International Law Relating to Nationality

 

S. Shubhang

 

Semester V, Hidayatullah National Law University Raipur, C.G.

 

 

INTRODUCTION:

Individuals may also be considered nationals of groups with autonomous status which have ceded some power to a larger government, such as the federally recognized tribes of Native Americans in the United States. Spanish law recognizes the autonomous communities of Andalusia, Aragon, Balearic Islands, Canary Islands, Catalonia, Valencia, Galicia and the Basque Country as "nationalities" (nacionalidades), while in Italy, the German speakers of South Tyrol are considered to be Austrian nationals.³

 

Article 15 of the Universal Declaration of Human Rights states that "Everyone has the right to a nationality," and "No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality."Nationality law is the branch of law concerned with the questions of nationality and citizenship, and how these statuses are acquired, transmitted, or lost. By custom, a state has the right to determine who its nationals and citizens are. Such determinations are usually made by custom, statutory law, or case law (precedent), or some combination. In some cases, determinations of nationality are also governed by public international law—for example, by treaties on statelessness and the European Convention on Nationality.

 

Broadly speaking, nationality law is based either on jus soli or jus sanguine, or on a combination of the two. Jus soli (Latin: the law of the soil) is the principle by which a child born within a country's territorial jurisdiction acquires that country's nationality. Jus sanguineous (Latin: the law of the blood) is the principle by which a child acquires the nationality of his or her parents.⁴

 

Today, most if not all countries apply a mixture of these two principles: neither granting citizenship to everyone born within the country's jurisdiction, nor denying citizenship to the children born abroad.

 

HISTORY AND SOURCES OFINTERNATIONAL LAW ON NATIONALITY

There is no single generally recognized concept of nationality which could be understood as the expression of political membership.⁵ On the contrary, ‘nationality’, as the expression of belonging to a nation as a political entity, is very much a product of its own very particular historical, social context.⁶

 

Yet nationality lies at the very heart of the concept of a state. Its function is to define the initial body of citizens of a country, which is an essential element of state sovereignty (Van Goethem 2006: 3, Jellinek 1964: 406-427). As a legal status, it confirms the membership of an individual in a political community. The definition of who is a national of a state is almost exclusively a product of domestic developments. Since international law is designed to protect state interests and prevent inter-state conflict, it is not surprising that traditionally there have been very few limitations on state powers in nationality matters. Early public international law instruments confirm that it is the nation-states’ sovereign prerogative to determine their citizens: ‘Each State shall determine under its own law who are its nationals.’ (Article 1 (a) The Hague Convention 1930) http://eudo-citizenship.eu

 

The power of states to regulate issues of citizenship is nonetheless limited by international law. This is due to the interplay between the nationality rules of states. The effects of domestic rules on nationality may extend beyond national borders, potentially leading to interstate conflict and friction. Article 1 (b) of the Hague Convention thus reads: ‘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 nationality law.’⁷

 

Interestingly enough, article 1 of the Convention, at the same time as confirming the principle of state autonomy in nationality matters, sets limits to the state’s prerogative to determine the members of its citizenry. However, when looking for actual examples of such limitations, one discovers that there are only a small number of cases involving issues of nationality which have in practice been resolved using mechanisms of dispute resolution rooted in international human rights law. To learn more about international rules that (may) constrain state discretion in nationality matters, one will have to refer to a wider variety of sources.

SOURCES OF INTERNATIONAL LAW

International law provisions on nationality can be found in customary international law, in a very few instances of case law and arguably also within the universal human rights regime. Most importantly, however, international standards are being developed in bilateral and multilateral Treaties, supported by international bodies such as the United Nations. 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 se in nationality matters. This paper focuses exclusively on public international law leaving EU law aside⁸.

 

THE EUROPEAN CONVENTION ON NATIONALITY (ECN), 1997

The first attempt to draft a Treaty on Nationality was made in the late 1980s and plans were made to introduce a Protocol to the European Convention on Human Rights (ECHR)⁹. At a meeting, initially scheduled to negotiate further changes to the 1963 Strasbourg Convention, the Council of Europe proposed to draft a new comprehensive convention on the general principles on nationality and, in 1997, the European Convention on Nationality was adopted¹⁰.

