Introduction
The problem of the political representation of nationals living abroad has recently been the subject of considerable discussion. Indeed, with the increasing size of diasporas around the world, the question arises as to what should be the role of states vis-à-vis their expatriate nationals who wish to maintain ties with their country of origin. While cultural, social, or economic programs establishing links with nationals living abroad raise little controversy, questions involving the political participation and representation of emigrants are often the subject of disagreement. More specifically, allowing non-resident nationals to vote from abroad is generally a controversial issue. For example, it has occasionally been argued that migrants might decide to move to other countries and, thus, sever some of the links that traditionally bind them to their nation; that by living abroad they may be out of touch with local political issues; or that they will essentially not have to live with the consequences of their vote. Footnote 1 Conversely, granting voting rights to a diaspora is sometimes seen as a natural extension of nationality — a way of reimagining the nation along more transnational lines and benefiting from a particular reservoir of émigré expertise.
Controversy notwithstanding, an increasing number of countries have allowed expatriates to vote in their elections through different voting procedures. Among these means is an institutionalized system whereby nationals residing abroad elect their own representatives to their home state’s legislative bodies in what might be dubbed “extraterritorial electoral constituencies.” This system of extraterritorial representation was first introduced in Portugal in 1976. Footnote 2 About ten countries have followed since then, including Italy in 2006, and these numbers are increasing rapidly. Footnote 3 On the whole, although such developments may have created some controversy in “states of origin,” they have hardly done so in the expatriates’ “host” states.
However, on 12 February 2008, Canada became the first and only country in the world to establish a policy “to refuse all requests by foreign states to include Canada in their respective extraterritorial electoral constituencies.” Footnote 4 This policy was established on the grounds that the existence of representation of a Canada-based constituency in a foreign elected assembly could undermine Canada’s sovereignty and lead to an increase of foreign interference in Canada’s domestic affairs. Footnote 5 There is, admittedly, a certain consistency in this policy given Canada’s own rather restrictive approach to the voting rights of its own expatriate community. Nonetheless, the purpose of this article is to demonstrate that such a policy is unfounded and unnecessary to achieve the objectives it aims to fulfil, namely upholding Canada’s sovereignty and reducing foreign interference in its domestic affairs. After providing some further background on extraterritorial grants of voting rights by various countries and Canada’s response thereto, this article will argue that the recognition of extraterritorial constituencies does not undermine host-state sovereignty and that there may in fact be an emerging duty to facilitate the right to vote of migrants whose home state wants to grant them that right.
Extraterritorial Electoral Constituencies: Background and Context
aspects of “external” voting
The Impact of Ever-Increasing Cross-Border Migration
Migration has been a constant and significant feature of human history and probably never more so than in our day and age. Footnote 6 For instance, in 2005, there were nearly 200 million international migrants who had lived outside their country of origin for more than one year, including 9.2 million refugees. Footnote 7 This means that one in every thirty-five people is an international migrant, accounting for 3 percent of the world’s population. Footnote 8 And these numbers have grown rapidly — from 82 million in 1970, the number of international migrants had risen to 175 million in 2000 and to more than 200 million today. Footnote 9 With cross-border migration comes the creation of significant diasporas around the world. For instance, the Chinese diaspora comprises an estimated 35 million people, which is comparable to the total population of Canada, while the Indian diaspora numbers some 20 million, and the Filipino diaspora some seven million persons. Footnote 10
These migrants often maintain important ties with their countries of origin — for instance, by sending money home. In fact, formal transfers of remittances were worth about US $150 billion in 2004, and it is estimated that an additional US $300 billion are transferred informally every year. Footnote 11 Moreover, these migrants, especially those who retain their nationality of origin or hold dual nationality, do not only send money home. They also seek to take an active part in the political life of their country of origin. Indeed, ever-increasing international migration “has produced populations that are excluded from politics in both their home countries and their countries of residence.” Footnote 12 This is the case, for example, of international migrants who have not yet acquired the nationality of their country of residence. These migrants often do not have the right to vote in the elections of the country where they reside, such that their only option may be to exercise voting rights in the elections of their country of origin.
The State of Origin Perspective on “External” Voting
One way to allow expatriates to exercise their voting rights is through “external” (or “out-of-country”) voting, which is defined as “provisions and procedures which enable some or all electors of a country who are temporarily or permanently outside the country to exercise their voting rights from outside the territory of the country.” Footnote 13 According to Brett Lacy, writing in a handbook published by the International Institute for Democracy and Electoral Assistance (IIDEA) and the Federal Electoral Institute of Mexico, external voting serves two major purposes: “[I]t is a means of ensuring the realization of political rights for people living outside their country, and it is a means of increasing political participation and thereby building trust and confidence in electoral processes and the democratic governments they produce.” Footnote 14 After all, if a part of the population of a given country is excluded from the electoral process on the basis that they currently reside outside their country, “the resulting system of governance suffers from a lack of legitimacy, accountability and sustainability, particularly in fragile democracies or post-conflict environments.” Footnote 15
Despite these laudable goals, external voting has not yet been used extensively. This can be explained in two main ways. First, external voting can involve significant legislative and organizational burdens, notably in terms of financial, security, and human resources. Footnote 16 Provisions and procedures have to be enacted or established in order to allow nationals living outside the country to exercise their voting rights from abroad. Costly measures governing security, the prevention of fraud, electoral registration, election campaigning, and voter information and education need to be put in place prior to the election. Footnote 17 These guidelines and procedures can be established either by the constitution or through normal legislation, or both, and may include provisions for postal voting, voting in diplomatic missions or military bases, voting by proxy, and, increasingly, electronic voting. Footnote 18 Second, and more importantly, external voting also requires complex negotiations with host countries in order to ensure that voting rights promulgated by the state of origin are actually made available to nationals living abroad. Footnote 19 This is one of the main challenges in developing external voting systems, as will be discussed in more detail later in this article.
