ANNEX III

Address by Mr. Ole Espersen, Commissioner of the Council of the Baltic Sea States on Democratic Institutions and Human Rights, including the Rights of Persons belonging to Minorities, 12 May 1997, at a Seminar arranged by the Finnish delegation to the Parliamentary Assembly of the Council of Europe aboard M/S Silja Symphony, 11 - 13 May 1997.

RIGHTS AND OBLIGATIONS OF NON-CITIZENS

The concept of citizenship as such remains a valid discussion. When discussing rights and obligations it will make a difference whether a few or many residents in a given country are non-citizens and whether it is easy or difficult to become a citizen. If there are only a few non-citizens in a country and it is easy to become a citizen, then such a situation does not create a problem and is not a topic for discussion. However in countries where non-citizens compose a large part of the population and it is difficult to acquire citizenship, then it is a problem which should be discussed.

In the report on nationality legislation in three Baltic states leading up to their admission to the Council of Europe it was stated:

"As regards the human rights aspects of this problem, it should first be noted that neither the European Convention on Human Rights nor any other international human rights convention recognizes the right to a certain citizenship as a human right. Consequently, it must in principle be left to each State to determine the conditions for acquiring its citizenship." (Pekkanen-Danelius report §35).

However, the report also referred to Article 3 of the First Protocol to the Convention, which ensures the free expression of opinion of the people in the choice of the legislation, and stated:

"...if substantial parts of the population of a country are denied the right to become citizens, and thereby are also domed for instance the right to vote in parliamentary elections, this could affect the character of the democratic system in that country."(Pekkanen-Danelius report, note 130)

Speaking about desirable human rights standards - "what ought to be" - one might refer to the famous statement of US Supreme Court Chief Justice Earl Warren from 1958:

"Citizenship is man's basic right for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen."

Fortunately, since 1958 the situation has to some extent changed in favour of stateless persons. Most of the basic human rights can now be invoked also by stateless persons.

But that may be of a more theoretical interest compared to those rights which they do not have.

While discussing this topic, I will take into account slow but positive developments in international law with regard to the situation of non-citizens and the vital importance of not being stateless.

My argument will be based on the following thesis: the less generous a given country is in conferring its citizenship to persons fulfilling normal conditions, the more liberal the country should be in according other rights and obligations to such persons.

Some preliminary remarks

"Non-citizens" may be understood as stateless persons or as persons with foreign nationality. Usually their legal situation will be the same. Some existing differences will be mentioned later.

The fact that international law regulates the concept of citizenship only to a very limited extent should be borne in mind. Each country is to a large extent free in deciding which rights and duties should depend on citizenship. This is so because citizenship issues reflect the historical peculiarities, national sensibilities, geopolitical situation and the political context of each country, i.e. which rights and freedoms are granted exclusively to citizens.

Historically, states have used citizenship as a tool to protect their own people from foreigners. Citizenship carried certain rights and privileges which traditionally have been reserved only for citizens and which placed the citizens in a privileged position compared with that of non-citizens. Acquisition of citizenship was based on the understanding that the state prevents tension within society and increases its national security by restricting the right of people with foreign ethnic origin to participate in political life of a country or to hold high ranking positions.

The periods between the World Wars and following World War II was important for the formation of citizenship laws. Wars, massive migration, independence of colonies and flows of refugees all raised the awareness of problems of non-citizens in these countries. World War II and the division of Europe increased the importance of defining and maintaining the citizenship of countries, and contributed significantly to a general awareness of democracy and human rights. In response, the development of international law gradually extended the responsibilities of states towards the non-citizens and conferred enjoyment of human rights and possibility of participation in democratic life to nationals of other countries, refugees and stateless persons. This is where we - in general terms - find ourselves today.

Now I will list and comment upon the rights and obligations which are commonly or sometimes in focus and of interest for cooperation within the Council of Europe and, of course, also within the Baltic Sea region.

Obligations

According to existing general rules non-citizens have the same obligations as citizens. They are required to pay taxes, custom duties, etc., and they will generally be bound by national legislation. They are not necessarily excluded from military service unless there is relevant agreement between the country of residence and the home country of a foreign national. To sum up, it could be said that non-citizens must fulfill and obey all existing general obligations, otherwise they may be punished according to national legislation, even deported from the country.

Rights

A. Political rights

a) Voting rights

The general rule is that non-citizens enjoy neither the right to vote nor the right to stand for office in national elections and usually they cannot participate in national referendums either. This situation has not been seriously challenged by any country so far.

