Chapter 7 Conclusion

In: The Human Right to Citizenship
Author:
Barbara von Rütte
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Nationality is a fundamental human right.1

IACtHR, Case of the Girls Yean and Bosico, 2005

This book has explored the status of the right to citizenship in international human rights law. On the basis of the observation that acquisition, enjoyment or loss of citizenship is hardly every framed as a human rights issue, it has traced the evolution of the right to citizenship from a sovereign privilege to an enforceable individual human right and highlighted the ongoing tension between these two poles — between state sovereignty and the right to citizenship as an individual human right. It has juxtaposed the normative claim for a right to citizenship against international human rights law and argued that the right to citizenship can and, in fact, must be recognized as a legal human right. The book thereby looked not only at statelessness, deprivation of citizenship or multiple citizenship, but more generally at acquisition, enjoyment and loss of citizenship in a migration context.

Based on a comprehensive and an in-depth review of the international legal framework protecting the right to nationality, this book had the aim of challenging the widespread skepticism towards the recognition of the right to citizenship as an effective and judiciable legal entitlement. Despite predictions to the contrary, citizenship has not lost any of its relevance. It remains a powerful marker for access to rights, territories, privileges and political voice and continues to be used as such by states all over the world.2 Nevertheless, the book has showed that the right to citizenship is more firmly anchored in the current international human rights regime than one might think and that many domestic authorities are willing to acknowledge. A number of international human rights instruments grant individuals concrete rights and entitlements in nationality matters. The right to citizenship is therefore clearly a legal human right, protected at the international as well as at the regional level. The close-reading of the relevant provisions in international law as well as the corresponding practive of international and regional human rights courts, treaty bodies and international organizations in this book has showed that the scope and content of the right to citizenship can be clearly demarcated. The popular objection that the right to citizenship remains void and ineffective due to the lack of an addressee therefore must be rejected. Depending on the instrument in question, more or less far-reaching but clear rights for individuals and corresponding duties for states can be identified.

This being said, from an individual rights perspective protection gaps clearly remain. Especially when it comes to the acquisition of citizenship of a particular state for persons who are not stateless or at risk of becoming stateless, international human rights law is relatively week. According to the vast majority of international legal instruments, a state may decide freely on the granting of its citizenship and on the criteria for acquisition of citizenship by naturalization — as long as the criteria or the decision at hand are not discriminatory or arbitrary. From the perspective of the individual and assuming that citizenship is so central to a person’s life, perspectives and well-being that it forms part of their social identity and hence their private life, this omission is troubling. The book has developed a normative argument to address this issue: the protection gaps left open under current international law should be closed by recognizing a right to the citizenship of a specific state on the basis of one’s effective connection to that state on the basis of the principle of jus nexi. Such a jus nexi-based right to citizenship would give rise to a right to the citizenship of the state to which one has a substantive connection. Beyond that, the principle of jus nexi would allow to clarify the content of the right to citizenship also with regard to children, dual or multiple citizenship and with regard to the possibility to withdraw citizenship against the will of the person concerned and, generally, to effectively balance interferences with the right to citizenship for the individual concerned against legitimate interests of the state.

The book developed these arguments over the course of seven chapters. Chapter 2 has layed out the theoretical groundwork for the book and discussed the different approaches to conceptualizing citizenship. It has shown that from a legal perspective, citizenship is seen as a legal status, a relationship between an individual and a state, determining membership in the state and giving rise to rights and duties on both parts. At the same time, citizenship is often conceptualized as a right fundamentally affecting core aspects of human dignity. Statelessness — the lack of a nationality — is widely understood as a grave violation of a person’s rights. Hence, citizenship has been described as a moral human right by different thinkers — from Hannah Arendt to Seyla Benhabib, Ruth Rubio-Marín, Joseph Carens, Ayelet Shachar and David Owen — who all develop convincing normative arguments why individuals should have a right to membership in the community they live in. The question then is how that moral right translates to international (human rights) law in the interplay between state sovereignty and individual rights. This core question lays at the heart of the book and guided the discussion in Chapters 4, 5 and 6 in particular.