 

Today, the Council of Europe Convention on Nationality can be considered the most influential and advanced international instrument in the field of nationality. It has been ratified by twenty and signed by nine states. Of the 37 states covered in this paper’s sample, eighteen have ratified and a further eight have signed the Convention.9 This means that almost half of the states in this study have ratified the ECN and that almost three quarters have either signed or ratified the Convention. The ECN contains the international standards on nationality that evolved over time in distilled form. However, it not only consolidates general principles of international law but clearly also expresses a certain activism aiming at setting new standards in the field. The fact that experts sent as representatives of their states, external specialists and Council of Europe Secretariat staff were involved in developing and drafting the Treaty meant that they could do so away from the limelight of daily politics.¹¹ In many countries discussions of nationality issues are highly politicized, a fact which makes it difficult to advance progressive ideas that challenge the status quo. Another important factor determining the character and influence of the ECN is that the Convention has its intellectual roots in the human rights framework of the Council of Europe which promotes minority and individual rights in connection with citizenship.

 

In conformity with the ‘rights culture’ of our time, the Treaty therefore emphasizes more than any international document before, the importance and legitimacy of individual rights as opposed to rights of the state. Moreover, the rights of individuals are not limited to those of nationals. The rights of foreigners are strengthened implicitly through highlighting the importance of habitual residence in nationality rules. Unlike previous Treaties, the ECN now remains neutral with regards to the question of multiple nationalities. It thus allows for multiple nationalities and leaves it to each state to decide whether or not to do so via national law, although there are some limitations. ECN article 14(1a, b) prescribes that a State Party ‘… shall allow children having different nationalities acquired automatically at birth to retain these nationalities [and shall allow] its nationals to possess another nationality where this other nationality is automatically acquired by marriage’. Highlighting the importance of this issue in international law an entire chapter, Chapter V, is dedicated solely to issues of multiple nationality.

 

The Convention further provides substantive provisions on the acceptable grounds for the acquisition and loss of nationality in articles 6, 7 and 8. It is very important to note that the list of grounds for loss of nationality is exhaustive. This represents an important limitation to states’ discretion in determining their citizenry and an important step towards protecting and enhancing individuals’ rights. Article 5(2) introduces for the first time a guiding principle of non-discrimination between nationals by birth and by naturalization; ‘guiding’ because the wording of the article still leaves the option not to apply this principle. Many states in fact continue to discriminate against naturalized nationals. Nonetheless, the importance of including this novel concept in an international instrument cannot be overstated. The list in 5(1) ECN, as mentioned above, can be considered as containing the core elements of prohibited discrimination in nationality matters.¹²

 

Finally, article 6(3) of the Convention takes ‘a significant step forward in nationality legislation and practice by recognizing habitual residence as a basis for the grant of nationality’.¹³ Furthermore, for the first time ever an international Treaty provides that a maximum of ten years residence may be required by states as the basis for naturalization. Where implemented, this represents a substantial gain in rights for foreign residents in Europe.

 

NATIONALITY AS A HUMAN RIGHT

Acquisition of nationality for permanent residents Art 15 Para 1 of the Universal Declaration of Human Rights states that everybody is entitled to a nationality. It has been rightly remarked that this provision does not indicate under which provisions a person is entitled to a specific nationality.¹⁴ State practice lends little support to the assumption that art. 15 has replaced the traditional understanding of nationality as a sovereign prerogative of the state with an individual rights-orientated approach that would be based upon an individual’s free choice in determining his or her destiny as a member of a community legally defined by nationality law.¹⁵

 

This does not mean that a state’s right to determine nationality law has remained unaffected by the development of human rights and Nationality in public international law and European law man dignity, which has shifted the very foundation of public international law from a system of coordination of sovereign states to the wellbeing 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-fulfillment 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 nationality 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 nationality and, finally, discrimination in granting naturalization.