There is a common rule that non-citizens do not have voting rights or the right to be elected at local elections. However a number of exceptions exist and recent regional cooperation shows positive developments in this sphere of human rights in the direction of granting voting rights to non-citizens.

In 1973 the Parliamentary Assembly of the Council of Europe recommended to grant to migrant workers after five years the right to vote and to stand for election in municipal affairs, provided they had lived in the municipality concerned for the previous three years (Recommendation 712). In the same year, the Nordic Council recommended to grant Nordic citizens residing in other Nordic countries voting rights and eligibility in local elections. This recommendation has now been implemented.

In 1992 the Council of Europe prepared the Convention on the Participation of Foreigners in Public Life at Local Level which provides the right for every foreign resident to vote and stand for election in local governments.

The Maastricht Treaty provides for the right to vote and to stand as a candidate in municipal elections for citizens of the European Union residing in EU member states of which they are not citizens.

As some CBSS member states (Denmark, Finland, Germany and Sweden) are also members of the European Union, some voting rights in these four CBSS member states are based on treaty obligations. Therefore EU citizens are granted voting rights in local elections in Denmark, Sweden, Finland and Germany under the same conditions as citizens. Moreover, EU citizens enjoy the right to run for public office in local elections.

The Nordic countries and Estonia have granted voting rights to all non-citizens, irrespective of the country of which they are citizen or whether they are stateless. All these countries have residence requirements from 2 to 5 years before non-citizens are allowed to participate in local elections. The Nordic countries link the right to vote to the right to be eligible for public office, and therefore non-citizens in these countries also enjoy the right to be elected to municipalities, whereas in Estonia only citizens are eligible for public office.

Other CBSS member states - Russia, Latvia, Lithuania, Poland and Germany (with the exception of EU citizens) - do not grant non-citizens the right either to vote at the local elections or to run for public office.

In my survey "The Rights of Non-citizens. Part I on Voting Rights" I recommended that member countries consider extending at least voting rights in local authority elections, provided that non-citizens fulfill the same legal requirements as apply to citizens and furthermore have been lawful and habitual residents in the state concerned for a period not exceeding 2-3 years prior to the elections. At the same time it should be considered whether there is at least a basis for an agreement between the members of the CBSS on equal treatment of CBSS citizens. It may seem difficult to understand why, for instance, a Dane may vote in Sweden but not in Poland, and why a Norwegian cannot vote in Germany, while a Finn has this right.

b) Membership of political organizations

Only a few countries prohibit non-citizens from general membership or membership of boards of political associations. In most CBSS member states there are no restrictions on non-citizens becoming full members of political organizations.

In my opinion, non-citizens should be eligible for membership of all political associations which are relevant to the governmental body to which they have a right to vote. Similarly, they should have unrestricted access to those organisations which might work for their future voting rights. In general, I would venture to propose to let the associations themselves openly decide about their membership, i.e. who can become a member.

B. Rights to certain kinds of jobs

It is normal that non-citizens with permanent residence permits have the right to work. But it is also common that certain functions or positions in public employment are by law only open to citizens. The reasons for this may vary, but I will mention five basic considerations below:

I am referring here to positions in the public sector, i.e. within all governmental and municipal structures. A sector of semi-public employment exists in all countries, and will merit special attention.

a) the need to ensure the loyalty of the individual to the state;

b) the need to restrict access to civil service for reasons of public security;

c) the need to ensure official representation of the state;

d) the need to reserve for citizens the exercise of public/administrative decision- making authority over fellow citizens;

e) the need to be able to hold a person accountable and responsible for his discharge of official duties.

In addition one will find that a number of semi-public posts and professions are protected by national legislation or by professional organizations themselves, where the motives for excluding the access of non-citizens often seem to be most in the interest of the profession in maintaining a monopoly or at least a large degree of control over the profession. This may be true of medical, legal and similar professions.

I think we may proceed by examining each of the general rationales of national legislation, which we may assume will also be at the basis of international law.

a) Loyalty

There will in any state structure be a number of posts where demands on the loyalty of the incumbent will be greater and more exacting than elsewhere in public structures. Such posts by their nature will require loyalty and identification with the state. Persons employed in such positions will typically be empowered to act on behalf of or to represent state or national interests or be invested with broad decision-making powers, where the country has a legitimate and understandable interest in securing the loyalty of the person.

The notion of loyalty must not be understood too narrowly, and does not imply that the person must at all times be in agreement with decisions taken by superiors or that he must demonstrate an unquestioning acceptance of official policy. Nor must it be understood as being a limitation of the freedom of thought and expression of the civil servant. But it is a loyalty where the state may expect the person to act in accordance with and for the promotion of official policy and accept them as part of his or her responsibility. It is a concept of loyalty where the person cannot be known to have or be suspected of having loyalties to another state or group, and where the person in a situation of internal or national conflict may be suspected of serving other interests than those of the state.

