Deprivation of Nationality and Public International Law An Outline

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1 Deprivation of Nationality and Public International Law An Outline Eric Fripp At a glance The classical position that nationality is a matter in the reserved dominion of States is one to which there have been significant modifications as modern international law has developed. An act of deprivation by a State, even if valid in terms of national law, may not be recognised in international law. Recognition by another State or other international actor may be significantly coloured by a growing body of international law norms, including but not limited to those provided by international human rights law. Further, an act of deprivation of nationality may not be recognised by other States or actors as sufficient to relieve the State which has removed its nationality from an individual, of a duty on the international law plane not to expel or exclude that individual from its territory. Introduction Issues of nationality have been viewed classically as an aspect of domestic sovereignty substantially protected from interference by international measures. This position has changed over the past century, however, with nationality being seen both as a reserved competence of States in principle and subject to wider international law considerations in practice. 1 In its Advisory Opinion in the Nationality Decrees Issued in Tunis and Morocco case, 2 the Permanent Court of International Justice had to decide whether the League of Nations was competent to intervene in a dispute between Great Britain and France concerning the application to British subjects of nationality decrees enacted by French authorities in the named territories by the terms, given that nationality was reserved to the domestic legal domain under art 15, para 8, of the Covenant of the League of Nations settled in The provision in question stated that If the dispute between the parties is claimed by one of them, and is found by the Council, to arise out of a matter which by international law is solely within the domestic jurisdiction of that party, the Council shall so report, and shall make no recommendation as to its settlement. The Court held that: 1 Crawford Brownlie s Principles of Public International Law (8th edn, Oxford, OUP 2012) Nationality Decrees Issued in Tunis and Morocco on 8 November 1921, Advisory Opinion, 1923 PCIJ (ser B) No 4 (7 February) IANL (28-4)-cpp.indd /12/ :12

2 Immigration, Asylum and Nationality Law, Vol 28, No 4, 2014 [39] The words solely within the domestic jurisdiction seem rather to contemplate certain matters which, though they may very closely concern the interests of more than one State, are not, in principle, regulated by international law. As regards such matters, each State is sole judge. [40] The question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations. Thus, in the present state of international law, questions of nationality are, in the opinion of the Court, in principle within this reserved domain. [41] For the purpose of the present opinion, it is enough to observe that it may well happen that, in a matter which, like that of nationality, is not, in principle, regulated by international law, the right of a State to use its discretion is nevertheless restricted by obligations which it may have undertaken towards other States. In such a case, jurisdiction which, in principle, belongs solely to the State, is limited by rules of international law. Article 15, paragraph 8, then ceases to apply as regards those States which are entitled to invoke such rules, and the dispute as to the question whether a State has or has not the right to take certain measures becomes in these circumstances a dispute of an international character and falls outside the scope of the exception contained in this paragraph. To hold that a State has not exclusive jurisdiction does not in any way prejudice the final decision as to whether that State has a right to adopt such measures. The conclusion that the attribution of nationality was for purposes of international law subject to examination by reference to international legal standards was reinforced in the League of Nations Convention on Certain Questions Relating to the Conflict of Nationality Law 1930 ( CCQRCNL 30 ), which provides by articles 1 and 2 that: Article 1 It is for each State to determine under its own law who are its nationals. This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality. Article 2 Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State. Article 1 means that where a State asserts that an individual is its national, the recognition of that nationality by other States depends additionally upon compliance with standards established in international law. In this context the question of recognition is, in the language of the Tunis and Morocco opinion an essentially relative question depending upon the development of international law. 3 Article 2 indicates that international law does not give the nationality of a State to anyone, so confirming that nationality cannot arise through attribution by another State, without a basis in the law of the State of claimed nationality. It also serves to emphasise 3 ibid para IANL (28-4)-cpp.indd /12/ :12