Before turning to the level of individual (human) rights, however, Chapter 3 has discussed the evolution of the regulation of citizenship in international law from a historical perspective. It has shown that nationality matters were long theorized as questions that fall within states’ domaine réservé; their internal jurisdiction. A closer look at the international legal framework discloses that this is no longer true or, in fact, has never been true. While nationality is closely connected to elemental functions of the states, and acquisition and loss of citizenship is regulated at the national level, nationality matters are also widely regulated in international law. States have long accepted limitations upon their sovereignty in nationality matters in international legal instruments. The regulation of nationality in international law is not only concerned with the avoidance of conflicts between domestic nationality regimes, it increasingly establishes substantive standards relating to the acquisition, change, enjoyment and loss of nationality. In recent years, more and more limitations have been imposed by international human rights law. Hence, states remain competent to determine the conditions for acquisition and loss of their respective nationalities — and make use of that competence to restrict access to nationality through stricter naturalization regulations and expanding denationalization powers. Nonetheless, international law draws the limits of that competence with the aim of protecting the rights of individuals. States’ discretion in nationality matters is not unlimited.

Thus, the right to nationality is not merely an aspiration or an empty shell. This is the main argument developed in Chapters 4, 5 and 6. The in-depth analysis of the legal standards codifying the right to nationality in Chapter 4 has shown that the right is, in fact, enshrined in a great number of instruments. The codification began with the inclusion of the right to nationality in Article 15 udhr at the founding moment of modern international human rights law in 1948. This provision still represents the starting point for the recognition of the right to nationality as a human right. Subsequently, the right to nationality has been included in almost all of the UN human rights treaties — often as a right of the child to acquire a nationality or through the principle of non-discrimination, and not as a general right to nationality. The right to nationality is also reflected in the two Statelessness Conventions. Moreover, it is explicitly recognized in a large number of soft law instruments and in the jurisprudence of UN treaty bodies. Additionally, the right to nationality is reinforced by human rights instruments at the regional level, with the achr and the ecn being the most progressive instruments. Based on these regional instruments, monitoring bodies have interpreted the right to nationality and thereby contributed significantly to its recognition as a human right. Finally, some aspects of the right to nationality find increasing acceptance as customary international law, namely the right of the child to the nationality of the state of birth if it would otherwise be stateless, the principle of prevention and reduction of statelessness, and the prohibition of arbitrary deprivation of nationality. This broad legal framework shows that the right to nationality is indeed widely protected in international human rights law.

The principled analysis of the scope and content of the right to nationality in the current international legal framework in Chapter 5 has shown that the right to nationality is, in many respects, sufficiently precise to give rise to identifiable rights and obligations relating to the acquisition, change and loss of nationality but also its enjoyment, even though not all obligations find an equally strong basis in international legal instruments. In principle, the right to nationality has a general personal scope of application, even if some instruments limit its personal scope to children or to stateless persons only. In the context of acquiring nationality, specific obligations can be identified regarding the right of the child to a nationality if they would otherwise be stateless, facilitated acquisition of nationality by stateless persons and refugees, and acquiring nationality in cases of state succession. Obligations can also be identified regarding the right to change and, correspondingly, the right to renounce one’s nationality. The right to change one’s nationality can, under certain circumstances, even imply an obligation to accept dual or multiple citizenship if it would otherwise amount to an arbitrary denial of nationality. In the context of deprivation of nationality, not only arbitrary deprivation is prohibited under the right to nationality but also deprivation on discriminatory grounds, deprivation resulting in statelessness and deprivation for the sole purpose of expulsion. Furthermore, depriving children of nationality and mass deprivation of nationality are problematic from a human rights perspective. The principle of non-discrimination, the prohibition of arbitrary interference with the right to nationality and the duty to prevent and reduce statelessness apply as transversal obligations to all aspects of the right to nationality. Additionally, certain procedural standards can be identified that imply access to the procedure, procedural guarantees and a right to review. This being said, the right to nationality is not absolute and can be restricted under certain circumstances. In principle, the limit for lawful interferences with the right to nationality is the prohibition of arbitrariness. Even though the standard of non-arbitrariness theoretically implies a lower threshold than the principle of proportionality, the prohibition of arbitrary interferences with the right to nationality is, in practice, often interpreted as precluding interferences that are disproportionate to the interest pursued or the gravity of the interference for the person concerned.

