A Introduction
The starting point of the analysis of this chapter is the characterisation of the modern state as ‘an answer to the question of who is responsible to whom in the modern world: states are responsible to their own citizens’.Footnote 1 This conceptualisation empowers citizens and enhances the importance of citizenship. While the Universal Declaration of Human Rights ceremoniously proclaims that ‘everyone’ has a ‘right to a nationality’,Footnote 2 the right to nationality remains inchoate.Footnote 3 Hence, reliance on a state to act as the principal guarantor of human rights may expose a weakness of the international system of rights protection,Footnote 4 notwithstanding states’ treaty obligations.Footnote 5
It was noted in the book's introduction that recognised CSR1951 refugees may be either citizens of their states of origin or stateless persons. In their state of asylum, following recognition of refugee status, they are non-citizen residents. This chapter considers the entitlements of CSR1951 refugees in their states of asylum and the ubiquitous exclusion of non-citizen residents, including CSR1951 refugees, from elections of their states of residence.
Section B examines the interrelations between CSR1951 and other leading international human rights instruments, most pertinently the ICCPR,Footnote 6 concluding that they are complementary and mutually reinforcing.
In turn, Section C considers provisions of CSR1951 that engage political activities of CSR1951 refugees in states of asylum; it is contended that CSR1951 neither prescribes nor proscribes such activities.
Section D explores rights that CSR1951 refugees enjoy under the ICCPR qua non-citizens. It is submitted that, while the ICCPR entitles CSR1951 refugees to (some) political rights in their states of asylum, Contracting States undertake a commitment to secure voting rights in their elections (only) for their citizens.
It is contended that, currently, international human rights treaties do not require states of asylum to enfranchise recognised CSR1951 refugees qua non-citizen residents.Footnote 7 While enfranchisement of (some) non-citizens in local and regional (national) elections is increasingly practised, the territorial state continues to define the limits of the democratic community, most evidently in national elections.
Section E demonstrates that the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (Migrant Workers Convention) has recently affirmed the resilience of an accepted link between voting and citizenship in international human rights treaties.Footnote 8
Section F explores the unsuccessful attempt by the ILC to establish a ‘protected person’ status in international law. It was intended that the ‘protected person’ status be awarded to stateless persons, entitling them to all rights ‘except political rights’. The emphasis that was placed during the drafting process on voting as a distinguishing factor between nationals and non-nationals is noteworthy.
B Interrelations between CSR1951 and the ICCPR
CSR1951 entitles recognised refugees to (qualified) protection by their states of asylum.Footnote 9 It is not concerned with the obligations of states of origin towards refugees that have left them.Footnote 10 The primary purpose of CSR1951 is to ensure that refugees can exercise their fundamental rights and freedoms in the state of asylum.Footnote 11
It was noted in Chapter 1 that recognition as a CSR1951 refugee is declaratory of status; nevertheless, it is also constitutive of rights: a recognised CSR1951 refugee can claim treatment in accordance with the CSR1951. Articles 3–34 of CSR1951 enunciate substantive rights to which refugees are entitled in their states of asylum. The accruing of rights is incremental, based on the refugee's level of attachment to the state of asylum; the longer the refugee remains in the territory of the state party, the broader the range of her entitlements.Footnote 12 A basic set of rights inheres as soon as a CSR1951 refugee comes under the state's jurisdiction; a second set of rights applies upon entering the state's territory; additional rights follow lawful presence in the territory, lawful stay therein, and durable residence, respectively.Footnote 13