3 Deprivation of Nationality and Public International Law An Outline that the nationality of one country cannot be imposed by the domestic law of another country and reiterates the distinction between two matters already identified by art 1: on the one hand nationality as created by national laws, and on the other the recognition of such nationality on the international plane, which depends upon the compliance of national law and practice with a body of standards established within international law. This is consistent with the general approach of international law to national law, by which a State is not permitted to rely upon its own constitutional or other law, in answer to the assertion against it of a breach of its obligations under international law. 4 Established in the Alabama Claims case, 5 within which the United States sought, and recovered, substantial damages from the United Kingdom for permitting the Confederate States to fit out vessels as routine raiders in British dockyards during the American Civil War, the position is reflected in the International Law Commission s Articles on Responsibility of States for Internationally Wrongful Acts, art 3 of which provides that The characterization of an act of a State as internationally wrongful is governed by international law. Such characterisation is not affected by the characterization of the same act as lawful by internal law, and in a large body of international decisions. At least three discrete areas of international law, each the product of substantial and relatively recent development, also impact upon the recognition, according to international law, of measures taken by a state as regards nationality. First, there is the development of international human rights law since the issuance of the Universal Declaration of Human Rights 1948 ( UDHR 48 ), including both wide human rights instruments such as the International Covenant on Civil and Political Rights 1966 ( ICCPR 66 ) and instruments directed more specifically at human rights questions of particular types or affecting particular groups: for example, in the first group, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984 ( CAT 84 ) and Convention for the Protection of All Persons from Enforced Disappearance 2006 ( CPED 06 ), 6 and in the second, the Convention on the Elimination of All Forms of Racial Discrimination 1969 ( CERD 66 ), Convention on the Elimination of All Forms of Discrimination against Women 1979 ( CEDAW 79 ), Convention on the Rights of the Child 1989 ( CRC 89 ), and Convention on the Rights of Persons with Disabilities 2006 ( CRPD 06 ). Secondly, there are two bodies of law which, although they share a common origin in the refugee instruments of the interwar period, and may still overlap at certain points, have developed separately since the early 1950s. These are international refugee law, following from the Convention on the Status of Refugees 1951 and the 1967 Protocol thereto ( CSR 51 ), and the international legal regime addressing statelessness, substantially consisting in the Convention on the Status of Stateless Persons 1954 ( CSSP 54 ) and the Convention on the Reduction of Statelessness 1961 ( CRS 61 ). The instruments grounding modern international refugee law and the international statelessness regime are in general not pure human rights instruments, although an important part of their purpose is humanitarian. Rather they are hybrid instruments with mixed aims including elements of burden sharing among States and the maintenance of international stability as well as humanitarian benefit. Thirdly, there are some general obligations of States to the international community which are so important that all States are held to have a legal interest in their protection: these are obligations erga omnes. The 4 Crawford (n 1) Reports of International Arbitral Awards, Alabama Claims of the United States of America against Great Britain, Award rendered on 14 September 1872 by the tribunal of arbitration established by art I of the Treaty of Washington of 8 May 1871, Vol XXIX, pp The United Kingdom has so far failed to sign or ratify CPED IANL (28-4)-cpp.indd /12/ :12

4 Immigration, Asylum and Nationality Law, Vol 28, No 4, 2014 relevant international law regimes- international human rights law and the hybrid refugee and statelessness regimes and erga omnes obligations are addressed in turn below. International human rights law Despite the emphasis on state sovereignty and autonomy in the sphere of nationality, international human rights law has made some inroads. UDHR 48 was not binding upon states but anticipated later binding instruments. Article 13 UDHR 48 provides as follows: Article 13 (1) Everyone has the right of freedom of movement and residence within the borders of each State. (2) Everyone has the right to leave any country, including his own, and to return to his country. Article 15 UDHR 48 provides as follows: Article 15 (1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Within UDHR 48 and all subsequent human rights treaties, non-discrimination has been an important consideration reflected in the text. Article 2 UDHR 48 provides that: Everyone is entitled to all the rights and freedoms set forth in this Declaration, 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. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty. ICCPR 66 does not follow UDHR 48 in asserting the existence of a general right to nationality. Its closest approach to this is signalled at art 24 ICCPR 66, a measure applicable only to children. This provides that: Article Every child has the right to acquire a nationality. That right does not bind particular states to give their nationality to a child. The UNHRC in its General Comment 17 stated at [8] that: 8. Special attention should also be paid, in the context of the protection to be granted to children, to the right of every child to acquire a nationality, as provided for in IANL (28-4)-cpp.indd /12/ :12