Such demands of loyalty, which are usually regarded as part of the bond between a state and its citizens, are commonly extended to people who are in the highest offices. They would include heads of state, ministers, deputy ministers, elected members of national legislatures and parliaments, the judiciary, senior police officers, members of the defence forces and the senior staff in the state and public administration.

b) Public security

Persons who are employed in functions relating to public security may reasonably be expected to be citizens of the country, since a) they have specific obligations towards the maintenance of state integrity; b) they have specific authority in the exercise of force and the use of authorized violence; c) their citizenship may also be a factor in maintaining public confidence and acceptance of their functions.

Members of the armed forces, members of internal security forces, the staff of border- defence forces as well as a number of law-enforcement officials may legitimately be required to be citizens of the country.

However, it appears to be the general experience that law-enforcement in immigrant and non-citizen communities can be the cause of social division between majority and minority groups in a country, and that policies aimed at including non-citizens and/or people of another ethnic origin in sharing responsibility for law-enforcement have given good results.

c) Decision-making authority

With respect to posts which involve the exercise of decision-making authority over others, one must differentiate between the various forms of decisions, and at what level the decisions are made. Decisions affecting citizens and residents of a country are made in great numbers every day and at all levels of any state and public administration, and most public posts except for perhaps very menial functions will involve a degree of decision-making off coring other persons. To exclude non-citizens from all posts with an element of decision-making authority would not only be overly restrictive and defeat the purpose of promoting equality of treatment between citizens and non-citizens, but it would presumably also be contrary to basic principles of non-discrimination. It is therefore necessary to try and delimit certain categories of posts where decision-making authority may be exercised by non-citizens without compromising - in fact or in fiction - the authority of the state structures.

Posts in, for example, social welfare, education, environmental protection and other spheres of public regulation will often involve decision-making in individual cases, dealing with applications and will require the normal performance of administrative functions. It would seem unreasonable that the post of e.g. a social welfare worker who has to decide on pension benefits, public housing compensations and similar benefits must be a citizen of the country. Similarly it would seen unreasonable that a teacher, who has to decide on pupils' grades or make decisions regarding the employment of teachers or other staff, must be a citizen. Members of the judiciary who are not judges, and who are therefore not empowered to pass decisions or verdicts are in a position where one may question whether they need to be citizens, particularly because they function within a structure where the power to make decisions and to issue instructions to staff is clearly defined.

Moreover, it should be taken into consideration that decisions made at the primary level of public administration may as a general rule be appealed to a higher administrative authority. This will contribute towards ensuring equal treatment of individuals before the law and maintain the integrity of decision-making procedures.

Intermediate levels of decision-making in public structures include a wide range of functions where the holders of posts have both the power to make decisions regarding citizens but also the authority to make decisions pertaining to staff, organising work functions and decisions relating to expenditure. With regard to such posts, it might be useful to ask whether there are such considerations as mentioned under the principles of loyalty, public security and official representation, which would prevent non-citizens from assuming such responsibilities. Similarly, one should consider the command structures of modem state administrative structures, which have developed extensive and usually well-functioning control and supervisory functions coupled with legislation on openness of administration and the existence of a free and investigative press. Therefore, the management of state administrations should have ample possibilities to exercise sufficient supervision of staff at a lower level. I would therefore encourage governments to consider the possibility of permitting equal access to positions also on the intermediate level and, if necessary, subject to closer evaluation of the individual categories of posts.

On the question of public acceptance of intermediate staff being occupied by non-citizens, I believe it to be the responsibility of each state to foster understanding and acceptance of that fact, in accordance with the specific conditions which prevail in the country.

d) Official representation

A number of posts require that state or national interests are represented either in relations with other countries or with citizens of the country. In such situations the foreign party or the public may expect to deal with a person who is a citizen and who therefore formally appears to be invested with the authority of the state.

This would account for persons who enter into working contacts with representatives of foreign countries and would therefore include in particular members of fee diplomatic service.

e) Accountability

The need to hold an employee legally accountable and responsible for his actions is a legitimate concern of any state, and may be a contributing factor in reserving some positions for citizens who may not have the opportunity of escaping justice by fleeing to another country. However, it is necessary to maintain a sense of proportionality, and the mere fact that someone may move to another country by force of having another nationality must be seen in relation to the potential damage which the person could cause in a public position.

