Enfranchising Refugees: PNC Elections in Comparative Context

In early September 1993, weeks before the signing of the Declaration of Principles setting out a political framework for a negotiated solution to the conflict over the future of mandate Palestine – that is, Israel and the 1967 occupied Palestinian territory – more than 100 Palestinians from various walks of life issued a public statement warning that "decisions on issues…crucial to the destiny of the Palestinian people [were] no longer [being] made by Palestinian institutions." For many, the subsequent decision not to bring the Declaration before the Palestine National Council (PNC), the Palestine Liberation Organization`s (PLO) highest policy-making body, for discussion and approval, exemplified their concern. The transfer of PLO cadre and resources to build a nascent Palestinian state in the Israeli-occupied West Bank and Gaza Strip, and the delegation of PLO responsibilities to a newly-established Palestinian Authority (PA), with limited powers and responsibilities, further underscored growing concern about the PLO`s ability to represent the rights, interests, and aspirations of the Palestinian people as a whole. With more than half of the Palestinian people residing outside of the borders of historic Palestine, activists, academics and policymakers alike increasingly began to speak of a "crisis of representation." At its core was the exclusion of the vast majority of Palestinian refugees from decisions affecting their future.

One of the best explanations of the nature of the gap in representation can be found in the verbatim records and summary findings of an all-party British Commission of Enquiry on Palestinian Refugees that held hearings in camps and communities of exile across the Middle East in the weeks that followed the July 2000 collapse of final status negotiations between Israel and the PLO. Describing representation as the most complex, yet least studied and understood element of refugee life, the Commission reiterated refugee concerns about the urgent need to address gaps in representation at all levels – political, legal, collective and individual. The call for direct elections to the PLO`s National Council has been a primary demand of those hoping to rectify the crisis and restore the unity of the Palestinian people. A campaign undertaken over the last year aims to make such elections a reality through registration of the majority of prospective Palestinian voters who reside, involuntarily or otherwise, outside the borders of mandate Palestine. The enfranchisement of Palestinian refugees in PNC elections draws attention to an issue which has received relatively little attention in the discussion of refugee rights: the right to take part in the conduct of public affairs, whether directly or through freely chosen representatives. 

Refugee participation in elections 

Recent decades have witnessed growing recognition, in principle and in practice, of the right of refugees to take part in elections in their countries of origin. This is not to say that the issue was unheard-of in previous decades. Plebiscites during the inter-war period frequently allowed residents residing abroad to take part, conditional upon their return. A number of major decolonization agreements in the 1960s and 1970s, beginning with Algeria, included specific provisions relating to the participation of refugees displaced in the context of struggles for national liberation and independence. While these agreements also made participation conditional on return, more recent referenda – for example, in Eritrea and East Timor – have also provided for out-of-country voting. Rooted in the law and practice of self-determination, growing recognition of the right of refugees to take part in home country elections can be ascribed to the increasingly determinate character of the right to vote under international law, the expansion of liberal democracy and its centrality to contemporary peace-building missions, the impact of  migration and advances in travel and communication technologies on practices of political participation, and the consideration of forced displacement as a human rights issue. As the Palestinian case illustrates, it can also be ascribed to the participatory demands of refugees themselves. 

Articulation of the electoral rights of refugees in various official documents which emerged in the mid-1990s – for example, in the UN High Commissioner for Refugees` (UNHCR) Handbook on voluntary repatriation, and in a General Recommendation on article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination by the UN committee responsible for its oversight, exemplified an emerging understanding of refugee enfranchisement as a protection and human rights issue. The issue has since been taken up at the regional level in Europe, where Organization for Security and Cooperation (OSCE) and Council of Europe (CoE) declarations, codes of good conduct, and commitments governing democratic elections address the participation of refugees. More recently, the UN Secretary-General has endorsed a "Preliminary Framework" on "Ending Displacement in the Aftermath of Conflict" which calls, among several recommendations, for "[s]pecial efforts ... to develop policies and legislation that allow displaced persons to fully exercise their rights, including the right to participate in public affairs, elections and peace-building processes, and ensuring that their views are sought and taken into account in ongoing peace processes and the development of policies that affect them." Inclusive of elections, the Framework underscores the importance of addressing refugee participation in a range of contexts, including the negotiation of solutions to their situation – a process which often precedes the holding of "post-conflict" elections.