Negotiation with Host Countries
One of the key steps in organizing elections in another country is negotiating with host countries in order to ensure expatriates are actually allowed to vote from their country of residence. This can be a hard task, because (1) few international guidelines exist with respect to external voting and (2) host governments may have important concerns over security, stability, and, above all, sovereignty. First, in terms of international guidelines, it is notable that there is no specific institutional actor, within the international community, entrusted with the mandate to advocate, facilitate, and evaluate external voting. Footnote 20 Furthermore, as explained in the IIDEA Handbook, “[t]here are no consistent policies, practices or standards to guide host governments on the question of foreign electoral activities being conducted on their soil, much less the responsibilities of host governments.” Footnote 21 As a result, processes are inconsistent and often built on a mix of precedents and ad hoc opportunities. Footnote 22 As a result, all states involved would benefit from signing an international agreement (whether multilateral or bilateral) governing the roles and responsibilities of host countries. This is especially true in the case of countries that host an important number of refugees, foreign workers, foreign residents, or dual nationals. International agreements would particularly benefit electoral commissions, which generally lack authority to negotiate external voting agreements with foreign countries. Footnote 23
Second, some countries refuse to allow, or severely limit, foreign electoral activity within their borders on the grounds that their security, stability, or sovereignty could be diminished or weakened. Footnote 24 This was the case of Switzerland, for example, which did not allow any foreigner to vote in foreign elections from its territory until 1989. Footnote 25 Some other countries have put in place specific measures aimed at particular countries. This is precisely what happened in the 1996 election in Bosnia and Herzegovina, when some European countries refused to allow nationals of that country to vote from within their territory. Footnote 26 Registration and voting were thus carried out exclusively by post. Footnote 27 Other countries, such as Canada and some European countries, generally allow out-of-country voting on their soil only by post or within foreign consulates and embassies. Footnote 28 Canada, however, now goes further by systematically refusing any request by foreign states to include the country in their respective extraterritorial electoral constituencies, on the ground that this would violate Canada’s sovereignty. Footnote 29 This will be the main subject of the following section of this article.
a host state perspective on external voting and extraterritorial electoral constituencies: the case of canada
Canada has always been somewhat reluctant to permit external voting within its territory. Indeed, it has, in the past, allowed external voting within its territory only by post or within foreign consulates and embassies Footnote 30 and has not allowed foreign states to conduct election campaigns or to establish foreign political parties and movements within its borders. Footnote 31 The only exception to this rule took place in the context of the 2005 Iraqi election, when “Canada took the rare move of setting up election booths outside of diplomatic missions during Iraq’s post-war election.” Footnote 32 Iraqis living in Canada were thus allowed to vote in Calgary, Toronto, and Ottawa. Footnote 33 However, other Canadian policies — such as the ban on campaigning on its soil — remained in full effect and were fully applied. Footnote 34
The 2008 Canadian Policy on Foreign Elections in Canada and Foreign Electoral Constituencies
On 12 February 2008, the Government of Canada went further and established a policy of refusing requests by any foreign state to include Canada in its extraterritorial electoral constituencies. Footnote 35 An extraterritorial electoral constituency or district is defined by the Canadian government as “a voting district or riding determined by a foreign state to include territory in Canada.” Footnote 36 It involves “an elected candidate [who] would represent people living or residing in Canada in a foreign legislative body.” Footnote 37 That elected candidate would hold a seat in that foreign legislative body — for instance, in the French National Assembly — and his or her constituents would live or reside in Canada. Footnote 38
According to the Canadian Department of Foreign Affairs and International Trade (now Foreign Affairs, Trade and Development), the policy of refusing foreign extraterritorial electoral constituencies is “aimed at upholding Canada’s sovereignty and reducing foreign interference in Canada’s domestic affairs.” Footnote 39 The Government of Canada believes that “having a foreign country unilaterally include Canadian territory as a part of its own voting districts … could lead to the election of candidates who would be perceived, once elected, as representing fellow Canadian citizens in a foreign elected assembly.” Footnote 40 Moreover, the Canadian government fears that those extraterritorial electoral constituencies “may also lead, in some cases, to importing foreign political disputes to Canada” Footnote 41 and believes that “[f]oreign electoral campaigns in Canada have the potential to focus on domestic Canadian political issues or bilateral disputes, and to undermine social cohesion, inclusiveness and identity.” Footnote 42
Despite its objection to extraterritorial electoral constituencies and the conduct of foreign electoral campaigns on its soil, Canada does not oppose “absentee voting.” Footnote 43 The latter is defined as a voting procedure that “occurs when a country’s electoral laws allow citizens residing permanently or temporarily outside their country of origin to get their vote cast in that country for its elections or referenda, despite the citizens’ absence from the country at the time of the vote.” Footnote 44 Thus, Canada allows embassies or consulates to receive the ballots of those who are away from their country of origin on the day of the vote. Footnote 45 However, foreign states seeking to establish balloting stations must submit an official request to the Government of Canada “well in advance of the election or referendum.” Footnote 46 This official request, which must specify the location of each balloting station, will then be considered by the Canadian Department of Foreign Affairs, Trade and Development’s Office of Protocol. Footnote 47
The Legal Framework of Extraterritorial Electoral Constituencies in Canada
Thus, it would appear that Canada’s opposition to external voting is only aimed at extraterritorial electoral constituencies and at the conduct of foreign election campaigns on Canadian soil. Footnote 48 That being said, if countries chose to go ahead over Ottawa’s objection, Footnote 49 it seems that Canada could not to do much to prevent electoral activities from taking place in the foreign country’s diplomatic and consular premises on its soil. Ottawa could formally object and reiterate that it “fully expects foreign governments to respect Canada’s laws and government policies governing their activities on Canadian territory as [it] respects the laws and government policies governing its activities on their territories,” Footnote 50 but it would not have the power under international law to block the establishment of voting stations in foreign diplomatic premises on its soil. The 1961 Vienna Convention on Diplomatic Relations (VCDR), which forms the basis for diplomatic immunities, establishes, under Article 22, the inviolability of mission premises. Footnote 51 Similarly, Article 31(1) of the 1963 Vienna Convention on Consular Relations (VCCR) provides that “[c]onsular premises shall be inviolable to the extent provided in this article.” Footnote 52
Although not questioning the inviolability of diplomatic premises, the Government of Canada nevertheless puts forth a different interpretation of these two international treaties with respect to external voting. The Canadian interpretation suggests that the establishment of an extraterritorial electoral constituency without Canada’s approval may actually violate international diplomatic or consular law. First, Ottawa maintains that Article 3 of the VCDR and Article 5 of the VCCR enumerate the functions of a diplomatic mission and those of a consular post, respectively, and that “[n]either article specifically grants the sending state the right to hold voting stations in the territory of the host country.” Footnote 53 With respect to the VCCR, Canada readily admits that non-enumerated consular functions are possible under Article 5(m), but only “provided they are not prohibited by host state’s laws or regulations, or provided that the host state does not object to the functions being carried out.” Footnote 54 In other words, Canada believes that “[f]oreign missions carrying out voting activities for foreign elections, within their premises or elsewhere in Canada, must obtain Canada’s consent prior to proceeding.” Footnote 55
Second, Canada also refers to Article 55(2) of the VCCR, which provides that “[t]he consular premises shall not be used in any manner incompatible with the exercise of consular functions.” Footnote 56 In Ottawa’s view, if a foreign voting activity were to be conducted in an embassy or consulate on Canadian territory without Canada’s consent, this would be incompatible with the exercise of consular functions as provided for in Article 55 of the VCCR and would, as a consequence, be illegal under international law. Footnote 57
application of canada’s policy
The Canadian policy of refusing foreign extraterritorial electoral constituencies “has been applied consistently since it was instituted in 2008” and “does not target any particular country or region.” Footnote 58 However, it has led to some diplomatic disputes in recent years, notably in the context of Tunisian, French, and Italian elections.