CSR1951 was adopted shortly after the adoption of the UDHR; its preamble explicitly proclaims a commitment to human rights, and it was arguably intended to contribute to the achievement of the purposes and principles of the UN, which include the advancement of human rights.Footnote 14 It was the first comprehensive human rights instrument to apply to a special category of persons.Footnote 15 Subsequently, binding human rights instruments were adopted to extend state obligations towards both citizens and non-citizens,Footnote 16 including CSR951 refugees.Footnote 17 It may be argued that such treaties are expressions in positive international law of a moral idea that there are inviolable rights inherent in each human being and that sovereign states have an obligation to respect, protect, and fulfil these rights. Indeed, it may be argued that obligations assumed by states towards all those on their territory or subject to their jurisdiction are a corollary of their sovereignty.Footnote 18
The (global) human rights project, far from being a project that is essentially antithetical to the inter-state order, primarily requires states to assume obligations.Footnote 19 The fact that states accede freely to human rights treaties should be seen as an affirmation of their international legal sovereignty rather than as a challenge thereto.Footnote 20
Yaesmin Soysal, advocating universal personhood as a basis of political membership, notes that the power of personhood ‘comes across most clearly in the case of political refugees whose status in the host polities exclusively rests on an appeal to human rights’.Footnote 21 Nonetheless, their appeal to protection has to be heeded by a territorial state, which remains the main venue for decision making and rights protection;Footnote 22 in terms of effective protection, physical presence in a state matters.Footnote 23
To date, no international treaty enunciates the rights of non-citizens qua non-citizensFootnote 24 (note the non-binding Declaration on the Rights of Individuals Who Are Not Nationals of the Country in Which They LiveFootnote 25). In contradistinction, CSR1951 addresses, inter alia, concerns specific to CSR1951 refugees which are not dealt with under general human rights treaties, such as their need for travel and other identity documents.Footnote 26 CSR1951 aims to ‘assure refugees the widest possible exercise of [their] fundamental rights and freedoms’.Footnote 27
UNHCR posits that the human rights base of CSR1951 roots it quite directly in the broader framework of human rights instruments of which it is an integral part, albeit with a very particular focus: CSR1951 and the 1967 New York Protocol ‘were carefully framed to define minimum standards without imposing obligations going beyond those that States can reasonably be expected to assume’.Footnote 28 As refugees benefit from protection both under CSR1951 and under general human rights protections, Section D demonstrates that resort to the ICCPR is pertinent in areas that are not covered by CSR1951.Footnote 29
The ICJ has held that ‘an international instrument has to be interpreted and applied within the framework of the entire legal system prevailing at the time of the interpretation’.Footnote 30 In turn, the Vienna Convention on the Law of Treaties (VCLT) stipulates that a treaty ‘shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’.Footnote 31 If one of the (primary) objects and purposes of CSR1951 is protection of refugee rights (notwithstanding the inter-state framing of obligations thereinFootnote 32), then the interrelations between CSR1951 and other rights instruments such as the ICCPR ought to be considered as complementary and mutually reinforcing,Footnote 33 and their respective interpretations should be accordingly engaged.Footnote 34 Thus, it is submitted that the scope of protection in CSR1951 should be considered and interpreted in light of international human rights instruments.
C Political Activities of Refugees under the CSR1951
1 Introduction
CSR1951 does not explicitly address political activities of refugees in their states of asylum, in contradistinction to (some of) their social and economic rights, civil status, and identity.Footnote 35 Hence, CSR1951 neither prescribes nor proscribes states entitling refugees to vote in their states of asylum. Nonetheless, several CSR1951 provisions implicitly address the scope of political activities of refugees: Article 1E, regarding exclusion from refugee status; Article 2, regarding the obligations of refugees towards their states of asylum; Article 15, regarding non-political associations; and Article 34, regarding assimilation and naturalisation.
2 Article 1E
Article 1E excludes from CSR1951 status ‘a person who is recognised by the competent authorities of the country in which he has taken residence [not the state of asylum] as having the rights and obligations which are attached to the possession of the nationality of that country’. The interpretation of this provision may be helpful in contextualising the political status of refugees vis-à-vis citizens.
