.
  9. Modern electoral systems. Issue No. 4. P. 160.
  10. A. S. Chesnokov. Participation of non-citizen immigrants... P. 51.
  11. See: the Constitution of the Kingdom of Spain of December 27, 1978, article 13, paragraph 2 [Web source]. URL: http://www.uznal.org/constitution.php?text=Spain&language=r; the Constitution of the Portuguese Republic of April 2, 1976, Article 15, Paragraph 4 [Web source]. URL: http://www.uznal.org/constitution.php?text=Portugal&language=r.
  12. Modern electoral systems. Issue No. 4. P. 249.
  13. LOI constitutionnelle no 92-554 du 25 juin 1992 ajoutant a la Constitution un titre: «Des Communautes europeennes et de l’Union europeenne», JORF №147 du 26 juin 1992. P. 8406.
  14. Council Directive 94/80/EC of 19 December 1994 laying down detailed arrangements for the exercise of the right to vote and to stand as a candidate in municipal elections by citizens of the Union residing in a Member State of which they are not nationals // OJ L 368 dated 31.12. 1994. P. 38.
  15. Hayduk R., Wucker M. Immigrant Voting Rights Receive More Attention. Migration Information Source. Washington D. C. November, 2004.
  16. A. S. Chesnokov. Participation of non-citizen immigrants... P. 51.
  17. Noted above. P. 52.
  18. Noted above. P. 52.
  19. A. S. Chesnokov. Problems and Possibilities of Representation of the Interests of Immigrants in Host Countries // Political Science and Political Processes in the Russian Federation and New Independent States. Yekaterinburg city, 2005. Pp. 459-465.
  20. A. S. Chesnokov. Participation of non-citizen immigrants... P. 54.
BIBLIOGRAPHY
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