Nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.1
icj, Nottebohm (Liechtenstein v Guatemala), 1955
In the landmark case of Nottebohm, the International Court of Justice famously defined nationality as a legal bond between a person and a state “having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties”.2 This quotation is often the starting point for studies on nationality in international law. It defines the term ‘nationality’ and implies a certain underlying concept of nationality as a legal status. The present chapter will begin with an outline of the usage of the notions of ‘nationality’ and ‘citizenship’ in this study (i.), before discussing the concept of nationality and its legal nature (ii.). A third section will then briefly trace the theoretical debates qualifying citizenship as a (moral) human right in order to set the ground for the discussion of citizenship as a legal human right (iii.).
i Citizenship or Nationality? A Note on Terminology
So far the terms ‘citizenship’ and ‘nationality’ have both been used — and mostly as interchangeable notions, as is often done in international legal studies on nationality and citizenship.3 However, the two terms cannot just
the status of being a citizen or subject of a particular state; the legal relationship between a citizen and his or her state, usually involving obligations of support and protection; a particular national identity; [and] a group of persons belonging to a particular nation; a nation; an ethnic or racial group.5
The term ‘citizenship’, by contrast, is defined as “the position or status of being a citizen” and an “engagement in the duties and responsibilities of a member of society”.6 Moreover, the Dictionnary notes that “[a]s a legal status synonymous
Thus, while they can be used synonymously, the terms ‘nationality’ and ‘citizenship’ can also have different meanings and represent significantly different concepts.8 Paul Weis distinguishes nationality in a politico-legal sense from nationality as a historico-biological term.9 The former denotes membership in a state whereas the latter refers to
the subjective corporate sentiment of unity of members of a specific group forming a ‘race’ or ‘nation’ which may, though not necessarily, be possessed of a territory and which, by seeking political unity on that territory, may lead to the formation of a state.10
Further complexity is added through the fact that in the English legal tradition, the notions of ‘citizenship’ and ‘nationality’ can also refer to different categories of citizens regarding the possession of political rights.11
Similar variations can be observed in other European languages. In French and Spanish ‘nationalité’ and ‘nacionalidad’ are used to refer to the external formal legal bond between an individual and a state. ‘Citoyenneté’ and ‘ciudadanía’, on the other hand, refer to political membership within the state.12 In German, the Anglo-Saxon notion of ‘citizenship’ and the French ‘citoyenneté’ have no direct counterpart.13 The main term is ‘Staatsangehörigkeit’ which
In legal debates, the term ‘nationality’ was traditionally used to refer to the international aspect of belonging to a state, linking an individual to a particular state as opposed to others, whereas ‘citizenship’ was understood as referring to the internal, national and municipal aspect of membership to a state, including the rights and duties of the individual in relation to that state.15 Both terms, therefore, denote the legal status of an individual as a member of a nation state, but reflect two different legal frameworks, ie the international legal framework and the domestic legal framework respectively.16 In non-legal debates, the two notions are rarely used synonymously.17 In fact, the conflation of citizenship with nationality is often seen as problematic in social sciences.18 The term nationality, on the one hand, has a strong ethnical, or even nationalistic connotation and is thus rarely used to describe membership in a state. Citizenship, on the other hand, is used to refer to broader forms or notions of membership, belonging, equality and participation in society, beyond the mere legal status.19
International law mainly uses the term ‘nationality’ and domestic law ‘citizenship’.21 Accordingly, most international legal instruments from the 1930 Convention on Certain Questions Relating to the Conflict of Nationality Laws,22 the udhr, the UN human rights treaties, the American Convention on Human Rights (achr),23 the Arab Charter on Human Rights (ArCHR),24 the European Convention on Nationality (ecn)25 to the African Union Draft Protocol to the African Charter on Human and People’s Rights on the Specific Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa26 use the term ‘nationality’. In soft law instruments the term ‘nationality’ also prevails.27 International courts and treaty bodies seem to use both
For the purposes of this study, the terms nationality and citizenship will both be used to refer to full membership to a state in the legal sense of a bond between an individual and a state. In principle, the two terms will be used interchangeably. However, the term ‘nationality’ is mainly used to quote or refer to sources of international law using this terminology. Thus, where Chapter 4 discusses the sources covering the ‘right to nationality’, the term ‘nationality’ is used to correctly reflect the wording of the sources. Where, however, the sources themselves use the term ‘citizenship’ or where the discussion goes beyond the current positive legal framework, preference will be given to the notion of ‘citizenship’. As Peter Spiro already proposed, the reconceptualization of citizenship shall be accompanied by a “shift away from the use of the term ‘nationality’ to denote the formal tie between the individual and the state, and toward the now more appropriate use of ‘citizenship’”.33 Similarly, Ernst Hirsch Ballin gives preference to the term ‘citizenship’, which does not evoke associations of state sovereignty at nation state level but instead “expresses the fact that it is the legal status of a citizen of a polity”.34 In Chapter 6 the discussion
ii The Concept of Citizenship
The discussion about terminology shows that the concepts of citizenship and nationality are anything but straightforward. Depending on one’s perspective, the understandings of citizenship and its legal qualification and political significance vary. The following section will discuss how the concepts of citizenship and nationality evolved historically (ii.1), how the concepts can be theorized (ii.2) and what citizenship means as a legal status (ii.3).
1 Historical Traces of the Concept of Citizenship
Alexander Makarov wrote in 1947 that the concept of citizenship is as old as the concept of the state.36 Historically, the origins of the concept of citizenship are nevertheless often traced back to classic antiquity.37 In the Greek city states, citizens had a privileged right to participate in the governing of the city.38 Citizens came together in the polis to discuss matters of public life. Citizens were those who were entitled to “participate actively in the collective life and in the construction of the community”.39 It reflects the Aristotelian conception of a citizen as someone who is both ruler and ruled.40 Citizenship, as J.G.A. Pocock writes, was thereby “not just a means to being free; it is the way
In the Roman Empire, the concept of citizenship was expanded beyond city states to governed territories.43 Moreover, its functions were extended. The Roman civitas shifted the focus from citizenship as the right to participate in political decisions, to citizenship as a legal status.44 Under this system, the individual was a citizen not primarily by virtue of participation in political life, but due to social status, property and the legal system.45 According to Pocock, a citizen meant “someone free to act by law, free to ask and expect the law’s protection, a citizen of such and such a legal community, of such and such a legal standing in that community”.46 Just as in the Greek system, Roman citizenship excluded along the lines of birth, class, race and gender.47 While citizenship was awarded to privileged, property-owning men on the basis of jus sanguinis, women, slaves and non-Romans were excluded and thereby denied legal status.
Both the Greek and Roman concept of citizenship provide a basis for a contemporary discussion of citizenship. While the Greek model of citizenship was concerned with the equality of citizens as rulers or makers of the law, the Roman model of citizenship focused on the status and the equality of citizens under the law.48 Thus, citizenship evolved from mere political rights to membership in a legal community.49 As Linda Bosniak notes, we can derive from the Roman model that citizenship is a matter of formal, juridical membership in an organized political community as well as a precondition and entitlement to the enjoyment of rights. The Greek — or Aristotelian — conception shaped
In the feudal societies of the European Middle Ages citizenship lost much of its political meaning and was replaced by notions of allegiance to the king or local ruler and religious affiliation.53 Everyone within the territory of the king’s land was his subject and owed allegiance — ie loyalty and fealty. Forms of citizenship only appeared at the local level in towns and cities. In the High and Late Middle Ages such cities gained importance as (partly) independent, self-governing political units.54 The inhabitants of these cities were granted certain privileges and obligations. Citizenship was acquired on the basis of descent, but it was also accessible through naturalization for new inhabitants on the basis of residence.55 Oftentimes citizenship was connected to membership in a professional guild and linked to the right to exercise a profession and to conduct trade.56
Membership of the political community thus became conditioned on membership of a sovereign nation. Citizens were deemed to possess certain national characteristics, be they a common origin, a common culture, religion, language and so on, which distinguished them from ‘foreigners’. Accordingly, the boundaries of the state became congruent with the boundaries of the nation and the principle of spatial exclusion replaced the pre-modern principle of subjection to a sovereign ruler as the premise of citizenship law.60
Thereby, citizenship became increasingly intertwined with ideas of the state — and even more so the ‘nation’ — being an ethnically, culturally and linguistically homogenous entity.61 This further strengthened the exclusionary force of citizenship. Closely related to an ethnic, exclusionary understanding of citizenship was the increasing weight of the call for the right to control the entry and stay of persons on national territory as an expression of state sovereignty in the early 20th century.62 At the same time European colonialism and the processes of de-colonization in the 20th century contributed to the establishment of nation states as the central political entities while it perpetuated exclusionary and racialized regimes of citizenship.63 Hence, even though citizen, as Linda Kerber argues, “is an equalizing word”, the history of citizenship shows the tendency to use membership and rights as markers of difference and exclusion.64
2
manifold dimensions of citizenship: as a legal status and political membership; as rights and obligations; as identity and belonging; as civic virtues and practices of engagement; as a discourse of political and social equality or responsibility for a common good.67
To borrow from Audrey Macklin: “if citizenship were a home appliance, it would be the only one you would ever need”.68 Nevertheless, many citizenship scholars have tried to identify the main dimensions of citizenship: citizenship as a (legal) status, citizenship as rights, citizenship as identity or belonging and citizenship as political activity.69 These dimensions can be distinguished theoretically, but in practice often overlap and are mutually dependent.70 This answers the question what citizenship is. Following Bosniak, a definition of
Territorially, citizenship is at least in the legal discipline usually understood to apply in relation to the (nation) state. This is, however, not necessarily the case.72 There are also accounts of citizenship that go beyond the traditional focus on the state and look at citizenship at the local, regional, global or supranational level, as well as conceptualizations of citizenship fully detached from territory.73 Citizenship has also been conceptualized as extending beyond the political sphere to include the social and private domains — if the latter two are not already understood as political.74 This being said, the state remains the most important entity for citizenship understood as legal status and political participation.
The question of who a subject of citizenship is, is usually answered in two ways. Some see citizenship as a universal concept which ultimately should include everyone, whereas others discuss citizenship from its margins and focus on the exclusionary mechanisms it entails.75 Whether as rights, status, membership or as identity, citizenship as a (political) concept always implies both inclusion of those who belong and exclusion of those who are outside.76 Rogers Brubaker described citizenship as being internally inclusive and externally exclusive thus allowing for social closure.77 Others have used the image of the ‘janus-face’ to describe the differentiating function of citizenship.78 As such a marker of belonging, citizenship today is an important cause for inequality on
For the purpose of this study, I will focus on citizenship in a legal sense — that is citizenship as a legal status, a relationship between an individual and a state that, despite the existence of internationally protected human rights applying to everyone irrespective of one’s citizenship, still secures important rights and may bear certain obligations. The locus and subject of the analysis are the nation state, its citizens and non-citizens. The question is how international human rights law shapes this relationship between the state, citizens and non-citizens in nationality matters and how it impacts access to, and exclusion from, that legal status. The different conceptions of citizenship thereby serve as a challenge to reflect on the concept of citizenship in international human rights law critically.
