Inclusive Democracy: Franchise Limitations on Non-Resident Citizens as an Unjust Restriction of Rights under the European Convention on Human Rights

AuthorJulie Fraser
PositionPhD Candidate, Netherlands Institute of Human Rights, Utrecht University, NL; Senior Counsel, Public International Law and Policy Group (headquartered in US)
Pages23-43
Julie Fraser, ‘Inclusive Democracy: Franchise Limitations on Non-Resident
Citizens as an Unjust Restriction of Rights under the European Convention
on Human Rights’ (2017) 33(84) Utrecht Journal of International and
European Law 16, DOI: https://doi.org/10.5334/ujiel.367
UTRECHT JOURNAL OF
INTERN
ATIONAL AND EUROPEAN LA
W
RESEARCH ARTICLE
Inclusive Democracy: Franchise Limitations on
Non-Resident Citizens as an Unjust Restriction of
Julie Fraser*
The Public International Law and Policy Group (PILPG) advises parties in peace negotiations, on
drafting post-conict constitutions, and assists in prosecuting war criminals. As part of this work,
PILPG assists States in establishing and implementing electoral systems that meet international
standards for democratic elections, and undertakes election monitoring. Free and fair elections
are crucial for the legitimacy of democratic States and are protected by human rights law. The
present article focuses on the issue of the franchise and on the restrictions permitted under
the European Convention on Human Rights (ECHR). Specically, this article addresses franchise
restrictions on non-resident citizens across ECHR member States. Setting out the protections for
the franchise in Article 3 of Protocol No. 1 ECHR, this article analyses the permissible limitations
on those rights according to the jurisprudence of the European Court of Human Rights (ECtHR).
The article presents a comparative analysis of other voting rights cases, such as the limitations
on prisoners’ franchise. After considering whether residency-based limitations pursue legitimate
and proportionate aims, it questions whether blanket restrictions disenfranchising non-resident
citizens should be permissible today. The article concludes by advocating the imp ortance of
an inclusive franchise for the legitimacy of democratic systems as well as the protection of
i ndividual rights, and inviting the ECtHR to revisit its jurisprudence on this topic.
Keywords: Voting rights; Expatriate voting; Disenfranchisement; Prisoner’s voting; Article 3 of
Protocol No 1 ECHR; European Court of Human Rights
I. Introduction
Free and fair elections are crucial for the legitimacy of democratic States and are protected as a human right.
Jurisprudence and scholarship often emphasise the connection between democracy and human rights. For
example, the European Convention on Human Rights (ECHR or the Convention) was designed to ‘maintain
and promote the ideals and values of a democratic society’.1 According to the European Court of Human
Rights (ECtHR or the Court) democracy is the only political model contemplated by the Convention and
the only one compatible with it.2 While neither the Court nor other sources have been able to conclusively
define democracy,3 the political rights of freedom of expression, association, and assembly as well as par-
ticipation in free and fair elections are well-established elements. These rights have often been reiterated in
ECtHR case law as interrelated and imperative to democracy, and are widely protected under international
* PhD Candidate, Netherlands Institute of Human Rights, Utrecht University, NL; Senior Counsel, Public International Law and Policy
Group (headquartered in US).
1 See Kjeldsen, Busk Madsen and Pedersen v Denmark (1976) 1 EHRR 737, para 53; Soering v the United Kingdom (1989) 11 EHRR 439,
para 87.
2 United Communist Party of Turkey and Others v Turkey (1998) 26 EHRR 121, para 45.
3 International law has made slow progress with the specification of core democratic principles, beyond the ideas first set out in the
Universal Declaration of Human Rights, see eg Kevin Boyle, ‘Human Rights, Religion and Democracy: The Refah Party Case’ (2004)
1 Essex Human Rights Review 1, 8. Golubok suggests that defining democracy may even be unnecessary, see Sergey Golubok, ‘Right
to Free Elections: Emerging Guarantees or Two Lawyers of Protection?’ (2009) 27 Netherlands Quarterly of Human Rights 361, 361.
Inclusive Democracy24
and regional human rights law.4 While freedom of association, expression, and assembly are guaranteed
rights for all people within a State’s jurisdiction, the right to participate in free and fair elections is generally
restricted to citizens.5 Rubio-Marin notes that electoral rights are citizen rights, and not just human rights.6
Citizenship in this way constructs ‘the polity that defines the nation’, codifying and institutionalising iden-
tity in law.7
In addition to restrictions based on citizenship, other limitations on a citizen’s right to participate in free
and fair elections are permissible under human rights law. Despite the fundamental importance of democ-
racy and human rights, these political rights are not absolute and States around the world have imposed
restrictions, including restrictions on the franchise. This includes limits on the age of those eligible to vote,
limitations on persons convicted of certain crimes, and also limits on the rights of non-resident citizens.8
While limitations are permissible under both regional and international human rights instruments like the
ECHR and ICCPR, restrictions on the franchise must not be unreasonable or discriminatory.9 While limita-
tions on the voting rights of convicted criminals has been highly contentious in the European Convention
system and received much attention, the restrictions imposed on the voting rights of non-resident citizens
has received less attention. As such, this article focuses on the limitations on the franchise of non-resident
citizens.
