For individuals who have acquired an effective nationality, the key issue becomes that of their right to this nationality, that is, their right not to be arbitrarily deprived of it. Our focus in this section thus addresses the conditionality of citizenship and will focus on two types of example: mass denaturalisation and individual denaturalisation.
Examples of mass denaturalisations by modern states are readily available. The ongoing case of the Rohingya in Myanmar has been rightly highlighted,Footnote 24 however, I’ll focus on the example provided by the Dominican Republic in its treatment of people of Haitian descent not least because it is a reasonably established (albeit flawed) constitutional democracy and because the policy in question has been subject to both judicial and legislative judgment within the state. Consider the following case:
Dilcia Yean was born on April 15, 1996, in the Dominican Republic to a Dominican woman of Haitian descent. Although the Dominican constitution establishes the principle of jus soli (and thus assigns citizenship to those born on Dominican territory), Yean was denied Dominican citizenship, and was refused permission to register her birth or to obtain recognition of her legal personality. Government officials said they had orders not to register or issue birth certificates to children of Haitian descent.Footnote 25
The situation of Dilcea Yean was subject to judicial review by the Inter-American Court of Human Rights which upheld the right to registration of persons in her situation.Footnote 26 But the political effect of this judgment was to escalate the issue further:
In 2013, the Constitutional Court’s judgment 168/13 established that only persons born in the Dominican Republic to Dominican parents or legal residents are consider citizens. This interpretation was applied retroactively to all persons born between 1929 and 2010: arbitrarily depriving hundreds of thousands of people of Haitian descent, of their Dominican nationality, and created a situation of statelessness of a magnitude never before seen in the Americas. The criterion established in judgment 168/13, as well as the measures adopted to implement that judgment, come to constitute a crucial stage in this type of historical revisionism promoted by the Dominican authorities, aimed at consolidating an interpretation that establishes that persons born in the Dominican Republic of Haitian parents with an irregular migratory status do not have the right to Dominican nationality.Footnote 27
This ruling, which was rapidly condemned by the Inter-American Commission on Human Rights,Footnote 28 is estimated to have affected over 200,000 people. It was followed by action from the legislature in the form of the Naturalisation Law of 2014 which claimed to provide a route to, or back to, citizenship for those affected (86% of these being of Haitian descent) but placed the burden of proof on individuals to provide the very documentation that many had been denied within overly demanding deadlines.Footnote 29 As a report for the Brookings Institute notes:
Records, while not completely reliable, show that up to 7000 people were able to regularize their status before the expiration of a June 2015 moratorium. Those who were unable to regularize their status were required to register as foreigners in the country where they were born. Many of the affected had never seen Haiti but between August 2015 and May 2016—after the expiration of the June 2015 moratorium—it was estimated that over 40,000 people were deported from the Dominican Republic to Haiti. A further 71,389 people reportedly returned ‘spontaneously’.Footnote 30
The Dominican Republic is, of course, not alone in engaging in such practices and the emerging situation concerning citizens of Bangladeshi descent in Indian state of Assam may become another such example.Footnote 31 Whether or not such actions do give rise to significant numbers of de jure stateless persons (as they have in the case of the Rohingya) is contingent on the laws and actions of other states (for example, Haiti in the case of the Dominican Republic); what is important about the case of the Dominican Republic is that due legal process was followed. Does it then represent an example of breach of the right not to be arbitrarily deprived of one’s nationality expressed in Article 15(2) of UNDHR—and one in which the norm against de jure statelessness is simply ignored with little in the way of effective constraint?