The breadth of specific rights and obligations based on the right to nationality that can be identified under the current international legal framework is considerable. The right to citizenship protects an individual’s rights in nationality matters, from birthright acquisition of nationality, naturalization procedures, the issuance of documentation or deprivation of nationality. Nevertheless, there is one glaring omission: the right to the citizenship of a specific state. The right to nationality, as it is currently interpreted, does not grant a right to a specific citizenship; a given citizenship. In the context of international migration, this is a significant omission. It leaves non-citizens in a legal limbo when it comes to securing the rights to belong, to participate and to equal standing in the state in which they feel at home. Beyond the lack of a right to a given citizenship, the right to nationality often fails to provide protection where an individual is not at risk of statelessness and the threshold of arbitrariness cannot in all cases prevent interferences with the right to citizenship that prove to be disproportionate.

Against that background I have suggested in Chapter 6 to reinterpret the right to citizenship based on the principle of jus nexi. The principle of jus nexi — the genuine-connection principle of membership acquisition based on a person’s effective ties as developed by Shachar — would address these protection gaps. The principle bears similarities to notions of integration under the right to private and family life and the concept of one’s own country, which are well known in international human rights law. Through the perspective of the principle of jus nexi, I have argued, the state bearing the duty to respect, protect and fulfill the right to citizenship can be identified on the basis of a person’s actual ties and life circumstances. This approach provides non-citizens with a legal pathway to full and effective membership and, at the same time, facilitates the enforceability of the right to citizenship in practice. Lastly, a jus nexi-based right to citizenship might enable us to accommodate moral considerations relating to equal membership in one’s society that are essential for a humane and dignified life.

A right to citizenship does not automatically grant equal rights and participation for all. It is obviously not enough to frame a contested policy matter as a human right to achieve social change. Nevertheless, this book tries to show that international law offers a framework to improve the recognition and protection of the right to citizenship as a human right. This has important consequences. Citizenship is transformed a formal legal status and a privilege of states to a right of individuals.3 This destabilizes the existing hierarchies between states and non-citizens. The scope of state discretion is reduced. States must account for individual interests. Individuals are given a voice in citizenship matters, not just if they have sufficient funds to buy citizenship or social, economic or cultural capital to fulfil restrictive naturalization criteria but based on their rights by virtue of being human.4 Demands relating to nationality can be framed in a rights’ language.5 International norms can be invoked before domestic and international authorities.6 Specific claims can be made in real procedures and cases. Recognizing the right to citizenship as an effective and judiciable human right ultimately means that citizenship is no longer a matter of states choosing their ideal citizens but of individuals claiming a right to membership in the place they belong. Ultimately, citizenship shifts from being a discretionary privilege of states to an individual human right.

Recognizing the right to citizenship as a human right for the most part does not require the adoption of a new international treaty or the inclusion of new provisions in existing instruments. As this book has argued, it merely requires the full recognition of the right to citizenship as already enshrined in existing international instruments and its effective implementation and enforcement at the domestic level by law-makers and authorities. At the same time, having an effective and enforceable right to citizenship in a specific state on the basis of one’s actual social connections would fundamentally transform the relationship between states and individuals, between citizens and non-citizens, between belonging and exclusion. At a time when large-scale international migratory movements intersect with a re-emerging nationalism, the closure of territorial borders and the construction of symbolic boundaries of belonging and an increasing skepticism of the significance and potential of international human rights law, the novel interpretation of the right to citizenship suggested in this book would offer significant safeguards for the rights of individuals.

1

Case of the Girls Yean and Bosico v Dominican Republic [2005] IACtHR Series C No. 130 (2005) para 136.

2

See on the different strategies states employ to transform and use boundaries to membership and citizenship Ayelet Shachar, ‘Beyond Open and Closed Borders: The Grand Transformation of Citizenship’ (2020) 11 Jurisprudence 1, 13 ff.

3

See also Kim Rubenstein and Daniel Adler, ‘International Citizenship: The Future of Nationality in a Globalized World’ (2000) 7 Indiana Journal of Global Legal Studies 546.

4

See on citizenship as a form of capital Sara Kalm, ‘Citizenship Capital’ (2020) 34 Global Society 528.

5

Galina Cornelisse, Immigration Detention and Human Rights: Rethinking Territorial Sovereignty (Martinus Nijhoff 2010) 100.

6

See on the initiatives to strengthen the right to nationality and reduce statelessness by means of strategic litigation the work of the European Network on Statelessness <www.statelessness.eu> or the Open Society Justice Initiative <https://www.opensocietyfoundations.org/who-we-are/programs/open-society-justice-initiative>.

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The Human Right to Citizenship

Situating the Right to Citizenship within International and Regional Human Rights Law

Series:  International Refugee Law Series, Volume: 21