However, treaties which enshrine political participation as a fundamental human right have yet to address the specific situation of refugees. More specifically, they do not address the situation of citizens who are outside their home countries, notwithstanding the fading relevance of residence to the exercise of the right to take part in the conduct of public affairs. Addressing this lacuna, the International Organisation for Migration`s (IOM) "Participatory Election Project," which sought to identify relevant obligations, standards, and best practices, suggested that the voting rights of refugees under international law may be deduced from the over-arching principle of non-discrimination. Initial case law in Europe further suggested that a distinction with regard to residence should be made between citizens residing abroad voluntarily and those outside their country of citizenship involuntarily – although it did not address the specific situation of refugees. Furthermore, more recent jurisprudence relying on the CoE`s Code of Good Practice in Electoral Matters appears to support the assertion that exclusion of refugees from home country elections may comprise an arbitrary, and therefore prohibited, restriction on the exercise of the right to political participation. Clearly, it is a still-developing area of law. Nevertheless, recommendations that the right to political participation of refugees be enshrined in a binding instrument have yet to be addressed.

The rationale commonly cited for enfranchising refugees extends beyond widespread recognition of voting as a fundamental human right. Documentation and registration of refugees, campaign activities, along with the act of voting itself provide means to renew communication and re-establish connections between refugees and their communities of origin. The inclusion of refugees in home country elections may also contribute to national reconciliation and help to ensure their involvement in national reconstruction and development. Enfranchising refugees can also rectify and guard against demographic gerrymandering by ensuring their participation regardless of their displacement. The legitimacy of an election may also hinge on whether refugees are allowed to take part, particularly when they comprise a significant sector of the population at the national or constituency level. Finally, in situations where elections precede the conclusion of a peace agreement, the participation of refugees may also help ensure that official negotiators represent their rights, interests and aspirations.

The participation of refugees in post-conflict elections in Cambodia and Mozambique in the early 1990s arguably influenced the UNHCR`s subsequent elaboration of policy. With enfranchisement largely conditional on refugee return, elections in Bosnia and Herzegovina, and in Kosovo in the latter half of the decade, established new standards governing the electoral participation of refugees through out-of-country voting procedures. In all four cases, peace agreements included explicit provisions relating to the inclusion of refugees in post-conflict elections. The enfranchisement of refugees appears to be addressed more commonly, however, through agreement provisions relating to the timing of return and human rights guarantees from which the electoral rights of refugees may be inferred. In other cases, such as Croatia, refugee enfranchisement has been addressed in the rules and procedures governing elections. In most cases, enfranchisement takes place through the return of refugees prior to the holding of elections. Out-of-country voting procedures in cases like Bosnia and Herzegovina and Kosovo, and more recently in Afghanistan and Iraq, have been the exception rather than the rule. Practice is nevertheless inconsistent, varies widely across regions, and falls well behind the elaboration of principle.

This has been attributed in part to the fact that the electoral rights of refugees have yet to be codified in a binding instrument. It is only in the last decade, moreover, that relevant bodies like UNHCR and IOM have begun to elaborate standards and best practices to guide humanitarian and political actors. The participation of refugees in home country elections also raises a host of challenges, including reform or repeal of discriminatory legislation, identification, documentation and registration of voters, provision of adequate and timely voter information, establishment of conditions for safe and voluntary return of refugees to facilitate in-country voting, the added complexities and costs of out-of-country voting, and the opposition to or limitations imposed on out-of-country voting by countries of asylum. There is also the broader danger that if not well-designed, elections can be a trigger for renewed conflict or a source of new disputes, with the potential for new waves of displacement. Thus, while elections continue to be a central pillar in transitions from war to peace, there is also growing recognition of the importance of additional or supplementary mechanisms which can enable the participation of a broad range of stakeholders in peace-building processes.

Enfranchising Palestinian refugees

A brief comparison with the Palestinian experience underscores the importance of recent calls for direct elections to the PLO`s National Council as a starting point for addressing the aforementioned crisis over representation – a crisis that is now at least two decades old. The idea of holding a referendum to enable Palestinians to determine their own future, for example, has been set aside repeatedly since the early days of the conflict in favor of mechanisms which provide little opportunity for participation. When raised, moreover, the parties have been unable to agree on the inclusion of refugees who comprise the majority of the Palestinian people. The enfranchisement of refugees who originate from areas inside Israel has yet to be addressed, while those who originate from the West Bank, East Jerusalem, and Gaza Strip have been excluded, albeit "temporarily," from the Palestinian Authority`s legislative and presidential elections. Initially sidelined in favor of a quota system due to the non-cooperation of Arab host states, the subsequent focus on state-building, along with disagreements over reforms to facilitate the participation of Islamist groups, have further militated against direct elections for the PLO`s National Council.