The second example is that of individual denaturalisation—and my focus here will be on the return of denaturalization policies in the context of the ‘War on Terror’.Footnote 32 This example is particularly salient to our concern because
the impact of the enhanced protection of democracy and human rights within Western States in the second part of the 20th century on citizenship was profound and seemed to transform it from a privilege bestowed by a sovereign government on those who were worthy of it, into an entitlement of the sovereign citizen, whose status as such cannot be altered by the government.Footnote 33
Thus, for example, Matthew Gibney notes: ‘By the end of the 20th century, deprivation power in the UK appeared to be moribund. By 2002, not a single individual had lost his or her citizenship (other than under fraud provisions) for 30 years’.Footnote 34 It is just this apparent transformation that is challenged by the return of denationalisation policies within these ‘Western States’. As Audrey Macklin remarks:
the force of Arendt’s ‘right to have rights’ aphorism may seem attenuated, at least with respect to liberal democratic states of the twenty first century. After all, permanent residents enjoy almost all the same rights as citizens, and even foreigners without status can, in principle, claim a long menu of basic human rights under international law and many domestic legal orders. But this rejoinder overlooks one crucial fact. The exercise of virtually all rights depends on territorial presence within the state, and only citizens have an unqualified right to enter and remain on state territory. So once stripped of the right to enter and remain in the state, enforcement means that one is effectively deprived of all the other rights that depend (de jure or de facto) on territorial presence.Footnote 35
As pioneer in this area, the UK serves as an appropriate example.Footnote 36 Thus, the Nationality, Immigration and Asylum Act 2002 introduced a general power for the Home Secretary to deprive a person of their citizenship status if satisfied that this person had acted in ways seriously prejudicial to the vital interests of the UK, where for the first time this power applied to birthright as well as naturalized citizens, but where the power would not apply if deprivation would make the person de jure stateless. This criterion was further altered in section 56 of the Immigration, Asylum and Nationality Act 2006 to that of allowing deprivation if this is ‘conducive to the public good’. Denaturalisation policy was further extended in the Immigration Act 2014 in which dual citizens remained subject to the 2006 criterion, but naturalized citizens currently possessing only UK nationality were subject to a new standard in which they could be deprived of citizenship if:
(a) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, when a British citizen, ‘has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom’ or associated territories; and (b) the Secretary of State has ‘reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such country or territory’.Footnote 37
This is held to be compatible with the UK’s international obligations.Footnote 38 From 2011 to 2015, following due legal process, 72 UK citizens were stripped of their citizenship.
The fundamental issue raised by the cases of the Dominican Republic and the UK, given that in both cases the denaturalisation practices introduced complied with the normal standards of due legal process in these states, concerns what constitutes an arbitrary deprivation of one’s nationality. This question has particular purchase today since our situation is complicated by the relative collapse of the norm of single nationality which facilitates citizenship deprivation insofar as the state’s exercise of this power does not entail breaching the norm against de jure statelessness.
We can begin to approach these issues by noting two contrasting—and equally inadequate—views of entitlement to citizenship. The first is clearly expressed by the UK:
[It] regards the sovereign power of states to determine their own citizens not merely as a principle of international law that applies in relations with other states but also as an element of their internal democratic self-determination. State discretion therefore primarily means legislative discretion. A democratically legitimate legislature should be broadly free to set the rules not only for citizenship acquisition but also for deprivation in accordance with its political goals and in a way that it considers conducive to the public good, within constraints of constitutional and international law that the legislature has itself freely accepted.Footnote 39
The second contrasting conception
considers citizenship as an individual entitlement that is held against the State and thus limits the scope of the State’s deprivation powers. The underlying normative view is to think of citizenship as a foundation of individual autonomy analogous to individual property that the State must protect and of which it cannot deprive its citizens without losing legitimacy.Footnote 40
Whereas the first view assigns discretionary power to the state, the second view ascribes it to the individual. What both views fail to recognize is that the normative point of the institution of state citizenship in an international order of plural self-ruling states is not simply to allocate persons to states on the basis of unilateral state choices or unilateral individual choices but on the basis of a reciprocal relationship between individuals and states.
To see this point, let us step back from the issue of citizenship deprivation for the moment to address a prior question: ‘what do we need state citizenship rules for?’ In a global political society organised as an international order of plural autonomous states, there are two basic functions that such rules are to play:
to ensure that each and every human being is a citizen of a state and hence that everyone has, at least formally, equal standing in a global society organised as a system of states;
to link persons to states in ways that best serve the common interest, that is, where this supports protection of the fundamental interests of individuals, the realization of the common good within states, and the conditions of cooperation between states.