3 Citizenship as a Legal Status
3.1 The Concept of Citizenship in International Law
What does it mean that I understand citizenship as a legal status for the purposes of this study? In one of the main treatises on nationality of the 20th century, Makarov defined citizenship as a “Rechtsverhältnis zwischen dem Staat und seinen Angehörigen […], bei dessen Regelung die Eigenschaft der Person als Subjekt dieses Rechtsverhältnisses einen rechtlichen Status dieser Person bildet”.95 In other words, citizenship is a legal relationship between the state and its members in which the relationship of the individual member to the state is a specific legal status.96 Thus, citizenship as a legal status is the legal recognition of the relationship between a state and an individual and is itself the formal basis for rights and duties of the individual in the state of
Nationality is a legal bond, having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.99
It defines citizenship or nationality as a formal legal bond, a relationship, between an individual and a state. This relationship brings with it certain rights and duties, even though they are not necessarily specified. Moreover, the Nottebohm ruling suggests that the relationship between the individual and the state should be established due to, or based on a certain pre-existing connection or attachment between that individual and the state.
nationality is a juridical expression of a social fact that connects an individual to a State. Nationality is a fundamental human right […]. The importance of nationality is that, as the political and legal bond that connects a person to a specific State, it allows the individual to acquire and exercise rights and obligations inherent in membership in a political community. As such, nationality is a requirement for the exercise of specific rights.101
The Advocate General of the Court of Justice of the European Union (cjeu), Poiares Maduro, found in its opinion in the Rottman case that
[i]t is well known that nationality can be defined as the legal relationship under public law between an individual and a given State, a relationship which gives rise to a body of rights and obligations for that individual. The characteristic feature of that nationality relationship is that it is founded on a special bond of allegiance to the State in question and on reciprocity of rights and duties. With nationality, the State defines its people. What is at stake, through the nationality relationship, is the formation of a national body politic […].102
All this suggests that in international law citizenship is to be understood as a legal status — a legal status that allocates individuals to a certain state. From the perspective of international law, the element of allocation of individuals to a particular state is the primary function of nationality.103 Through the institute of citizenship the state defines its population and forms its body politic. At the domestic level, citizenship grants full membership in the state that comes with a specific bundle of rights.104 The rights and obligations tied to the status of full membership and the basis for the status — the conditions for acquisition and loss of citizenship — are generally left to be regulated at the national level.105 Beyond the allocation function, the concept of citizenship from a legal perspective is, as some argue, hollow or empty.106 In 1929, the Harvard Research in International Law, for example, found that “nationality has no positive, immutable meaning”.107 Similarly, Rainer Bauböck recently noted that citizenship does “not entail any particular content either in terms of rights or political participation”.108 In that sense, citizenship as a legal status is a dual concept governed, at the same time, by rules of both domestic and international law
As will be shown in more detail below, citizenship, moreover, is an essential element of statehood from an international legal perspective.111 States are essentially communities of individual human beings that collectively govern a particular territory and the persons on that territory. They do not exist without a population, a body politic or a citizenry. At the same time, citizenship in a legal sense equally presupposes the existence of a state.112 As such, citizenship is therefore directly linked to the concept of the state and its sovereignty.113
Through this link between membership, identity, rights and obligations and statehood, citizenship impacts society as a whole. As Tendayi Bloom notes, “it is impossible to create a liberal State in a world of States without also creating citizenship”.114 The definition of the collective identity of a state through its population, and with it the criteria for membership in that collective, however, are highly political questions. Foreigners and newcomers to the community of citizens are often perceived (or instrumentalized) as a possible threat to antecedent ideas of identity. Sandra Mantu describes nationality attribution and loss in that context as “a symbolic field of state power that dictates the composition of the citizenry, therefore affecting underlying ideals of identity and membership”.115 Hence, the competence to decide on access to, but also loss of membership remains carefully guarded by the state and its representatives.116
Therefore, the link between individuals and a state through citizenship can be described as threefold — it links a population to a territory and political governance, thereby establishing statehood, it links an individual with a state, thereby forming the basis for full and equal membership, and it links
3.2 Acquisition and Loss of Citizenship
How is citizenship acquired, or — from the perspective of the state — attributed? Acquisition and loss of citizenship is regulated at the national level. In general, citizenship can be acquired automatically, by declaration or registration or by naturalization.118 The large majority of persons acquire citizenship at birth.119 To do so, two different systems are dominant: acquiring citizenship on the basis of one’s place of birth — following the system of jus soli — and acquiring citizenship based on descent, ie from one’s parents’ citizenship at the moment of birth under the system of jus sanguinis.120 Under both systems acquisition of citizenship occurs ex lege based on the fact of birth.121 Historically, jus soli was the main principle of citizenship attribution in common-law countries, whereas jus sanguinis was prevalent civil-law jurisdictions. The US, other American states and the UK followed the principle of jus soli, whereas jus sanguinis was long predominant in continental Europe, Africa and Asia. As a recent study based on the globalcit database shows, all 177 states included in the database provide for jus sanguinis acquisition of citizenship — be it only to secure the acquisition of citizenship for children born to nationals residing abroad.122 Thus, jus sanguinis today has an almost global reach. Jus soli, by contrast, is provided in 32 countries in an automatic and unconditional form, and in another 25 countries in a more restricted
The extent to which a citizenship regime may be considered appropriately inclusive […] depends partly on the character of immigration
policies, the availability of naturalisation procedures for immigrants and the possibility of renouncing citizenship where ties are lost.131
In addition to acquisition at birth on the basis of jus soli and jus sanguinis, citizenship can be acquired after birth by declaration or registration, and, most importantly, through naturalization.132 Weis defines naturalization as “the grant of nationality to an alien by a formal act, on an application made for the specific purpose by the alien”.133 Acquiring citizenship through naturalization does not occur ex lege but is based on a decision of a public authority. The globalcit database shows that 170 of the 174 states listed in the dataset for ordinary naturalization have a provision in domestic law allowing for naturalization.134
Some countries know an entitlement to naturalization, but in most cases naturalization is discretionary.135 Thereby, naturalization is normally made contingent upon the fulfilment of certain criteria.136 These criteria often relate to a certain period of residence, an immigration status, language skills, other integration criteria relating to civic knowledge or social contacts, the absence of a criminal record or a threat to state security, economic self-sufficiency or wealth, as well as, sometimes, a commitment to certain values or an expression of loyalty.137 In practice the material barriers imposed by substantive naturalization requirements relating to civic integration and formal hindrances such as complicated procedures or excessive fees, as well as the discretion of the authorities involved set a high threshold for acquiring citizenship through naturalization.138
In case of loss of citizenship, on the other hand, a distinction is usually made between renunciation, if citizenship is relinquished at the initiative of
The human rights implications of these different modes of acquisition and loss of citizenship will be discussed in more detail in Chapter 5. For now, the discussion turns to the functions of citizenship from the persepective of the individual.
3.3 Functions of Citizenship
From the perspective of the individual citizenship is essential to access certain rights and, as a consequence thereof, has a significant impact on that person’s social identity.140 This has been acknowledged by the ECtHR, which sees the concept of citizenship closely linked to a person’s social identity and hence their private life:141
[T]he denial of citizenship may raise an issue under Article 8 [echr] because of its impact on the private life of an individual, which concept is wide enough to embrace aspects of a person’s social identity.142
Thus, from the perspective of the individual, citizenship is more than an empty shell or a purely formal, neutral legal status. As the UN Special Rapporteur on Racism Tendayi Achiume notes, “[i]n reality, however, for all human beings, their capacity to enjoy full human rights depends on their citizenship, nationality or immigration status”.143 Citizenship, in the famous words of Hannah Arendt, is the “right to have rights”.144
[C]itizenship provides access to opportunities, rights, and benefits; it connotes legitimacy; it leads to mobilization by other actors; it spurs personal investment or more rapid socialization in the economic, civic or political life of the country; it signals to others particular skills, motivations, or time horizons; and it carries social psychological effects for social identity and collective solidarity.146
In a similar manner, Matthew Gibney points to three key benefits of citizenship: “privileges, security and voice”.147 Lindsey Kingston categorizes citizenship as giving rise to rights to place and rights to purpose which are both necessary for a dignified life.148 Depending on one’s concept of citizenship, the relevance of the rights tied to it varies. From a republican conception of citizenship access to political rights and participation in political activities is the most important aspect.149 A liberal concept of citizenship might put more weight on the fact that citizenship grants certain rights on an equal basis.150 From a migration perspective, the right to territorial security is the central function of citizenship.151 For the purposes of international law, three functions of citizenship as a legal status seem most important: diplomatic protection, political rights and the unconditional right to enter and remain in the state of nationality.
3.3.1 Diplomatic Protection
Historically, diplomatic protection has been one of the central functions of citizenship. As Weis writes, “international diplomatic protection is a right of the State, accorded to it by customary international law, to intervene on behalf of its own nationals, if their rights are violated by another State, in order to
This right [to exercise diplomatic protection] is necessarily limited to intervention on behalf of its own nationals because, in the absence of a special agreement, it is the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection […].156
Exceptions to this nationality-of-claims rule are only made regarding stateless persons and refugees that cannot avail themselves of the protection of their state of nationality.157
3.3.2
Sie [politische Rechte] begründen die Zugehörigkeit zu einem politischen Gemeinwesen und ermöglichen dessen Mitgestaltung, sie sind aber auch Grundlage jeder Rechtssubjektivität, die in solchen Gemeinwesen wurzelt.161
In a large sense, political rights cover different rights protecting participation in public life and political affairs: from the right to vote as such to more indirect forms of political engagement such as freedom of expression, freedom of assembly and freedom of association, which are equally essential preconditions for functional democracies.162
Every citizen shall have the right and the opportunity, without any of the distinctions […] and without unreasonable restrictions:
- (a)To take part in the conduct of public affairs […];
- (b)To vote and to be elected at genuine periodic elections […];
- (c)To have access […] to public service in his country.165 (emphasis added)
This does not mean that non-citizens are never granted political rights. Some rights such as the right to freedom of expression, to freedom of assembly and to freedom of association apply to everyone, including non-citizens.166 Moreover, an increasing number of states allow non-citizen residents to participate in elections and referenda — particularly at the local level and, in the case of the EU, at the supranational level — or even to be elected for public office.167 The
3.3.3 Right to Enter and Remain
For the purposes of this study — and from a migration law perspective — the main function of citizenship, however, is the unconditional right to enter and remain.170 Citizens have an unconditional right stay in their state of nationality, and if they leave, to return. Non-citizens, by contrast, can be denied entry into the territory and — within certain limits171 — can be expelled.172 A state, as the ECtHR repeatedly claimed, “is entitled, as a matter of international law […] to control the entry of aliens into its territory and their residence there”.173 Thus, non-citizens are subject to a state’s exclusion power and “remain subject
- 1No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national.