5 Deprivation of Nationality and Public International Law An Outline article 24, paragraph 3. While the purpose of this provision is to prevent a child from being afforded less protection by society and the State because he is stateless, it does not necessarily make it an obligation for States to give their nationality to every child born in their territory. However, States are required to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he is born. In this connection, no discrimination with regard to the acquisition of nationality should be admissible under internal law as between legitimate children and children born out of wedlock or of stateless parents or based on the nationality status of one or both of the parents. The measures adopted to ensure that children have a nationality should always be referred to in reports by States parties. 7 There are of course other rights under ICCPR 66 of broader span, which may be applied in the context of nationality. Article 7 ICCPR 66 delineates protections from torture or cruel, inhuman or degrading treatment or punishment respectively. Unlike the separate protection from torture in the subsequent CAT 84 this is not restricted to circumstances in which the state is complicit. Whilst these international human rights are of lesser importance in the UK because of other applicable protections, including those provided by art 3 ECHR, their protection by the ICCPR should be noted: Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. It appears established that in extreme cases deprivation of nationality might constitute degrading treatment : an early parallel might be cited as the East African Asians case in which the European Commission on Human Rights by a 6 3 majority found that enforcement by the United Kingdom of immigration laws formulated to exclude from its territory East African Asians, which the Commission found motivated by race, amounted to degrading treatment contravening art 3 European Convention on Human Rights and Fundamental Freedoms. 8 Whilst the right to nationality at article 15 UDHR 48 has not been incorporated in later binding instruments, the right of return to one s own country at art 13(2) UDHR 48 has been repeated at art 12(4) ICCPR 66: Article No one shall be arbitrarily deprived of the right to enter his own country. In this context the term his own country expressly admits a relevant link not dependent upon the possession of nationality by birth, naturalisation, or some other means. The United Nations Human Rights Committee ( UNHRC ) has said in its General Comment 27 that: 20. it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. 7 UN Human Rights Committee, General Comment No 17: Rights of the Child (Art 24) 29 September East Africa Asians v United Kingdom [1981] 3 EHRR 76, paras IANL (28-4)-cpp.indd /12/ :12

6 Immigration, Asylum and Nationality Law, Vol 28, No 4, 2014 This would be the case, for example, of nationals of a country who have there been stripped of their nationality in violation of international law, and of individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them. The language permits a broader interpretation that might embrace other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence. Since other factors may in certain circumstances result in the establishment of close and enduring connections between a person and a country, States parties should include in their reports information on the rights of permanent residents to return to their country of residence. 9 A noteworthy feature of that General Comment is the emphasis upon the ineffectiveness of arbitrary deprivation to end the currency of a State as the own country of an individual whose nationality has been removed, even if, as the General Comment assumes, the deprivation is wholly effective under the domestic law of the State in question. The UNHRC has generally followed a restrictive path as to the question of the stage at which settled immigrants or those unlawfully present for a substantial time may treat the country of residence as their own. In Stewart v Canada 10 and Madafferi v Australia 11 the UNHRC held that a person who enters as an immigrant cannot normally regard that State as his or her own country when that person has not acquired its nationality and continues to retain the nationality of a country of origin, though an exception might arise in limited circumstances, such as those created by unreasonable impediments on the acquisition of nationality. This area of the law appears presently to be in flux: two further decisions of the UNHRC, Nystrom v Australia and Warsame v Canada, published on the same day in 2011, are difficult to reconcile with the restrictive approach in Stewart and other cases, and may signal a change in the scope for reliance upon article 12(4) ICCPR 66, albeit one likely to be developed only incrementally. 12 In any event the UNHRC has concluded that exile from one s own country is effectively barred by article 12(4) ICCPR It has treated deprivation of nationality as potentially within its remit because of the loss of the right to enter which follows, 14 but has also suggested that short lived acquisition of nationality by operation of law in the absence of other significant connection might still leave the country of nationality as not the own country of the recipient. 15 The UNHRC has found that it is incumbent upon an individual alleging a breach of art 12(4) ICCPR 66 to prove that the state in question is his own country, though the state may be expected to demonstrate that it has discharged any burden upon it to make enquiries in response to a claim of relevant linkage Human Rights Committee, General Comment 27, Freedom of Movement (Art 12) UN Doc CCPR/C/21/Rev.1/Add.9 (1999). 10 Charles E. Stewart v Canada Communication No. 538/1993, UN Doc CCPR/C/58/D/538/1993 (1996), Francesco Madafferi and Anna Maria Immacolata Madafferi Australia CCPR/C/81/D/1011/2001, UN Human Rights Committee (HRC), 26 August 2004, Nystrom v Australia (1557/2007, 1 September 2011, CCPR/C/102/D/1557/2007); Warsame v Canada (1959/2010, 1 September 2011, CCPR/C/102/D/1959/2010). See E Fripp, R Moffatt, E Wilford The Law and Practice of Expulsion and Exclusion from the United Kingdom: Deportation, Removal, Exclusion and Deprivation of Citizenship (Oxford, Hart Publishing 2014), ch 3, s C3. 13 UN Human Rights Committee, Concluding Observations on the Dominican Republic (1993) UN doc. CCPR/C/790/Add 18 para Simalae Toala v New Zealand, Communication No 675/1995, UN Doc CCPR/C/70/D/675/1995 (2000). 15 ibid, para JM v Jamaica, Communication No 165/1984, UN Doc CCPR/C/OP/2 at 17 (1984) IANL (28-4)-cpp.indd /12/ :12