Other professions (not civil servants in the common meaning of the word)

In every country a number of professions are traditionally reserved for people with specific qualifications and authorisations according to internal regulations of collegiate organs, e.g. medical and bar associations. Such associations represents a complex picture, particularly because they are often subjected to a high degree of public regulation. In a number of countries, admittance of non-citizens to such organizations is at present difficult, either because of strict authorization requirements, failure to recognize foreign diplomas of equal quality or because regulations or legislation directly hinder the admittance of non-citizens to membership and exercise of the profession. As mentioned earlier, one needs also to consider the fact that restrictions of access to professional bodies may often be dictated by a motive to maintain a monopoly of the profession and to avoid professional competition.

In all cases where restrictions exists, I believe that governments in cooperation with the professional organs should review and reconsider the current necessity of maintaining such restrictions. In some cases laws may explicitly exclude non-citizens from membership of certain professions. In such cases, governments should earnestly reconsider the need for such restrictions. Similarly, governments should become parties to agreements on mutual recognition of diplomas. Such agreements are subject of both Council of Europe conventions and EU regulations.

C. Right to travel

Stateless persons usually face problems in travelling from and to a country. That is not usually the case for non-citizens who are citizens of a foreign country and possess the passport of that country. However it is a serious problem for refugees or stateless persons, including those who were citizens of "disappeared countries", e.g. former Yugoslavia.

As a rule, anyone permanently residing in a country may travel freely inside as well as out of the country. Asylum seekers and other applicants for residence permits who wish to go abroad should usually apply for a special permit to re-enter the country. Sometimes countries issue special passports for stateless persons who permanently reside in a country. That, however, does not completely solve the problem because as practice shows holders of aliens' passports require visas to nearly every country, despite the existence of visa free regimes which may apply for citizens.

D. Right to stay

International human rights law does not contain any provision regarding the rights of non- citizens to stay in a foreign country. The Fourth Protocol of the European Convention on Human Rights only prohibits collective expulsion of foreigners from a country.

The right to stay in the country for non-citizens is regulated usually only by national laws. It is encouraging to note that the fear of non-citizens residing legally in a country for a longer period of being expelled has diminished with the recent development of national legislation and practice, whereby countries are careful not to expel people who have strong links to the country (family, lengthy sojourn, etc.)

E. Right to family reunification

International law has rather vague references to the right to family reunification. Only Article 8 of the European Convention on Human Rights provides some protection. Therefore, the right to family reunification is usually provided only by national laws.

As practice shows, the right to family reunification depends on various conditions and on the legal status of the non-citizen, e.g. recognised refugee, immigrant or migrant worker etc., as well as on the relationship between the non-citizen and the applicant, e.g. spouse, child or parent, on the period of residence and on the personal situation, e.g. financial abilities, etc.

F. Right to fair administrative treatment

Another specific feature of the situation of non-citizens is that they generally have to deal with different governmental institutions more often than many citizens. Sometimes it is quite difficult for non-citizens to get complete and comprehensive information on existing regulations, procedures and rules of administration, even regarding their own status as non-citizens. Such information can be very complicated and may be available only in an official language of a country.

In my opinion, non-citizens should, like all other persons, have a right to fair administrative treatment, i.e. they should have access to relevant information and have a right to appeal in case of negative administrative decisions. Decisions should be motivated and states should review their system of administrative appeal to ensure that such means of redress is available to non-citizens on an equal basis with citizens.

G. Right to own property

Some states impose restrictions on non-citizens with regard to buying and owning property (usually applying to real estate, including land).

Often non-citizens wishing to buy property have to obtain special permission from the authorities. Permits are sometimes not granted for the acquisition of real estate in cases of passive property investments or for recreational purposes. To my opinion, it is difficult to defend rules according to which non-citizens cannot buy, e.g., a flat or a villa for residential purposes.

Conclusions

As mentioned above, the rights of the non-citizens residing in a country mostly depend on the state, its historic experience, its geopolitical situation and its sense of national security. It is understandable that some countries due to uncertainties of their situation made certain restrictions for non-citizens to take part in particular spheres of the life of a country.

However, the global situation in our region changes and sometimes quickly - we should remember the international relations we had, for instance, ten years ago. Changes in the political map also have an impact on the development of human rights in general and on the perception of citizenship in particular. Today some states take a more liberal approach towards non-citizens residing in their territories, by conferring them rights and privileges which traditionally were granted only to citizens.

I would venture to call upon other countries to take into account changes in our part of the World and to re-consider the legal status and situation of non-citizens residing in their territories, by providing them with the opportunity to participate in the political and everyday life of a country on an equal basis with citizens.