- 2No one shall be deprived of the right to enter the territory of the state of which he is a national. (emphasis added)
The right to enter and remain in a state is of central importance for the enjoyment of all other rights. As David Owen notes, “the right to entry and residence is primary here since to possess civic rights in a given place, one has to have the freedom to be in (or return to) that place”.176 In a similar manner Elspeth Guild sees the unconditional right to residence tied to citizenship as an essential element for a person’s identity “as it is the legal expression of the individual’s relationship to the territory and the state”.177 Thus, the unconditional right to enter and remain — the right to territorial security — is the function of citizenship that likely has the most immediate and far-reaching practical consequences for the individual in their daily life.178
Given the importance of these functions of citizenship for an individual’s life, it does have significant consequences for a person to be a citizen or not. In particular, the exclusionary power and the lack of territorial security remains one of the main reasons why access to (and retention of) citizenship remains so important.179 As the Committee on the Elimination of Racial Discrimination concludes, “denial of citizenship for long-term or permanent residents could result in creating disadvantages for them in access to employment and social benefits” and possibly amount to discrimination.180 The connection between citizenship and the right to enter and remain in a state also
iii Citizenship as a Human Right
The functions of citizenship discussed in the previous section highlight the close relationship between human rights and citizenship.182 In the relationship between citizenship and human rights, two different aspects must be distinguished. As noted by Carol Batchelor “nationality is not only a right of itself, it is a necessary precursor to the exercise of other rights”.183 The following section will discuss these two facets of citizenship: On the one hand, that citizenship is a human rights issue in the sense that it secures access to other human rights (iii.1). On the other hand, that citizenship in and of itself can be qualified as a moral (iii.2) and legal human right (iii.3).
1 Citizenship as Access to (Human) Rights
The rights discussed in the foregoing section show the continuing importance of citizenship for the enjoyment of citizens’ rights.184 But also beyond the rights explicitly reserved for citizens, citizenship continues to be essential
The lack of (legal) protection is most significant for persons that are stateless, ie “not considered as a national by any state under the operation of its law”.192 Stateless persons are subject to all sorts of restrictions and even privation of their rights.193 The lack of a nationality, as the Supreme Court of the United Kingdom has held in the case of Secretary of State for the Home Department v
2 Citizenship as a Moral Human Right
The second aspect in the relationship between citizenship and human rights is whether citizenship itself qualifies as a human right — both as a moral or political human right in theoretical and philosophical debates, as well as a human right in legal doctrine.199 This distinction between ‘moral or political human rights’ and ‘legal human rights’ is helpful for the purpose of this study to distinguish the discussion about a right to citizenship or membership in legal philosophy or political theory, and the actual incorporation of this right in the international legal framework.200 Following such a distinction, moral
There are several normative accounts that argue why citizenship should be recognized as a moral human right. In the following section, some selected positions that recognize citizenship as a moral or political human right shall be discussed in more detail.204 The positions discussed below can be distinguished from authors who maintain that citizenship is not a right or human right. Christian Joppke, for example, argues that “citizenship itself is not a right or ‘right to have rights’”.205 Still others claim that citizenship is no longer a relevant category in an age of universal human rights.206 Yasemin Soysal, for example, posited in the 1990ies that national citizenship will prevail as an identity at the level of the nation state but is no longer a significant construction “in terms
2.1 Hannah Arendt’s Right to Have Rights
The Rights of Man, after all, had been defined as ‘inalienable’ because they were supposed to be independent of all governments; but it turned out that the moment human beings lacked their own government and had to fall back upon their minimum rights, no authority was left to protect them and no institution was willing to guarantee them.211
For Arendt, the promise of universal human rights remains empty.212 For her, the atrocities of World War ii made apparent that human rights cannot effectively materialize in the nation state system. In the war, stateless persons had lost not only their nationality and citizens’ rights, they also lost their human rights. They were left in a condition of fundamental rightlessness due to not belonging to any community whatsoever.213 Arendt concludes that citizenship is the direct and indispensable prerequisite for the protection of rights and the possession of human rights.214 For her, membership in the political community remains an essential element of being human.215 The refugees left stateless
Something much more fundamental than freedom and justice, which are rights of citizens, is at stake when belonging to the community into which one is born is no longer a matter of course and not belonging no longer a matter of choice, or when one is placed in a situation where, unless he commits a crime, his treatment by others does not depend on what he does or does not do. This extremity, and nothing else, is the situation of people deprived of human rights. They are deprived, not of the right to freedom, but of the right to action; not of the right to think whatever they please, but of the right to opinion.219
Arendt argues that the stateless point to the existence of a ‘right to have rights’. If human rights flow from membership of a political community, the one true human right is the right to belong to such a community — the right to have rights.223
Hence, Arendt does not see citizenship as a human right in an (international) legal sense. Her analysis of statelessness seems to be informed by her own
2.2 Seyla Benhabib’s Cosmopolitan Right to Membership
Drawing on Immanuel Kant and Arendt’s work Seyla Benhabib develops her own argument for the recognition of citizenship as a human right. In her 2004 book ‘The Rights of Others’, she examines the consequences of transnational migration for the boundaries of political membership and challenges the doctrine of state sovereignty by arguing “that a cosmopolitan theory of justice cannot be restricted to schemes of just distribution on a global scale, but must also incorporate a vision of just membership” (original emphasis).227 This, in her opinion, entails a right to citizenship for non-citizens subject to certain conditions. Permanent alienage, she finds, “is not only incompatible with a liberal-democratic understanding of human community; it is also a violation of fundamental human rights”.228 Other than Arendt who “cannot deconstruct the stark dichotomy between human rights and citizens’ rights”, Benhabib aims to bridge the gap between these two dimensions and incorporate citizenship into a universal human rights regime.229 “The right to have rights”, she writes, “today means the recognition of the universal status of personhood of each and every human being independently of their national citizenship”.230 The challenge for her is to decouple the right to have rights from the status of nationality.
Liberal democracies that would condemn decolonizing nations for these practices [rendering people stateless] must themselves accept
naturalization, i.e., admittance to citizenship, as the obverse side of the injunction against denaturalization. Just as you cannot render individuals stateless at will, nor can you, as a sovereign state, deny them membership in perpetuity. You may stipulate certain criteria of membership, but they can never be of such a kind that others would be permanently barred from becoming a member of your polity. Theocratic, authoritarian, fascist, and nationalist regimes do this, but liberal democracies ought not to.231
Drawing on discourse theory, she bases her claim on the right to communicative freedom.232 She argues that there would never be reciprocally acceptable, permissible grounds to justify barring certain persons or groups permanently from membership because of the kinds of human beings they are.233 The only criteria for membership that “do not violate the self-understanding of liberal democracies as associations which respect the communicative freedom of human beings qua human beings” are criteria that stipulate certain qualifications, skills or resources such as length of stay, language competence, civic literacy, material resources or marketable skills.234 The right to membership, according to Benhabib, also entails a right to know how to acquire membership — the conditions for naturalization must be transparent, information accessible and procedures not arbitrary:235
There must be a clear procedure, administered in lawful fashion, through which naturalization can occur and there must be a right of appeal in the event of a negative outcome, as there would be in most civil cases. One must not criminalize the immigrant and the foreigners; one must safeguard their right to due process, to representation in one’s language, and the right to independent counsel.236
what would be objectionable from a moral point of view is the absence of any procedure or possibility for foreigners and resident aliens to become citizens at all; that is, if naturalization were not permitted at all, or if it were restricted on the basis of religious, ethnic, racial, and sexual preference grounds, this would violate the human right to membership.237
Thus, according to Benhabib non-citizen migrants do have a (moral) human right to membership.238
2.3 Ruth Rubio-Marín’s Jus Domicilii
all those who live on a permanent basis in a liberal democratic state ought to be considered members of that democracy and thus share in the sphere of civic equality with the equal recognition of rights and duties. […] to the extent that the enjoyment of a full and equal set of rights and duties, within the political community of the state remains attached to the recognition of the formal status of national citizenship, after a certain residence period permanent resident aliens, both legal and illegal, ought to be automatically, and thus unconditionally, recognized as citizens of the state, regardless of whether or not they already enjoy the status of national citizens in some other community, and hence, whether or not that second citizenship makes of them dual or multiple nationals.242
Rather than being deprived of its right to ‘self-definition’ concerning membership, I argue that the national community cannot exercise such a right vis-à-vis those whom it should consider full members according to democratic principles.248 (original emphasis)
The nationality community for her becomes “an ever-changing entity which has to take account of the social realities already operating within its territory”.249 Beyond those who already belong to the community through permanent residence, however, the state remains free to shape its laws regarding citizenship, immigration, and naturalization: “to a large extent the distribution of membership will essentially remain a matter of democratic self-determination and will presumably be guided by national self-interest”.250 The claim to automatic incorporation, for her, “challenges not the traditional state prerogatives on membership so much as their scope”.251
In a world with increasing human mobility which more and more shows the insufficiencies of simply assuming that people will be exclusively rooted in one country, only the claim of automatic membership through residence advanced here would serve such a purpose. The major rules for allocating citizenship, jus soli and jus sanguinis, operate automatically. The idea thus would be to introduce automatic membership through residence in order to update the automaticity rule and to keep the inclusive and protective purpose that it serves adapted to a new and increasingly widespread social reality.256 (original emphasis)
The normative argument why democratic societies should grant permanent residents irrespective of their legal status an automatic and unconditional right to citizenship developed by Rubio-Marín is also convincing.