The provision was included to prevent post–Second World War displaced Germans residing in neighbouring states from claiming refugee status.Footnote 36 Guy Goodwin-Gill and Jane McAdam argue that, while Article 1E was not intended to require that, to be excluded, the individual in question must enjoy the full range of rights incidental to citizenship,Footnote 37 the rights to enter the state and remain therein were considered to be essential, given the fundamental objective of CSR1951, namely protection.Footnote 38 Arguably, an entitlement to a ‘political rights’ threshold would have been tantamount to the provision applying only to persons who have the nationality of their states of residence ‘whereas such persons were already excluded from the refugee definition by Article 1A(2)’.Footnote 39
3 Article 2
Article 2 stipulates that ‘[e]very refugee has duties to the country in which he finds himself, which require in particular that he conform to its laws and regulations as well as to measures taken for the maintenance of public order’. Article 2 is ‘an imperfect obligation’, much like Article 29 of the UDHR (stipulating that ‘[e]veryone has duties to the community in which alone the free and full development of his personality is possible’): non-observance of a duty covered by Article 2 does not entail loss of any particular right guaranteed under CSR1951 nor cessation of refugee status. As noted in Chapter 1, CSR1951 refugees are protected from expulsion unless their behaviour is deemed serious enough to qualify under Article 32 or 33(2).Footnote 40
Pertinently for this chapter's analysis, the Travaux indicate that the Ad Hoc Committee rejected a French proposal to include a provision entailing that ‘[t]he High Contracting Parties reserve the right to restrict the political activity of refugees’.Footnote 41 It was feared that such a provision could be misunderstood as approving limitations on areas of activity of refugees which are unobjectionable. States were reassured that ‘in the absence of a provision to the contrary any sovereign government retained the right it has to regulate any activities on the part of an alien which it considers objectionable’.Footnote 42
4 Article 15
Article 15 requires states to accord to ‘refugees lawfully staying in their territory the most favourable treatment accorded to nationals of a foreign country, in the same circumstances’ regarding ‘non-political and non-profit-making associations and trade unions’ (emphasis added).
The drafters debated the extent to which refugees should be permitted to engage in political activities, namely whether the article should be modified to authorise states of asylum to restrict political activities of refugees. The French representative, echoed by the Swiss representatives, argued that refugees like other non-citizens were under an obligation to refrain from taking part in internal politics until they had become naturalised citizens.Footnote 43
In contrast, the American representative, seconded by the Canadian representative, questioned whether, in light of their predicament, refugees should not be granted better treatment than aliens generally. He expressed concern that the French proposal can be interpreted as prohibiting expression of political opinion, an area of human activity in which refugees should have ‘at least as much right to engage as other aliens’.Footnote 44 Ultimately, the French or Swiss view did not prevail (nor did the American or Canadian), and the provision as well as CSR1951 as a whole remained silent regarding political activities of refugees.
5 Article 34
Article 34 stipulates that ‘the Contracting States shall as far as possible facilitate the assimilation and naturalisation of refugees’. The provision, which may trigger one of the six bases for cessation of status under CSR1951 (acquisition of a new nationalityFootnote 45), is further discussed in Chapter 8. For this chapter's purposes, the potential significance of ‘assimilation’ of refugees into their host communities should be considered. The Israeli representative was concerned about the sociological connotation of the term assimilation, noting that it may be regarded as ‘form[ing] an attack on the spiritual independence of the refugees’ and offering in its stead the term integration.Footnote 46 However, his concerns were not shared by other representatives, who contended that assimilation inferred integration.Footnote 47 Notably, there was no discussion of how electoral inclusion of CSR1951 refugees or other political engagement in the state of asylum may affect assimilation (or integration) and, ultimately, facilitate naturalisation.