The Tunisian Constituent Assembly Election of 2011
Prior to the Tunisian constituent assembly election of 2011, Tunisia created constituencies within its own territory and designated a large constituency that covers all other countries where Tunisians live. Footnote 59 A month before the 2011 Tunisian election, Canada’s Minister of Foreign Affairs John Baird issued a statement to the effect that his government would not allow Tunisia to open polling stations on Canadian territory, on the grounds that the latter had been included in an extraterritorial voting district. Footnote 60 He noted that “[n]o one should represent Canada — or a part of Canada — as a constituency in a foreign elected assembly” and added that “[t]his policy does not apply uniquely to Tunisia; it is a matter of Canadian sovereignty.” Footnote 61
This position was a controversial one, especially considering that these elections were the first free elections since Tunisia’s independence in 1956 Footnote 62 and the more recent uprising that triggered the ‘Arab Spring’ rebellions. Footnote 63 In response to Canada’s decision not to allow Tunisian polling stations on its soil, Tunisia momentarily blocked Canadian election observers from monitoring the elections by putting their accreditations on hold until the voting dispute with Ottawa was resolved. Footnote 64 Tunisia later reversed its position and decided to accredit the Canadian observers after all. Footnote 65 In the end, the 16,000 Tunisian voters living in Canada were able to “vote at the [Tunisian] embassy’s consular and diplomatic premises as well as at the [Tunisian] consulate in Montreal and a family centre” (which holds consular status) in Montreal. Footnote 66 Canada said it recognized the inviolability of diplomatic and consular premises but added that the vote was still not consistent with its policy on the non-inclusion of Canada in an extraterritorial electoral district and that it would continue to raise with Tunisia, through diplomatic channels, any action that would violate the Canadian policy. Footnote 67
The French Election of 2012
In 2010, two years prior to the French election of 2012, then-president Nicolas Sarkozy instituted a constitutional reform that provided for the creation of eleven out-of-border constituencies. Footnote 68 The elected members for those new out-of-border constituencies — including a North American constituency that encompasses both Canada and the United States — now represent French nationals living abroad in the French National Assembly. Footnote 69 This new system was added to the already-existing system of extraterritorial representation at the French Assembly of Citizens Abroad, which was put in place in 1983. This assembly “is separate from the French National Assembly and the French Parliament. It is an assembly whose members are elected by French nationals abroad, and it advises the foreign affairs minister, [but it] holds no seats in the Senate or in the French National Assembly.” Footnote 70 This earlier system had not posed any problems for Canada for three main reasons. First, the assembly is not part of either of the French Parliament’s two houses. Footnote 71 Second, the assembly elects twelve senators to represent French nationals abroad, which is considered by the Government of Canada to be indirect representation. Footnote 72 Third, the French senators elected do not represent French nationals inhabiting specific regions abroad but, rather, the entire world. Footnote 73
Things changed, however, after the French constitution was amended in July 2008. A new clause was added to the constitution in order to provide French nationals living abroad with direct representation in the French National Assembly itself. Under the resulting new electoral law, eleven new constituencies have been created for this purpose, encompassing virtually every country in the world. Footnote 74 An elected representative, who holds a seat in the French National Assembly, represents each of these constituencies. Footnote 75
This created a controversy similar to the one that arose in the case of Tunisia, with Ottawa refusing, a few months prior to the 2012 French election, to allow France to include Canada in a North American French constituency on the grounds that it would affect Canada’s sovereignty. Footnote 76
In December 2011, the recently appointed French ambassador to Canada, Philippe Zeller, made representations to the Canadian government and argued that since the elected representative would only be elected by French nationals living in North America, he or she would exclusively be concerned with the situation of those French nationals. He argued that although this was certainly a “delicate exercise,” the elected representative would not deal with Canadian issues and would not interfere in Canadian internal affairs in any way. Footnote 77 Zeller further argued that this constitutional reform was only intended to respond to the reality of the geographical dispersion of French nationals around the world. Footnote 78
Despite these representations by French officials, the Government of Canada maintained its position and refused to authorize France to include Canada in its North American electoral district. Footnote 79 In March 2012, the French embassy in Canada announced that French voters living in Canada would nevertheless be able to vote and that polling stations would be installed, but only on the premises of the embassy and the various consulates, which all enjoy diplomatic inviolability. Footnote 80 In addition to these polling stations, the 60,000 French voters living in Canada also had the opportunity to vote by mail as well as over the Internet, provided that they requested permission to do so prior to 1 March 2012 and 7 May 2012 respectively. Footnote 81
The Italian General Election of 2013
A system of extraterritorial representation was introduced in Italy in time for its 2006 general election, replacing a long-standing system that forced emigrants to return to Italy in order to vote. Footnote 82 This marked the culmination of a thirty-year campaign to provide representation for Italian expatriates by allowing them to vote for their own representatives. Footnote 83 Under the new system, twelve seats in the Chamber of Deputies and six seats in the Senate are reserved for representatives of Italian nationals living abroad. Footnote 84 The extraterritorial constituency (circoscrizione Estero) is subdivided into four electoral zones, each of which elects at least one deputy and one senator: (1) Europe (including Russia and Turkey); (2) South America; (3) North and Central America; and (4) Africa, Asia, Oceania, and Antarctica. Seats are divided between these electoral zones in proportion to the number of Italian residents living in each zone. Footnote 85
Canada applied its policy in the context of the Italian general election of 2013. Footnote 86 This position once again created some controversy, but for reasons somewhat different than in the context of the Tunisian and French elections. In particular, during the Italian general elections of 2006 and 2008, the Canadian government had not objected to Italians electing North American representatives. Footnote 87 Despite these precedents, the Canadian government — which had been in power four months prior to the 2006 Italian election — formally objected in 2013, for the first time, to the election of Italian representatives on its territory. Footnote 88 It made clear that, even though it had done so in the two previous elections, it would not allow Canada to be included in an extraterritorial electoral constituency. Footnote 89 Nevertheless, and despite the inclusion of Canada’s territory in an Italian extraterritorial constituency consisting of North America and the Caribbean, Ottawa allowed the 140,000 Italians living on its soil to vote in the Italian general election of 2013 through absentee voting. Footnote 90
Canada’s Isolation and the Likely International Acceptability of Extraterritorial Constituencies
The creation of extraterritorial constituencies is still a very recent phenomenon, but one that has been gathering significant steam in recent years. For instance, some long-established democracies did not allow their nationals living abroad to vote in their elections until the 1980s (in the case of the United Kingdom and the Federal Republic of Germany) or the 1990s (in the case of Japan). Footnote 91 These countries have since relented, and their example has been followed by many others, such that, as of 2007, 115 states had legal provisions allowing their nationals to vote from abroad. Footnote 92 Furthermore, external voting appears to be on the political agenda in many countries, especially since the global political changes of the 1990s. Footnote 93 Dieter Nohlen and Florian Grotz give two main explanations for the growing importance of external voting since the 1990s: “First, as a result of the rapid increase in the number of democracies after the break-up of the communist bloc, the design of democratic electoral rules has received more attention. Second, external voting becomes more significant in the face of increasing migration.” Footnote 94
While it is true that not all countries with external voting procedures have decided to allow direct representation for non-resident nationals, a 2007 study found that of the 144 countries surveyed, thirteen have allowed non-resident nationals to vote for their own representatives abroad. Footnote 95 While this may appear to be a small number, it is one that is clearly on the rise and that has not been opposed by any country in the world but Canada. Footnote 96 This shows, as we will argue, that states generally accept that they may be included in foreign extraterritorial electoral constituencies and do not see this inclusion as a form of infringement of their national or territorial sovereignty. At the very least, there is clearly no general and consistent state practice that prohibits a state from designating another state’s territory as a foreign electoral district. Whether there is a rule of customary international law that obliges states to allow extraterritorial constituencies is a more complex question, but, it seems, one that can still be answered in the affirmative.
