- Introduction: the relevance of the issue
During the past few years, there have been an extensive analysis and fervent political and legal debates over criminal and administrative measures to fight international terrorism, specifically to cease the flow and prosecute the so-called “foreign fighters” (FF). In various literature FFs are generally referring to as ‘home-grown terrorists’ or ‘radicalized citizens’ (Mendelsohn 2011, 189; Malet 2009, 13). Even if there is no well-established definition, this paper refers to the following: A FF is “an individual who leaves his or her country of origin or habitual residence to join a non-state armed group in an armed conflict abroad and who is primarily motivated by ideology, religion, and/or kinship”. (Krähenmann 2014, 6)
The impressive number of FFs joining terrorist organizations, and the international dimension of their activities, mobilization, and travel patterns have created heated political and legal discussions in various countries. It also resulted inan intensifying discourse around the‘growing threat to international security’.It has not only been about the number of FFs that is very impressive (more than 30,000), but also about the geographic diversity of individuals who have joined conflicts (de Guttry; Capone and Paulussen, (eds) 2016, 12-13; Bakker & Singleton 2016, 10-15 and Academy Briefing, 2014).
One of the means to fight international terrorism and punish individuals involved with terrorist activitieshas been applying citizenship deprivation, in other words, turning them into aliens. Noticeably, the practice of depriving individuals of their citizenshipis not a new phenomenon to the international legal domain. Itreached extreme levels during and after World Wars, as illustrated by the denaturalization of British and Belgian citizens of German origin after the World War I (Cloots 2017, 59). The Nazi era and inter-war years used it as a political tool to banish large numbers of people, such as political opponents and Jews. Belgium also applied citizenship deprivation to punish collaborators after World War II (Cloots 2017, 64).
The war against terrorism following the 9/11 events, together with the most recent terrorist attacks in Europe, revived the issue to the foreground. Effectively, as terrorist events can be considered as pure criminal acts (Travalio and Altenburg 2003, 98), various states have recently pondered citizenship stripping as a way of responding to these acts. In the UK, it was passed as part of the Immigration Act, which enabled the government to revoke citizenship in some cases even if it results in statelessness; in the US, it was proposed first as the Terrorist Expatriation Act and later as the Expatriate Terrorists Act, but neither passed (Sykes 2016, 749-763). In a comparable vein, reforms have meanwhile been announced in Israel, Spain, France, Belgium, Norway and the Netherlands (van Waas 2016, 472-475;Sykes 2016, 749-763).
This paper presents the thesis that citizenship is a human right and its deprivation violates this right particularly when it results in statelessness. In order to defend this opinion, the first section will highlight the definition of citizenship and its evolution as a human right and its legal status. The following section will elaborate on the universal and regional legal framework that regulates citizenship. The concluding section of this paper will outline an analysis of citizenship as a human right and the consequences of its deprivation will be drawn.
- Definition and evolution of citizenship as a human right and legal status
In her most famous work, The Origins of Totalitarianism, Hannah Arendt (2004, 297) argued that citizenship is ‘the right to have rights’, whereas ‘the Rights of Man’ proved to be inadequate to actually protect ‘abstract’ human beings who were no longer recognized by ‘their state’. Only belonging to ‘one’s own people, that is, as a fundamental status that gives rise to concrete rights’ could ensure protection of supposedly inalienable and universal human rights (Arendt 2004, 296). In a similar vein, Sandra Mantu (2015, 12) also expresses the same opinion and claims that ‘citizenship may be labelled as a secure status, if not the most secure status a person can enjoy. This is true because numerous political, civil, economic, and social rights are enjoyed through citizenship.’