D Refugee Rights under CSR1951 and the ICCPR
1 The General Principle
It was suggested in Section C that no CSR1951 provision regulates the extent to which refugees ought to enjoy political rights in their states of asylum. Article 7(1) promulgates that ‘except where this Convention contains more favourable provisions, a Contracting State shall afford to refugees the same treatment as is accorded to aliens generally’.Footnote 48
The Austrian representative to the Conference of Plenipotentiaries noted that ‘[i]f it were to be posited that refugees should not have rights greater than those enjoyed by other aliens, the Convention seemed pointless, since its object was precisely to provide for specially favourable treatment to be accorded to refugees’.Footnote 49 Hence, absent CSR1951 provisions concerning political rights, refugees are to be afforded the same political rights as other aliens in the state of asylum.Footnote 50
According to Article 7(2), refugees may enjoy rights even when such rights are ordinarily accorded to an ‘alien’ on the basis of reciprocity. Absent generally applicable human rights standards at the time of drafting (see Section B), states were inclined to grant certain aliens broader rights only if their citizens were to be reciprocally treated in these aliens’ state of nationality.Footnote 51 However, the CSR1951 drafters recognised that the raison d’être of reciprocity requirements does not apply in the case of CSR1951 refugees who qua CSR1951 refugees do not enjoy the protection of their state of origin.Footnote 52
Based on a similar rationale, Article 6 exempts CSR1951 refugees from requirements relating to length and conditions of sojourn or residence which non-refugee aliens would have to fulfil for the enjoyment of a CSR1951 right, when such requirements are by their nature such that a refugee is incapable of fulfilling. The exception from reciprocity ‘was…intended to grant [refugees] treatment commensurate with their special situation’.Footnote 53
2 Complementary Rights Protection
Article 5 stipulates that ‘[n]othing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to refugees apart from this Convention’, and Article 7(3) proclaims that states ‘shall continue to accord to refugees the rights to which they were already entitled, in the absence of reciprocity, at the date of entry into force of this Convention for that state’.
Hence, it was emphasised that CSR1951 should not be construed as restricting the application of other human rights instruments.Footnote 54 Rather, the above provisions conform to the purported purpose of CSR1951: to secure the enjoyment of rights by refugees under both existing and prospective arrangements.Footnote 55 They also reinforce the need for a dynamic interpretation of CSR1951 provisions.Footnote 56
3 Political Rights of Refugees under the ICCPR
It was noted in the introduction that 168 states are parties to the ICCPR, including nearly all states that are parties to the CSR1951 and the 1967 Protocol.Footnote 57 Article 1 of the ICCPR stipulates that a state must ‘respect and ensure to all individuals within its territory and subject to its jurisdiction…the rights recognised in the present Covenant’. The ICCPR does not sub-classify rights as ‘civil’ or ‘political’, though electoral rights quite plausibly belong to the latter category.Footnote 58
The Human Rights Committee (HRC) comments that ‘[t]he enjoyment of Covenant rights is not limited to citizens of States parties but must also be available to all individuals, regardless of nationality or statelessness, such as…refugees’.Footnote 59 Obligations must be given effect ‘in good faith’.Footnote 60 Indeed, ‘in general, the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness’;Footnote 61 while it is ‘in principle a matter for the State to decide who it will admit to its territory…once aliens are allowed to enter the territory of a State Party they are entitled to the rights set out in the Covenant’.Footnote 62
Article 2(1) of the ICCPR stipulates that states ‘undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised…without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’. The absence of nationality as a prohibited distinction should not be considered ‘fatal’ because ‘the list clearly is intended to be illustrative and not comprehensive…[and] nationality would appear to fall into the category of “distinction of any kind”’.Footnote 63
The HRC notes that ‘the general rule is that each one of the rights of the Covenant must be guaranteed without discrimination between citizens and aliens. Aliens receive the benefit of the general requirement of non-discrimination in respect of the rights guaranteed in the Covenant as provided for in Article 2’.Footnote 64 Indeed, ‘[n]on-discrimination, together with equality before the law and equal protection of the law without any discrimination, constitutes a basic and general principle relating to the protection of human rights’.Footnote 65 Moreover, the centrality of the concept of non-discrimination ‘imbu[ed] and inspire[ed] similar protection in every other major international human rights instrument’.Footnote 66