2.4 Joseph Carens’ Theory of Social Membership
rests primarily on the distinction between members and others, and on a claim about the moral significance of social membership. Once democratic states have admitted immigrants as permanent residents, they are
obliged not to marginalize them, not to exclude them from the security and opportunities that the rights of membership bring. In sum, long-term residence in society creates a moral entitlement to the legal rights of membership.259
democratic principles severely limit the conditions which a democratic state may impose as prerequisites for citizenship. While states may exercise some discretion in the rules they establish for naturalization, they are obliged to respect the claims of belonging that arise from living in a political community on an ongoing basis.261
At some point, the threshold is passed. They have been there long enough that they simply are members of the community with a strong moral claim to have that membership officially recognized by the state by its granting of citizenship, or at least a right to citizenship if they want it.265
2.5 Ayelet Shachar’s Jus Nexi
In her book ‘The Birthright Lottery’, Shachar combines citizenship with property law and arguments of global justice.271 She critically assesses “the existing legal regimes for allocating entitlement to political membership”.272 Based on that analysis she argues that both jus soli and jus sanguinis are arbitrary criteria for attributing political membership, which “distribute voice and opportunity in a vastly unequal manner” and draws an analogy between birthright citizenship and inherited property.273 She questions the purely formal and apolitical transfer of membership on the basis of birthright and argues that the current system “serves to legitimize (and make invisible) the significant intergenerational transfers of wealth and power, as well as security and opportunity”.274 She claims that this
idea of allocating political membership on the basis of ascription is at odds with the foundations of civic nationalism, which stresses the value of choice by the governed. Unlike consent, merit, achievement, residency, compensation, or need, the acquisition of automatic (birthright) membership in the polity is, arguably, the least defensible basis for distributing access to citizenship because it allocates rights and opportunities
according to aspects of our situation that result from unchosen circumstances that are fully beyond our control. This runs counter to the core principles of liberal and democratic theory.275
While Shachar acknowledges that birthright citizenship principles may be explained by administrative convenience, this is not sufficient to justify the global inequalities caused by such system.276
In order to address these inequalities she proposes a two-stage approach: on the one hand, she proposes a “birthright privilege levy on the transfer of political membership to address the global distributive consequences of birthright citizenship”.277 Such a levy collected in wealthier polities could function as an instrument of global justice to balance out the “coercive and unjust effects of this regime and fund worldwide redistribution of opportunity”, and thereby “strengthen the enabling function of membership everywhere”.278 On the other hand, she suggests supplementing or ultimately even replacing birthright citizenship with a genuine connection principle of citizenship acquisition — the so-called principle of jus nexi.279 This jus nexi principle should establish
that citizenship must account for more than the mere automatic transmission of entitlement. Instead, some proximity must be established between full membership status in the polity and an actual share in its rights and obligations, responding to the democratic legitimacy concerns raised by both under- and overinclusion.280
She argues that
jus nexi offers resident stakeholders a predictable and secure route to becoming full members, irrespective of their lack of birth-based connection to the polity. In this respect, jus nexi allows both greater democratic accountability and political equality for those who are most directly affected by the legal authority of the state […].281 (original emphasis)
2.6 David Owen’s Right to a Nationality
Owen, in a recent article, returns to Arendt’s reflections on ‘the right to have rights’ and Shachar’s jus nexi and argues that equal membership in global political society and the organization of equal political standing of individuals in an international order of self-ruling territorial states, requires constructing the right to have nationality rights.283 Looking at the issue of statelessness, he notes that statelessness, nationality rights and governmental conceptions of national community are deeply entangled.284 Therefore, he argues, it is necessary to have “a normative conception of the institution of state citizenship that identifies which persons have legitimate claims to membership of which state”.285 Such a normative conception
of the institution of state citizenship in an international order of plural self-ruling states is not simply to allocate persons to states on the basis of unilateral state choices or unilateral individual choices but on the basis of a reciprocal relationship between individuals and states.286
Then turning to the right not to be arbitrarily deprived of one’s nationality, Owen finds that citizenship rules in a global political society of plural autonomous states have two functions: first, to make sure that everyone is a citizen of a state and has equal standing in global society and, second, to “link persons to states in ways that best serve the common interest”.287 Therefore, a system in which states have a discretionary right to determine their own citizenship rules, in his opinion is not compatible with a right not to be arbitrarily deprived of one’s nationality.288
[A] norm of state discretion subject to merely to constraint against statelessness is not a legitimate basis for international order. Rather the legitimacy of this political order requires that it acknowledges ius nexi as a basic constitutional principle and, hence, a human right to naturalize under conditions where a person has a genuine link to a state.289 (original emphasis)
He concludes that the right to have nationality rights is central for equal membership in global political society.290
The positions summarized all develop a normative standpoint why the acquisition of citizenship is a moral human right, even though they present different theoretical explanations for that right. Generally, all six authors agree that under certain conditions non-citizens have a moral right to citizenship. However, they differ on the conditions that may be imposed. Rubio-Marín and Carens argue for a right to citizenship based solely on residence, while Benhabib allows for further conditions as long as they are not discriminatory, and they do not bar access to citizenship permanently. Owen and Shachar, finally, suggest a right to citizenship based on jus nexi. While these are specific positions, Owen notes more generally that “[f]rom a normative standpoint, it appears that a human right to a national citizenship is robustly supported irrespective of the general approach to, or particular theoretical articulation of, human rights that one adopts”.291
3 Citizenship as a Legal Human Right
An understanding of citizenship in the full context of human rights has the potential to turn this relationship upside down. The recognition of the right to be a citizen as a human right implies that the State is dethroned as the author and owner of citizenship.293
Introducing the distinction between moral and legal human rights in the previous section, I have described legal human rights as entitlements of individuals against a state that find their basis in positive law. With Walter Kälin and Jörg Künzli human rights in a legal sense can be defined as
internationally guaranteed legal entitlements of individuals vis-à-vis the state, which serve to protect fundamental characteristics of the human person and his or her dignity in peacetime and in times of armed conflict.294
Four constitutive elements can be distinguished here: legal human rights aim to protect human dignity; they protect rights of individuals against a state; and — other than moral human rights — are guaranteed by international law.
- (a)Be consistent with the existing body of international human rights law;
- (b)Be of fundamental character and derive from the inherent dignity and worth of the human person;
- (c)Be sufficiently precise to give rise to identifiable and predictable rights and obligations;
- (d)
Provide, where appropriate, realistic and effective implementation machinery, including reporting systems; - (e)Attract broad international support.295
The previous section has shown that the right to citizenship is of fundamental character and derived from — or rather indispensable for the protection of — the inherent dignity and worth of individuals in a state-based world order. The question, then, is how this moral-political claim to citizenship can be transposed to the legal sphere. Is the right to citizenship also consistent with international human rights law? Is it sufficiently precise to give rise to identifiable and predictable rights and obligations? Are there appropriate and effective implementation mechanisms for the right to citizenship? And does it attract broad international support?
Based on the elements set out in Resolution 41/120 these questions shall be analyzed in the following chapters. Chapter 4 will look at international human rights law and answer the questions of whether the right to citizenship is consistent with that framework and what implementation mechanisms there are in the international system that protect this right. Chapter 5 will then assess the rights and obligations under the right to citizenship and ask whether they are identifiable and predictable enough to give rise to enforceable individual entitlements. First, however, Chapter 3 will look at the international support for the right to citizenship and critically reflect on the status of the traditional doctrine of citizenship as a domaine réservé in current international legal theory. The normative accounts for a moral right to citizenship developed just discussed will inform the subsequent analysis of the transposition of the right to citizenship in current international human rights law.
Nottebohm (Liechtenstein v Guatemala) [1955] icj Reports 1955, p. 4 23.
ibid.
See eg Mirna Adjami and Julia Harrington, ‘The Scope and Content of Article 15 of the Universal Declaration of Human Rights’ (2008) 27 Refugee Survey Quarterly 93, 94 n 2; Ruth Donner, The Regulation of Nationality in International Law (2nd ed, Transnational Publishers 1994) xv; Matthew J Gibney, ‘Statelessness and Citizenship in Ethical and Political Perspective’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014) 46; Ernst Hirsch Ballin, Citizens’ Rights and the Right to Be a Citizen (Brill Nijhoff 2014) 71; Sandra Mantu, Contingent Citizenship: The Law and Practice of Citizenship Deprivation in International, European and National Perspectives (Brill Nijhoff 2015) 5; Anne Peters, ‘Extraterritorial Naturalizations: Between the Human Right to Nationality, State Sovereignty and Fair Principles of Jurisdiction’ (2010) 53 German Yearbook of International Law 623, 625; Katja Swider, ‘A Rights-Based Approach to Statelessness’ (University of Amsterdam 2018) 22; Yaffa Zilbershats, The Human Right to Citizenship (Transnational Publishers 2002) 5; Ruth Rubio-Marín, Immigration as a Democratic Challenge: Citizenship and Inclusion in Germany and the United States (Cambridge University Press 2000) 19 n 7; Jo Shaw, The People in Question: Citizens and Constitutions in Uncertain Times (Bristol University Press 2020) 19 ff. See also Committee on the Elimination of All Forms of Discrimination against Women, ‘General Recommendation No. 32 on the Gender-Related Dimensions of Refugee Status, Asylum, Nationality and Statelessness of Women’ (CtteeEDAW 2014) UN Doc. cedaw/c/gc/32 para 52. Implicitly also David Owen, ‘On the Right to Have Nationality Rights: Statelessness, Citizenship and Human Rights’ (2018) 65 Netherlands International Law Review 299. See for a critical account of this practice Katherine Tonkiss, ‘Statelessness and the Performance of Citizenship-As-Nationality’ in Tendayi Bloom, Katherine Tonkiss and Phillip Cole (eds), Understanding Statelessness (Routledge 2017).
See for a detailed discussion Olivier Vonk, Nationality Law in the Western Hemisphere: A Study on Grounds for Acquisition and Loss of Citizenship in the Americas and the Caribbean (Brill Nijhoff 2014) 24 ff. See also Mantu (n 3) 5; Kim Rubenstein, ‘Globalization and Citizenship and Nationality’ in Catherine Dauvergne (ed), Jurisprudence for an Interconnected Globe (Ashgate 2003) 161; Swider, ‘Rights-Based Approach to Statelessness’ (n 3) 20 ff.
‘Nationality, (n.)’, Oxford English Dictionary, <
‘Citizenship, (n.)’, Oxford English Dictionary, <
Ibid.
See eg International Law Commission, ‘Report on Nationality, Including Statelessness’ (International Law Commission 1952) UN Doc. a/cn.4/50 6 <
Paul Weis, Nationality and Statelessness in International Law (2nd ed, Sijthoff & Noordhoff 1979) 3.
ibid.
Vonk, Nationality Law in the Western Hemisphere (n 4) 24. See also International Law Commission, ‘Hudson Report’ (n 8) 6 f. See also Delia Rudan, ‘Nationality and Political Rights’ in Alessandra Annoni and Serena Forlati (eds), The Changing Role of Nationality in International Law (Routledge 2013) 117.
de Groot and Vonk (n 8) 3.
Sükrü Uslucan, Zur Weiterentwicklungsfähigkeit des Menschenrechts auf Staatsangehörigkeit: Deutet sich in Europa ein migrationsbedingtes Recht auf Staatsangehörigkeit an — auch unter Hinnahme der Mehrstaatigkeit? (Duncker & Humblot 2012) 42.
Hailbronner finds the term ‘Staatsbürgerschaft’ to be useless (“unbrauchbar”) for the problems relating to nationality in constitutional and international law, Kay Hailbronner and others (eds), Staatsangehörigkeitsrecht (6. Aufl., ch Beck 2017) 30. See also Benito Aláez Corral, ‘Staatsangehörigkeit und Staatsbürgerschaft vor den Herausforderungen des demokratischen Verfassungsstaates’ (2007) 46 Der Staat 349. In the Swiss German context Bürgerrecht is used rather than Staatsangehörigkeit or Staatsbürgerschaft, Alberto Achermann and Barbara von Rütte, ‘Kommentar zu Art. 37 BV’ in Bernhard Waldmann, Eva Maria Belser and Astrid Epiney (eds), Bundesverfassung (Helbing Lichtenhahn 2015) 775; Brigitte Studer, Gérald Arlettaz and Regula Argast, Das Schweizer Bürgerrecht: Erwerb, Verlust, Entzug von 1848 bis zur Gegenwart (Verlag Neue Zürcher Zeitung 2008) 16.
Weis, Nationality in International Law (n 9) 4 f. See also Vonk, Nationality Law in the Western Hemisphere (n 4) 25.
Rubenstein (n 4) 161.
See eg Saskia Sassen, ‘Towards Post-National and Denationalized Citizenship’ in Engin F Isin and Bryan S Turner (eds), Handbook of Citizenship Studies (sage Publications 2002) 278.
See eg Verena Stolcke, ‘The “Nature” of Nationality’ in Veit Michael Bader (ed), Citizenship and Exclusion (MacMillan Press, St Martin’s Press 1997) 62 f.
For a legal study using citizenship (“Bürgerschaft”) as a concept broader than nationality (“Staatsangehörigkeit”) see Anuscheh Farahat, Progressive Inklusion: Zugehörigkeit und Teilhabe im Migrationsrecht (Springer 2014) 120. See also Kristin Henrard, ‘The Shifting Parameters of Nationality’ (2018) 65 Netherlands International Law Review 269, 272. Kostakopoulou uses the notion of ‘nationality model of citizenship’ to refer to the dominant paradigm of membership in the nation state, Dora Kostakopoulou, The Future Governance of Citizenship (Cambridge University Press 2008).