One can conclude, from Arendt and Mantu´s mutual standpoint, that having citizenship is a gateway to other rights and that citizenship is the highest and most secure legal status one can hold in a state. It also seems that citizenship lies at the very heart of the concept of the nation-state. Further, there is the question of how citizenship is constructed as a legal right in a combination of domestic and international developments. Since IL and IHRL are designed to protect both state and individual interests, it is not surprising that they both form paths by which citizenship is constructed. Similarly, domestic law affirms who is and can or who is not and cannot become their citizen. For example, citizenship can be acquired through naturalization after complying with a state’s rules concerning its domestic citizenship regulations. In most States, one of the ways in which an individual can naturalize is through the jus domicilli principle or marriage. With regard to the relation between IL and IHRL as long as citizenship law concerned, for example, the Hague Convention states that: “This law shall be accepted by other states in so far as it is consistent with applicable international conventions, customary international law and the principles of law generally recognized with regard to citizenship law.” (Article 1 (b) of The Hague Convention 1930)
This paper confirms that the principle of state autonomy in citizenship matters, and acknowledges the limits to the states’ prerogative to determine the membership of their citizenry. Discussions on the formulation of a right to citizenship as a human right only took place in the mid-20th century. It was first confirmed as a right in non-binding regional documents, including the American Declaration on the Rights and Duties of Man (1948). The universal protection of the right to citizenship was envisaged by the Declaration, which has since become binding as customary international law. Although international human rights law under the UDHRaffirms that human rights apply to all individuals regardless of their citizenship or national origin, citizenship determines the scope of the application of basic human rights and obligations of states to other states and the international community, such as the application of multi- or bilateral conventions and treaties.
In its famous judgement, the International Court of Justice (ICJ) in the Nottebohm (Liechtenstein v. Guatemala)case has described citizenship as a “legal bond having at its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties” (ICJ Reports 1955: 4, 23. See also art. 2 of the European Convention on Citizenship). Citizenship can thus be understood as a link between an individual, a country and the international community.
This link results in mutual rights and duties on all sides, including loyalty to the state of citizenship, while the very same state reciprocates by protecting its nationals. Further, citizenship holds the keys to international legal protection and holds States accountable for their actions and to recognition by a system cantered on Statehood. Under domestic law, citizenship is defined as denoting full membership in a state or as a sum of legal rights and duties of individuals attached to citizenship (Mantu, 2015, 1). Even if there is no symmetric catalogue of the rights and duties that nationals possess in relation to their state, Mantu states that ‘it is generally considered that the content of law to citizenship will vary from one State to another according to the domestic legal protections and political system surrounding the right to citizenship.’In this regard, Pocock also states that citizenship ‘enables us to define an indefinite series of interactions between persons and things, which may be restated as rights, used to define new persons as citizens.’ (Pocock, 1995, 45)
Moreover, it has been argued that several human rights instruments purposefully diminish the importance of citizenship so to prevent statelessness or the status as a non-citizen from being used as a basis for discrimination, in the sense that they make citizenship a non-prerequisite to enjoying human rights. Despite the central role the concept of citizenship played in the rise of human rights culture, the words “citizen” and “citizenship” are rare in the major international human rights instruments. Indeed, the sense of the instruments themselves is to erode the importance of the very concept which originally gave rise to the idea of fundamental human rights (citizenship), in the interest of doing away altogether with boundaries between privileged and non-privileged (Claude, 2003, 245).
Weissbrodt (2008, 248-250) also suggests that ‘because being human is the sole requirement entitling us to human rights, whether or not one possesses citizenship should have no bearing on whether we enjoy all of our human rights’. This has been stated by Donnelly (2003, 10), who sees human rights as literally ‘the rights that one has simply because one is a human being.’ Although States may have the primary responsibility for implementing internationally recognized human rights in their own countries… human rights are ‘the rights of all human beings, whether they are citizens or not.’(Weissbrodt and C. Collins 2006, 245) Because being human is, for him, the sole requirement entitling one to human rights, whether or not one possess citizenship should have no bearing on whether one enjoys all of her or his human rights.For example, the ICCPR requires states ‘to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status’ (Article 2, para 1). The European Convention for the Protection of Human Rights and Fundamental Freedoms requires state parties to “secure to everyone within their jurisdiction the rights and freedoms’(of the Convention). Similar provisions can be found in Article 2 of the UDHR.