Nevertheless, the non-discrimination principle is subject to two significant qualifications. The first qualification is that ‘not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant’.Footnote 67 The burden is on the state to show that nationality is a relevant basis for differentiation; that the distinction is implemented in pursuit of a reasonable aim or objective; that it is necessary; that there is no alternative action available; and that the discriminatory measures taken or contemplated are proportional to the end to be achieved.Footnote 68
The second qualification, explored below, is that ‘[e]xceptionally some of the rights recognised in the Covenant are expressly applicable only to citizens (art. 25)’.Footnote 69 By comparison, the ICCPR stipulates that ‘everyone’ enjoys other political rights such as freedom of expression, freedom of peaceful assembly, and freedom of association without distinction based on citizenship.Footnote 70
Hence, as with other ICCPR rights, the burden of demonstrating the validity of restrictions on the exercise of the political (non-electoral) rights lies with the protecting state. In the context of CSR1951 refugees, absent reasonable and objective justifications that concern the interests of the state of asylum rather than possible effects on a third state such as the state of origin, an imposition of greater restrictions on refugees qua non-citizens may constitute discrimination under the ICCPR.Footnote 71
4 Article 25: Citizenship Voting Qualification
Article 25 of the ICCPR enunciates that every citizen shall have the right to vote in ‘genuine periodic elections which shall be by universal and equal suffrage’, and to exercise the right ‘without unreasonable restrictions’.Footnote 72 Article 25 is the only ICCPR provision that refers explicitly to rights of citizens.Footnote 73 In contradistinction, Article 21(3) of the UDHR pronounces ‘the right of 'everyone…to take part in the government of his state, directly or through freely chosen representatives’. Article 21(3) UDHR may enjoy CIL status,Footnote 74 and Article 25 is often seen as its concretisation,Footnote 75 though its stipulation is arguably more restrictive.Footnote 76
The HRC notes that ‘[i]n contrast with other rights and freedoms recognized by the Covenant…Article 25 protects the rights of “every citizen”’. Hence, basing eligibility on citizenship status rather than domicile is permissible.Footnote 77 Nonetheless, it stipulates that ‘[s]tate reports should indicate whether any groups, such as permanent residents, enjoy these rights on a limited basis, for example, by having the right to vote in local elections’ (emphasis added).Footnote 78 The HRC celebrates the prominence of Article 25, positing that it ‘lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant’.Footnote 79
Article 25 reflects the idea that every person, whether a member of a majority or a minority, has the right to participate in public life.Footnote 80 Read in conjunction with Article 1, according to which ‘all peoples are entitled to freely determine their political, economic and cultural destiny’, Article 25 can be taken to affirm the contention that the sovereignty of the people shall find its expression, inter alia, in periodic and genuine elections.Footnote 81 It has even been asserted that, while international law still protects state sovereignty, it is now the people's sovereignty that it protects rather than the sovereign's sovereignty.Footnote 82
The reference to citizens rather than persons or individuals in Article 25 may be seen as a reaffirmation of the state as the essential forum of political activity and expression.Footnote 83 The Travaux indicate no discussion regarding the justifications for the citizenship qualification or for the distinction between the enjoyment of electoral rights and the enjoyment of other political rights such as freedom of expression, assembly, and association, almost as if this differentiation in scope of rights protection was deemed conceptually predetermined.Footnote 84
Subsequent regional treaties in the Americas and in Africa enunciate a right to vote for citizens.Footnote 85 In contradistinction, the (earlier) ECHR does not explicitly proclaim an individual right to vote.Footnote 86 Nevertheless, in 1987, the European Commission on Human Rights (EComHR) described a conceptual transition ‘from the idea of an “institutional” right to the holding of free elections & to “universal suffrage” & and then, as a consequence, to the concept of subjective rights of participation – the “right to vote” and the “right to stand for election to the legislature”’.Footnote 87 However, the EComHR held that ‘[t]he phrase “conditions which ensure the free expression of the opinion of the people in the choice of the legislature” implies essentially, apart from freedom of expression…the principle of equal treatment of all citizens in the exercise of their right to vote and to stand for elections’ (emphasis added).Footnote 88