State practice accompanied by opinio juris provides evidence of the existence of a rule of customary international law. When it comes to extraterritorial electoral constituencies, there is clearly no general and consistent state practice that would prohibit one state from including another state’s territory as one of its electoral districts. On the contrary, extraterritorial electoral constituencies are generally accepted by host states — with the exception of Canada. This has been illustrated in recent years, notably in the cases of the Tunisian constituent assembly election of 2011, the French legislative election of 2012, and the Italian general election of 2013. Following the SS Lotus precedent, since limitations on the sovereignty of states are not to be presumed in the absence of a rule of international law specifically prohibiting a given practice, the general lack of protest against the Tunisian, French, and Italian practice, in fact, powerfully militates in favour of the conclusion that such practice is allowed. Footnote 97
In order to allow Tunisians living abroad to vote in that historic election, pursuant to which the future members of the assembly would have to decide over a new constitution for their country, Tunisia made requests to twenty-eight countries to include their territory in out-of-border constituencies that would encompass all Tunisian expatriates. Footnote 98 Of those twenty-eight countries, only Canada refused. Footnote 99 In other words, none of the other countries saw the inclusion of their territory in a foreign electoral district as being an infringement of their sovereignty. Those countries included influential and long-time Canadian allies such as the United States, France, and Germany. Footnote 100 Similarly, in the case of France, of all the countries included in its eleven out-of-border constituencies (which included such varied countries as Germany, Denmark, Croatia, Barbados, and the United States, among others), Canada was once again the only country that formally objected. Footnote 101
Finally, in the case of Italy, of all the states included in its four extraterritorial electoral zones (which encompassed virtually every country in the world), Canada was the only one to oppose the inclusion of its territory. Footnote 102 As explained earlier in this article, however, Canada did not express its disagreement until Italy’s 2013 general election. Indeed, at the time of the Italian general election of 2006, Canada did not have a policy of refusing requests for inclusion of its territory in extraterritorial electoral constituencies. Footnote 103 In the case of the 2008 general election, the Canadian Department of Foreign Affairs and International Trade explained that Canada had “established the policy, but given the few days — literally — [since it had] received this request, [it] thought it would be the right thing to do to allow Italian authorities to proceed with this system.” Footnote 104 This explanation is somewhat surprising, given that Canada had been part of an Italian extraterritorial constituency since 2006. Footnote 105 Therefore, Canada has not even applied its own policy consistently in the past, although it has done so since the Tunisian constituent election of 2008.
It could be argued, of course, that extraterritorial electoral constituencies are not necessary in order to ensure the political representation of nationals living abroad and are, therefore, inherently suspect. For instance, most countries do assign external votes to existing electoral constituencies inside the country of origin. In such situations, the external votes are typically assigned to the capital city district or, for example, to the electoral district where the external voter last lived. Footnote 106 Indeed, the assignment of external votes to existing electoral constituencies inside the country may seem more in tune with the classic legal requirements of residency, which emphasize the relations of nationals abroad to state territory. Footnote 107 As stressed in the IIDEA Handbook, the institutional provisions and regulations for the assignment of external votes “are politically important, because they define how external votes are translated into parliamentary seats.” Footnote 108 Hence, they “largely decide the extent to which external voters can influence domestic policies.” Footnote 109
Nevertheless, the creation of extraterritorial electoral constituencies is at least a defensible and coherent option and, as such, can claim to be justified by genuine electoral concerns and not by a desire to meddle in the affairs of another state. In particular, extraterritorial electoral constituencies have the advantage of stressing the special, extraterritorial character of external votes and the specificity of the concerns of particular groups within diasporas, Footnote 110 whereas voting in one’s city of origin risks diluting the specificity of the diaspora vote — in addition to creating logistical complications for some expatriate voters. Furthermore, such a system has the advantage of addressing some of the most important objections that have been raised to external voting, “such as altering the ratio between electors and elected representatives to favour territorially based voters or restricting the issues on which emigrants’ representatives are allowed to vote within the governing bodies to which they have been elected.” Footnote 111 Thus, by reserving a given number of seats in the national assembly or legislature for expatriate voters, a state can prevent a situation in which emigrant votes would decide the result of elections, which is of particular importance in countries with sizeable diasporas. This is precisely the case of the Cook Islands, where non-resident nationals have been, as a result of the creation of an extraterritorial constituency, allocated “only one of the 26 seats in the legislature although they are certainly more numerous than territorially resident citizens.” Footnote 112 Such a safeguard would not be possible under a traditional system in which external votes are assigned to an already-existing electoral district in which non-resident nationals might end up having a disproportionate impact.
