Published: 18 June 2021 Author: Stefan Talmon
Syria has been engulfed in a bloody civil war since 2011, when opposition forces rose against the Government of President Bashar al-Assad. By the end of 2020, several hundred thousand people had been killed and wounded; 6.6 million Syrians had become refugees, and another 6.7 million people were displaced within Syria. In order to achieve a lasting political settlement of the crisis in Syria, the UN Security Council advocated a Syrian-led political process facilitated by the United Nations that was to lead to a new constitution. In its resolution 2254 (2015), the Security Council expressed its support for free and fair elections, pursuant to the new constitution, to be held by May 2017 and administered under supervision of the United Nations. The elections were to be subject to the highest international standards of transparency and accountability, with all Syrians, including members of the diaspora, eligible to participate. However, the Government under President Assad stalled the political process and neither the new constitution nor free and fair elections materialised. Instead, on 18 April 2021 it was announced that Syria was to hold presidential elections on 26 May 2021, with expatriates able to vote in Syrian embassies abroad on 20 May 2021. The elections were rejected as a farce by the opposition.
Germany denounced the Syrian presidential elections. In a joint statement the Foreign Ministers of France, Germany, Italy, the United Kingdom and the United States declared:
“We […] wish to make clear that Syria’s 26 May presidential election will neither be free nor fair. We denounce the Assad regime’s decision to hold an election outside of the framework described in UN Security Council Resolution 2254 and we support the voices of all Syrians, including civil society organisations and the Syrian opposition, who have condemned the electoral process as illegitimate.
As outlined in the Resolution, free and fair elections should be convened under UN supervision to the highest international standards of transparency and accountability. For an election to be credible, all Syrians should be allowed to participate, including internally displaced Syrians, refugees, and members of the diaspora, in a safe and neutral environment.
Without these elements, this fraudulent election does not represent any progress towards a political settlement. We urge the international community to unequivocally reject this attempt by the Assad regime to regain legitimacy without ending its grave human rights violations and meaningfully participating in the UN-facilitated political process to end the conflict.
We reiterate our firm support for the UN Special Envoy for Syria’s efforts to promote a political settlement, based on all aspects of UNSCR 2254, which protects the future prosperity and the rights of all Syrians, including the right to vote in free and fair elections.”
Although Germany had expelled the Syrian ambassador in Berlin on 29 May 2021, diplomatic relations between the two States were not severed and the Syrian embassy in Berlin continued to operate. In April 2021, the Syrian embassy began preparing voter lists of Syrians living in Germany who wished to take part in the presidential elections and sent a note verbale to the Federal Foreign Office requesting approval for the holding of the elections on the premises of the Syrian embassy in Berlin. The request was denied. On 19 May 2021, the Syrian Embassy issued the following announcement:
“The Embassy of the Syrian Arab Republic in Berlin regretfully apologizes to generous Syrian community members in the Federal Republic of Germany. The embassy cannot receive Syrian nationals to participate in the Syrian Arab Republic’s presidential elections because German authorities will not allow elections to take place at our embassy in Berlin. We offer sincere thanks and appreciation to all those who have reached out to the embassy, expressing their sincere and patriotic desire to participate and exercise their crucial constitutional right to vote.”
The next day, the Syrian Ministry of Foreign Affairs and Expatriates strongly condemned the decision of the German Government as a blatant violation of the Vienna Convention on Diplomatic Relations (VCDR) and a breach of the obligations that this agreement puts on the host State. In other countries, Syrians were allowed to vote in the presidential elections.
On 26 May 2021, a spokesperson for the Federal Foreign Office explained the Federal Government’s decision as follows:
“In our view, these elections in Syria are neither free nor fair. They are also not carried out in accordance with the relevant UN Security Council Resolution 2254 which foresees the participation of all Syrians, including members of the diaspora.
As far as the holding of elections abroad is concerned, I can say that we have declined a formal request by the Syrian embassy for the consent of the Federal Government to allow Syrian voters living in Germany to participate in the presidential elections on the premises of the Syrian embassy.