Article 16 of the ECHR mandates Contracting States to impose restrictions on the ‘political activity of aliens’. In 1977, the Parliamentary Assembly of the Council of Europe (PACE) called for its repeal,Footnote 89 contending that ‘[I]t should be borne in mind that Article 16 dates from a time when it was considered legitimate to restrict the political activity of aliens generally. Subsequent human rights treaties, such as the United Nations Covenant on Civil and Political Rights, the American Convention on Human Rights and the African Charter of Human and Peoples’ Rights all do without such a clause’.Footnote 90 Regarding the case-law of the ECtHR mentioned above, the PACE report notes that ‘a very small number of decisions on admissibility made reference to Article 16…[and] in no single case [had] the Court used Article 16 to justify a restriction on the provisions of the Convention’.Footnote 91
5 Non-citizen Voting: Some Contemporary Practice
It is contended that Article 25 of the ICCPR ‘begins to approximate prevailing practice’, at least in terms of the removal of unreasonable restrictions on voting rights of citizens.Footnote 92 Meanwhile, citizenship qualifications are ubiquitous in national elections: only four states entitle all their non-citizen permanent residents to vote in national elections:Footnote 93 New Zealand (after one year of permanent residence); Chile (after five years); Malawi (after seven years); and Uruguay (after fifteen years).Footnote 94 In contradistinction, some states extend full voting rights to citizens of specific states, usually former colonies; for instance, non-citizen residents from Commonwealth states and Irish citizens are eligible to vote in UK general election, while other non-citizens are excluded therefrom (see further discussion in Chapter 8).
Participation of non-citizen residents in elections for local or regional bodies is more common.Footnote 95 States parties to the European Convention on Participation of Foreigners in Public Life at Local Level (ratified by nine members of the Council of Europe: Albania, the Czech Republic, Denmark, Finland, Iceland, Italy, the Netherlands, Norway, and Sweden) undertake ‘to grant to every foreign resident the right to vote and to stand for election in local authority elections, provided that he fulfils the same legal requirements as apply to nationals and furthermore has been a lawful and habitual resident in the State concerned for the five years preceding the elections’.Footnote 96
In contradistinction, the European Union has special arrangements for Second Country Nationals (SCNs),Footnote 97 namely citizens of one EU Member State (MS) residing in another EU MS. SCNs may vote in local government elections of the EU MS in which they habitually reside, as well as in elections to the EU Parliament.Footnote 98 However, these arrangements are based cumulatively on residence and EU citizenship: they do not extend to national elections.Footnote 99
E Electoral Participation under the Migrant Workers Convention
The Migrant Workers Convention enunciates the right of migrant workers and members of their families to vote in elections of their state of origin, noting that it does not affect their legal status in a host state.Footnote 100 In contradistinction, migrant workers and their families may be entitled to vote in local elections in their states of employment at the discretion of these states.Footnote 101
The juxtaposition of the dual obligation on the part of the host and sending states to facilitate voting of migrant workers and members of their families qua non-resident citizens with the non-binding recommendation to grant migrant workers qua non-citizen residents voting rights in local elections of their host state is a testament both of the emphasis in international human rights instruments on a link between citizens residing abroad and their state and of the resilience of the citizenship voting qualification.
F The (Failed) Attempt to Create a ‘Protected Person’ Status in International Law
The ILC identified the topic of ‘Nationality, including Statelessness’ as suitable for codification at its first session in 1949, aiming initially to draft a comprehensive treaty concerning both refugees and stateless persons. Nevertheless, following the adoption of CSR1951, the ILC considered separately issues relating to statelessness with a view to their codification.