Kim Rubenstein and Daniel Adler, ‘International Citizenship: The Future of Nationality in a Globalized World’ (2000) 7 Indiana Journal of Global Legal Studies 519, 552.
Zilbershats (n 3) 4. See also Siegfried Wiessner, ‘Blessed Be the Ties That Bind: The Nexus between Nationality and Territory’ (1986) 56 Mississippi Law Journal 447, 449 f.
Convention on Certain Questions Relating to the Conflict of Nationality Laws, 12 April 1930, lnts Vol. 179, p. 89 (‘1930 Convention’).
American Convention on Human Rights, 22 November 1969, 1144 unts 123, oas Treaty Series No. 36 (‘American Convention’, ‘achr’).
Arab Charter on Human Rights, 23 May 2004, reprinted in 12 International Human Rights Reports 893 (2005) (‘Arab Charter’, ‘ArCHR’).
European Convention on Nationality, 6 November 1997, ets No. 166 (‘ecn’).
Draft Protocol to the African Charter on Human and People’s Rights on the Specific Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa, Draft adopted September 2015, revised June 2018 (‘Draft Protocol on Nationality’ or ‘AU Draft Protocol’).
The UN Human Rights Committee and the CoE bodies use the term ‘nationality’ in resolutions touching upon nationality matters, see eg UN Commission on Human Rights, ‘Resolution 1999/28 on Human Rights and Arbitrary Deprivation of Nationality’ (UN Human Rights Commission 1999) UN Doc. e/cn.4/res/1999/28; UN Commission on Human Rights, ‘Resolution 2005/45 on Human Rights and Arbitrary Deprivation of Nationality’ (UN Human Rights Commission 2005) UN Doc. e/cn.4/res/2005/45; Human Rights Council, ‘Resolution 7/10 on Human Rights and Arbitrary Deprivation of Nationality’ (hrc 2008) UN Doc. a/hrc/res/7/10; Human Rights Council, ‘Resolution 10/13 on Human Rights and Arbitrary Deprivation of Nationality’ (hrc 2009) UN Doc. a/hrc/res/10/13; Human Rights Council, ‘Resolution 13/2 on Human Rights and Arbitrary Deprivation of Nationality’ (hrc 2010) UN Doc. a/hrc/res/13/2; Human Rights Council, ‘Resolution 20/5 on Human Rights and Arbitrary Deprivation of Nationality’ (hrc 2012) UN Doc. a/hrc/res/20/5; Human Rights Council, ‘Resolution 20/4 on the Right to a Nationality: Women and Children’ (hrc 2012) UN Doc. a/hrc/res/20/4; Human Rights Council, ‘Resolution 26/14 on Human Rights and Arbitrary Deprivation of Nationality’ (hrc 2014) UN Doc. a/hrc/res/26/14; Human Rights Council, ‘Resolution 32/5 on Human Rights and Arbitrary Deprivation of Nationality’ (hrc 2016) UN Doc. a/hrc/res/32/5; Council of Europe, Committee of Ministers, ‘Recommendation No. R (84) 21 of the Committee of Ministers to Member States on the Acquisition by Refugees of the Nationality of the Host Country’ (Committee of Ministers 1984); Council of Europe, Committee of Ministers, ‘Recommendation No. R (99) 18 on the Avoidance and the Reduction of Statelessness’ (Committee of Ministers 1999); Council of Europe, Committee of Ministers, ‘Recommendation Rec(2000)15 of the Committee of Ministers to Member States Concerning the Security of Residence of Long-Term Migrants’ (Committee of Ministers 2000); Council of Europe, Committee of Ministers, ‘Recommendation cm/Rec(2009)13 of the Committee of Ministers of the Council of Europe on the Nationality of Children’ (Committee of Ministers 2009) cm/Rec(2009)13; Parliamentary Assembly of the Council of Europe, ‘Resolution 417 (1969) on Acquisition by Refugees of the Nationality of Their Country of Residence’ (pace 1969); Parliamentary Assembly of the Council of Europe, ‘Recommendation 696 (1973) on Certain Aspects of the Acquisition of Nationality’ (pace 1973); Parliamentary Assembly of the Council of Europe, ‘Resolution 2099 (2016) on the Need to Eradicate Statelessness of Children’ (pace 2016); Parliamentary Assembly of the Council of Europe, ‘Resolution 2263 (2019) on Withdrawing Nationality as a Measure to Combat Terrorism: A Human Rights-Compatible Approach?’ (pace 2019). See by contrast Parliamentary Assembly of the Council of Europe, ‘Recommendation 1500 (2001) on Participation of Immigrants and Foreign Residents in Political Life in the Council of Europe Member States’ (pace 2001). The UN Global Compact on Migration speaks of ‘nationality’ as well as ‘citizenship’, UN General Assembly, ‘Global Compact for Safe, Orderly and Regular Migration,General Assembly Resolution 73/195’ (UN General Assembly 2018) UN Doc. a/res/73/195.
Nationality Decrees Issued in Tunis and Morocco (Advisory Opinion) [1923] pcij Series B No. 4; Nottebohm (n 1); Baruch Ivcher Bronstein v Peru [2001] IACtHR Series C No. 74; Case of the Girls Yean and Bosico v Dominican Republic [2005] IACtHR Series C No. 130 (2005) 92.
John K Modise v Botswana [2000] ACmHPR Communication No. 97/93; The Nubian Community in Kenya v The Republic of Kenya [2015] ACmHPR Communication No. 317/06; Anudo Ochieng Anudo v United Republic of Tanzania [2018] ACtHPR Application No. 012/2015; dr v Australia, Communication No 42/2008 [2009] CtteeERD UN Doc. cerd/c/75/d/42/2008; Benon Pjetri v Switzerland, Communication No 53/2013 [2016] CtteeERD UN Doc. cerd/c/91/d/53/2013; Borzov v Estonia, Communication No 1136/2002 [2004] HRCttee UN Doc. ccpr/c/81/d/1136/2002; Sipin v Estonia, Communication No 1432/2005 [2008] HRCttee UN Doc. ccpr/c/93/d/1423/2005; Q v Denmark, Communication No 2001/2010 [2015] HRCttee UN Doc. ccpr/c/113/d/2001/2010.
See eg Karassev v Finland (Decision) [1999] ECtHR Application No. 31414/96; Genovese v Malta [2011] ECtHR Application No. 53124/09; Petropavlovskis v Latvia [2015] ECtHR Application No. 44230/06; Ramadan v Malta [2016] ECtHR Application No. 76136/12; K2 v The United Kingdom (Decision) [2017] ECtHR Application No. 42387/13; Hoti v Croatia [2018] ECtHR Application No. 63311/14; Alpeyeva and Dzhalagoniya v Russia [2018] ECtHR Application Nos. 7549/09 and 33330/11; Said Abdul Salam Mubarak v Denmark (Decision) [2019] ECtHR Application No. 74411/16.
Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ets No. 5 (‘European Convention on Human Rights’, ‘echr’).
See exemplarily Article 20(1) of Treaty on the Functioning of the European Union (consolidated version, 26 October 2012, oj c 326/47, ‘tfeu’) which states that “Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship” (emphasis added).
Peter J Spiro, ‘A New International Law of Citizenship’ (2011) 105 The American Journal of International Law 694, 695. See also Decaux who argues that “[a]ujourd’hui on parlerait sans doute plus commodément de ‘citizenship’ pour éviter toute connotation avec le débat sur les minorités nationales”, Emmanuel Decaux, ‘Le droit à une nationalité, en tant que droit de l’homme’ (2011) 22 Revue trimestrielle des droits de l’homme 237, 240.
Hirsch Ballin (n 3) 71. See also Caia Vlieks, Ernst Hirsch Ballin and Maria Jose Recalde-Vela, ‘Solving Statelessness: Interpreting the Right to Nationality’ (2017) 35 Netherlands Quarterly of Human Rights 158, 161.
Similarly also Alison Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law (Oxford University Press 2012) 64 f.
“Die Staatsangehörigkeit besteht so lange wie der Staat selbst, den in allen Zeitabschnitten der Geschichte der Menschheit haben die Staaten, welche auch ihre Form gewesen sein mag, ein persönliches Substrat gehabt”, Alexander N Makarov, Allgemeine Lehren des Staatsangehörigkeitsrechts (1. Aufl., W Kohlhammer 1947) 17.
JGA Pocock, ‘The Ideal of Citizenship Since Classical Times’ [1992] Queen’s Quarterly 31, 31. See for a discussion of earlier as well as non-Western forms of socio-political organization Alexander C Diener, ‘Re-Scaling the Geography of Citizenship’ in Ayelet Shachar and others (eds), The Oxford Handbook of Citizenship (Oxford University Press 2017) 38 ff.
Nevertheless, there was no uniform understanding of citizenship in ancient Greece, see Kostakopoulou (n 19) 15.
Gonçalo Matias, Citizenship as a Human Right, The Fundamental Right to a Specific Citizenship (Palgrave Macmillan 2016) 13.
See Pocock (n 37) 31. See for a feminist critique of Pocock’s categorization Susan Moller Okin, ‘Women, Equality, and Citizenship’ (1992) 99 Queen’s Quarterly 56.
Pocock (n 37) 34.
Kostakopoulou (n 19) 15. See also David Scott Fitzgerald, ‘The History of Racialized Citizenship’ in Ayelet Shachar and others (eds), The Oxford Handbook of Citizenship (Oxford University Press 2017) 133.
Matias (n 39) 21. See also Ryan K Balot, ‘Revisiting the Classical Ideal of Citizenship’ in Ayelet Shachar and others (eds), The Oxford Handbook of Citizenship (Oxford University Press 2017) 24.
Pocock (n 37) 37.
ibid 36.
ibid 37.
See Balot (n 43) 18.
Richard Bellamy, Citizenship: A Very Short Introduction (Oxford University Press 2008) 29.
Pocock (n 37) 38.
Linda Bosniak, The Citizen and the Alien: Dilemmas of Contemporary Membership (Princeton University Press 2006) 19.
See eg Christian Joppke, ‘The Instrumental Turn of Citizenship’ [2019] 45 Journal of Ethnic and Migration Studies 858, 860 f.
See eg Balot (n 43) 18.
Kostakopoulou (n 19) 16.
ibid 17 f.
Matias (n 39) 30 f.
Kostakopoulou (n 19) 18.
Makarov (n 36) 17. Bauböck sees the ‘Westphalian conception’ of citizenship as a third, distinctly modern form of citizenship whose primary function is to establish a mechanism for determining individual membership in the international state system. Such Westphalian citizenship, as he notes, would correlate to the notion of “nationality in international law”, Rainer Bauböck, ‘Genuine Links and Useful Passports: Evaluating Strategic Uses of Citizenship’ (2019) 45 Journal of Ethnic and Migration Studies 1015, 1017. See in more detail Chapter 3.
See Diener (n 37) 44. See for the evolution of the notion of citizenship in the American context Linda K Kerber, ‘The Meanings of Citizenship’ (1997) 84 The Journal of American History 833.
Matias (n 39) 34.
Kostakopoulou (n 19) 25.
See also Galina Cornelisse, Immigration Detention and Human Rights: Rethinking Territorial Sovereignty (Martinus Nijhoff 2010) 74 ff.
