Rights of Non-citizens Residing Legally in the Member States of the CBSS [Council of the Baltic Sea States: Denmark, Estonia, Finland, Norway, Sweden, Germany, Latvia, Lithuania, Poland and Russia]
Survey Part I - February 1996
Voting Rights and the Right to Stand for Public Office
National as well as international law link certain rights and duties to the citizenship of a person; as a result of international case-law these rights and duties have become more clearly defined.
At the same time international law has developed certain minimum-standards for the treatment of non-citizens which now form part of customary international law.
The emergence of close international cooperation in various fora, such as the OSCE, the Council of Europe and the CBSS, calls for a reappraisal of the desirable minimum-standards for the treatment of non-citizens, residing legally in a foreign country for economic or personal reasons or as a consequence of changes of state borders etc.
It is in the interest of both citizens and non-citizens and of the countries concerned, that discriminatory measures towards non-citizens are as few as possible in order to facilitate harmonious coexistence among the residents and peaceful coexistence between neighbouring countries.
Principles of non-discrimination have been laid down in various international conventions as legally binding rules, and important standards have been established, e. g. within the Council of Europe, the OSCE and the European Union.
In order to obtain more information about the implementation of the principle of non-discrimination in the CBSS Member States - and about the situation of non-citizens in general - I forwarded a note and a letter on discrimination between citizens and non-citizens on 6 January 1995 to the states, which were members of the CBSS at that time.
This survey has been made on the basis of the information received with regard to the questions of:
Whether non-citizens, residing legally in a country, are allowed to vote
in national and/or local elections, and whether non-citizens can be elected
for public office.
2. The Regulation of Voting Rights and the Right to Stand for Public Office Under International Law
Traditionally certain political rights have been reserved for citizens. This is generally the case as regards voting rights and the right to stand for public office.
According to the Universal Declaration on Human Rights (1948), article 21, "everyone has the right to take part in the government of his country, directly or through freely chosen representatives."
It is further stated that "the will of the people shall be the basis of the authority of government; 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."
The International Covenant on Civil and Political rights (1966), article 25 states, that every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 (distinctions of any kind, such as race, national or social origin etc.) and without unreasonable restrictions 1) to take part in the conduct of public affairs, directly or through freely chosen representatives and 2) 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.
According to these rules and according to other international conventions, non-citizens have no voting rights, but as early as in 1973, the Parliamentary Assembly of the Council of Europe recommended "granting to migrant workers after five years the right to vote and to stand for election in municipal affairs, provided they had lived in the municipality concerned for the previous three years" (Recommendation 712 (1973) on the integration of migrant workers with the society of their host countries). The same year the Nordic Council recommended that the Nordic Council of Ministers should consider granting Nordic citizens residing in other Nordic countries voting rights and eligibility in local elections in the country of residence, mainly on the basis of reciprocity (Recommendation No. 30/1973).
In recommendation No. R (81) 18 from the Committee of Ministers of the Council of Europe concerning Participation at Municipal Level, governments are recommended to adopt a policy for promoting participation in public local life in general. To encourage participation in local life by foreign residents "as regards those Member States which already provide for the participation by some foreign residents in local elections, by considering the extension, if necessary on a reciprocal basis, of such right to vote to all foreign residents who are nationals of Member States."
Since then, many states have granted non-citizens voting rights and eligibility at local elections and the question of granting such rights to non-citizens has continuously been debated within the Council of Europe.
In 1992 the Council of Europe agreed on a Convention on the Participation of Foreigners in Public Life at Local Level (Convention nr 144).
According to the Convention's article 6, paragraph 1, each state party undertakes, as a rule, to grant every foreign resident (non-citizens lawfully residing on the states' territory) the right to vote and to stand for election in local authority elections, provided that the non-citizen fulfils the same legal requirements as apply to citizens, and furthermore has been a lawful and habitual resident in the state concerned for five years preceding the elections.
However, according to article 6, paragraph 2, a contracting state may declare, when depositing its instrument of ratification, acceptance, approval or accession, that it intends to confine the application of paragraph 1 to the right to vote only.
The Convention's article 7 provides for each state party to stipulate, either unilaterally or by bilateral or multilateral agreement, that the residence requirements laid down in article 6 are satisfied by a shorter period of residence.
Article 9 states, that in time of war or other public emergency threatening the life of the nation, the mentioned rights accorded to foreign residents may be subjected to further restrictions to the extent strictly required by the exigencies of the situation, provided that such restrictions are not inconsistent with a state party's other obligations under international law.
The Convention comes into force after the ratification by four Member States of the Council of Europe. Until now it has been signed by six states, inter alia three members of the CBSS (Denmark, Norway and Sweden). But only three states (among them Norway and Sweden) have until now ratified the Convention, and it has not yet entered into force.