At its Sixth session in 1954, the ILC considered a report concerning present statelessness submitted by its special Rapporteur, Roberto Córdova.Footnote 102 In the discussion, ILC member El Khouri proposed the creation of a ‘protected person’ status which would entail ‘all the civil rights with the exception of political rights’.Footnote 103 Córdova supported this proposition, suggesting that a habitual residence requirement be included because, in his view, states would be reluctant to grant political rights to a stateless person whose connection with the host state was not sufficiently strong.Footnote 104
The ILC debated Córdova's draft, consisting of seven articles. Article 1 proclaimed that ‘a state in whose territory a stateless person is resident shall, on his application, grant him the legal status of “protected person”’. According to Article 2, a ‘protected person’ ‘shall be entitled to all the rights enjoyed by the nationals of the protecting state with the exception of political rights…[and] shall also be entitled to diplomatic protection’ (emphasis added). The draft articles stipulated that stateless persons would be entitled to a ‘protected person’ status until such time as they naturalise in the state of residence or elsewhere (when such protection would no longer be required). Lauterpacht's reservation that a ‘protected person’ status ought to be granted only upon failure to qualify for naturalisation did not prevail.Footnote 105
Intriguingly, in justifying the new status, Córdova asserted that there was ‘some analogy’ between the status of ‘protected persons’ and ‘the position of women in those countries where they had not yet received political rights’.Footnote 106 Reading this statement in context, it appears that the expression ‘political rights’ was probably not intended to refer to the full scope of political expression but rather to electoral rights.
The ILC included the draft articles as described above in its final report to the UNGA.Footnote 107 However, the report noted that ‘in view of the great difficulties of a non-legal nature which beset the problem of present statelessness, the Commission considered that the proposals adopted though worded in the form of articles should merely be regarded as suggestions which governments may wish to take into account’.Footnote 108 The draft articles have not materialised as a treaty.Footnote 109
G Concluding Remarks
Persons recognised as CSR1951 refugees are non-citizen residents of their state of asylum. The CSR1951 drafters have acknowledged the vulnerable status of CSR1951 refugees; they listed civil, social and economic rights which states of asylum are required to accord ‘their’ refugees, exempting refugees from reciprocity and other requirements that had been considered ill-suited for persons who do not enjoy the protection of their state of origin.
Political rights are noticeably absent from CSR1951; their omission cannot be read as an implicit expectation that states nonetheless grant non-citizens the full gamut of political rights. Indeed, the concurrent attempt to create a ‘protected person’ status in international law for stateless persons that would entail enjoyment by such persons of all rights save for political rights is a clear testament that Contracting States were quite wary (at the time) of according political rights to non-citizens. Importantly, however, the CSR1951 drafters have created ‘legal space’ for expanding protection of CSR1951 refugees, signifying the character of CSR1951 as a human rights treaty. The subsequent adoption of the ICCPR has meant that CSR1951 refugees should enjoy some, but not necessarily full political rights, on a par with other non-citizens.
Nevertheless, while most political rights are guaranteed under the ICCPR to ‘everyone’, the Covenant permits states to set citizenship voting qualifications that exclude non-citizens, including refugees; regional treaties, international practice, and the recently adopted Migrant Workers Convention generally conform.
Following Mandal's taxonomy, there are activities undertaken by CSR1951 refugees that states of asylum are obliged to allow, such as political rights guaranteed under the ICCPR; activities which states of asylum are obliged to prevent, falling outside the remit of the book; activities which states of asylum may allow including participation in electoral processes.Footnote 110
It was noted in the introduction that, the vast majority of persons hold citizenship of their state of residence; according to the ICCPR, as well as to regional rights instruments, they should have the right and the opportunity to participate in electoral processes of that state. According to the Migrant Workers Convention, the participation of migrant workers and their families in elections of their state of citizenship should be facilitated in their states of employment, maintaining their political ‘bond’ with their state of nationality.
CSR1951 refugees do not ‘fit’ the above legal and conceptual framework. Their political ties with their state of origin were severed by their fear of persecution, and their period of absence from their state of origin is indeterminate. While the state of asylum may choose to enfranchise CSR1951 refugees, neither CSR1951 nor the ICCPR can be read to require it to do so. Consequently, their predicament highlights a tension between two principles of the inter-national legal order, state sovereignty and protection of individual rights: the former seeks to promote specifically defined citizen rights, while the latter espouses a universal application of entitlements.Footnote 111Against this background, Part II of the book explores the nature and purposes of voting and state citizenship, and their interrelations.