Yet, having said that, it should not be understood that citizenship as a legal human right has always been protected and respected by States. As the most agreed opinion is that citizenship as a right means to ‘have rights’, this gives it the attribute of being far more than a legal sentiment of identity and belonging to a political community (state), more than a social fact of attachment to certain state. Therefore, to be deprived of citizenship means to weaken an access to other fundamental rights, such as the right of movement, right to access education, etc. Citizenship can be described as involving both inclusionary and exclusionary practices that are meant to express the meaning of identity and belonging within a specific political community (Mantu 2015, 3). From this, one indeed can see that the right to citizenship is widely recognized as a fundamental human right.
Kingston (2005, 23), in her article on the history of the practice of banishment, deportation and the deprivation of citizenship claims that ‘on the question of citizenship it is not often acknowledged that the state has power, not only to grant or deny residency and new citizenship in a political community, but also to revoke membership and expel those once deemed citizens.’ Additionally, one of the doctrines of state sovereignty refers to the fact that states have power over rules and principles for the loss and acquisition included in their domestic legal regime in respect to citizenship. As such, states are understood to be free to determine who the members of their national community are. Sandra Mantu (2015, 1) states that: ‘by designing legal rules dealing with the acquisition and loss of citizenship, states engage in a series of legal practices that shape the personal scope of national citizenship’.
Yet, the individual remains a state´s citizen and enjoys the rights guaranteed under its citizenship law but loses some of the rights that go with it. Being deprived of one’s own citizenship effectively causes one to lose all rights other than those recognized in international law as basic human rights. Thus, to revoke someone´s citizenship is not a measure to be taken lightly. The rights linked with citizenship, such as the right of movement, right to access to education, etc., are inherently affected, amounting to a severe limitation of human rights enjoyment and protection. Notwithstanding, international law does not absolutely prohibit deprivation of citizenship but it is, nevertheless, in accordance with various legal texts, sets out strict conditions for States to follow in order to deprive their citizens of their citizenship. It should not be forgotten, however, that citizenship loss is not only on the basis of public security threats or political motives. There are other justifications for its deprivation, such as, among others, fraud in naturalization, expiry of citizenship after long-term residence abroad or loss in case of acquisition of a foreign citizenship. Macklin (2014, 1) states that some States that prohibit dual citizenship may revoke the citizenship of an individual who gains the citizenship of another state. Many states also retain the power to naturalize the citizenship of a citizen who obtained citizenship through fraud or misrepresentation.
As we have seen, questions related to citizenship and the legal framework that constitute it were within the exclusive domaine réservéof states (Weis 1979, 66). States were autonomous in their citizenship matters. However, in the new millennium many international standards were developed regarding the rules and principles of acquisition and loss of citizenship. This development in the international arena has challenged this understanding. Arendt´s conceptualization ‘right to have rights’ would gradually be secured by shifting the power of citizenship and its deprivation from liberal democratic States to the international legal system (Spiro 2013, 2169).
This does not mean that a state’s right to determine citizenship law has remained unaffected by the development of human rights and human dignity, which has shifted the very foundation of public international law from a system of coordination of sovereign states to the well-being of human beings. Rather than making general assumptions about to what extent the sovereign rights of states are replaced or limited by human rights concepts of self-fulfilment and personal identity, it seems appropriate from a legal point of view to differentiate different areas in which human rights considerations influence the determination of citizenship or have been recognized in the process of obtaining increasing recognition by states. As examples, we refer to the naturalization of migrant workers, the issues of denationalization and arbitrary deprivation of citizenship and, finally, discrimination in granting naturalization. It is important to recall that in practice States have not always been willing to implement the principles of IL, IHR or CIL on citizenship prescribed by the relevant legal instruments and for different reasons. There are some states which have not signed and/or ratified relevant international law instruments, and which do not comply with even the general standards of CIL. Others have signed and ratified treaties, but still fail to implement all key provisions, opening themselves up to political criticism and the possibility of legal action in the domestic courts depending upon the domestic effects of international treaties. Other states again comply with certain international standards while not having signed and/or ratified the treaty they are contained in.
On this standpoint, one can claim that banishment has been used as a form to prevent future crimes and express the power of a state´s ability to meet its responsibility towards its sovereignty and to punish those who do not respect the law. This leads us to understand why citizenship is seen as a privilege not as a right, which in turn might explain why more often than not rules dealing with loss of citizenship will, as Mantu puts it: ‘indirectly target naturalized citizens’ (Mantu, 2015, 1). The citizenship link between a state and individuals was conceived mainly as a privilege, which at the international law level guaranteed the individual the enjoyment of a certain degree of protection outside his or her own country.