The Maastricht Treaty (the Treaty establishing the European Union) of 7 February 1992 provides for the right to vote and to stand as a candidate in municipal elections for citizens of the European Union residing in an EU Member State of which they are not citizens. Article 8 b in the Treaty states, that every citizen of the Union, residing in a Member State of which he is not a citizen, shall have the right to vote and to stand as a candidate at municipal elections in the Member State in which he resides, under the same conditions as citizens of that state. This right shall be exercised subject to detailed arrangements, adopted by the Council, which provide for restrictions where warranted by problems specific to a Member State.
Such detailed arrangements are laid down in Council Directive 94/80/EC of 19 December 1994. As examples of situations where the Directive provides for restrictions, the following could be mentioned:
- A Member State may provide "that only its own citizens may hold the office
of elected head,
- Where, in a given Member State, "the proportion of citizens of the Union
of voting age who
1. restrict the right to vote to voters who have resided there for a minimum period, which may not be longer than the term for which the representative council of the municipality is elected.
2. restrict the right to stand as a candidate to persons who have resided in the state concerned for a minimum period, which may not be longer than twice the term for which the representative council of the municipality is elected.
3. take appropriate measures with regard to the composition of lists of
candidates to encourage in particular the integration of citizens from other
EU Member States.
3. The Legal Situation in the CBSS Member States
A. The right to vote in national elections and to be elected as Member of
B. The right to vote in local elections.
The Nordic countries (Denmark, Finland, Norway and Sweden) and Estonia have granted voting rights to all non-citizens, irrespective of the country of which they are citizens.
Apart from non-citizens, who are covered by the EU-obligations, the right to vote in Denmark, Norway and Sweden is granted to non-citizens who have resided in the said country for the last 3 years before the poll; in Finland the required period of residence is stipulated to 4 years. In Estonia a non-citizen voter must have been a permanent resident of the administrative territory of the respective local government for no less than 5 years. (According to my information a bill on the election of local government councils which may change this is currently being debated in the Estonian Parliament.)
Citizens from the Nordic countries are treated more favourably than citizens from other third countries in Denmark and Finland. In Denmark the requirements are the same as apply to EU citizens (no specific residence requirements) and in Finland the residence requirements are satisfied by 2 years residence.
In the other CBSS Member States (Germany, Latvia, Lithuania, Poland and Russia) non-citizens as such are not allowed to vote in local elections. (In Germany citizens from the EU Member States do, however, as mentioned, have voting rights).
To sum up: Non-citizens - irrespective of their country of origin - have voting rights in 5 CBSS Member States (Denmark, Estonia, Finland, Norway and Sweden), but not in the other 5 CBSS Member States (Germany, Latvia, Lithuania, Poland and Russia).
EU-citizens, however, have voting rights in 6 CBSS Member States, since they are also granted voting rights in Germany according to the Maastricht Treaty and with the implementation of Council Directive (94/80/EC).
C. The right to be elected for public office.
The Maastricht Treaty likewise links the two rights together. Consequently EU citizens in Germany have the right to be elected at local elections to public office, whereas other non-citizens are not eligible for public office in Germany.
Estonia has, as mentioned above, granted non-citizens voting rights at local elections, but only citizens are eligible for public office.
In Latvia, Lithuania, Poland and Russia only citizens have the right to be elected for public office.
This means that non-citizens - irrespective of their country of origin - are eligible for posts in municipal and county councils in 4 CBSS Member States (Denmark, Finland, Norway and Sweden) but not in the other 6 CBSS Member States (Estonia, Germany, Latvia, Lithuania, Poland and Russia).
EU-citizens are, however, due to Germany's EU membership, eligible in 5 CBSS
Member States, cf. Council Directive (94/80/EC).
4. Conclusions and Recommendations
Most fundamental rights of the individual are provided for in the constitutions of the CBSS Member States. These rights are often guaranteed for citizens only. This might to some extent be seen in light of "the legislative history" of the constitutions.
As an example, I could mention that Finland, in its answer to my questions, has given the following explanation:
"The Constitution Act was adopted in a political turbulent atmosphere, shortly after Finland gained its independence in December 1917. The provisions of the Act reflect the conception of a democratic state in the beginning of the century. At that time the inclusion in the Constitution of the basic rights for all citizens was considered to be the best guarantee for the existence of the rule of law in a state. Accordingly .... (a number of basic rights) are constitutionally guaranteed exclusively for Finnish citizens. Ordinary legislation and international human rights conventions have, however, extended the application of most human rights to non-citizens as well. ..."
Finland concludes that notwithstanding its legislative history, the Constitution Act has proved to be flexible.