The notion of citizenship embraced by the traditional conception of the nation-state is ‘fundamentally
a territorial one’.10 Traditionally, political communities possessed inter-relationships and obligations as a
result of sharing the same physical space.11 The relationship between territory and citizenship has been
identified as the key dynamic in arguments for or against emigrant citizen franchise.12 A citizen’s relation-
ship with their State necessarily changes when they leave the territory, altering their interactions both with
the State and its institutions.13 Historically, residency was a standard requirement of election laws and citi-
zens were sometimes even deprived of their nationality upon emigration —dying a ‘social death’.14 This has
changed over time, due in part to developments in transport, communication, technology, society, and the
4 See eg Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR) art 21; International Cov-
enant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) arts 19,
20 March 1952, entered into force 18 May 1954) ETS 9, arts 3, 10, and 11; American Convention on Human Rights (adopted 22
November 1969, entered into force 18 July 1978) 1144 UNTS 123, art 23; African Charter on Human and Peoples’ Rights (adopted
27 June 1981, entered into force 21 October 1986) 21 ILM 58, art 13(1).
5 Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3
September 1953, as amended) 213 UNTS 222 (ECHR) arts 10 and 11 provide that ‘ever yone’ possess the rights of freedom of expres-
sion, assembly and association, which must be applied without discrimination under Article 14. Equally, Articles 19 and 22 ICCPR
provide that ‘everyone’ has the right to freedom of expression and association, which must be applied without distinction under
Article 2. ICCPR, art 25 provides however that ‘every citizen’ shall have the right and the opportunity, without any of the distinc-
tions mentioned in Article 2, to vote and be elected in genuine periodic elections.
6 Ruth Rubio-Marin, ‘Transnational Politics and the Democratic Nation-State: Normative Challenges of Expatriate Voting and Nation-
ality Retention of Emigrants’ (2006) 81 NYU Law Review 117, 119 and n 4. Beckman notes that ‘[p]olitical rights are consequently
conditioned by membership status rather than by residence in the territory of the state’, see Ludvig Beckman, ‘The Subjects of
Collectively Binding Decisions: Democratic Inclusion and Extraterritorial Law’ (2014) 27 Ratio Juris 252, 253.
7 Kim Barry, ‘Home and Away: The Construction of Citizenship in an Emigration Context’ (2006) 81 NYU Law Review 23, citing Ger-
trude Himmelfarb, ‘The Illusions of Cosmopolitanism’ in M. Nussbaum and J. Cohen (eds), For Love of Country: Debating the Limits
of Patriotism (Beacon Press 1996) 74.
8 ‘Non-resident citizens’ is a broad term chosen to represent a variety of emigrant citizens. It includes those who never resided in
their State of citizenship; those who left temporarily or permanently; and those with dual citizenship, either in their State of resi-
dence or another third country. Emigrant attitudes toward their States of citizenship vary, as do their reasons for leaving, and their
skills, ambitions and statuses in the immigration State. Some emigrants participate regularly with their State of citizenship, some
leave and disengage, while most fall somewhere in between. See Barry (n 7) 32.
9 See ICCPR, arts 2, 25; ECHR, art 14; ECHR, Protocol No 1, art 3.
10 Rubio-Marin (n 6) 118. There are also other connections than territory, most notably based on blood or ethnicity, and the concepts
of jus soli and jus sanguinis. Citizenship is a complex topic —for example with the emergence of ‘EU citizenship’— with much
scholarship dedicated to it that cannot be covered here. For a definition of citizenship, see also the Nottebohm Case (Liechtenstein
v Guatemala) (Judgment) [1955] ICJ Rep 4.
11 Bryan Mercurio and George Williams, ‘The Australian Diaspora and the Right to Vote’ (2004–2005) 32 UW Australian Law Review
1, 2, 20.
12 Michael Collyer and Zana Vathi, ‘Patterns of Extraterritorial Voting’ (2007) Development Research Centre on Migration, Globalisa-
tion and Poverty Working Paper T22, 9 www.migrationdrc.org/publications/working_papers/WP-T22.pdf> accessed 27 February
2017.
13 ibid 4.
14 David Fitzgerald, ‘Rethinking Emigrant Citizenship’ (2006) 81 NYU Law Review 90, 92.

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