Citizenship should not be considered as a personal relationship between an individual and a state or allegiance of an individual towards his state, the development of IHRL on citizenship makes it a legal status embracing a set of mutual rights and obligations towards a state fulfilling certain requirements necessary for the coexistence of a sovereign state and IHRL. Regulating the right to citizenship on the international level reflects the interests of states, and the wording of relevant documents is typically vague and lacking in order to enable states to retain the regulation of citizenship as far as possible within their respective domestic spheres and the right ensured on the international level is frequently rendered meaningless in practice.
- The right to citizenship as set out in international legal instruments
Citizenship as a legal right confirms the membership of an individual in a state, and the definition of who is a national of a state is almost exclusively a product of domestic legislation. Further, an individual having a state´s citizenship is in many important respects subject to its own domestic laws, meaning that this individual may be recalled and penalized for his failure to return to his country. A national may be punished for crimes committed outside the state of citizenship or he may be subjected to judgements obtained against him in absentia. This in a way gives a pathway to the fact that foreign fighters are, and seem bound to always remain, ‘citizens of State X or B’ and, thus, are bound to its domestic laws.
The power of a state to regulate issues of citizenship, depriving foreign fighters of their citizenship as a result of terrorist acts for instance, is nonetheless limited by international human rights law.For one reason, this is due to the interplay between the citizenship rules of states and their commitments to the international legal regime on citizenship and, for another, any interference with the enjoyment of citizenship has a significant impact on the enjoyment of rights (UN 2011). This is evidenced by the IHRL limiting States’ discretion, through the principle of avoidance of statelessness, the right to respect for private and family life, non-discrimination, the principle of non-arbitrariness, the right to freedom of movement, and the right to enter one’s own country (Goethem, 2006, 4-6)
The legal regime on citizenship can be found in customary international law, in very few instances of case law, and arguably also within the universal human rights regime (Bilgram 2011, 2). Most importantly, however, its international standards are being developed in bilateral and multilateral treaties, supported by international bodies such as the UN. This is at the international level. However, this study is interested to focus on the European system as well, thus it is important to mention, at the European Union level, standards that have been set by the Council of Europe and to a certain extent also by the EU through EU law, although the latter has no competence per sein citizenship matters.
How states will address foreign fighters stems from the international human rights law which its cornerstone is that everyone has a right to, at least, citizenship, albeit no right to a specific citizenship of a specific state. The documents concerned, at least a great number of them, contain provisions on the law of citizenship. The approach of international legal instruments in this matter is necessarily in a sense that multilateral conventions obligate States Parties to criminalize specific terrorist conducts under national criminal law.
At the international level, the very first source of this cornerstone principle corollary to the right to citizenship is the 1948 Universal Declaration of Human Rights (UDHR), which accords everyone ‘the right to a citizenship’and guards against arbitrary deprivation of citizenship. (Article 15). Under its Article 15, the importance of the UDHR appears, with regard to citizenship law, as it guarantees protection against statelessness and arbitrary denationalization. However, although the UDHR is significant as a leading instrument to other legal instruments which was created after 1948, the UDHR is not legally binding on States, so this paper is merely considering the UDHR as reference.
Following its adoption, it became ‘necessary to spell out the general standards of the UDHR in legally binding instruments…covering the whole range of human rights’ at both universal and regional levels (Cassese 2005, 381). Moreover, Waas claim that the American Convention on Human Rights (ACHR)is ‘the most far-reaching right to citizenship in a legally binding human rights document to date’ (Waas 2008, 3). It is the aim of this study to consider Article 20 of the ACHR as of great importance. This article contains significant elements, including a fundamental recognition of the general right to citizenship, in particular by imposing a specific obligation to grant citizenship jus solito every person that otherwise would be stateless, the prohibition of arbitrary deprivation of citizenship, which contains the prohibition of discriminatory practices in citizenship matters.