 

The right to a nationality as a human rights concept raises a number of issues with regard to the acquisition of nationality by second or third generation migrants.¹⁶ The Inter-American Court of Human Rights, in an advisory opinion, proclaimed that the right to nationality must be considered an inherent human right and that the powers of states to regulate matters relating to nationality are determined by their obligations to ensure the full protection of human rights. Under customary international law, neither a right to a specific nationality nor a right to change nationality to acquire an additional nationality exists.¹⁷ One may raise the question of whether the rule of unlimited discretion of states in deciding on the acquisition of nationality adequately reflects the human rights implications of second and third generation migrants.

 

There has as yet been no similar treaty provision for migrant workers and their families. Recent European state practice, however, shows a clear tendency to grant certain categories of migrants a right to acquire nationality either ex liege or on the basis of an application. Art. 6 Para 3 of the European Convention on Nationality (ECN) provides that internal law shall contain rules which make it possible for foreigners lawfully and habitually resident in the territory of a state party to be naturalized.¹⁸ The maximum period of residence which can be required for naturalization is fixed at a maximum of ten years. This corresponds to a common standard in Europe, most countries requiring between five and ten years of residence. In addition, other justifiable conditions for naturalization, in particular as regards language, lack of a criminal record and the ability to earn a living, may be required. Some other categories of foreigners generally receive preferential treatment in acquiring nationality in terms of an easier procedure, a reduction in the required length of residence, fewer integration requirements, etc. Art. 6 Para 4 ECN lists foreign spouses⁶ and adopted children in particular, as well as second and third generation migrants. The Parliamentary Assembly of the Council of Europe recommended making it easier for young migrants to acquire the nationality of the immigration country, if they have either been born or completed most of their education there.¹⁹

 

ABUSE OF NATIONALITY

Facilitating access to nationality for migrants has resulted in growing concern among states that more open access to nationality may be misused to evade immigration restrictions or escape expulsion or deportation. The misuse of nationality laws, therefore, has also become an issue of international co-operation. Thus, for instance, nationality has been renounced in order to escape deportation by acquiring the status of statelessness. States permitting this renunciation are generally acting in violation of public international law²⁰. A state’s duty to respect the sovereignty of other states and their sovereign right to decide on the admission of foreigners implies a duty to accept a responsibility for a state’s own citizens including an obligation to allow their return. This obligation could be easily overcome by a renunciation of nationality in order to prevent the return of a state’s own citizens. In addition, state practice supports the rule of the avoidance of statelessness. Establishing statelessness for the main purpose of restricting a state’s sovereign right to decide on the admission and residence of foreign nationals means acting against the community of nations. Such renunciation may therefore be considered as invalid for the purposes of executing immigration laws.

 

Whether the individual acquisition of nationality may amount to an abuse of law (abus de droit) is a highly controversial issue. States resort to the notion of abuse of rights in connection with marriages of convenience, evasion of tax obligations, acquisition of residence rights and the retention of dual nationality. Marriages of convenience have also been concluded to qualify either for automatic entitlement to nationality or facilitated access to naturalization. New problems have surfaced concerning the recognition of registered partnerships entitling a person under national law to preferential access to nationality²¹. Misuse may also occur through the legislation of certain states allowing a person claiming to be the father to recognize a child by a simple declaration, thereby establishing the parenthood relationship and transmitting nationality to a child²²

CONCLUSION:

It has been demonstrated that although international law is relevant for the manner in which states design and implement national legislation on citizenship, the extent of its influence is not the same for all states in this study. It differs depending on various factors which have been laid out in this paper. Apart from rates of ratifications and signatures, these factors include early and more recent history, regional factors such as policy imitation and other factors as for instance informal practices of domestic pressure groups or internal doctrinal preconditions.