Stolcke (n 18) 64. See also Kostakopoulou (n 19) 26.
See for a detailed postcolonial account of citizenship and further references Kamal Sadiq, ‘Postcolonial Citizenship’ in Ayelet Shachar and others (eds), The Oxford Handbook of Citizenship (Oxford University Press 2017); and Fitzgerald (n 42).
Kerber (n 58) 834. See also Iris Marion Young, ‘Polity and Group Difference: A Critique of the Ideal of Universal Citizenship’ (1989) 99 Ethics 250; Nira Yuval-Davis, ‘Women, Citizenship and Difference’ (1997) 57 Feminist Review on Women and Citizenship 4.
See eg Bosniak, Citizen and Alien (n 50) 19.
See also Veit Michael Bader, ‘Citizenship of the European Union. Human Rights, Rights of Citizens of the Union and of Member States’ (1999) 12 Ratio Juris 153, 156 f. See also the proposal for a fourfold typology of basic conceptions of citizenship based on the underlying interests developed by Rainer Bauböck and Vesco Paskalev, ‘Cutting Genuine Links: A Normative Analysis of Citizenship Deprivation’ (2015) 30 Georgetown Immigration Law Journal 47.
See Ayelet Shachar and others, ‘Introduction: Citizenship — Quo Vadis?’ in Ayelet Shachar and others (eds), The Oxford Handbook of Citizenship (Oxford University Press 2017) 4.
Audrey Macklin, ‘Who Is the Citizen’s Other? Considering the Heft of Citizenship’ (2007) 8 Theoretical Inquiries in Law 333, 334.
Linda Bosniak, ‘Citizenship Denationalized’ (2000) 7 Indiana Journal of Global Legal Studies 447, 455. See for similar categories also Irene Bloemraad, ‘Does Citizenship Matter?’ in Ayelet Shachar and others (eds), Oxford Handbook of Citizenship (Oxford University Press 2017) 526 f; Christian Joppke, ‘Transformation of Citizenship: Status, Rights, Identity’ (2007) 11 Citizenship Studies 37; Will Kymlicka and Wayne Norman, ‘Return of the Citizen: A Survey of Recent Work on Citizenship Theory’ (1994) 104 Ethics 352.
Bloemraad (n 69) 527.
Bosniak, Citizen and Alien (n 50) 17.
Linda Bosniak, ‘Multiple Nationality and the Postnational Transformation of Citizenship’ in David A Martin and Kay Hailbronner (eds), Rights and Duties of Dual Nationals: Evolution and Prospects (Kluwer Law International 2003) 45.
See eg Bosniak, ‘Citizenship Denationalized’ (n 69); Daniel Loick, ‘Wir Flüchtlinge. Überlegungen zu einer Bürgerschaft jenseits des Nationalstaats’ (2017) 45 Leviathan 574; Saskia Sassen, Losing Control?: Sovereignty in an Age of Globalization (Columbia University Press 1996); Yasemin Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (University of Chicago 1994); Neil Walker, ‘The Place of Territory in Citizenship’ in Ayelet Shachar and others (eds), The Oxford Handbook of Citizenship (Oxford University Press 2017).
See Bosniak, Citizen and Alien (n 50) 20 ff.
ibid 29.
See also Vanessa Barker, ‘Democracy and Deportation: Why Membership Matters Most’ in Katia Franko Aas and Mary Bosworth (eds), The Borders of Punishment: Migration, Citizenship, and Social Exclusion (Oxford University Press 2013) 238.
Rogers Brubaker, Citizenship and Nationhood in France and Germany (Harvard University Press 1992) 21. See also Chapter 6.
Bosniak, Citizen and Alien (n 50) 99.
See Barker (n 76); Stephen Castles, ‘Nation and Empire: Hierarchies of Citizenship in the New Global Order’ (2005) 42 International Politics 203; Yossi Harpaz, Citizenship 2.0: Dual Nationality as a Global Asset (Princeton University Press 2019). See for a ranking of the most ‘valuable’ nationalities Dimitry Kochenov and Justin Lindeboom (eds), Kälin and Kochenov’s Quality of Nationality Index: An Objective Ranking of the Nationalities of the World (Hart Publishing 2020).
The terminology is owed to a discussion with Audrey Macklin in the context of the 1st Expert Meeting of Academics: Statelessness, Citizenship & Inclusion, at the nyu Center for Global Affairs in June 2017. See also Tendayi Bloom, Noncitizenism: Recognising Noncitizen Capabilities in a World of Citizens (Routledge 2018); Indira Goris, Julia Harrington and Sebastian Köhn, ‘Statelessness: What It Is and Why It Matters’ (2009) 32 Forced Migration Review 4; Lindsey N Kingston, Fully Human: Personhood, Citizenship, and Rights (Oxford University Press 2019); Macklin, ‘The Citizen’s Other’ (n 68) 354; Jason Tucker, ‘Questioning de Facto Statelessness: By Looking at de Facto Citizenship’ (2014) 19 Tilburg Law Review 276.
Diener (n 37) 53.
Mantu (n 3) 3.
Bosniak, Citizen and Alien (n 50) 33. Similarly also Kingston (n 80). See further Castles who distinguishes four differentiating contradictions of citizenship, Castles (n 79) 205.
See among many Fitzgerald (n 42); Ratna Kapur, ‘The Citizen and the Migrant: Postcolonial Anxieties, Law, and the Politics of Exclusion/Inclusion’ (2007) 8 Theoretical Inquiries in Law 537; Leti Volpp, ‘Feminist, Sexual, and Queer Citizenship’ in Ayelet Shachar and others (eds), The Oxford Handbook of Citizenship (2017); Iris Marion Young, Inclusion and Democracy (Oxford University Press 2010); Yuval-Davis (n 64).
Rubenstein (n 4) 163.
Kerber (n 58) 854. See also Farahat (n 19) 54; Daniel Thym, ‘Frontiers of EU Citizenship: Three Trajectories and Their Methodological Limitations’ in Dimitry Kochenov (ed), EU Citizenship and Federalism. The Role of Rights (Cambridge University Press 2017) 713.
See also Myres S McDougal, Harold D Lasswell and Lung-chu Chen, Human Rights and World Public Order: The Basic Policies of an International Law of Human Dignity (Yale University Press 1980) 597 f.
See also Mantu (n 3) 3.
Karen Knop, ‘Relational Nationality: On Gender and Nationality in International Law’ in T Alexander Aleinikoff and Douglas Klusmeyer (eds), Citizenship Today: Global Perspectives and Practices (Carnegie Endowment for International Peace 2001). See also Irene Bloemraad and Alicia Sheares, ‘Understanding Membership in a World of Global Migration: (How) Does Citizenship Matter?’ (2017) 51 International Migration Review 855.
Observing a denationalization of citizenship: Bosniak, ‘Citizenship Denationalized’ (n 69); Sassen, ‘Post-National Citizenship’ (n 17). Observing a diminishment of the importance of citizenship due to the proliferation of rights irrespective of citizenship: David Jacobson, Rights Across Borders: Immigration and the Decline of Citizenship (Johns Hopkins University Press 1996); Soysal (n 73). Claiming that citizenship is back “with a vengeance”: Catherine Dauvergne, ‘Citizenship with a Vengeance’ (2007) 8 Theoretical Inquiries in Law 489.
Bauböck, ‘Genuine Links and Useful Passports’ (n 57); Christian Joppke, ‘The Inevitable Lightening of Citizenship’ (2010) 51 European Journal of Sociology 9; Joppke, ‘Instrumental Turn’ (n 51); Ayelet Shachar, ‘The Marketization of Citizenship in an Age of Restrictionism’ (2018) 32 Ethics & International Affairs 3.
Marie-Bénédicte Dembour, ‘Human Rights Law and National Sovereignty in Collusion: The Plight of Quasi-Nationals at Strasbourg’ (2003) 21 Netherlands Quarterly of Human Rights 63, 93.
Linda Bosniak, ‘Persons and Citizens in Constitutional Thought’ (2010) 8 International Journal of Constitutional Law 9, 11.
See also Ayelet Shachar, The Birthright Lottery: Citizenship and Global Inequality (Harvard University Press 2009) 10. With regard to naturalization see Ricky van Oers, Deserving Citizenship. Citizenship Tests in Germany, the Netherlands and the United Kingdom (Brill Nijhoff 2013). See on the principles of jus soli and jus sanguinis in more detail below Chapter 2, ii.3.2.
Makarov (n 36) 31.
Makarov thereby tries to reconcile the two positions understanding citizenship either as a legal status or a legal, quasi-contractual relationship, see ibid 22 ff.
Bosniak, ‘Citizenship Denationalized’ (n 69) 456; Rubenstein (n 4) 162.
Ruvi Ziegler, Voting Rights of Refugees (Cambridge University Press 2017) 92.
Nottebohm (n 1) 23.
Advisory Opinion on Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica [1984] IACtHR oc-4/84, Series A No. 4 (1984) para 35.
Yean and Bosico (n 28) paras 136–137.
Opinion of Advocate General Maduro in Case C-135/08 (Rottman) [2009] cjeu c-135/08 para 17.
See also Mantu (n 3) 5.
See on the external and internal aspect of citizenship Shaw, The People in Question (n 3) 4.
See Farahat (n 19) 53 f; Mantu (n 3) 2. See, however, for the discussion of the limits of the domaine réservé of states in nationality matters under international law Chapter 3, ii.
Farahat (n 19) 54; de Groot and Vonk (n 8) 35; Kay Hailbronner, ‘Rights and Duties of Dual Nationals: Changing Concepts and Attitudes’ in David A Martin and Kay Hailbronner (eds), Rights and Duties of Dual Nationals: Evolution and Prospects (Kluwer Law International 2003) 20; Makarov (n 36) 30. Arguing for a more substantive understanding of nationality, Vlieks, Hirsch Ballin and Recalde-Vela (n 34) 164.
Research in International Law of the Harvard Law School, ‘The Law of Nationality’ (1929) 23 American Journal of International Law 21.
Bauböck, ‘Genuine Links and Useful Passports’ (n 57) 3.
See Gunnar G Schram, ‘Article 15 udhr’ in Asbjørn Eide and others (eds), The Universal Declaration of Human Rights: A Commentary (Scandinavian University Press 1992) 229. See also Farahat (n 19) 54 f; Mantu (n 3) 6; Weis, Nationality in International Law (n 9) 29.
See also Makarov (n 36) 17.
Malcolm N Shaw, International Law (6th ed, Cambridge University Press 2008) 659; Vlieks, Hirsch Ballin and Recalde-Vela (n 34) 165. See also Chapter 3, i.1.
Fripp (n 8) 22.
Kristine Kruma, EU Citizenship, Nationality and Migrant Status: An Ongoing Challenge (Martinus Nijhoff 2014) 31.
Bloom, Noncitizenism (n 80) 11.
Mantu (n 3) 15.
See also Jeffrey Blackman, ‘State Successions and Statelessness: The Emerging Right to an Effective Nationality Under International Law’ (1998) 19 Michigan Journal of International Law 1141, 1151. See in more detail Chapter 3, ii.
Mantu (n 3) 12.
de Groot and Vonk (n 8) 50.
