Academic journal article Texas International Law Journal

The Right to Vote for Non-Resident Citizens: Considered through the Example of East Timor

Academic journal article Texas International Law Journal

The Right to Vote for Non-Resident Citizens: Considered through the Example of East Timor

Article excerpt

INTRODUCTION

Citizenship has traditionally provided the basis for voter eligibility in national elections in countries throughout the world. The International Covenant on Civil and Political Rights, a fundamental human rights treaty, establishes the right to vote as a matter of international human rights law. Unlike the other rights articulated in that treaty, the right to vote is specifically conveyed only to citizens. For a citizen living outside of his homeland, however, the right to vote under international human rights law remains ambiguous. The potential right to vote for non-resident citizens raises a further normative question of whether the extension of such a right is consistent with theoretical positions regarding the formation of political communities.

Non-resident citizen voting rights provide an opportunity to examine the relationship that people who live outside their country of citizenship have with their homeland. Furthermore, it raises the question of how this relationship does and should affect laws regarding enfranchisement of non-resident citizens. And finally, non-resident citizen voting is significant because it provides a window for critically analyzing the traditional connection of voting rights to citizenship and considering whether this connection is consonant with general theories regarding the makeup of political communities.

This paper contends that the right to vote for non-resident citizens should fall within the scope of international human rights law. Although international human rights law has not yet addressed this issue, this paper's position finds support for its argument in the language of the International Covenant on Civil and Political Rights and the comments issued by the Human Rights Committee concerning the right to vote. The paper does not argue that all non-resident citizens should be given an indiscriminate right to vote under international human rights law. Rather, the right to vote for non-resident citizens should depend on the type of election and the general reason for the non-resident citizen population's absence from the country. This conclusion comports with many of the theoretical arguments concerning voting rights and closely resembles a framework already established in an international human rights law decision opining on a similar issue. Recent elections in East Timor highlight the importance of the type of election and reason for citizens' absence and demonstrate how changes in these two features affect the way in which the right to vote should be viewed.

The paper will begin in Part I with a discussion of the relevant international human rights law and the applicability of this law to non-resident citizens voting rights. Part II will then describe the theoretical arguments addressing and affecting the question of non-resident citizen voting rights.1 Part III will examine the issue of non-resident citizen voting using the recent elections in East Timor as a case study for considering this issue.

I. INTERNATIONAL HUMAN RIGHTS LAW

A. The International Covenant on Civil and Political Rights

The International Covenant on Civil and Political Rights (ICCPR) is the primary codification of political rights in the area of international human rights law.2 This treaty, which entered into force on March 23, 1976, has been ratified by 167 nations.3 Article 25 of the ICCPR instantiates the right to vote as a principle of international human rights law, stating in relevant part that:

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: . . . (b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.4

The distinctions in article 2, which article 25 refers to, include "race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. …

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