A development from linking certain rights and duties to the citizenship of a person towards granting citizens and non-citizens equality of treatment has taken place in many countries. The European Convention on Human Rights stipulates that the rights and freedoms in the Convention are secured to everyone; if restrictions are intended to apply to aliens, it is explicitly provided for in the provisions of the Convention. The differentiation by a state between its citizens and non-citizens must remain an exception. The Convention has provided for an exception as regards restrictions on certain political activities of aliens.
The development towards creating equality of treatment must be seen in connection with the fact, that residence of non-citizens on national territory is now a permanent feature of European societies (cf. the preamble of the Convention on the Participation of Foreigners in Public Life). Large communities of migrants live in most European states, with second and third generations emerging - often without acquiring the citizenship of the host country.
It is often argued that there ought to be a relation between the contribution of non-citizens to a country's prosperity on the one hand and the possibilities of non-citizens to influence the political decisions in the country concerned on the other hand. In a democracy all groups of the population ought to have equal opportunities.
It is also generally accepted that migrants should be integrated in the society, where they live, and that lack of integration can be a source of social tension and conflict.
In countries which have granted non-citizens voting rights at local elections, experience shows that this has increased the interest on the part of citizens in the situation of non-citizens. This heightened interest and awareness has facilitated the integration of the non-citizens in society (cf. inter alia "R"strtt och Medborgerskap", SOU 1984:11, a Swedish Report from a Parliamentary Voting Rights Committee on the possibility of extending voting rights for non-citizens also to parliamentary elections).
In Sweden non-citizens have also been elected to posts in municipal councils and local government boards, which has given them increased possibilities for exercising influence and contributing to the integration of their fellow non-citizens.
In the light of these experiences the majority of the members of the above mentioned Swedish Voting Rights Committee considered, that the place of residence - and not the citizenship - should be the criterion for determining who should have voting rights in parliamentary elections in Sweden. Such an amendment to the Swedish legislation has, however, not yet been agreed on.
I find it of decisive importance that non-citizens residing legally in a country are integrated in the society in as many ways as possible, i.a. by having the opportunity to participate in political life.
It has been argued that the most appropriate means of achieving this aim would be to reduce the period of residence requirements for citizenship. In my opinion this is, however, not a very practicable solution. Some people may have legitimate reasons for wishing to keep their original citizenship for a longer period, yet still wish to be integrated; to this should be added the difficulties which some states are presently facing with regard to processing large numbers of applications for citizenship.
In order to achieve the aim of integration, non-citizens should in my opinion as a rule (possibly after a certain residence period) be granted the same rights and have the same duties as citizens. Considering the different situations of the CBSS Member States I recognize, however, that there may be reasons for exercising caution and for implementing reforms in various stages.
I doubt whether any CBSS Member State is currently ready for a reform which grants non-citizens voting rights in parliamentary elections.
More weighty grounds prevail, when it comes to the question of granting voting rights at local elections. Non-citizens have the same duties at local level as citizens, and they often face specific problems, e. g. because of unfamiliarity with the culture of the host country. The policies aiming at solving these problems (job training, promoting job creation, education policies, pre-school child care, housing etc.) are mostly decided on at local level. Granting non-citizens voting rights at local elections may stimulate the interest to solve these problems. At the same time it may stimulate the non-citizens' interest in learning more about local public matters and contribute to increasing the solidarity of non-citizens with the society. Thus, it may prevent or diminish social tension and conflicts.
I therefore recommend that all members of the CBSS undertake to grant non-citizens the right to vote and to stand for public office in local authority elections, provided that the non-citizens fulfil the same legal requirements as apply to citizens and furthermore have been lawful and habitual residents in the state concerned for a period not exceeding 2-3 years prior to the elections.
At the same time it should be considered whether there is at least a basis for an agreement between the members of the CBSS on equal treatment of CBSS-citizens. It may seem difficult to understand, why for instance a Dane may vote in Sweden but not in Poland, and why a Norwegian can not vote in Germany, while a Finn has this right.
In case some states might want to uphold the principle that only citizens should be eligible to be elected for posts in municipal and county councils, I recommend that non-citizens as a minimum are granted voting rights at local elections. I must emphasize, however, that in my opinion it is very important that the two rights are granted simultaneously, since both rights must be considered as significant means to overcome the obstacles relating to the integration of non-citizens.
Even though it must be recognized, that some Member States are facing very specific problems in the sense that non-citizens be possible to find solutions to these problems. Certain restrictions to the general form a very high percentage of the total electorate, it should in my opinion rules may be considered in such cases, based on e.g. the criterion of the residence period or by laying down specific provisions concerning the composition of the lists of candidates. This might be done on a temporary basis.
Having taken this into consideration, I further recommend that the
European Convention on the Participation of Foreigners in Public Life at
Local Level is ratified by all CBSS Member States, which have not yet done