When evaluating elections, it is crucial for the Federal Government that they take place freely, fairly and with the participation of all Syrians, including those in the diaspora. We do not see these prerequisites fulfilled in case of the upcoming Syrian presidential elections.”
The spokesperson added:
“This is a decision on a case-by-case basis. […] there is no obligation under international law to allow such elections to be held. The countries concerned must ask the Federal Government for its approval, and this approval may or may not be granted on a case-by-case basis.”
Diplomatic and consular missions regularly administer elections and votes of the sending State in the territory of the receiving State. It has been said that the administration of elections and votes is one of the consular functions in terms of Article 5(m) Vienna Convention on Consular Relations (VCCR). The participation of diplomatic and consular missions in postal voting by sending out ballot papers to nationals living in the receiving State is considered unobjectionable, as is the acceptance of such papers. The posting and receipt of postal ballot papers is considered a purely technical participation in the election process and either does not require the consent of the receiving State or is covered by the general consent to establish diplomatic or consular relations. The situation is different with regard to the establishment of polling stations in the territory of the receiving State. There is no legal basis either under the VCDR or the VCCR which would give the sending State a right against the receiving State to do so. Such a right also cannot be derived from Article 25(b) of the International Covenant on Civil and Political Rights or any other human rights treaty. The human right to vote in elections establishes an individual right of citizens against their State, not a right of one State to hold elections in the territory of another State.
While the voting by the citizens itself does not constitute a sovereign act, the holding of the elections by the State, including the establishment of polling stations, does. The exercise of sovereign acts on the territory of another State requires the consent of that State’s government. The premises of both diplomatic and consular missions form part of the territory of the receiving State. The use of diplomatic and consular missions as well as any other premises thus requires the consent of the receiving State.
Until 1991, Germany did not allow sending States to use their diplomatic and consular missions as polling stations for the purpose of allowing their nationals resident in Germany to vote in elections to parliamentary or municipal bodies of the sending State. In view of the large number of foreigners living in the country, the Federal Government feared that, by allowing foreign elections to be conducted within its territory, Germany could import foreign domestic political disputes. In response to several countries using their embassies and consulates in Germany as polling stations for elections and referendums, on 8 September 1981 the Federal Government set out its position in a circular note to the diplomatic missions accredited in Germany, stating:
“The holding of elections to parliamentary bodies or the holding of municipal elections of the sending State outside its own territory constitutes an act of State that goes beyond the usual diplomatic or consular activities under the two Vienna Conventions on diplomatic and consular relations. If elections are to be held in this manner by diplomatic representations in the receiving State, the consent of this State is therefore required. These principles naturally also apply to the holding of referendums and to other elections provided for by the constitution or law of the sending State.
The Federal Republic of Germany has so far not granted permissions for the holding of elections to foreign parliamentary bodies or foreign municipal elections by the representations of foreign States accredited here – with the exception of the different case of elections to the European Parliament by nationals of the member States of the European Communities. For its part, the Federal Republic of Germany has not yet requested the consent of other States to the holding of such elections by its representations abroad. The Federal Foreign Office requests all diplomatic missions in the Federal Republic of Germany to act accordingly and also to inform the consular missions of their sending State accordingly. On the other hand, the Federal Republic of Germany has no concerns about postal voting or the participation of the foreign missions in the necessary preparatory work for postal votes.”
Since 1991, the Federal Government has generally allowed foreign diplomatic and consular missions to organise elections and votes for their nationals living in Germany. For example, in 2014 the Federal Government approved the holding of 55 elections in Germany, in 2015 it approved 28, and in 2016 the number was 44. However, each election is subject to approval on a case-by-case basis. Approval must be requested by the diplomatic mission in a note verbale addressed to the Federal Foreign Office well in advance. The request must include information on the location of the polling stations, the opening times and the estimated number of people eligible to vote. Approval is given in writing by way of a note verbale from the Federal Foreign Office. The Federal Government made it clear on several occasions that there is no obligation under international law to give approval. For example, during the regular government press conference on 15 March 2017, the spokesperson for the Federal Foreign Office stated:
“It is indeed the case that international law grants a State complete freedom to decide whether it allows, can allow and under what conditions it allows sovereign acts of another State to take place on its territory. An election is, if you will, a particularly noble sovereign act. This is why under international law it is subject to approval by the host State. This does not only apply to Germany, it applies all over the world.”