7 Deprivation of Nationality and Public International Law An Outline Article 12(4) ICCPR 66 also refers to the concept of arbitrariness. This concept is common to other provisions in international human rights law, for example, prohibitions on arbitrary arrest or detention (at art 9 ICCPR 66) and arbitrary interference in private or family life (at art 17 ICCPR 66). Arbitrary deprivation of nationality may mean a deprivation which defies national law or one which is in accordance with such law but is objectionable for some other reason, such as discrimination for some prohibited reason or absence of due process. The UNHRC in its General Comment 27 held that: The reference to the concept of arbitrariness in this context is intended to emphasize that it applies to all State action, legislative, administrative and judicial; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one s own country could be reasonable. A State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country. A good example of the treatment of arbitrariness in international human rights law in the deprivation of nationality context is provided by a judgment of the Eritrean Ethiopian Claims Commission. This body was formed in 2001 under the aegis of the Permanent Court of International Arbitration in the Hague to consider, amongst other things, claims for loss, damage and injury suffered by resulting from breaches of international law in connection with the armed conflict between the two states. 18 The Commission issued a partial award at The Hague on 17 December It held that Ethiopia had breached international laws by erroneously depriving at least some Ethiopians who were not dual nationals of their Ethiopian nationality. The Commission stated that where Ethiopia had devised and implemented a system applying reasonable criteria to identify individual dual nationals thought to pose threats to its wartime security, deprivation was not shown to be arbitrary. 19 By contrast, where persons were permitted to remain but treated as aliens, with no process to identify individuals warranting special consideration and no apparent possibility of review or appeal then: 75. Considering that rights to such benefits as land ownership and business licenses, as well as passports and other travel documents were at stake, the Commission finds that this wide-scale deprivation of Ethiopian nationality of persons remaining in Ethiopia was under the circumstances arbitrary and contrary to international law. 20 A key circumstance in which an action will be considered arbitrary for the purposes of international human rights law is where it is taken on the basis of prohibited discrimination. More specific protection is provided for particular groups, such as children, women, and the disabled, in CERD 66, CRC 89, CEDAW 79, and CRPD 06, respectively. These provisions are examined below, in turn. 17 Human Rights Committee, General Comment 27, Freedom of Movement (Art 12) U.N. Doc CCPR/C/21/Rev.1/Add.9 (1999). 18 Eritrea Ethiopia Claims Commission, Partial Award: Civilians Claims Eritrea s Claims 15, 16, 23 & Permanent Court of International Arbitration, the Hague, 17 December ibid, para ibid, para IANL (28-4)-cpp.indd /12/ :12

8 Immigration, Asylum and Nationality Law, Vol 28, No 4, 2014 CERD 66 by art 1 expressly protects from intrusion, most domestic laws of nationality and citizenship: Article 1 1. In this Convention, the term racial discrimination shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. 2. This Convention shall not apply to distinctions, exclusions, restrictions or preferences made by a State Party to this Convention between citizens and non-citizens. 3. Nothing in this Convention may be interpreted as affecting in any way the legal provisions of States Parties concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality. 4. Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved. Article 2 identifies the primary protective focus of the instrument: Article 2 1. States Parties condemn racial discrimination and undertake to pursue by all appropriate means and without delay a policy of eliminating racial discrimination in all its forms and promoting understanding among all races, and, to this end: (a) Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation; (b) Each State Party undertakes not to sponsor, defend or support racial discrimination by any persons or organizations; (c) (d) Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists; Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization; IANL (28-4)-cpp.indd /12/ :12

9 Deprivation of Nationality and Public International Law An Outline (e) Each State Party undertakes to encourage, where appropriate, integrationist multiracial organizations and movements and other means of eliminating barriers between races, and to discourage anything which tends to strengthen racial division. 2. States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved. Article 5 CERD 66 provides that: Article 5 In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (d) Other civil rights, in particular: (ii) The right to leave any country, including one s own, and to return to one s country; (iii) The right to nationality; Article 7 CRC 89 contains provisions relevant to the acquisition of a nationality by children. Article 8 CRC 89 provides that: Article 8 1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference. 2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity. Article 9 CEDAW 79 provides that: Article 9 1. States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband IANL (28-4)-cpp.indd /12/ :12