 

Although it is surely not a one-way route, examples in this paper show that there is clear convergence towards European norms of nationality influenced by international law. However, these can be restrictive as well as liberalizing in character²³. For instance, it may be argued that the permission, or extension, of multiple nationalities in European domestic legislations is surely one of the most liberalizing effects of international legal developments in recent times. However, one needs to be careful when assessing the trend towards increased presence of multiple nationality provisions as a necessarily liberal one. In states facing emigration and recently changed national borders, the introduction or extension of multiple nationality provisions might in fact express a process of re-linking nationality with ethnicity aimed at keeping ties with co-ethnic populations outside the territorial borders. This is in contrast to a process whereby acceptance of multiple nationality and the introduction of ius soli elements, is an expression of inclusiveness and de-linking of nationality from ethnicity to facilitate the integration of resident third country nationals (i.e. from non-EU Member States) and their descendants. Therefore the extension of multiple nationality provisions can only be interpreted as ‘liberalizing’ if combined with substantial and comprehensive nondiscrimination measures. It is interesting to observe that there is a clear convergence not only towards European standards but also convergence towards a certain set of obstacles to ratification. The most important obstacle to ratification appears to be the prohibition on discrimination on the basis of race, national or ethnic origin and also between nationals by birth and those who acquired nationality subsequently (as introduced by the ECN), although the latter principle constitutes a recommendation rather than a clear prohibition. The fact that this guiding principle has been included as general principle relating to nationality in the most influential Convention on nationality to date, is a clear indication of the importance of this issue. Finally, significant procedural obstacles to ratification, such as the right to review and the requirement to state reasons for decisions in nationality matters tell us more about a general issue that in many states acquisition of nationality is considered a privilege rather than a ‘right’. This does not sit easily with an increased emphasis on rights of the individual, including foreign residents, in international law. The following statement by Damian Green MP (now UK Immigration Minister) made during the passage of the Borders, Citizenship and Immigration Bill illustrates this very well: ‘We believe that UK citizenship is a privilege, not a right. Anyone who is here on a temporary leave to remain should not assume that that gives them the right to remain here permanently or to become a British citizen.²⁴ 

 

BIBLIOGRAPHY:

·        Turner, Bryan S; Isin, Engin F. Handbook of Citizenship Studies SAGE; 2003-01-29 ISBN 9780761968580 p. 278–279.

·        Gerard-René de Groot, Nationality Law, in ELGAR ENCYCLOPEDIA OF COMPARATIVE LAW 476-492,479 (Jan Smiths ed., 2006)

·        Vonk, Olivier. Dual Nationality in the European Union: A Study on Changing Norms in Public and Private International Law and in the Municipal Laws of Four EU Member States. Martinus Nijhoff Publishers; 2012-03-19 [cited 17 August 2012]. ISBN 9789004227200. p. 19

·        White, Philip L. (2006). "Globalization and the Mythology of the Nation State," In A.G.Hopkins, ed. Global History: Interactions Between the Universal and the Local Palgrave Macmillan, pp. 257-284

·        Wiessner 1988 Wiessner, S. (1989), Die Funktion der Staatsangehörigkeit [The function of nationality]

·        International Legal Materials 489 (1984) at 502

·        Kennedy D, ‘New Approaches to Comparative Law, Comparativism and International Governance’ 1997 Utah Law Review 545 at fn 4, which reviews notions of governance.

·        Hansard, HC 14 July 2009, Col. 223.

 

1.       Turner, Bryan S; Isin, Engin F. Handbook of Citizenship Studies SAGE; 2003-01-29 ISBN 9780761968580 p. 278–279.

2.       Gerard-René de Groot, Nationality Law, in ELGAR ENCYCLOPEDIA OF COMPARATIVE LAW 476-492,479 (Jan Smiths ed., 2006)

3.       Vonk, Olivier. Dual Nationality in the European Union: A Study on Changing Norms in Public and Private International Law and in the Municipal Laws of Four EU Member States. Martinus Nijhoff Publishers; 2012-03-19 [cited 17 August 2012]. ISBN 9789004227200. p. 19

4.       White, Philip L. (2006). "Globalization and the Mythology of the Nation State," In A.G.Hopkins, ed. Global History: Interactions Between the Universal and the Local Palgrave Macmillan, pp. 257-284

5.       Wiessner 1988 Wiessner, S. (1989), Die Funktion der Staatsangehörigkeit [The function of nationality], Tuebingen: Attempto Verlag.