Germany is also not obliged to allow sending States to set up polling stations outside diplomatic or consular premises, but it may do so. For example, the 2014 Turkish presidential elections were held in the Olympic Stadium in Berlin because the Turkish electorate in Berlin was more than 140,000 people. Due to the sheer number of eligible voters, it would not have been possible to restrict voting to the embassy and consulates.
As Germany is free to grant approval, it may also attach conditions to such approval. In cases of expected disruptions to public order and safety, approval will usually be denied. Approval will also most likely be denied if the subject matter of a vote would be contrary to the German ordre public, such as a referendum on the introduction of the death penalty in the sending State. As the 2104 Syrian presidential elections show, approval may also be refused in order to give effect to a common European political position. On 7 May 2014, the Federal Foreign Office informed the Syrian Embassy in Berlin that it did not consent to the holding of the Syrian presidential elections in Germany. The decision was based on the EU Foreign Affairs Council conclusions of 14 April 2014, which read in part:
“The EU reiterates the position that any elections in Syria should only take place within the framework of the Geneva Communique and through a genuine political process where also women and civil society should have an active and a meaningful role. Any elections, presidential or other, organised by the regime outside this framework, conducted in the midst of conflict, only in regime-controlled areas and with millions of Syrians displaced from their homes would be a parody of democracy, have no credibility whatsoever, and undermine efforts to reach a political solution.”
Similarly, in 2021 the decision to refuse approval was motivated by Germany’s support for UN Security Council resolution 2254 (2015) which provided for free, fair and transparent elections in Syria administered under supervision of the United Nations. Approval of the 2021 Syrian presidential elections would have been in direct conflict with that resolution.
During the regular government press conference on 25 April 2017, the Federal Government was asked what it could do to secure that foreign elections and votes held in diplomatic or consular missions and other polling stations in Germany were free and transparent. The spokesperson for the Federal Foreign Office replied:
“The Federal Government does not control the elections of other States in polling stations or diplomatic missions in Germany. With regard to diplomatic missions, it should be noted that, according to the Vienna Convention on Diplomatic Relations, representatives of the receiving State may only enter these missions with the consent of the head of mission. The organization and administration of foreign elections in Germany is the sole responsibility of the respective foreign party. This party is also responsible for maintaining peace and security in the buildings approved to conduct the election. In the approval to hold the election, it is made a condition that the foreign side observes the German laws.”
The holding of elections without the consent or contrary to the expressed will of the receiving State is contrary to its laws and regulations and amounts to an illegal interference in its internal affairs – as such it constitutes a violation of Articles 41(1) VCDR and 55(1) VCCR. In addition, the holding of elections in diplomatic and consular premises violates Articles 41(3) VCDR and 55(1) VCCR according to which these premises shall not be used in any manner incompatible with the exercise of their functions. This raises the question of whether and, if so, what actions Germany as a receiving State could take to prevent such elections. A distinction must be made between the various locations in which foreign polling stations may be established. Elections held in diplomatic missions are protected by the inviolability of the premises of the mission. The agents of the receiving State may not enter them, except with the consent of the head of the mission. The German authorities thus could not enter the mission premises in order to end the holding of unapproved elections. In that case, the authorities could only control or temporarily block access to the diplomatic premises in order to prevent the electorate from reaching the polling station.
Consular premises, on the other hand, only enjoy limited inviolability. The authorities of the receiving State are only prohibited from entering “that part of the consular premises which is used exclusively for the purpose of the work of the consular post”. Consular premises are often located in buildings that also house offices of other institutions or agencies. If a polling station is established in the building in which the consular premises are situated but outside the consular sanctuary, the German authorities could move in to disrupt the holding of unapproved elections. Polling stations established outside foreign diplomatic or consular premises do not enjoy any special protection, which means that unapproved elections could be stopped at any time.
Category: Diplomatic and consular relations
DOI: 10.17176/20220627-172829-0