10 Immigration, Asylum and Nationality Law, Vol 28, No 4, States Parties shall grant women equal rights with men with respect to the nationality of their children. Article 18 CRPD 06 has provided reinforcement for broader standards, applying these expressly to the protection of persons suffering from disability: Article 18 Liberty of movement and nationality 1. States Parties shall recognize the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others, including by ensuring that persons with disabilities: a. Have the right to acquire and change a nationality and are not deprived of their nationality arbitrarily or on the basis of disability; b. Are not deprived, on the basis of disability, of their ability to obtain, possess and utilize documentation of their nationality or other documentation of identification, or to utilize relevant processes such as immigration proceedings, that may be needed to facilitate exercise of the right to liberty of movement; c. Are free to leave any country, including their own; d. Are not deprived, arbitrarily or on the basis of disability, of the right to enter their own country. 2. Children with disabilities shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by their parents. The current position, therefore, is one in which the actions of states in respect of nationality are susceptible to assessment by reference to international human rights norms. One illustration of the ongoing development of international law norms is the decision of the Inter-American Court of Human Rights in Yean and Bosico v Dominican Republic. 21 In that case, the Court considered a situation in which it was found that children of Haitian parents were prevented from acquiring citizenship in the Dominican Republic, the country of their birth, by deprivation of birth registration. The Court unanimously found a violation by the Dominican Republic of (amongst others) rights to nationality under article XIX of the American Declaration of the Rights and Duties of Man (which provides inter alia that every person has the right to the nationality to which he is entitled by law and to change it ) 22 and to equal protection of the law. In the judgment of the Court it observed that: [137] 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. 21 [2005] Inter-Am Ct HR, (series C) No 130 (8 September 2005). 22 American Declaration of the Rights and Duties of Man, O.A.S. Res. XXX, adopted by the Ninth International Conference of American States (1948), reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 17 (1992), XIX IANL (28-4)-cpp.indd /12/ :12

11 Deprivation of Nationality and Public International Law An Outline [138] The Court has established that: It is generally accepted today that nationality is an inherent right of all human beings. Not only is nationality the basic requirement for the exercise of political rights, it also has an important bearing on the individual s legal capacity. Thus, despite the fact that it is traditionally accepted that the conferral and regulation of nationality are matters for each state to decide, contemporary developments indicate that international law does impose certain limits on the broad powers enjoyed by the states in that area, and that the manners in which states regulate matters bearing on nationality cannot today be deemed within their sole jurisdiction; those powers of the state are also circumscribed by their obligations to ensure the full protection of human rights. [ ] The classic doctrinal position, which viewed nationality as an attribute granted by the State to its subjects, has gradually evolved to a conception of nationality [in] which, in addition to being the competence of the State, [this] is a human right. In Yean and Bosico the Court found that the Dominican Republic by applying to the children requirements that differed from those requisite for children under 13 years of age in order to obtain nationality in the absence of reasonable and objective criteria had acted arbitrarily. This had resulted in an inability for the children to make effective their rights to nationality which placed [the children] outside the State s juridical system and kept them stateless, which placed them in a situation of extreme vulnerability, as regards the exercise and enjoyment of their rights. 23 The Court concluded that discrimination by Dominican Republic officials on the basis of Haitian descent constituted an arbitrary deprivation of the children s nationality. 24 International refugee and statelessness instruments In the period between the First and Second World Wars the term refugee had often been used to denote persons who had been deprived of the protection of their country of nationality by removal of that nationality, sometimes termed denationalisation. In this period, therefore, the terms refugee and stateless person were often used synonymously. After the Second World War, however, the international community focussed its major refugee instrument, CSR 51, upon a subset of those without national protection. The restrictive conditions in CSR 51 of greatest continuing relevance are found in the requirement at art 1A(2) CSR 51 that the applicant be outside the country of nationality or, if stateless, former habitual residence, by reason of a well-founded fear of persecution for one of five reasons adumbrated there. This left the wider problem of statelessness to be addressed separately, which was done by CSSP 54 and later CRS 61. Most relevantly for present purposes, arts 8 and 9 CRS 1961 provide as follows: Article 8 1. A Contracting State shall not deprive a person of his nationality if such deprivation would render him stateless. 2. Notwithstanding the provisions of paragraph I of this article, a person may be deprived of the nationality of a Contracting State: 23 Yean and Bosico (n 21) para Paragraph IANL (28-4)-cpp.indd /12/ :12

