Introduced by Silvia Borelli and Maria Chiara Vitucci

 

In recent years, a number of States have introduced legislation aimed at allowing the ‘stripping’ of nationality from individuals who are seen as posing a threat to the national security of the State and its citizens. The principal aim of such legislation is to allow States to remove the nationality of those involved in terrorist activities. The approach of States in adopting such draconian measure varies: in some cases, the power to deprive an individual of his or her nationality was already enshrined in domestic legislation and the new powers result from an expansion of the grounds for deprivation. Other States have adopted legislation newly creating such powers. The legislation of some States provides that such powers may be exercised only in accordance with due process guarantees, eg only when a person has already been convicted of participation in a terrorist crime, and upon condition that the person in question will not be rendered stateless. By contrast, however, the legislation of other States contains no such limitations, and/or allows for stripping of nationality on the mere basis of suspicion that the person is involved in terrorism.

This recent practice is yet a further manifestation of the continuing tension between, on the one hand, State sovereignty and the positive obligations of States to protect the lives and security of their populations against, inter alia, terrorist threats, and, on the other, the protection of individual rights. Recent practice in this area also raises some fundamental questions as to the extent to which the (human?) ‘right to a nationality’ may have to give way in the face of the sovereign rights of States to bestow their nationality as they choose.

The relevant rules of international law recognize that the concept of nationality encompasses an important political facet, indicating the special relation of solidarity, loyalty and good faith between a State and its nationals. It is for this reason that every State is free to decide who are its nationals. If a national commits terrorist acts against the State and his or her compatriots, it may be suggested that the bond of allegiance falls away, thus permitting the stripping of nationality. An analogy may also be drawn with the laws in some States, pursuant to which, where an individual is convicted of certain crimes, he or she is deprived of certain political rights.

Is there a bright line between the deprivation of other political rights and being deprived of nationality? Is nationality in any case best understood as a privilege rather than a ‘right’? And, were it to be classed as a right, where should the balance lie? How do the normal tests under international human rights law, requiring that any interference with a protected right be both necessary and proportionate, operate in such situations? Does (or should) the fact that the individual is a dual national make a difference? What if the nationality which is being removed is the only one he or she possesses? Does (or should) the way in which the nationality in question was acquired make a difference (for instance, acquisition by naturalization rather than by birth)?

It is clear that international law poses at least some limits on the discretion of States to rescind the nationality of their own nationals. One such limit appears to be that deprivation of nationality solely for the purpose of being able to expel an individual as an alien is prohibited.[1] A further set of limitations derives from the fact that the elimination and reduction of future statelessness is a common interest of the international community, and that, as a consequence, deprivation of nationality should be avoided when it results in the individual becoming stateless. That said, it is significant that even the most important international instrument in this field, the 1961 Convention on the Reduction of Statelessness, whilst prohibiting Contracting States from depriving a person of his or her nationality if such deprivation would render them stateless, still foresees certain, limited circumstances in which the stripping of nationality is permitted even where statelessness would be the result.[2] At a regional level, the Council of Europe’s 1997 European Convention on Nationality, whilst more restrictive, still envisages at least one circumstance in which it is possible for a State to provide in its legislation for the deprivation of nationality even when this would result in statelessness.[3] Finally, it is arguable that any deprivation of nationality should not be arbitrary, as expressly provided for in some treaties, and arguably, general international law.[4]

Against the background of the practice manifested in the aforementioned instruments, it falls to States to strike the right balance between national security and respect for individual rights. To the extent that the right to nationality is to be regarded as constituting a human right, it is arguable that any decision to deprive an individual of his or her nationality must, in order to be lawful under international law, in addition to being provided by law, be necessary for the achievement of a legitimate aim, and proportionate to the aim it is meant to pursue. Whether each limb of this test is satisfied in the case of the stripping of nationality of suspected terrorists is debatable.

The justification advanced by the increasing number of States which have embraced deprivation of nationality as a tool to counter terrorism is that, by depriving (suspected) terrorists of nationality the State is in a better position to protect national security and the rights of others, in particular by being able to deport/expel the individual in question. Whilst this justification may, on its face, appear to satisfy the requirement that the measure pursues a legitimate aim, on closer scrutiny even this basic assumption may be questioned. This is particularly the case if one considers that it will only be in cases where the individual is a dual national that the State will be able to deport the individual (to his or her other State of nationality). In addition, even after having stripped an individual of his or her nationality, the ‘stripping’ State may still be unable to deport/expel them due to the existence of a well-founded fear that the individual may be at risk of serious violations of human rights upon return. In these circumstance, one may question whether the decision to strip a suspected terrorist of nationality, quite apart from being of doubtful legality in cases where the individual is rendered stateless, can be regarded as an effective means to achieve the aim which supposedly justifies it.

QIL asked Flavia Zorzi Giustiniani and Alison Harvey to consider the issues at stake. The two authors approach the question from quite different perspectives. Zorzi Giustiniani calls attention to the limits of the characterization of the ‘right to a nationality’ as a human right, arguing that international law only protects and regulates some of its procedural aspects, related to its acquisition, change and deprivation. She argues that reactions to the recent phenomenon of so-called ‘foreign fighters’ has shown that States consider deprivation of nationality to be both legal and legitimate.

By contrast, Harvey analyses the question from the more focused perspective of British practice relating to deprivation of nationality and its implication for the fight against statelessness. In her opinion, the final form of the UK’s Immigration Act 2014 is far from satisfactory and creates problems of legality. Basing herself on British case-law, she argues that there arguably exist grounds on which one could challenge a deprivation of nationality thereunder as arbitrary and in breach of Article 8(4) of the UN Convention on the Reduction of Statelessness, which guarantees the right to a fair hearing in cases of deprivation of nationality.

The two opinions, whilst substantially agreeing on the fact that there does not exist in contemporary general international law an absolute prohibition of deprivation of nationality resulting in statelessness, show that the exact contours of the discretion of States in this delicate area are by no means clear and that the debate on the legality of deprivation of nationality is far from being closed.

 

 

[1] The International Law Commission’s commentary on draft art 8 (Deprivation of nationality for the purpose of expulsion) of its 2014 Draft Articles on the Expulsion of Aliens, indicates that the majority of States hold the view that deprivation of nationality is permitted in at least certain circumstances, and that it is only undoubtedly prohibited where it is effected solely for the purpose of being able to expel an individual as an alien.

[2] Art 8, 1961 Convention on the Reduction of Statelessness; art 8(2) permits deprivation in a situation in which the nationality has been acquired by misrepresentation or fraud, whilst art 8(3) refers to conduct inconsistent with the duty of loyalty, including ‘conduct seriously prejudicial to the vital interests of the State’.

[3] ie on the ground that the nationality of the State was acquired by fraud: see European Convention on Nationality (adopted 6 November 1997, entered into force 1 March 2000), ETS No 166, art 7(1)(b) and (3).

[4]  eg 1997 European Convention on Nationality art 4(c); cf also Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A (III) (UDHR) art 15.