Iseult Honohan and Nathalie Rougier, ‘Global Birthright Citizenship Laws: How Inclusive?’ (2018) 65 Netherlands International Law Review 337, 338.
See for an overview on use of jus soli and jus sanguinis for birthright citizenship acquisition in Global Citizenship Observatory (globalcit), ‘Global Birthright Indicators, Version 3.0’ (Global Citizenship Observatory (globalcit) 2017) <
de Groot and Vonk (n 8) 51.
Honohan and Rougier (n 119) 340. For the database see Global Citizenship Observatory (globalcit), ‘Global Database on Modes of Acquisition of Citizenship, Version 1.0’ (globalcit 2017) <
Honohan and Rougier (n 119) 340. See for a historical perspective the analysis made in the Harvard Law Research of 1929, Research in International Law of the Harvard Law School (n 107) 29.
Hailbronner and others (n 14) 46; Honohan and Rougier (n 119) 340.
Hailbronner and others (n 14) 46. See also Peter J Spiro, ‘Citizenship, Nationality, and Statelessness’ in Vincent Chetail and Céline Bauloz (eds), Research Handbook on International Law and Migration (Edward Elgar Publishing 2014) 282; Weis, Nationality in International Law (n 9) 95 f.
See eg Article 20(2) achr and Article 6(4) acc as well as Human Rights Committee, ‘General Comment No. 17: Article 24 (Rights of the Child)’ (HRCttee 1989) UN Doc. ccpr/c/21/Rev.1/Add.9 para 8. Article 6 ecn addresses both acquisition of nationality based on descent as well as of birth in the territory. See also Adjami and Harrington (n 3) 105; Carol A Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’ (1998) 10 International Journal of Refugee Law 156, 169; Laura van Waas, Nationality Matters: Statelessness under International Law (Intersentia 2008) 58 ff.
Shachar, The Birthright Lottery (n 94) 121.
ibid 115.
Rainer Bauböck, ‘Democratic Inclusion. A Pluralistic Theory of Citizenship’ in Rainer Bauböck (ed), Democratic Inclusion (Manchester University Press 2018) 70.
See ibid 68.
Honohan and Rougier (n 119) 340.
de Groot and Vonk (n 8) 50. Adoption is deemed equivalent to birth.
Weis, Nationality in International Law (n 9) 99.
Global Citizenship Observatory (globalcit), ‘Database Acquisition of Citizenship’ (n 122). No provisions on naturalization are found in the legislations of Lebanon, Myanmar, Nepal and Sri Lanka. Moreover, in many states in the Middle East naturalization is theoretically possible but in practice remains largely unachievable as the requirements are so restrictive, see Zahra Albarazi, ‘Regional Report on Citizenship: The Middle East and North Africa (MENA)’ (Global Citizenship Observatory (globalcit) 2017) globalcit Comparative Report 2017/3 <
de Groot and Vonk (n 8) 60. See also Chapter 5, iii.3.6.
In case of facilitated naturalization, the criteria generally are reduced but not lifted entirely.
See also de Groot and Vonk (n 8) 60 f.
See on exclusionary effects of naturalization tests van Oers (n 94).
de Groot and Vonk (n 8) 64.
See also Eva Ersbøll, ‘Nationality and Identity Issues — A Danish Perspective Special Issue: EU Citizenship: Twenty Years on: Part ii: Legal Citizenship in the EU and Its Frontiers’ (2014) 15 German Law Journal 835, 836.
See in more detail below Chapter 6, ii.2.1. See also Barbara von Rütte, ‘Social Identity and the Right to Belong — The ECtHR’s Judgment in Hoti v Croatia’ (2019) 24 Tilburg Law Review 147.
Genovese v Malta (n 30) para 33.
UN Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, ‘Report on Racial Discrimination in the Context of in the Context of Laws, Policies and Practices Concerning Citizenship, Nationality and Immigration’ (Special Rapporteur on Racism 2018) UN Doc. a/hrc/38/52 para 7.
Hannah Arendt, The Origins of Totalitarianism (Harcourt 1973) 296. See in more detail Chapter 2, iii.2.1.
Katja Swider and Caia Vlieks, ‘Learning from Naturalisation Debates: The Right to an Appropriate Citizenship at Birth’ in Rainer Bauböck (ed), Debating Transformations of National Citizenship (Springer International Publishing 2018) 149.
Bloemraad and Sheares (n 89) 841.
Gibney, ‘Statelessness and Citizenship’ (n 3) 51. See also Hirsch Ballin (n 3) 141.
Kingston (n 80) 5.
See Hannah Arendt, The Human Condition (2nd edn, University of Chicago Press 1958); Bosniak, ‘Citizenship Denationalized’ (n 69) 470 ff.
See Bosniak, ‘Citizenship Denationalized’ (n 69) 465.
See eg Elspeth Guild, The Legal Elements of European Identity: EU Citizenship and Migration Law (Kluwer Law International 2004) 8.
Weis, Nationality in International Law (n 9) 33.
See Nottebohm (n 1) 24.
Annemarieke Vermeer-Künzli, ‘Nationality and Diplomatic Protection, A Reappraisal’ in Alessandra Annoni and Serena Forlati (eds), The Changing Role of Nationality in International Law (Routledge 2013) 76. See also Article 1 International Law Commission Draft Articles on Diplomatic Protection, 2006, Supplement No. 10, UN Doc. A/61/10 (‘ILC Draft Articles on Diplomatic Protection’).
See on the discussion sparked by the icj’s judgment in the Nottebohm case on the question whether nationality has to be effective for the exercise of diplomatic protection Alice Edwards, ‘The Meaning of Nationality in International Law in an Era of Human Rights, Procedural and Substantive Aspects’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014) 32; Alexander N Makarov, ‘Das Urteil des Internationalen Gerichtshofes im Fall Nottebohm’ (1955) 16 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 407; Robert D Sloane, ‘Breaking the Genuine Link: The Contemporary International Legal Regulation of Nationality’ (2009) 50 Harvard International Law Journal 8; Peter J Spiro, ‘Nottebohm and “Genuine Link”: Anatomy of a Jurisprudential Illusion’ (2019) Investment Migration Working Paper No 2019/1 <
Panevezys-Saldutiskis Railway (Estonia v Lithuania) [1939] pcij Series a./b. No. 76 para 65.
Article 8 ilc Draft Articles on Diplomatic Protection (n 154). The Commentary to the Draft Articles describes Article 8 as ‘an exercise in progressive development of the law’, International Law Commission, ‘Commentary on the Draft Articles on Diplomatic Protection’ (ilc 2006) Yearbook of the International Law Commission, 2006, Vol. ii, Part Two 36. See also Andreas Kind, Der diplomatische Schutz: Zwischenstaatlicher Rechtsdurchsetzungsmechanismus im Spannungsfeld von Individualrechten, Ausseninteressen, Staatsangehörigkeit und Schutzpflichten: Eine schweizerische Perspektive (Dike Verlag Zürich 2014) 116 ff; Vermeer-Künzli (n 154) 76.
Rudan (n 11) 117. See on the implications of the exclusion of non-citizens from political rights for democracy below Chapter 6, i.2.
Arendt, Origins of Totalitarianism (n 144) 296.
See by contrast Linda Bosniak, ‘Status Non-Citizens’ in Ayelet Shachar and others (eds), The Oxford Handbook of Citizenship (Oxford University Press 2017) 328 ff.
Susanne Baer, ‘Politische Rechte’ in Arnd Pollmann and Georg Lohmann (eds), Menschenrechte: Ein interdisziplinäres Handbuch (Metzler 2012) 257.
Human Rights Committee, ‘General Comment No. 25: The Right to Participate in Public Affairs, Voting Rights and the Right of Equal Access to Public Service (Art. 25)’ (HRCttee 1996) UN Doc. ccpr/c/21/Rev.1/Add.7 para 12. See also Walter Kälin and Jörg Künzli, Universeller Menschenrechtsschutz: der Schutz des Individuums auf globaler und regionaler Ebene (4. Aufl., Helbing Lichtenhahn Verlag 2019) 582 ff.
Kälin and Künzli, Menschenrechtsschutz (n 162) 607. Interesting is, however, Article 21 UDHR which grants ‘everyone’ the right to take part in the government of ‘his’ country, see also Zilbershats (n 3) 59.
International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171 (‘iccpr’).
Similar provisions can be found in other instruments, such as Article 5(c) of the Convention on the Elimination of All Forms of Racial Discrimination (21 December 1965, 660 unts 195, ‘cerd’), Article 7(f) of the Convention on the Elimination of All Forms of Discrimination against Women (18 December 1979, 1249 unts 13, ‘cedaw’) and Article 29 Convention on the Rights of Persons with Disabilities as well as at the regional level Article 23 achr or Article 13 achpr.
Human Rights Committee, ‘General Comment No. 15: The Position of Aliens Under the Covenant’ (HRCttee 1986) para 7. Article 16 echr which allows imposing restrictions on the political activity of non-citizens is considered to be outdated and is not normally applied by the ECtHR, see Kälin and Künzli, Menschenrechtsschutz (n 162) 590. See however with regard to the argument that a loyalty requirement for the purposes of naturalization restricts the rights to freedom of expression and of assembly Petropavlovskis v Latvia (n 30).
Dan Ferris and others, ‘Noncitizen Voting Rights in the Global Era: A Literature Review and Analysis’ (2020) 21 Journal of International Migration and Integration 949. The question of political participation of resident non-citizens is discussed in a large body of academic literature. See among many Jean-Thomas Arrighi and Rainer Bauböck, ‘A Multilevel Puzzle: Migrants’ Voting Rights in National and Local Elections’ (2017) 56 European Journal of Political Research 619; Rainer Bauböck, ‘Stakeholder Citizenship and Transnational Political Participation: A Normative Evaluation of External Voting’ (2006) 75 Fordham Law Review 2393; Julie Fraser, ‘Inclusive Democracy: Franchise Limitations on Non-Resident Citizens as an Unjust Restriction of Rights under the European Convention on Human Rights’ (2017) 33 Utrecht Journal of International and European Law; Andrea de Guttry, ‘The Right of Aliens to Vote and to Carry Out Political Activities: A Critical Analysis of the Relevant International Obligations Incumbent on the State of Origin and on the Host State’ [2018] Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 933; Richard Lappin, ‘The Right to Vote for Non-Resident Citizens in Europe’ (2016) 65 International and Comparative Law Quarterly 859; David Owen, ‘Transnational Citizenship and the Democratic State: Modes of Membership and Voting Rights’ (2011) 14 Critical Review of International Social and Political Philosophy 641; Luicy Pedroza, Citizenship Beyond Nationality: Immigrant’s Right to Vote Across the World (University of Pennsylvania Press 2019); Cristina M Rodríguez, ‘Noncitizen Voting and the Extraconstitutional Construction of the Polity’ (2010) 8 International Journal of Constitutional Law 30; Ruth Rubio-Marín, ‘Transnational Politics and the Democratic Nation-State: Normative Challenges of Expatriate Voting and Nationality Retention of Emigrants’ (2006) 81 New York University Law Review 117; Ziegler (n 98).
pace, ‘Recommendation 1500 (2001)’ (n 27).
See for a limitation of political rights of dual citizens Tănase v Moldova [2010] ECtHR Application No. 7/08.