12 Immigration, Asylum and Nationality Law, Vol 28, No 4, 2014 (a) (b) in the circumstances in which, under paragraphs 4 and 5 of article 7, it is permissible that a person should lose his nationality [Note: The circumstances invoked are on account of residence abroad for a period, not less than seven consecutive years, specified by the law of the Contracting State concerned if he fails to declare to the appropriate authority his intention to retain his nationality and In the case of a national of a Contracting State, born outside its territory, the law of that State may make the retention of its nationality after the expiry of one year from his attaining his majority conditional upon residence at that time in the territory of the State or registration with the appropriate authority. ] where the nationality has been obtained by misrepresentation or fraud. 3. Notwithstanding the provisions of paragraph 1 of this article, a Contracting State may retain the right to deprive a person of his nationality, if at the time of signature, ratification or accession it specifies its retention of such right on one or more of the following grounds, being grounds existing in its national law at that time: (a) that, inconsistently with his duty of loyalty to the Contracting State, the person (i) has, in disregard of an express prohibition by the Contracting State rendered or continued to render services to, or received or continued to receive emoluments from, another State, or (b) (ii) has conducted himself in a manner seriously prejudicial to the vital interests of the State; that the person has taken an oath, or made a formal declaration, of allegiance to another State, or given definite evidence of his determination to repudiate his allegiance to the Contracting State. 4. A Contracting State shall not exercise a power of deprivation permitted by paragraphs 2 or 3 of this article except in accordance with law, which shall provide for the person concerned the right to a fair hearing by a court or other independent body. Article 9 A Contracting State may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds. Erga Omnes obligations In 1970 the International Court of Justice in the Barcelona Traction case identified as obligations erga omnes, or general norms of international law, certain core principles concerning the protection of the human person: Such obligations derive, for example, in contemporary international law, from the outlawing of acts of aggression, and of genocide, as also from the principles and rules concerning the basic rights of the human person, including protection from slavery and racial discrimination. Some of the corresponding rights of protection have entered into IANL (28-4)-cpp.indd /12/ :12

13 Deprivation of Nationality and Public International Law An Outline the body of general international law; others are conferred by international instruments of a universal or quasi-universal character. 25 The decision represents a powerful affirmation of the existence and extent of such obligations, particularly where treaty law protecting human rights has not yet attained universal or quasiuniversal application, and would plainly apply to denationalisation found to be motivated by race discrimination. That said, further decisions expanding the area defined in Barcelona Traction have been infrequent and neither the overall extent of such norms nor the scope for application to denationalisation has been fully clarified. Regional instruments European Convention on Human Rights Subsection 6(1) Human Rights Act 1998 ( HRA 1998 ) makes it unlawful for a public authority, which includes the Secretary of State, his or her servants or agents, and any independent judicial or quasi-judicial decision maker, to act in a way which is incompatible with any right under the European Convention on Human Rights and Fundamental Freedoms ( ECHR ) identified at s 1 HRA The ECHR was not drafted with any direct regard to questions of nationality, reflecting the contemporary view that this was an area of strong national sovereignty. 26 Despite the absence of any provision directly relating to nationality, several articles of the ECHR have been found to be relevant to deprivation of nationality. In particular, the Court has relied on Articles 3, 8 and 14 in this context. These are set out below. As is well known, art 3 ECHR provides that: Article 3 Prohibition of torture No one shall be subjected to torture or to inhuman or degrading treatment or punishment. As noted earlier, art 3 was employed in the East African Asians case. 27 The then European Human Rights Commission found by six votes to three that legislation denying a right of entry to the United Kingdom to British Asians originating in East Africa, and facing denationalisation by successor states to British imperial rule there, constituted degrading treatment within the meaning of art 3 ECHR: 208. The Commission considers that the racial discrimination to which the applicants have been publicly subjected by the application of the above immigration 25 International Court of Justice, Barcelona Traction case: Belgium v Spain (Second Phase) (1970) ICJ Rep 3, [33] [34]. 26 This paper focuses upon the regional instruments applicable in the UK. An interesting locus for comparison is the Inter-American regime, in particular the decisions of the Inter-American Court of Human Rights in Yean and Bosico, n 21 above, and its earlier Advisory Opinion OC-4/84 of 19 January 1984, concerning Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica. As to the former decision, the aftermath may provide a good illustration of resistance to international law. On 4 November 2014 the Constitutional Court of the Dominican Republic, faced with an order from the Inter-American Court to revoke a judgment incompatible with the Yean and Bosico decisions, declared that the Dominican Republic s acceptance of the Inter-American Court's jurisdiction in 1999 had been unlawful by reference to the domestic constitution: UN rights office voices concern over Dominican Republic s ruling on regional court. United Nations News Centre, 7 November ( asp?newsid=49285#.vf_9g44w7hg). 27 East African Asians v United Kingdom [1981] 3 EHRR 76, paras IANL (28-4)-cpp.indd /12/ :12