As a side note, the combination of the mentioned elements results in a very comprehensive article that contains solid protections for the individual’s right to citizenship, and for this reason the discussion on protection of citizenship will be roughly around these elements. In addition to the American system, the IHRL on citizenship also consists of other regional human rights systems, including the Inter-American system, the European system, the African system, the Arab system, and the ASEAN system. These systems, as Vela puts it, share various common features, including the fact that they all possess at least one fundamental right’s instrument, at least one human rights body, and they were all ‘established under the auspices of an intergovernmental organization’. (Vela 2014, 54).
Like in the Inter-American system, the European and African systems are equipped with courts that can hear cases of violations of the rights stipulated in their respective regional documents, and a substantial amount of case law on issues of citizenship exists. The Arab charter is a relatively new development, and as a document it does not possess the same enforcement mechanism as the documents in the Americas, Europe and Africa possess. In the 1994 version of the Arab Charter, the article 24 did not contain an acknowledgement of a general right to citizenship. It stated that ‘Everyone has the right to citizenship. No one shall be arbitrarily or unlawfully deprived of his citizenship’.However, in the 2004 version of the charter, article 29 (1) acknowledges this right, saying that ‘Every person has the right to a citizenship as prescribed by law. No person shall be arbitrarily deprived of such citizenship nor denied the right to change that citizenship’.
Finally, the ASEAN declaration is a declaration, which means it contains the rights that all ASEAN members should strive try to protect, but it does not give rise to obligations. Article 18 ASEAN HRD does not recognize a general right to citizenship; the right to citizenship is limited insofar as the individual has the right to citizenship ‘as prescribed by law.’ The Inter-American, European, and African systems have complaints mechanisms, ‘through which individuals can seek justice and reparation for human rights violations committed by a State party’ (Vela 2014, 54) and have organs which have issued decisions on cases dealing with citizenship and statelessness. Both the Arab and ASEAN systems lack a complaints mechanism which makes the jurisprudence of citizenship in their human rights law underdeveloped. Importantly, the five systems lack regular enforcement mechanisms. In fact, the structure of the international adjudication makes it very difficult to enforce international norms governing the relationship between an individual and the state of his citizenship.
The object of both binding and non-binding instruments on citizenship is to guarantee every individual with at least one citizenship, and instruments have aimed particularly at also restricting denial of citizenship, with the adoption of the 1961 Convention on the Reduction of Statelessness to be considered as a leading step at the universal level for this purpose (Chan 1991, 9). Inspired as it is by Article 15 of the UDHR, the 1961 Convention forbids loss of citizenship in some cases where the consequences of such loss would be statelessness, and thus forms part of international human rights law on citizenship, even if its title refers to statelessness, not to citizenship.
As far as citizenship deprivation is concerned, Article 8 of the Convention is especially noteworthy. Article 8(1) stipulates that ‘[a] Contracting State shall not deprive a person of its citizenship if such deprivation would render him stateless’. The second and third paragraphs of Article 8 list a number of exceptions to this rule, permitting denationalization to entail statelessness in certain limited circumstances. Those circumstances include cases where the person affected had obtained the citizenship by misrepresentation or fraud (Article 8(2)) or had, inconsistently with his duty of loyalty to the Contracting State, conducted himself in a manner ‘seriously prejudicial to the vital interests of the State’ (Article 8(3)(a)(ii)).
At the European level, The European Convention on citizenship 1997 is of paramount importance, being the first comprehensive citizenship convention (Waas 2012, 245). This convention reproduces the content of the UDHR and the 1961 Convention, but the safeguards it puts in place against statelessness and arbitrariness are more extensive. On the one hand, the 1997 Convention reduces the grounds on which persons can be stripped of their citizenship even if they become stateless as a result. Statelessness is only tolerated in the case of fraudulent acquisition of citizenship, but not when the person concerned conducted himself in a way ‘seriously prejudicial to the vital interests of the State Party’ (European Convention on Nationality 1997, article 7(3)).