See also Guild, The Legal Elements of European Identity (n 151) 8; R (on the application of Johnson) (Appellant) v Secretary of State for the Home Department (Respondent) [2016] UK Supreme Court [2016] uksc 56 para 33.
For example, the right to one’s own country under Article 12(4) iccpr (see Chapter 6, ii.2.2) but also the principle of non-refoulement.
See on the right to freedom of movement in a migration context also Richard Perruchoud, ‘State Sovereignty and Freedom of Movement’ in Brian Opeskin, Richard Perruchoud and Jillyanne Redpath-Cross (eds), Foundations of International Migration Law (Cambridge University Press 2012).
Üner v The Netherlands [2006] ECtHR Application No. 46410/99 para 54.
Bosniak, ‘Status Non-Citizens’ (n 160) 327. See on the exclusionary effect of citizenship also below Chapter 6, i.3.
Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, 16 September 1963, ets No. 046 (‘Protocol No. 4’).
Owen, ‘The Right to Have Nationality Rights’ (n 3) 303.
Guild, The Legal Elements of European Identity (n 151) 17.
See also Bosniak, ‘Status Non-Citizens’ (n 160) 327.
See Chapter 6, i.3.
Committee on the Elimination of Racial Discrimination, ‘General Recommendation No. xxx on Discrimination Against Non-Citizens’ (CtteeERD 2002) para 15.
Thus, arguments for more inclusive citizenship regimes contain a risk of increasing the exclusionary tendencies of citizenship and shifting the pressure to the territorial border and the question of access to a state. However, while I consider both forms of exclusion to be problematic, I focus here on the question of access to citizenship and leave the question of access to the territory aside. See on the right to immigration eg Joseph Carens, The Ethics of Immigration (Oxford University Press 2013); Andreas Cassee, ‘Das Recht auf globale Bewegungsfreiheit: Eine Verteidigung’ (2014) 141 Archiv für Rechts- und Sozialphilosphie, Beihefte 55; Martino Mona, Das Recht auf Immigration: rechtsphilosophische Begründung eines originären Rechts auf Einwanderung im liberalen Staat (Helbing Lichtenhahn 2007).
See on the relationship of citizenship and human rights David Owen, ‘Citizenship and Human Rights’ in Ayelet Shachar and others (eds), The Oxford Handbook of Citizenship (2017). See further Paulina Tambakaki, Human Rights or Citizenship? (Birkbeck Law 2010).
Carol A Batchelor, ‘Developments in International Law: The Avoidance of Statelessness Through Positive Application of the Right to a Nationality’ in Council of Europe (ed), Trends and Developments in National and International Law on Nationality, Proceedings of the 1st European Conference on Nationality (Council of Europe 1999) 52.
See on the relationship of citizenship and human rights Owen, ‘Citizenship and Human Rights’ (n 182). See further Tambakaki (n 182).
See Elspeth Guild, ‘The UN Global Compact for Safe, Orderly and Regular Migration: What Place for Human Rights?’ (2018) 30 International Journal of Refugee Law 661, 662; Hirsch Ballin (n 3) 141; Kesby (n 35) 52.
Adjami and Harrington (n 3) 94; Barker (n 76) 242 ff; Sara Kalm, ‘Citizenship Capital’ (2020) 34 Global Society 528. See already Arendt, Origins of Totalitarianism (n 144) 292.
See also Michelle Foster and Timnah Rachel Baker, ‘Racial Discrimination in Nationality Laws: A Doctrinal Blind Spot of International Law?’ (2021) 11 Columbia Journal of Race and Law 83, 104.
Stephen Hall, ‘The European Convention on Nationality and the Right to Have Rights’ (1999) 24 European Law Review 586, 588.
Gibney, ‘Statelessness and Citizenship’ (n 3) 51.
Marie-Bénédicte Dembour, When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford University Press 2015) 119.
See also Jo Shaw and Igor Stiks, ‘Introduction: What Do We Talk about When We Talk about Citizenship Rights?’ in Jo Shaw and Igor Stiks (eds), Citizenship Rights (Ashgate 2013) xix.
Article 1(1) css.
Bloom, Noncitizenism (n 80) 49. See also Gibney, ‘Statelessness and Citizenship’ (n 3) 47. See also UN Independent Expert on Minority Issues, ‘Report on Minorities and the Discriminatory Denial or Deprivation of Citizenship’.
Secretary of State for the Home Department v Al-Jedda [2013] UK Supreme Court [2013] uksc 62 para 12.
Gibney, ‘Statelessness and Citizenship’ (n 3) 45; Tamás Molnár, ‘The Prohibition of Arbitrary Deprivation of Nationality under International Law and EU Law: New Perspectives’ [2014] Hungarian Yearbook of International Law and European Law 67; van Waas, Nationality Matters (n 126) 9.
Though there may be valid theoretical arguments that nationality is not per se good and that acquiring a(ny) nationality is not always in the interest of stateless persons. See Swider, ‘Rights-Based Approach to Statelessness’ (n 3) 10; see also Katja Swider, ‘Why End Statelessness?’ in Tendayi Bloom, Katherine Tonkiss and Phillip Cole (eds), End Statelessness? (Routledge 2017). See also Bloom who points out that the imposition of citizenship cannot be seen as emancipatory only, Bloom, Noncitizenism (n 80) 88.
Dembour, When Humans Become Migrants (n 190) 30. See also Kalm (n 186) 202.
Shachar, The Birthright Lottery (n 94).
See also Owen, ‘Citizenship and Human Rights’ (n 182) 248.
I am aware that this categorization is simplistic and that there is a large debate about the conceptualization of human rights as moral or legal rights, see eg Aaron Fellmeth, Paradigms of International Human Rights Law (Oxford University Press 2016). See for a similar categorization Samantha Besson, ‘The European Union and Human Rights: Towards A Post-National Human Rights Institution?’ (2006) 6 Human Rights Law Review 329 ff.
See Kerstin von der Decken and Nikolaus Koch, ‘Recognition of New Human Rights: Phases, Techniques and the Approach of “Differentiated Traditionalism”’ in Andreas von Arnauld, Kerstin von der Decken and Mart Susi (eds), The Cambridge Handbook of New Human Rights (1st edn, Cambridge University Press 2020) 7; Anne Peters, Beyond Human Rights: The Legal Status of the Individual in International Law (Cambridge University Press 2016) 441. See in more detail below Chapter 2, iii.3.
Fellmeth (n 200) 3.
Fundamental rights of individuals against the state in domestic law are usually referred to as constitutional fundamental rights, rather than human rights, see similarly Peters, Beyond Human Rights (n 201) 440.
The positions summarized are those found to be most pertinent for the subsequent discussion of the right to citizenship in international human rights law. However, others have developed similar arguments for a moral or political right to citizenship, eg Rainer Bauböck, Transnational Citizenship, Membership and Rights in International Migration (Edward Elgar Publishing 1994); Bauböck, ‘Democratic Inclusion’ (n 129); Bauböck and Paskalev (n 66); Hirsch Ballin (n 3); Kostakopoulou (n 19).
Joppke, ‘Instrumental Turn’ (n 51).
Soysal (n 73). See also Bosniak who argues that the rights of non-citizens — “alien citizenship” — should continuously approximate the rights and status of citizens in order to avoid the exclusionary side of citizenship, and does not argue directly for a right to citizenship, Bosniak, Citizen and Alien (n 50).
Soysal (n 73) 159.
ibid.
Arendt, Origins of Totalitarianism (n 144). See for a thorough analysis Seyla Benhabib, The Rights of Others, Aliens, Residents, and Citizens (5th printing, Cambridge University Press 2007) 49 ff; Kesby (n 35).
Arendt, Origins of Totalitarianism (n 144) 296 f. See on the notion of ‘the right to have rights’ in the Arendtian sense Ayten Gündogdu, Rightlessness in an Age of Rights (Oxford University Press 2015); Kesby (n 35).
Arendt, Origins of Totalitarianism (n 144) 291 f.
See Gündogdu (n 210).
Arendt, Origins of Totalitarianism (n 144) 295. See also Gündogdu (n 210).
See Owen, ‘The Right to Have Nationality Rights’ (n 3) 299 f.
See also Manuela Sissy Kraus, Menschenrechtliche Aspekte der Staatenlosigkeit (Pro-Universitate-Verlag 2013) 120.
Arendt, Origins of Totalitarianism (n 144) 296.
ibid 297.
Benhabib (n 209) 50.
Arendt, Origins of Totalitarianism (n 144) 296.
See also Kesby (n 35) 3; Mantu (n 3) 10.
Arendt, Origins of Totalitarianism (n 144) 298.
Owen, ‘The Right to Have Nationality Rights’ (n 3) 300.
Kesby (n 35) 3.
Gibney, ‘Statelessness and Citizenship’ (n 3) 51. See also Brad K Blitz, ‘The State and the Stateless. The Legacy of Hannah Arendt Reconsidered’ in Tendayi Bloom, Katherine Tonkiss and Phillip Cole (eds), End Statelessness? (Routledge 2017).
Kesby (n 35) 4.
Similarly also Owen, ‘The Right to Have Nationality Rights’ (n 3) 300.
Benhabib (n 209) 3.
ibid f.
ibid 22.
ibid 68.
ibid 135.
ibid 136. See also Kraus (n 215) 141.
Benhabib (n 209) 139.
ibid.
ibid f.
ibid 140.
ibid 141.
See also Farahat (n 19) 124 ff.
Rubio-Marín, Immigration as a Democratic Challenge (n 3).
See also Matias (n 39) 208 ff.
Rubio-Marín, Immigration as a Democratic Challenge (n 3) 4.
ibid 6.
ibid 21 ff.
See ibid 81 ff.
ibid 20.
ibid 28.
ibid 60 ff.
ibid 60.
ibid.
ibid 38.
ibid 40.
ibid 20 f and 99 ff.
ibid 99.
ibid 105.
ibid 127 f.
ibid 126.
Carens (n 181).
ibid 158.
ibid 109.
ibid 30.
ibid 45.
ibid 46.
ibid.
He thereby draws on Rubio-Marín’s categories, see ibid 50 n 5.
ibid 50.
ibid.
ibid 52.
ibid 53 ff.
ibid 164.
ibid 160.
Shachar, The Birthright Lottery (n 94).
ibid 3.
ibid 11.
ibid 4.
ibid 124.
ibid 141.
ibid 96.
ibid.
ibid 165. See on the principle of jus nexi in more detail Chapter 6, ii.
ibid 164 f.
ibid 180.
ibid 188.
Owen, ‘The Right to Have Nationality Rights’ (n 3) 301.
ibid 305.
ibid 306.
ibid 310.
ibid.
ibid 312.
ibid 314.
ibid.
Owen, ‘Citizenship and Human Rights’ (n 182) 252. See for an account that is more critical of the possible implications of recognizing nationality as a human right Kesby (n 35) 39 ff.
As Besson points out, not all moral rights are equally recognized as legal rights, (n 200) 334.
Vlieks, Hirsch Ballin and Recalde-Vela (n 34) 162.
Walter Kälin and Jörg Künzli, The Law of International Human Rights Protection (2nd ed, Oxford University Press 2019) 29.
UN General Assembly, ‘Resolution 41/120: Setting International Standards in the Field of Human Rights’ (UN General Assembly 1987) para 4 <