In short, while it is true that extraterritorial electoral constituencies are the exception rather than the rule, Footnote 113 it remains that states generally accept the fact that they have been included in foreign extraterritorial electoral constituencies and do not see this inclusion as a form of infringement of their national or territorial sovereignty. At the very least, there is clearly no general and consistent state practice that prohibits one state from including another state’s territory in one of the former’s foreign electoral districts. Whether there is actually an obligation to recognize extraterritorial constituencies is another matter and, following the SS Lotus logic, it may be difficult to establish such a positive obligation. Nonetheless, we argue that the case for recognition must be assessed following a thorough evaluation of the various theoretical and practical arguments made by Canada.
Canada’s Arguments and Their Limits
Canada continues to apply its policy of refusing all requests by foreign states to include Canada in their extraterritorial constituencies, but it provides little reasoning to justify such a policy. Canada asserts that consenting to requests by foreign states to include Canada in their extraterritorial electoral constituencies would undermine Canada’s territorial sovereignty and integrity. Is there any legitimacy to these concerns beyond a knee-jerk political reaction? Clearly, there is no way in which the mere existence of such a constituency could amount to a claim to Canada’s territory. Indeed, no state granting voting rights to its diaspora has made anything remotely resembling a claim to sovereignty over the territories in question. The constituencies in question typically span the entire world and straddle borders in ways that belie any intent to lay claim to territory.
If anything, the problem needs to be recast as one of interference in the sovereign affairs of a state due to the transnational character of the constituencies in question. It is true that there may be something troubling about the idea that states are exercising at least symbolic jurisdiction in the territory of other states. Simply because no claim is being made to territory as a matter of public international law does not mean that extraterritorial constituencies are not in some way disruptive of the host state’s exclusive jurisdiction over its territory. Even if electoral constituencies are largely virtual and symbolic, and even if they in no way directly affect the ability of the Canadian state to discharge its functions (including vis-à-vis Canadian-resident members of the diaspora in question), it remains that there is a certain overlap between the initiatives of the vote-granting and host states.
In this section, we flag several potential concerns raised by the Canadian House of Commons’ Standing Committee on Foreign Affairs and International Trade as being significant, although, in our view, they are far from determinative of the issue. According to the committee, tolerance of extraterritorial electoral districts that include a part of Canadian territory could lead to “the election of candidates who would be perceived as representing fellow Canadian citizens in a foreign elected assembly,” Footnote 114 an increase of “foreign interference in [Canada’s] domestic affairs,” and “importing foreign political disputes to Canada.” Footnote 115
foreign representation of canadians
As already noted, one of Ottawa’s concerns is that the unilateral inclusion of Canada in a foreign extraterritorial voting district would create the false impression that the elected candidate represents Canadian citizens in a foreign legislature. Footnote 116 It is true that, among members of the diaspora of the vote-granting state, some will also be Canadian nationals and that some of their interests, as a result, will be represented in a different legislature. There is therefore an element of legal symbolism involved, in a context where symbolic considerations have always played an important role in the establishment of national policies and, more particularly, in the context of foreign relations. Footnote 117
The problem with the foregoing concern is that it rests on very tenuous grounds, even at the symbolic, not to mention the practical, level. It is hard to understand how a representative elected in a foreign election and sitting in a foreign legislative assembly could be seen as representing all or any Canadians as such. As former French ambassador to Canada Philippe Zeller has argued, it is clear and obvious that the newly elected representative would be concerned exclusively with the situation of those foreign or dual nationals living in Canada and not with all Canadians. Footnote 118 He or she would not in any way have the authority to take political positions and administrative decisions on behalf of all of the host state’s residents. It is to be expected that foreign residents of Canada who remain nationals of their country of origin will continue to exercise political rights in the latter country.
With respect to the members of a diaspora who are also Canadian nationals, as long as Canada tolerates dual nationality it is only normal that their views and interests should be represented in both Canada and another country. Their representation in their country of origin would merely reflect a continued interest in the political affairs of that country. To be sure, this interest might extend to the state of origin’s foreign relations with Canada, but, again, this is to be expected in the case of dual nationality. And, in any event, the absence of an extraterritorial constituency could not prevent a state of origin from conferring voting rights on its diaspora, even if they had to be exercised by mail or in person in the country of origin. It may be that the existence of an extraterritorial constituency and the resulting campaigning in the host state will marginally reinforce a diasporic community’s self-awareness of its existence as a political unit (whereas, in the absence of such a constituency, diaspora members typically have to vote in the constituency of their last known address in the state of origin), but this hardly seems in and of itself a reason to deny such constituencies.
foreign interference in the host state’s domestic affairs
The second, more significant, Canadian objection is that extending foreign electoral constituencies to Canadian territory would lead to an increase of “foreign interference in [Canada’s] domestic affairs.” Footnote 119 It is important to note, in defence of the Canadian position, that it appears to be a position of principle. The controversies noted earlier between Canada and Tunisia, France, and Italy occurred in the context of otherwise amicable relations and should not, therefore, have given rise to much actual alarm. However, one can imagine situations where the creation of extraterritorial constituencies could be more mischievous and, therefore, of much greater real concern. For example, if State A had a long-standing territorial conflict with State B involving a minority of A’s nationals living in a part of the territory of State B, and if State A were to designate that part of B’s territory (perhaps to the exclusion of any other extraterritorial arrangement) as an extraterritorial electoral constituency, this could be viewed as an inimical gesture. The granting by Hungary of voting rights to the Hungarian diaspora was largely seen as a problematic move in Europe, one that could have stoked nationalist passions in the context of still simmering territorial disputes. Footnote 120 As one commentator has noted, “[e]xpatriates’ voting rights are a particularly sensitive issue in areas in which political borders do not necessarily correspond to ethnic boundaries.” Footnote 121 In other words, if we abstract the problem from the Canadian context, where it may appear to constitute an overreaction, it may well be that we are dealing with a concern that is serious and worthy of attention. Moreover, it may be that even in the case of Canada the reaction to France’s creation of an extraterritorial constituency was partly informed, if indirectly, by fears of French meddling in the politics of Québec, particularly in a context where French nationals have become one of the most significant minorities in the province.
One point worth considering is that the representatives of, for example, French nationals residing in North America might, aside from representing their general political views in relation to France, also take up issues that are of more specific concern to French nationals residing in Canada (for example, a problem associated with the slow processing of immigration applications). Footnote 122 In other words, the concern is that the elected representatives of a particular diasporic community may act — in addition to their role as members of a legislature within the country of origin concerned with its treatment of its diaspora — as informal or even formal spokespersons for that community in its relations with the host government. In doing so, they would not only bypass the diplomatic and consular relations between the state of origin and the host state, but they might also create a harmful confusion of roles, especially when it comes to dual nationals.