However, the latter deprivation grounds may only result in statelessness if the Contracting State made a declaration to that effect at the time of signature, ratification or accession. Yet the 1961 Convention not only contains guarantees against statelessness, but also against arbitrary state conduct. To this end, Article 8(4) demands that any citizenship deprivation be consistent with certain procedural safeguards: the deprivation must be in accordance with law, and the person concerned must be entitled to a fair hearing by a court or other independent body. Moreover, Article 9 of the 1961 Convention prohibits citizenship deprivation on racial, ethnic, religious or political grounds. Although it leaves no doubt that the international materials discussed above have singular authoritative value, it should be noted that their legally binding force is limited.
For example, the 1961 Convention and the 1997 Convention have not been ratified by all legal systems studied in this paper. In terms of membership, only the Netherlands is party to both treaties.France, in contrast, is party to neither, and the United Kingdom and Belgium have signed and ratified solely the 1961 Convention. Other bodies of legal instruments constitute the right to citizenship and put limits on its deprivation, and supervision of these international standards on citizenship has consistently recognized the increasingly narrow restrictions on the discretion of states in respect to denial of citizenship.
In addition to the aforementioned conventions, the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, (Art, 5) the 1966 International Covenant on Civil and Political Rights, (Art, 24) and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, (Art, 29) among others, have codified the right to citizenship and contain provisions which form a high relevancy for international law on citizenship. Countries such as the UK, Australia, the Netherlands, France and Canada have either signed or ratified them.
There seems in fact to be a relatively uniform recognition of a right to citizenship, although in the case of some instruments a limited version of this right is expressed. In the cases of Europe and African, interestingly, neither the ECHR nor the ACHPR recognize the right to citizenship. However, on a closer look at the system rather than just the instrument, there is evidence that points towards increasing recognition of this right in the regions.
On the European level, standards have been set by the Council of Europe and to a certain extent also by the European Union (EU) through EU law, although the latter has no competence per sein citizenship matters. There are relevant duties under customary international law constraining state autonomy in citizenship matters. Important customary international law principles contain the duty to avoid and reduce statelessness, the prohibition of arbitrary deprivation of citizenship, and the general obligation of non-discrimination.
It is natural to look at international law and see what it is proposing as the studied phenomenon is of an international nature as well as looking at what measures states are taking in order to tackle it. Yet, the challenge encountered in a legal analysis of foreign fighters is that their legal status is of a controversial nature and involves a conceptual ambiguity. This in fact is paralleled by the uncertainty as to its legal status as there is no legal regime for foreign fighters and other individuals involved in terrorist activities per se. Rather, there is a conflation among different legal regimes. Meddling between international human rights law and domestic criminal law blurs the issue. Regardless of this and the lack of a comprehensive definition at the international level, terrorist acts, mostly associated with these individuals are crimes under domestic law, under the existing international and regional conventions on terrorism, might qualify as war crimes or as crimes against humanity.
The very nature of the debate about individuals engaged in terrorist activities assumes that the phenomenon is a new category. Looking at the individuals themselves and their status, in most cases they are fighting in armed conflicts and more specifically in non-international armed conflicts (Kraehenmann 2014, 3). Accordingly, non-state armed groups, including foreign fighters, do not enjoy combatant immunity and may be prosecuted under domestic law for mere participation in hostilities (UN 2000, 5). International human rights law continues to apply during situations of armed conflict. As is the case with all other members of state armed forces or non-state armed groups, foreign fighters are, at a minimum, bound by the peremptory norms of international law (UN 2000, 13).
Importantly, international human rights law affirms that human rights apply to every human being simply by virtue of being human. In practice, however, the existence of a legal bond of citizenship between an individual and a state continues to be a prerequisite to ‘the effective enjoyment of the full range of human rights’ (Adjami, and Harrington 2008, 93). Edwards describes the substantive content of citizenship by exploring it from different yet interrelated perspectives: that of the state, the international law perspective and that of the individual (Alice, in Alice and Waas, 2014, 30). As individual human beings, our individual legal identity derives largely from our legal bond with one or more states, expressed through our citizenship (Batchelor, 2006) Therefore, the adoption of the various human rights instruments, as noted by Cassese, has had ‘such an impact on the international community that no state currently challenges the concept that human rights must be respected everywhere in the world’. He continues to note that ‘a general principle has gradually emerged prohibiting gross and large-scale violations of basic human rights and fundamental freedoms’, making massive human rights violations reprehensible (Cassese 2005, 59). Yet, what is essential is the ‘complementarity’ between universal and regional human rights documents, since the regional systems ‘operate within the framework of the universality of human rights’ (Trindade 2008, 5)
From a general level, international law in the present day continues to respect the principles of sovereignty and equality of states. This means that a state can never be compelled to undertake obligations under international law without having given its ‘consent to be bound’ (Waas 2008, 40). Therefore, any constraints on a state’s discretion over citizenship matters have been the results of the willingness of states to be bound by international legal instruments that contain provisions that have resulted in those constraints.
