Debating the ‘right to citizenship’

Laura van Waas, Senior Researcher and Manager of the Statelessness Programme, Tilburg University
/ 5 mins read

As part of a special programme of events to celebrate the European Year of the Citizen, the Maastricht Centre for Human Rights last week hosted a seminar entitled ‘The Right to Citizenship: Towards fuller implementation of Article 15 UDHR’. Leaving aside the disappointing notion that some 65 years after the Universal Declaration was adopted it is still necessary to discuss the “fuller implementation” of one of its key provisions – which, sadly, it is – the event aimed to take stock of the current status of the right to citizenship under international law. This objective was pursued from four distinct angles, namely (in reverse order of appearance): the role of the International Law Commission in the development of norms relating to the right to citizenship (Liesbeth Lijnzaad); the development of the right to citizenship under recent European Court of Human Rights and European Court of Justice case law (René de Groot); the historic development of the international right to citizenship and the slow erosion of states’ sovereignty in this field (Peter Spiro); and the real, pressing and enduring challenge of statelessness as a manifestation of the failure to “fully implement” article 15 UDHR (Mark Manly). In addition, the event marked the launch of the EUDO Database on Protection Against Statelessness in Europe - an analysis of European nationality laws from the perspective of the prevention and reduction of statelessness that is an incredible research tool that will really help to facilitate work on this issue in the years to come.

One thing that came to my mind as I listened carefully and prepared to comment on some of the presentations, was the way in which we tend to talk about the right to citizenship. For some reason, the starting point that is often chosen is state sovereignty. “States are free to regulate who are their nationals” etc. Only after we carefully make that point do we begin to, somewhat timidly and almost apologetically, scrape away at what we have just built up as we introduce the proviso that individuals also have a right to citizenship and states have also taken on some responsibilities in this area. I, myself, take this very approach when I teach about international law’s influence in matters of nationality – starting from a historic perspective I help students to explore how international law has increasingly placed limits on states’ freedom to decide who are their nationals.

Somehow though, this approach suddenly seemed out of joint at an event announced as a discussion of the “right to citizenship”. It would be like starting off a seminar on the right to education by explaining about states’ sovereignty to collect and distribute taxes as they see fit, and to invest money in schooling or not, before trying to tie this in to every child’s fundamental right to a basic education. Or by launching an event on slavery and exploitation with a long discussion about how historically, slavery was an accepted phenomenon that did not breach any legal norms, but it was then slowly curtailed over time – rather than simply expressing that such practices are clearly prohibited by international law today. Or presenting the content of European Union law by first outlining in detail how it didn’t used to exist. In other words, do we need to discuss human rights through a history lesson about the origins and functioning of international law and the notion of states’ “consent to be bound”?

If we are to successfully assert the right to citizenship and encourage others to do so – if we are to achieve the “fuller implementation of article 15 UDHR” – perhaps we need to re-think our lead-in to the topic. Let’s throw the 1923 Tunis and Morocco Nationality Decrees Case and the 1930 Hague Convention aside and focus on the here and now. Because in the here and now, states have clear obligations in relation to the right to citizenship, including specifically in the area of non-discrimination in nationality policy and in the avoidance of statelessness (especially among children). Yes, states also retain plenty of freedom, discretion and sovereignty in this field, but only outside of what they have committed themselves to through their international obligations, both under customary and treaty law. So, as a new generation of international lawyers enter the fray and participate in such seminars, it may be worthwhile revisiting the messaging and instilling in them the belief that the building blocks are resolutely in place for this 65-year old fundamental right to be implemented, monitored and enforced. This could help to dispel some enduring misconceptions about the right to citizenship being a matter of “soft law”– or, as one participant described it, “smoothie law”.

Meanwhile, the discussion note prepared for the event proposed a number of additional avenues to explore as we seek to more fully implement the right to citizenship. Among the ideas: to appoint a focal point within every National Human Rights Institute (NHRI), so that they pay greater attention to the right to citizenship within their mandate of monitoring human rights. I am glad to see this suggestion raised, since I have also started to think about what role NHRIs do / could / should play in identifying and helping to craft solutions for problems relating to statelessness. There are some interesting precedents here, including in Europe for example the work of the Danish Institute for Human Rights. It is the intention of the Statelessness Programme (Tilburg University) to look into this in more detail in the coming months, hopefully in cooperation with the Netherlands Human Rights Institute which has also already shown itself to be sympathetic to the issue. Another idea raised in the discussion paper is the elaboration and adoption of a new Protocol to the European Convention on Human Rights that would focus specifically on the right to a nationality – filling a gap that currently exists in the ECHR, the only major regional human rights treaty not to deal explicitly with nationality. This is another interesting suggestion, especially given the direction of recent jurisprudence of the ECtHR (especially Genovese v. Malta, 2011). Is a dedicated protocol indeed necessary and what would be its added value? How would such an instrument interact with, complement or possibly interfere with the European Convention on Nationality? Without a dedicated protocol, thus making use of existing Council of Europe instruments, how is the right to citizenship likely to develop in future and through the jurisprudence of the ECtHR?

So, there are plenty of juicy questions and intriguing ideas left to discuss and hopefully there will be plenty of follow-up events that continue to explore the right to citizenship…

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