Martin S. Flaherty

“My own approach to human rights is based on an inner sense of justice.  Perhaps that is part of me because I am from Ireland and have my roots in a past of struggle for freedom, of famine, and of dispersal of a people.  Perhaps also it derives from my experience as a lawyer and politician and, more recently, as a President . . . .” – Mary Robinson

The Irish Republic rightly takes pride in its modern cosmopolitan reputation.  This is the Ireland that embraces a dynamic and progressive future while not forgetting its past and paradoxical place as the first victim of European imperialism.

The many examples of this Ireland are fresh yet familiar.  The referenda on divorce, abortion, and same-sex marriage.  A leading (at least much of the time) post-industrial economy.  Oscar and Grammy winners talking their place with an ongoing line of Nobel laurates in literature.  A former Taoiseach, whatever his current difficulties, who is half-Indian and openly gay.  A recent and prestigious election to the UN Security Council.

Perhaps most impressive is the litany of Ireland’s last several presidents, from Mary Robinson to Mary McAleese to Michael D. Higgins.   Each one in person, speech, and deed, made Aras an Uacharain an international platform for the promotion of human rights, women’s equality, and social justice.

This Ireland has deep roots sometimes overshadowed by persistent stereotypes.  Yet the Irish Republic long ago could take pride in its prominent UN diplomats, relief workers, and a “blue helmet” peacekeepers who sacrificed to make the organization’s ideals a reality.  The Irish Constitution of 1937, sometimes dismissed for its embrace of the Church, is today better known for its distinction as the first domestic framework to enumerate modern affirmative rights such as education, redistributive justice, and a social safety net.

It was this Ireland, a state that had come to be known as a progressive international leader, that made me leap at the chance to assume dual citizenship during the year I first came to live and study in Dublin.  Experience confirmed my instinct.  As I travelled around the world, especially when undertaking various human rights fact-finding missions, I found that my Irish passport was something of a badge of honor.

Yet there remains at least one anomalous policy at odds with Ireland’s “green” image.  The exemplar of global values is a laggard when it comes to offering its own global diaspora even a token formal voice in making the decisions critical to its image – not least the election of the head of state.  Worse, the Irish State also denies such a voice to its citizens who live on the same island, north of an externally imposed border, over whom its policies directly bear.

Ireland’s policy of not permitting nationals living abroad to vote for President, let alone other offices, stands apart, and not just from its global reputation.  This denial stands apart from the far more generous approaches of a wide variety of governments elsewhere.  In part for this reason the policy also stands in tension with evolving international human rights law.  It also stands at odds with global trends that break down traditional barriers of sovereign exclusivity exemplified by Brexit, trends that the Irish State has otherwise led.

Consider first that nations that have left Ireland behind.  Among those that provide full voting rights in national elections for citizens abroad include: Colombia, the Dominican Republic, France, Italy, Mexico, Peru, Spain, Sweden and Switzerland.  Even the United Kingdom does not strip nationals resident abroad of the right to vote until a full 15 years of non-residence.  As one study observes, “Blanket franchise ineligibility for non-resident citizens is now the minority practice.”  In this, internationalist Ireland remains mired in a parochial backwater.

Ireland’s position may not violate international law.  Yet.  The International Covenant on Civil and Political Rights provides that: “Every citizen shall have the right and the opportunity . . .  without unreasonable restrictions . . . [t]o vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage.”  (Art. 25).  The Covenant further states that, :” “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law.”  (Art. 26).  The Committee that oversees the treaty has further declared that any restrictions on the franchise “may be subject only to reasonable restrictions, such as setting a minimum age limit.”  The often cautious European Court of Human Rights has previously ruled that certain restrictions on expatriate voting do not violate similar provisions in the European Convention on Human Rights.

Yet such conclusions are unlikely to last.  As more and more states accord the vote to their overseas citizens, restrictions are apt to appear less and less “reasonable.”  For much the same reason, international tribunals and committees will likewise heighten the standard from reasonableness to a more compelling justification.  Either way, Ireland is in increasing danger violating the body of international law that it ordinarily prides itself on championing.  Put another way, how reasonable is it even now to treat citizens abroad the same way as minors as home when it comes to voting?

More generally, the narrow denial of voting rights to external citizens fails to keep pace with the realities of the no longer so new world order.  The Good Friday Agreement, the European Union, the European Convention of Human Rights, the International Criminal Court, the UN itself, all reflect multiple levels of governance and identity.  It is exactly on such matters that Ireland of Mary Robinson and the UK of Boris Johnson diverge.  As legal scholar Peter Spiro points out, “The political assertion of external citizens highlights” the growing reality reflecting “the decoupling of citizenship and territory.”

Most of the standard objections to external citizen voting have long since been rejected by most other nations.  Yet there is one concern distinctive to Irish Republic.  Ireland has such a comparatively great diaspora compared to the home population that the possibility arises that external citizens might well outvote residents, or at least swing the results.  Add to this the comparative conservatism of overseas Irish, especially in the United States, and the irony would be that a Robinson, McAleese, or Higgins might never have been elected.

These concerns, however, are more apparent than real.  The Irish who retain or claim citizenship tend to be far more in tune with the values of contemporary Ireland than the crowd that drinks green beer on St. Patrick’s Day and cheers on the Notre Dame leprechaun.  

These concerns are also beside the point.  Most of the rest of the world has recognized the principle that nationals overseas are members of the political community, should have the right to vote, and denying them that right can no longer be deemed reasonable, much less just.  To continue concluding otherwise is to betray the reputation that Ireland has worked so hard to achieve.