This has in fact already occurred to a certain extent in a way that might seem to confirm Canadian governmental fears. For example, Frédéric Lefebvre, the member of the French Parliament representing French nationals in North America, visited Canada in 2012 and 2013. On the first occasion, he was both a member of the French Parliament and secretary of state in the French government, making it unclear in which capacity he was intervening. On that occasion, he raised not only a number of issues of significance to broader French-Canadian relations (economic cooperation, investment, Francophonie, tourism) but also issues that one would think were of more direct relevance to his constituents (the recognition of the diplomas of French nurses in Canada and the slow processing of permanent residency requests). It would seem to be a diplomatic faux pas for an elected representative to take up the latter issues directly with Canadian authorities, as opposed to raising them in the French Parliament for the French government to raise with the Canadian government through diplomatic channels.
However, to describe the work of a foreign-elected representative of a constituency in Canada as interference in Canada’s domestic affairs is manifestly excessive. It is not uncommon for foreign parliamentarians to visit another country and to bring up, in that context, issues of concern to the nationals of both states. Although operating on the margins of normal diplomatic channels, such visits have long been accepted and cannot generally be characterized as meddling in that state’s internal affairs, even in the case where the representative claims an electoral legitimacy emanating from nationals living in the host state. Footnote 123 Parliamentarians representing diasporic constituencies typically reside and work in the country of origin, not in the host country. What is more, nothing in Canada’s reaction to Lefebvre’s visit suggests that there was much actual opposition or that the visit was anything but benign. This in fact suggests a form of acquiescence to the practice.
At any rate, the point should be stressed that the existence of extraterritorial constituencies only has a marginal impact on what has always been possible in some way or another and certainly does not entitle the elected representatives to any particular political consideration. If anything, the issue might cause a problem for the country of origin — for example, where a parliamentarian who does not belong to the political party in power conducts his or her own para-diplomacy in ways that may be in tension with the government’s wishes. Moreover, it is important to note that in all three case studies reviewed in this article (Tunisia, France, and Italy), the constituency in question is North America, and not particularly Canada, in a way that transcends boundaries and thus belies any intention to meddle in the affairs of a particular country.
oppressive regimes and the protection of host state nationals
A third fear is that the holding of a foreign election in host-state territory through the mechanism of extraterritorial constituencies might facilitate the rigging of the foreign election or disrupt the democratic process in the foreign state in ways that serve the party in power. One can imagine, for example, a dictatorial and oppressive regime (but one not adverse to the veneer of staged elections) seeking to involve its diaspora in ways that would more or less implicitly enlist the endorsement of the host state. It is indeed critical that external voting be conducted without political or government influence or interference, and one can understand how democratic states might not want to lend too much support to various rigged electoral processes.
Worries over such nefarious foreign manipulation of diasporas, through diplomatic channels, are justified to some extent. For instance, in 2012, the Iranian embassy in Ottawa was suspected of using cultural events as a cover for spreading Iranian government propaganda and to monitor — and sometimes intimidate — Iranian nationals living in Canada. Footnote 124 Canadian Foreign Affairs Minister John Baird took those allegations seriously. He stated that “Iranian-Canadians left Iran to build a better life in Canada and it’s completely inconsistent with any diplomatic mission — for the Iranian mission here in Ottawa — to interfere with the liberties that they enjoy in Canada.” Footnote 125 However, and herein lies the crux of the matter, external voting does not play any causal effect in this regard and would neither diminish nor augment foreign pressure on diasporas through diplomatic channels.
That being said, the international community must remain vigilant in order to ensure that external voting rights are granted for the benefit of the relevant population, and not as a way for illegitimate governments to cling to power. For instance, during the Yugoslav wars of the 1990s, then-president of Croatia Franjo Tudjman and his government took advantage of the nationalistic leanings of the Croats living abroad by passing an electoral law that gave Croat expatriates twelve seats out of a total of 127 in the Croatian Parliament. Footnote 126 Unsurprisingly, Tudjman’s Hrvatska Demokratska Zejednica (or Croat Democratic Union) won all twelve of those seats in the 1995 election. Footnote 127 As explained in the IIDEA Handbook, the “institutional structure of external voting helped the incumbent government to win a majority, and there were vehement complaints from both lawyers and public opinion.” Footnote 128 This all changed with the implementation of a new electoral law in 1999, which provided for “a new allocation procedure [that] made the number of external seats dependent on the ratio of the number of external valid votes to the total number of domestic valid votes.” Footnote 129
In short, the Croatian experience of the 1990s may suggest that the international community should monitor the implementation of new external voting procedures, especially in countries that are transitioning towards democracy. Yet how a foreign state decides to organize its elections is largely a question that is within its sovereignty, and Canada would presumably expect foreign states not to interfere with its electoral laws. And, in any case, the Croatian experience has shown that external voting may be a two-edged sword for governments trying to cling to power: the introduction of external voting may either “increase the legitimacy of a democratic system or undermine it by being perceived as an instrument of specific political interests.” Footnote 130 It is therefore not self-evident in this context that the danger of manipulation of extraterritorial constituencies is a very pressing danger for host countries.
On a related note, countries that are reluctant to allow external voting or to permit extraterritorial electoral constituencies on their territory often invoke “security” reasons to justify their refusal. Yet this appears to be a non-problem. There are many ways in which fears about security can be alleviated. For example, “[a]greements with host countries generally include specific security stipulations, particularly regarding registration and voting sites and the transport of election materials.” Footnote 131 If the host country has any concern over security measures, this can always be a matter of discussion and negotiation with the country of origin. Footnote 132
importing foreign disputes
Canada also fears that extraterritorial electoral constituencies that include its territory may lead to “importing foreign political disputes to Canada.” Footnote 133 However, the only political disputes that could potentially be imported through external voting seem to be the inevitable political debates within the expatriate community that lives on the host country’s soil. These debates are often desirable because they provide for necessary and healthy exchanges on the identity and experience of members of the community who still want to keep ties with their country of origin. Although such debates will inevitably reflect also on the community’s situation in their country of adoption, they would likely occur within the community in any case, even in the absence of extraterritorial electoral constituencies. For instance, the Lebanese diaspora in Canada — which does not benefit from direct extraterritorial representation — is already divided along political lines, notably with respect to Syria’s presence in Lebanon, the question of Hezbollah, and the problem posed by political refugees formerly belonging to the South Lebanon Army, which is allied with Israel in Lebanon. Footnote 134 The notion that external voting and the creation of an extraterritorial electoral constituency encompassing Canada’s territory would augment political disputes within expatriate communities on Canadian soil would require serious empirical evidence.