6.       Hailbronner 2006 Hailbronner, K. (2010), Germany: Country Report, EUDO Citizenship Observatory, http://eudo-citizenship.eu/docs/CountryReports/Germany.pdf.

7.       Article 1 (b) The Hague Convention 1930

8.       Murumba SK, ‘Cross-Cultural Dimensions of Human Rights’ in Anghie A and Sturgess G, Legal Visions of the 21st Century: Essays in Honour of Judge Christopher Weeramantry, Kluwer Law International, The Hague, 1998, Cerna C, ‘Universality of Human Rights and Cultural Diversity: Implementation of Human Rights in Different Socio-Cultural Contexts’ (1994) 16 Human Rights Quarterly 740; An-Na’im A, ‘What Do We Mean by Universal?’ (1994) 4/5 Index on Censorship 120; and Kim N, ‘Towards a Feminist Theory of Human Rights: Straddling the Fence Between Western Imperialism and Uncritical Absolutism’ (1993) 25 Columbia Human Rights Law Review 49.

9.       Jessurun d’Oliveira, H. U. J. (1998), ‘Het Europees Verdrag inzake nationaliteit van 6 november 1997’ [The European Convention on Nationality of 6 November 1997], in Jessurun d'Oliveira, H. U. J. (ed.), Trends in het nationaliteitsrecht, [Trends in nationality law] ‘s Gravenhage: Sdu Uitgevers.

10.     Vink, M. and G. de Groot (2010), ‘Citizenship Attribution in Western Europe: International Framework and Domestic Trends’, Journal of Ethnic and Migration Studies, 36(5): 713-734.

11.     Checkel (2001a), ‘The Europeanization of Citizenship?’, in J. Caporaso, M. Cowles and T. Risse (eds.), Transforming Europe: Europeanization and Domestic Change, 180-197. Ithaca: Cornell University Press. 184-186

12.     Hailbronner 2006: 44 http://eudo-citizenship.eu/docs/CountryReports/Germany.pdf.

13.     Van Goethem 2006, ‘A few legal observations pertaining to nationality’, Armenian Journal of Public Policy, special issue 2006: 1-8.

14.     De Groot, G. (2009), ‘Alweer een afvaller! Het Verdrag van Straatsburg betreffende beperking van meervoudige nationaliteit’ [The Strasbourg Convention on the reduction of multiple nationality], Migrantenrecht Forum, 24, 7: 296-298.

15.     Cassuto 2001: 41, 59 Cassese, A. (1988), International law in a divided world Oxford: Clarendon

16.     Chan, J. M. (1991), ‘The Right to a Nationality as a Human Right. The Current Trend Towards Recognition’, Human Rights Law Journal, 12 (1-2): 1-14.

17.     Ichiyo M, ‘For an Alliance of Hope’, in Brecher J et al (eds), Global Visions: Beyond the New World Order, Black Rose Books, Montreal, 1993 at 155

18.     Strasbourg 6.XI.1997 [European Treaty Series No 166], 37 International Legal Materials 44 The Convention has institutionalized and recognized as a fact of international life the concept of multiple nationality. See also Pitrowicz R, ‘One Nation or Two? New Developments in Citizenship Law’ (1999) 72 Australian Law Journal 673

19.     Soysal YN, Limits of Citizenship: Migrants and Postnational Membership in Europe, University of Chicago Press, Chicago, 1994.

20.     Autem, M. (2000), ‘The European Convention on Nationality: Is a European Code on Nationality Possible?’, 1st European Conference on Nationality, Strasbourg, Council of Europe, Strasbourg, 18 and 19 October 1999: 19-34, http://www.coe.int/t/dghl/standardsetting/nationality/Conference%201%20(1999)Proceedings.

21.     International Legal Materials 489 (1984) at 502.

22.     Walmsley 1999: 63

23.     Kennedy D, ‘New Approaches to Comparative Law, Comparativism and International Governance’ 1997 Utah Law Review 545 at fn 4, which reviews notions of governance.

24.     Hansard, HC 14 July 2009, Col. 223.