“Everyone has the right to a nationality”

Citizenship deprivation: differential treatment or discrimination?

15 February 2018 | Sangita Jaghai, PhD Candidate Tilburg Law School
Photo: Alper Çuğun / Creative Commons

After just three months in office, the Netherland’s Minister of Justice, Ferdinand Grapperhaus has already expressed his intention to strip two dual citizens of their Dutch nationality. The two brothers are currently in the Netherlands and have previously been convicted for acts of terrorism. Grounds for their conviction remain undisclosed, but the Ministry of Justice and Security stated that both persons do not pose a threat to national security. Nevertheless, the Dutch Parliament wishes to see people who committed terrorist acts (including preparatory acts) stripped of their Dutch citizenship, if it does not result in statelessness. This measure is in line with the general prohibition on deprivation of nationality as set out in the 1961 Convention on the Reduction of Statelessness (1961 Convention). Yet, several questions remain unanswered as such deprivation measures only target dual citizens (i.e. naturalised citizens and dual nationals at birth). Is it discriminatory to punish dual nationals harder than people with one nationality by denationalising them, or is this a form of lawful differential treatment?

The Netherlands is not unique in its citizenship deprivation policies. An increasing number of states have either established nationality deprivation grounds to protect national security or are in the process of adopting proposed Bills on this issue (e.g. Germany, Turkey, United Kingdom and Russia). This blog post (based on a longer article published in the Statelessness Working Paper Series) reflects on when deprivation of citizenship is discriminatory and whether such use of denationalisation results in the creation of unequal and conditional citizenship.

Deprivation of nationality and non-discrimination under International law

International law prohibits arbitrary deprivation of nationality. In order for deprivation not to be arbitrary it needs to be, among others, non-discriminatory. The Human Rights Council stresses that arbitrary deprivation of nationality on grounds such as ‘race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth, or other status’ is a violation of human rights. It calls upon states to refrain from denationalisation, especially if it leads to statelessness. Discrimination on the basis of ‘other status’ also includes discrimination on the basis of nationality. The 1961 Convention sets out an absolute prohibition on discrimination on the basis of race, ethnicity, religion or political grounds, and knows a general prohibition on statelessness. However, it does not explicitly prohibit discrimination on the basis of nationality status.

In fact, differential treatment based on nationality status (naturalised citizens v. birth right citizens) is found when reading Articles 7 and 8 of the 1961 Convention. For example, according to the 1961 Convention, Articles 7(4) and 8(2)(a), naturalised citizens who reside abroad longer than 7 consecutive years and who fail to declare to the appropriate authority their intention to retain their nationality will be deprived of their nationality. Also, the Convention specifies grounds for nationality deprivation in context of national security that are not set out in other international and regional treaties, including the European Convention on Nationality.

While not every form of differential treatment constitutes discrimination, my paper argues that international law gives limited guidance on whether it is discriminatory to distinguish between nationality statuses in regulating revocation of citizenship. There seems to be tension in the application of international law at state level between the principle of non-discrimination and the prohibition of statelessness. States who opt to deprive dual nationals from one of their nationalities may comply with the international norm to prevent statelessness, but risk violating the principle of non-discrimination.

Deprivation of nationality in the Netherlands

Highly charged debates occurred in March 2017 when a Bill was adopted that regulated deprivation of Dutch nationality of FTFs prior to being criminally convicted of a terrorist act. The Dutch Nationality Act, Article 14(4) gives the Minister of Justice discretionary power to strip nationality of Dutch citizens over 16 years of age who are abroad, and - on the basis of their behaviour - seem to be part of an organisation listed as partaking in national or international armed conflict. In addition, this measure exists alongside Article 134a of the Dutch Criminal Act which regulates denationalisation for people convicted of terrorism. In both cases, deprivation of nationality cannot lead to statelessness. In practice, however, this means that such revocation only targets people with more than one nationality.

According to the latest Statistics from the Central Bureau of Statistics, half of all dual nationals are of Turkish or Moroccan descent. So, the measure would primarily affect them but excludes alleged terrorists who only have Dutch citizenship. The Council of Europe Human Rights Commissioner asked for clarifications following the Bill’s introduction as it seems at odds with Articles 6, 7, 12 and 13 of the European Convention on Human Rights (ECN). The government ignored the issue and responded that the ECN allows them to revoke citizenship of people if it does not lead to statelessness.

Meanwhile, new issues have arisen in ensuring protection against statelessness when a person is denationalised. For instance, a new law on registration of persons (Wet Basisregistratie Personen) was implemented in January 2015, whereby a Dutch person’s second (or other) nationality is no longer registered. Also, in cases where a person’s foreign nationality was registered prior to adoption of this law, it was decided to reverse such registration. As a result, it is not clear how safeguards against statelessness are ensured when nationality deprivation takes place.  Also, the Netherlands does not have a statelessness determination procedure.

Deprivation of nationality and impacts on social cohesion

Consequences of citizenship revocation measures should not be underestimated. Unequal citizenship contributes to destabilizing social cohesion. The example of the Netherlands shows that deprivation policies lead to division in society between dual nationals and mono nationals. It can even indirectly result in racial discrimination when specific groups are affected with such a measure (e.g. the Dutch/Moroccan citizens in the Netherlands who gained dual citizenship at birth). As Choudhury explains in his article on the radicalisation of citizenship deprivation: ‘It [citizenship deprivation] constructs a hierarchy in which the formal equality of legal citizenship is hollowed out by the creation of the hierarchy that draws a distinction between the ‘good’, tolerated’ and ‘failed’ citizen.’ Naturalised and dual citizens are tolerated citizens, and their citizenship is conditional upon good behaviour. Those who do not share common values are ‘failed’ citizens, justifying denationalisation. However, one should realise that this destabilizes social cohesion and contributes to fears among birth right citizens of accepting people that are ‘different’.

From my point of view, deprivation of citizenship also gives a pretence that distinguishing between groups of citizens is normal. Meanwhile, denationalisation as a tool to protect national security has yet to be proven effective.

This blog post is a short reflection on citizenship deprivation written on the basis of a longer article named ‘Citizenship deprivation, (non) discrimination and statelessness. A case study of the Netherlands’, published in the Statelessness Working Paper Series.

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