An appropriate general response to these requirements is the principle that Ayelet Shachar calls ‘ius nexi’ which highlights the importance of a genuine connection between persons and the state of which they are citizens,Footnote 41 where the notion of ‘genuine connection’ is best glossed in terms of Bauböck’s ‘citizen stakeholder’ view which proposes that those and only those individuals have a claim to membership of a polity whose individual autonomy and wellbeing is linked to the collective self-government and flourishing of that polity.Footnote 42 On this view, we should see particular citizenship rules such as ius soli, ius sanguinis and ius domicilii as denoting different routes through which a genuine connection is presumptively established—through parental citizenship, through place of birth and through residence—and as subject to the general principle of ius nexi. As Bauböck and Paskalev note, such a normative conception of citizenship ‘needs to be interpreted broadly in a way that takes into account some basic and normatively justifiable features of this system’ such as ‘birthright attribution of citizenship, individual consent in naturalization and renunciation, the prevention of statelessness, and normative commitments to peaceful and friendly international relations’.Footnote 43 If we return to Allerton’s 2015 Malaysian case, noted in the preceding section, of a 5 year old child who had lived his whole life in Malaysia with his Malaysian father, the boy’s Thai national mother having abandoned the family when he was 6 months old, then on this ‘ius nexi’ view of citizenship the child has a legitimate claim to Malaysian nationality and does so irrespective of whether he also has a legitimate claim to Thai nationality.
The implications of such a ‘citizen stakeholder’ view for contexts of mass denaturalization are twofold. First, it holds that ‘individuals are subject to arbitrary political domination if they have genuine links to the political community’ but are ‘involuntarily excluded from citizenship’.Footnote 44 This point applies to those who are prevented from acquiring citizenship such as the ethnic minorities in Kenya highlighted in the last section and people of Haitian descent in the Dominican Republic such as Dilcea Yean as well as people who are deprived of citizenship as members of a social group such as those whose citizenship was removed through the 2013 Dominican Supreme Court ruling. Second, because statelessness is both a wrong and a harm, it provides sufficient reason to legitimate granting citizenship to individuals whose current autonomy and well-being, extending to basic rights, is vulnerable to the decisions of a state even if they do not already possess established ties to that state.Footnote 45
If we turn to the issue of individual denaturalization, then the salience not only of protection of the fundamental interests of individuals but also the realization of the common good within states and the conditions of cooperation between states becomes salient. Current practices of individual citizenship deprivation in the context of the ‘War on Terror’ not only reproduce the arguments for, and the features that characterized, the practice of banishment from the 17th to the 19th century but are also subject to the criticisms that led to the abandonment of this practice, primary among them the complaint made by Voltaire that the banishment of criminals undermines the comity of nations because it is akin to ‘throwing into a neighbour’s field, the stones that incommode us in our own’.Footnote 46 Moreover, in contexts of presumptive dual nationality that are legitimated as avoiding the creation of statelessness, such denationalization practices simply incentivize a race to denationalization [as the UK case of Pham (previously B2) v. Home Secretary illustrates]. Even if we set these considerations aside, however, a further key point remains, as a recent comment on the UK case makes plain: ‘The provision of security is the core function of the State and it has a duty to prosecute and convict those who jeopardize it. By excommunicating them without conviction, the British government is shirking this duty.’Footnote 47
Arbitrary deprivation can thus be understood as deprivation that fails to acknowledge the ‘genuine link’ between a person and a state and the responsibilities that adhere to this relationship within the context of an international order of states. In terms of the right to have a right to not be arbitrarily deprived of one’s nationality, it is clear that the establishment of such a right is not compatible with an international order of states in which states have the discretion to determine unilaterally their own citizenship rules and this is so even if this political order is subject to an effective binding norm against de jure statelessness.