Moreover, in the specific case of Canada, its policy of refusing requests by foreign states to include Canada in their extraterritorial constituencies is somewhat incoherent. While Canada fears that extraterritorial electoral constituencies would lead to an increase of foreign interference in its internal affairs, it has implemented or expressed interest in measures and programs that could undoubtedly have a greater impact on the level of foreign interference in its internal affairs, at least symbolically. For instance, the Canadian government has come to an agreement with the United Kingdom to share space in its embassies around the world in order to save costs. Footnote 135 It goes without saying that such a measure could easily be perceived as — or, as some would argue, could actually lead to — interference in Canadian affairs by British officials. The Canadian government has, oddly enough, dismissed this argument. Footnote 136
host state’s social cohesion
Lastly, the Government of Canada has also stated that it opposes foreign electoral campaigns in Canada because they “could focus on political issues in Canada and/or bilateral disputes, and impair inclusiveness, identity and social cohesion.” Footnote 137 One can imagine, for example, a situation in which relations between Canada and a vote-granting foreign state were particularly fraught and in which campaigning directed to a particular diaspora in Canada could heighten tensions between the two states. Moreover, it is clear that the normalization of elections for diasporas through the creation of electoral constituencies would lead to individuals being politically involved not only in Canada but also in foreign jurisdictions.
Nonetheless, apart from the evident argument that it is not clear what the creation of extraterritorial constituencies adds to the possibility of members of diasporas in Canada voting in foreign elections (a possibility that Canada, so far, has not challenged), it is hardly evident that voting for foreign representatives as an X national in Canada endangers Canadian social cohesion. It might precipitate, for example, a greater awareness within a particular community of how its interests and political preferences as X nationals living in Canada are different from those of X nationals in general. In other words, there is no reason to think that it would necessarily distance members of said diasporas from their moorings in Canadian culture.
Further, Canada has a highly diversified population that includes not only people of different languages, cultures, and countries of origin but also people with different political views. As mentioned earlier, expatriate communities are often politically divided and may hold a diversity of views on various matters, including issues involving their country of origin. Footnote 138 It is hard to see how the ban on foreign electoral campaigns as well as on foreign electoral constituencies on Canada’s soil would prevent such differences of opinion from emerging and how the existence of such differences could actually impair Canadian “identity and social cohesion.”
In the same vein, it is hard to see how foreign electoral activity in Canada could impair inclusiveness. Rather, it seems to be quite the opposite, since a ban on foreign electoral activity in Canada could deprive thousands of expatriates living in Canada from exercising their only voting rights — if, for instance, they do not hold Canadian citizenship and therefore are not allowed to vote in Canadian elections. Simply put, Canada’s opposition to external voting is self-defeating, to the extent that the feelings of alienation it may generate within diasporas in Canada would undermine the very inclusiveness it seeks to protect.
In Defense of Transnational Voting Rights: From State of Origin to Host State
Finally, although no extant instrument of international law specifically includes external or “out-of-country” voting as an integral part of the right of universal suffrage, human rights considerations militate in favour of the acceptance by host states of foreign electoral activity and extraterritorial electoral constituencies on their soil. Indeed, external voting and foreign electoral constituencies should be accepted as a means of actualizing and ensuring political rights, a growing international phenomenon, a way of accelerating the transition to democracy in certain countries, and as part of a trend towards electoral “de-localization.”
means of actualizing and ensuring political rights
External voting is a solution to the problem of the political representation of nationals living abroad as well as a means of ensuring and actualizing their political rights. At first sight, the inclusion of external voting (and of direct representation) as part of the right of universal suffrage seems neither self-evident nor unproblematic. Footnote 139 As stressed in the IIDEA Handbook, such inclusion goes against one of the classic requirements for voting rights, namely residency. Footnote 140 This position derives from the traditional republican position, which maintains that “only the citizens who are present on the territory and affected by the consequences of their vote should be entitled to the right of vote.” Footnote 141 There is certainly a case to be made, following the principles of political theory, that voting rights should flow from residency rather than nationality, Footnote 142 since residents are affected by host-state policies whereas expatriate nationals are not. Footnote 143 Perhaps inspired by such arguments, none of the various international instruments that recognize universal, equal, and free suffrage as an inalienable human right actually protect the right of people to vote from abroad. Footnote 144 The 1948 Universal Declaration of Human Rights, the 1948 American Declaration of Human Rights and Duties, and the 1969 American Convention on Human Rights do not explicitly mention external voting as an integral part of universal suffrage. Footnote 145 In many ways, this reflects some of the traditional civic-Westphalian assumptions of international instruments — including international human rights instruments — in the sense that even the internationally protected right to vote is only conceived as a right to vote in one particular country.
However, Article 41 of the 1990 International Convention on the Protection of the Right of All Migrant Workers and Members of Their Families protects the right of migrant workers and of members of their families 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.” Footnote 146 Furthermore, the second paragraph of the same article specifies that “[t]he States concerned shall, as appropriate and in accordance with their legislation, facilitate the exercise of these rights.” Footnote 147 It is true, however, that the protections conferred by this document are only aimed at migrant workers and their families, not at migrant populations in general. Furthermore, only forty-eight countries have become parties to this international treaty. Footnote 148 Canada is not a party to this convention and is therefore not bound by it. Footnote 149
Nonetheless, the view that non-resident nationals have no interest in voting in their country of origin is at best a simplification. That interest may be of a different kind than that of resident nationals, but expatriates continue both to entertain deep psychological and personal ties with their country of origin and to be affected by political decisions taken there, if only those that have an international impact. In terms of nationality, the idea that some nationals have a right to partake in elections and others not, based merely on residency, seems to create a form of inequality between nationals that is difficult to justify. Moreover, from the point of view of their country of origin, expatriate nationals may make an interesting “external” contribution to domestic political affairs.
The point here is not to try and resolve this fraught political controversy on first principles but, rather, to merely note that in a context where the controversy is largely unsettled (certainly as a matter of international law), comity and respect for the sovereignty of other states suggest the desirability of a permissive and accommodating stance by the host state. It is also worth noting, in this context, that Canada’s own attempt to deprive some of its long-term (over five years) expatriate citizens from voting in Canadian elections has been struck down by, and the object of a severe rebuke by, the Superior Court of Justice of Ontario in Frank v A.G. (Canada). Footnote 150 While the Court of Appeal for Ontario has recently overturned this decision in a two-to-one judgment, Footnote 151 the controversy remains as to whether the federal government is justified in removing voting rights from Canadian citizens on the basis that they have lived abroad for five years. Given the constitutional issues raised in this case and Justice Laskin’s vigorous dissent, some commentators have argued that it is likely that the Supreme Court of Canada will grant leave to appeal the decision. Footnote 152 Notwithstanding the outcome of this case and the enduring controversy regarding Ottawa’s external voting policy vis-à-vis its own non-resident citizens, it is hard to understand Canada’s ill-will towards what are, essentially, efforts by foreign states to honour their obligations to their nationals who happen to live in Canada.