- Thesis and conclusions
The first thesis of this paper is that citizenship is a protected human right and the newly expanded laws on citizenship deprivation puts the depriving state at risk regarding its international legal obligations. Another thesis is that the discussion on citizenship deprivation has been recently dealt with extensively with the implications of international human rights and international humanitarian law on the ‘war against terrorism’ and shifted from an administrative measure to criminal one. In other words, this has been done by using the lens of both criminal and administrative measures implemented by States at the domestic level as a result of two UNSC Resolutions 2178 and 1373, corresponding instruments and the willingness of States to keep their terrorist nationals away from their borders by depriving them of their nationalities. Additionally, these two UN Resolutions, together with the States´ new legislative proposals, have changed the understanding of who is subject to deprivation powers. Traditionally, citizenship deprivation has only been applied to naturalized citizens, as those who are native-born citizens were at risk of becoming stateless. Keeping in mind that some citizens are more protected than others depending on their category (individuals of dual citizenship or individuals of one citizenship).
A third thesis of this paper claims that deprivation of citizenship refers to rendering the individuals concerned of their citizenship, causing them to forfeit the rights they held as nationals. Although only a small number of nationals have had their citizenship stripped by their countries of citizenship, the newly adopted legislation in several states, mainly in Europe, in respect to citizenship deprivation has a major effect in the sense that citizenship as a legal status through which nationals enjoy human rights has become conditional on the citizen´s behaviour. This means that human rights violations, alienation and strained relationships between individuals and the State are ‘recognized as conditions conductive to the spread of terrorism’, Dowding and Mckeon (2016, 6).
This study has observed a differentiation in international human rights law between nationals by birth and nationals who have gone through the naturalization process and has noticed that, for States, deprivation of citizenship acquired by naturalization is often much easier than deprivation of citizenship acquired by birth or otherwise. As evidence for this, for example, deprivation of citizenship as a result of fraud is applicable only to naturalized citizens. Consequently, it is clear that where safeguards to prevent deprivation of citizenship resulting in statelessness are present, terrorist nationals of dual citizenship are more vulnerable to deprivation than those with a sole citizenship. A state can have a citizenship deprivation act compatible with international human rights law as long as it concerns terrorist nationals with dual citizenship. Although there is no outright ban on revoking the citizenship of dual nationals there is, however, at the very least procedural obligations that States must carefully consider. On the other hand, international human rights law permits States to deprive individuals of their sole citizenship, so long as the requirements of the 1961 Convention are satisfied.
Finally, this paper does not argue that states should adopt a particular stance towards citizenship law to comply with their IHRL obligations. It rather presents the case that the existence of national deprivation of terrorist nationals is not to be avoided and the deprivation practice has in recent years become a serious concern and it is not only an exception or a random event, and that this in turn has particular important consequences for IHRL and the understanding of citizenship and statelessness. Notwithstanding the fact that at the time of the drafting of the conventions on citizenship, the domestic legislation of many States permitted denationalization on several grounds, it was agreed to envisage a list of circumstances authorizing deprivation even where that would render an individual stateless. Among the listed exceptions, Article 8(3)(a) makes reference, in particular, to acts of disloyalty and conduct seriously prejudicial to the vital interests of the State. Such an exception, covering acts like treason, espionage as well as terrorist acts, can, however, be invoked only if it is an existing ground for deprivation in the internal law of the State concerned, which, at the time of signature, ratification or accession, the State specifies it will retain.
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