14 Immigration, Asylum and Nationality Law, Vol 28, No 4, 2014 legislation constitutes an interference with their human dignity which, in the special circumstances described above, amounted to degrading treatment in the sense of Article 3 of the Convention. Article 8 ECHR provides that: Article 8 Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety, or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 14 ECHR prohibits discrimination on particular grounds in relation to other ECHR rights: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. In dealing with cases which have followed the collapse of the Soviet Union in 1989, said to raise state succession issues, the European Court of Human Rights did not address questions of nationality directly, but moved further than previously in considering legal status in the context of the standards in arts 8 and 14 ECHR. Thus, in Slivenko v Latvia 28 and in Sisojeva v Latvia 29 the Court found that arrangements in Latvia representing a substantial barrier to regularisation of stay on the part of applicants of previous Soviet citizenship (and possessors of Russian federation citizenship) who had spent all, or almost all, of their lives in Latvia, represented, represented a disproportionate breach of protected individual rights. In Kurić v Slovenia the Grand Chamber found that measures in Slovenia concerning nationality and residence following the collapse of the Socialist Federal Republic of Yugoslavia, which put ex-citizens of the SFRY from non-slovenian parts of the SFRY territory into a position significantly disadvantaged as compared to other aliens, represented a breach of article 14 ECHR taken in conjunction with art 8 ECHR. 30 In Genovese v Malta the applicant s father had refused to acknowledge his son on the birth certificate, leading to the Maltese authorities refusal to grant the applicant Maltese citizenship. The ECtHR found, however, an interference with the applicant s private life based on the denial of citizenship ruling that its impact on the applicant s social identity was such as to bring it within art 8 ECHR. 31 The United Kingdom has not ratified Optional Protocol No 4 to ECHR, which provides rights additional to those in the principal agreement, and this is not incorporated 28 Slivenko v Latvia (2004) 39 EHRR 24, paras Sisojeva v Latvia (2006) 43 EHRR 33, paras Kuric v Slovenia (2013) 56 EHRR 20, paras Genovese v Malta no 53124/09; [2011] ECHR 1590; (2014) 58 EHRR 25, para IANL (28-4)-cpp.indd /12/ :12

15 Deprivation of Nationality and Public International Law An Outline into domestic law under the Human Rights Act Article 3 of the Optional Protocol provides that: Article 3 Prohibition of expulsion of nationals 1. No 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. 2. No one shall be deprived of the right to enter the territory of the State of which he is a national. European Convention on Nationality The European Convention on Nationality 1997 ( ECN 97 ), a Council of Europe instrument which the United Kingdom has not signed, provides at art 3 that: Article 3 Competence of the State 1. Each State shall determine under its own law who are its nationals. 2. 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 recognised with regard to nationality. ECN 97 sets out general propositions concerning nationality at arts 3 5. These include the statement at art 3 that: Article 3 Competence of the State 1. Each State shall determine under its own law who are its nationals. 2. 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 recognised with regard to nationality. Article 4 ECN 97 sets out guiding principles for States with regard to nationality: Article 4 Principles The rules on nationality of each State Party shall be based on the following principles: a b c d everyone has the right to a nationality; statelessness shall be avoided; no one shall be arbitrarily deprived of his or her nationality; neither marriage nor the dissolution of a marriage between a national of a State Party and an alien, nor the change of nationality by one of the spouses during marriage, shall automatically affect the nationality of the other spouse. Article 7(1) ECN 1997 limits the circumstances in which a state Party may, in its internal law, provide for the loss of its nationality ex lege or at the initiative of the state, whilst preserving certain grounds for deprivation which a state Party may incorporate into its domestic law: IANL (28-4)-cpp.indd /12/ :12