In addition, external voting is often the only means for people living outside their country of origin to exercise any voting rights. For instance, in a situation where an expatriate lives in Canada but does not hold Canadian citizenship, he or she would not have the right to vote in Canadian elections. Footnote 153 Therefore, that person’s voting rights may be limited to elections in his or her country of origin. Thus, it is important to ensure that these people do have an opportunity to exercise their political rights. In that sense, external voting and the extraterritorial electoral constituency system — which allows for direct representation — are solutions to the problem of the political representation of nationals living abroad.
positive impact on transitions to democracy
External voting rights are becoming increasingly important in the context of transitions to democracy. For instance, Tunisians living abroad played a significant role in the 2011 Constituent Assembly election in Tunisia, whose elected members had the task of drafting a new constitution. In fact, expatriate Tunisians chose eighteen of the 217 members of the Constituent Assembly, spread across six constituencies: two in France, one in Germany, one in Italy, one in North America, and one in the other Arab countries. Footnote 154 With almost one million Tunisians living abroad Footnote 155 (out of an estimated population of just over ten million) and eighteen seats in the Constituent Assembly, it goes without saying that expatriate Tunisians had a significant impact on the identity of the representatives who drafted the new constitution and, hence, on Tunisia’s transition to democracy.
Given the clear impact of external voting and extraterritorial constituencies on transitions to democracy, Canada’s refusal to allow extraterritorial constituencies that include its territory are inconsistent with its international commitments to foster democracy and protect individual and minority rights. For example, in the context of Tunisia, Canada did not object to Tunisians voting from abroad at the time of the Zine El Abidine Ben Ali dictatorship, but chose to do so in the first truly democratic elections the country had seen for decades. Footnote 156 In that sense, Canada’s refusal to sanction a Tunisian extraterritorial electoral constituency that includes its territory seems rather paradoxical for a government that claims to be “an active proponent and supporter of democracy around the world” and to be “proud to assist in the promotion and protection of free and fair elections.” Footnote 157
a trend towards electoral “de-localization”
Lastly, Canada’s opposition seems at odds with a broader trend towards electoral “de-localization.” George Bancroft famously said in 1849 that “a nation should as soon tolerate a man with two wives as a man with two countries.” Footnote 158 Similarly, Theodore Roosevelt observed in 1915 that dual nationality was a “self-evident absurdity.” Footnote 159 It goes without saying that conceptions pertaining to membership in a political community have evolved since the last century. This evolution is perceptible not only with regard to political membership and belonging but also with respect to external voting and state sovereignty. Whatever political misgivings one may have about granting voting rights to one’s nationals abroad (and one may surmise that Canada’s opposition to foreign political constituencies is at least partly informed by its reluctance to grant voting rights to its own expatriates), such misgivings are not legally sufficient to oppose a development that is already in place in other countries. If nothing else, the recognition of a foreign state’s grant of voting rights to its nationals residing abroad is a question of comity and even non-interference in the affairs of that state, particularly in the absence of any explicit rule of international law prohibiting the practice.
As discussed earlier, the fear that sovereignty will be violated or diminished is often the primary concern when a host state seems reluctant to — or does actually resist — foreign electoral activity taking place within its territory. However, as the IIDEA Handbook notes, it is perhaps time to reframe the concept of sovereignty as less of a territorial concept and more of a moral foundation for rights and obligations owed to a heterogeneous population that may transcend fixed geographical boundaries:
Such a morally based non-territorial conception of sovereignty suggests that external voting is not a violation of a host country’s sovereignty but rather a means [by which] the country of origin [fulfils] its obligations as a sovereign to its people through the extension of the rights of political participation to all its citizens, wherever they may reside. Footnote 160
In that sense, external voting — and extraterritorial constituencies — should not be perceived as an extension of a state’s sovereignty into another but, rather, as an extension of political rights to non-resident nationals that allows the latter to maintain and develop legitimate forms of political transnationalism and that is indirectly conducive to their continued development as nationals. Footnote 161 In other words, external voting, and extraterritorial representation, in particular, should not be seen by host countries as an attack on state sovereignty but, rather, as a mere “recognition by home-country authorities that their citizens abroad remain members of the polity despite their physical absence from the territory.” Footnote 162 Canada could stand to gain from a reinforcement of the political links between diasporas and their countries of origin in ways that are consonant with a fundamental recognition of dual nationality, not as an unfortunate by-product of transnational mobility but, rather, as the desirable result of increasingly complex and varied national identities.
Conclusion
With the growing number of states that have granted voting rights to their non-resident nationals, the question of the electoral representation of expatriates has become increasingly important in recent years. Yet, while the political and philosophical issues underlying this question have been widely discussed among scholars, very little has been written on the host state’s legal perspective on external voting, particularly regarding the inclusion of a host state’s territory in a foreign electoral constituency. The purpose of this article has been to demonstrate that Canada’s objections to the inclusion of its territory in other states’ electoral constituencies are unfounded and unnecessary both in practical and symbolic terms. Indeed, Canada’s policy of refusal to sanction extraterritorial electoral constituencies within its borders does not protect its territorial sovereignty, nor does it add any protection against foreign interference in its domestic affairs. Rather, its main effect is to alienate thousands of dual or foreign nationals residing in Canada by preventing their direct representation in their home state’s National Assembly or legislature and, in some cases, their only way to exercise their voting rights. Therefore, Canada should reconsider its policy and adopt a new, twenty-first-century conception of voting rights that does not depict external voting and extraterritorial representation as an attack on state sovereignty but, rather, treats both simply as facts of global life and the increasingly transnational lives that members of diasporas experience. Footnote 163
Despite resistance from certain actors, including the former French ambassador to Canada and a number of opposition parties at the federal level, the current Canadian government does not seem open to modifying the policy it put in place in 2008. It is true that no international instrument currently obligates Canada to recognize and accept foreign electoral constituencies that include its territory. However, internal and international pressure could perhaps persuade Canada to abandon its policy. First, expatriate communities and diasporas residing in Canada now have an important influence on Canadian politics at the federal level, especially in urban ridings. It would be ironic, but not in contradiction to some of the themes of this article, if extraterritorial representation for diasporas in Canada had to be gained by a determined push through the Canadian electoral process, one in which such communities simultaneously affirmed their existence as citizens/residents of Canada and of another polity. Second, external pressure could also lead to some change in this policy, as happened in the context of the January 2005 Iraq National Assembly election, when Ottawa was convinced by the international community to relax its policy of forcing Iraqi nationals living in Canada to vote only by post or within Iraqi diplomatic premises. Footnote 164