16 Immigration, Asylum and Nationality Law, Vol 28, No 4, 2014 Article 7 Loss of nationality ex lege or at the initiative of a State Party 1 A State Party may not provide in its internal law for the loss of its nationality ex lege or at the initiative of the State Party except in the following cases: a. voluntary acquisition of another nationality; b. acquisition of the nationality of the State Party by means of fraudulent conduct, false information or concealment of any relevant fact attributable to the applicant; c. voluntary service in a foreign military force; d. conduct seriously prejudicial to the vital interests of the State Party; e. lack of a genuine link between the State Party and a national habitually residing abroad; f. where it is established during the minority of a child that the preconditions laid down by internal law which led to the ex lege acquisition of the nationality of the State Party are no longer fulfilled; g. adoption of a child if the child acquires or possesses the foreign nationality of one or both of the adopting parents. 2 A State Party may provide for the loss of its nationality by children whose parents lose that nationality except in cases covered by sub-paragraphs c and d of paragraph 1. However, children shall not lose that nationality if one of their parents retains it. 3 A State Party may not provide in its internal law for the loss of its nationality under paragraphs 1 and 2 of this article if the person concerned would thereby become stateless, with the exception of the cases mentioned in paragraph 1, sub-paragraph b, of this article. On 19 May 2006 the Council of Europe adopted the Convention on the Avoidance of Statelessness in relation to State Succession (CASSS 06), which entered into force on 1 May By State succession, CASSS 06 refers to the replacement of one state by another as responsible for a particular territory. The External Dimension to Deprivation An issue identified by authoritative commentators as important in the context of deprivation of nationality is whether the denationalisation of a national by his or her State, followed by that person s expulsion as an alien, must always be recognised as valid by other States or international organisations so as to remove the duty of a State to readmit the denationalised person. In 1988 Plender, considering and digesting the work of earlier commentators, pointed to a high degree of consistency on the obligation of a state to admit the return of its nationals: The principle that every State must admit its own nationals to its territory is accepted so widely that its existence as a rule of law is virtually beyond dispute. The principle is often implied by those who assert that each State has the right to deny admission to aliens IANL (28-4)-cpp.indd /12/ :12

17 Deprivation of Nationality and Public International Law An Outline Among the more specialised writers, those who defend the existence of the principle include François, Weis, Goodwin-Gill, and Van Panhuys 32 The removal of a right to admission under domestic law and/or on the international plane may represent a primary motivation for deprivation of nationality, and is generally a consequence of it. Accordingly it raises significant considerations in international law terms. As Plender notes: A State s obligation to admit its own nationals to its territory could easily be circumvented if it were always open to the State to withdraw its nationality from those it wished to exclude. Modern State practice provides some support for the proposition that a decree of denaturalization may be ineffective to relieve the State of its duty to admit a person covered by such a decree The evidence suggests that in current international law a State cannot always release itself of its obligation to admit certain of its own nationals to its territory by promulgating a decree which deprives such persons of their nationality. 33 Deprivation of nationality in this sense may possess an international dimension of considerable significance. The presence of a national of one State in the territory of another engages international law, reflecting the interaction of the territorial sovereignty of the former with the sovereignty in the person of the latter. As the International Court of Justice noted in the Barcelona Traction case: 33. When a State admits into its territory foreign investments or foreign nationals, whether natural or juristic persons, it is bound to extend to them the protection of the law and assumes obligations concerning the treatment to be afforded them 34 The territorial sovereignty of the admitting State would equally be engaged by another State deciding to remove the nationality of an individual sojourning in the first State, unilaterally withdrawing what in customary international law is the assurance that should that person be expelled, a State of nationality would accept its duty, established in customary international law, to accept return, avoiding something which would otherwise would be a trespass on the sovereignty of the State of presence: This function of nationality becomes apparent with regard to individuals abroad, or to property abroad belonging to individuals who are themselves within the territory of the home state, especially on account of one particular right and one particular duty of every state towards all other states. The right is that of protection over its nationals abroad which every state holds, and occasionally vigourously exercises, as against other states The duty is that of receiving on its territory such of its nationals as are not allowed to remain on the territory of other states R Plender International Migration Law (2nd edn (Dordrecht/Boston/London, Martinus Nijhoff 1988) ibid 144 and Barcelona Traction case, (n 25) R Jennings and A Watts (eds) Oppenheim s International Law (9th edn, volume 1 ( Peace )) (Oxford, OUP 1992), Pt 1, p IANL (28-4)-cpp.indd /12/ :12