Should nationality have a “minimum content”? – Italian Supreme Court passes landmark decision

Gábor Gyulai, Refugee Programme Coordinator at the Hungarian Helsinki Committee
/ 9 mins read

With only a handful of countries operating a statelessness determination procedure, it is not very often that a national court passes a judgment of international relevance in this field. Italy has most probably the richest – and also the most divergent – body of jurisprudence on statelessness, being one of the oldest statelessness-specific protection mechanisms in the world. The Italian Supreme Court (Corte Suprema di Cassazione) is the highest instance court involved in the Italian judicial statelessness determination process and thus is one of the world’s most authoritative judicial voices on this matter. In June 2013, the Court passed a landmark judgment that addresses two issues of international relevance: one gaining particular interest if looked at through a multilingual lens, and another one taking a rather “courageous” stance on how to interpret the concept of nationality.

Lost in translation: the law or its “operation”?

The first issue of international relevance that emanates from the judgment concerns a question that looks fairly evident in soft law and expert circles, but may still cause serious difficulties in certain national contexts. The English and French version of the 1954 Convention defines a stateless person as someone not considered as a national by any state under the operation of its law (sous l’application de sa loi). UNHCR guidance – in line with the seemingly unanimous position of other international experts – suggests that the term “operation” requires the analysis of how the laws are applied in practice, rather than just looking at the law in the books. The Italian Supreme Court largely supports this interpretation. In its 2008 judgment, the Court already ruled that “a stateless person is a person who is in a country she/he is not a citizen of, coming from another country the citizenship of which she/he has formally or substantially lost, and thus cannot return there definitively”. In the present judgement, the Court re-emphasised that in statelessness determination “the assessment [of a potential nationality tie] should not only cover the lack of the formal conditions of possessing the nationality of the country of origin (or another state with which the person had a legally relevant bond), but should also cover other substantial conditions.”

This high-level judicial support to international soft law and expert guidance becomes crucial if we consider that several translations of the 1954 Convention have erroneously missed out the term “the operation of”. In the Spanish, Portuguese, Russian, German, Hungarian, Slovak, Romanian or Serbian official translation of the Convention, a stateless person is someone not considered as a national by any state under its legislation/law. Correct translations (such as those in Italian or Dutch) may even constitute a minority among official versions used by states parties. Leaving out such a core element from the definition opens avenues for incorrect and unduly restrictive interpretations; given especially that statelessness is still a nascent field of international protection in most countries. In jurisdictions using the incorrect language versions of the Convention national authorities or courts in charge of determining statelessness may refuse to consider as stateless (and thus eventually to grant protection) to a stateless migrant who would be entitled to nationality in her/his country of origin according to the mere text of the law, but is still denied to benefit from this provision because of discrimination, arbitrary practices, etc. It remains a challenge for statelessness advocates around the world to prevent such an impact in national protection systems, for example through initiating the rectification of official translations promulgated in national law. The Italian judgment may prove to be a useful tool in these efforts.

Should nationality have an obligatory “minimum content” before we can recognise it as such?

The other conceptual issue addressed by the Court is whether or not nationality has inalienable core elements or conditions, in lack of which a formally existing nationality should not be considered as such in statelessness determination. UNHCR guidance, resonating the majority opinion of scholars, suggests that the rights attached to nationality are not pertinent in this context. To put it simply: some persons in some countries enjoy significantly less rights as nationals than others in other (more democratic) states. Yet this circumstance does not question – in itself – the existence of the bond of nationality in case of those less fortunate. For instance, the fact that North Korean citizens hardly enjoy any civil or political right attached to such status in most countries, does not mean that their nationality is not real. It would be difficult to argue with this position. If we were to accept that less rights means less nationality, we would open Pandora’s Box resulting in endless debates about where the borderline is. Moreover, such an approach may lead us to label hundreds of millions of persons as stateless, whose situation would most probably not improve by this fact at all.

When it comes to practice, the actual picture is not that crystal-clear though. The restrictive Cuban regulation on emigration and re-entry has long served as a challenge to the practical application of the above principle. The Cuban Migration Act (in force since 1976) placed several obstacles to emigration from the country, including a provision that denied the possibility to re-enter Cuba as a resident for those who spent basically more than a year abroad without a specific permit, qualifying such persons as “emigrants”. Such persons could still return basically as tourists, but for very limited periods and subject to severe conditions. Moreover, being labelled as an emigrant also deprived the persons concerned from state-granted housing rights or the possibility to inherit, and even their properties could be simply confiscated by the state.

The present judgment of the Italian Supreme Court deals with the case of a Cuban national who, due to his long-term stay in Italy was qualified as emigrant and consequently lost his right to residence in Cuba. In the interpretation of the Court this “leads to a radical contraction of rights, relevant to both the private and public sphere, within the territory of Cuba”. In this context, the Court makes particular reference to the fact that the applicant was “deprived of the right of residence – being obliged to submit an application for an entry visa that is subject to the discretion of Cuban authorities – as well as of real estate and heritage-related rights”. Based on this the Court concluded – confirming previous, lower-instance jurisprudence – that the above-described situation is “comparable to that of a stateless person, since in light of the applied regulation the applicant is deprived of the possibility to re-acquire the rights that constitute the indispensable core of nationality (right and liberty to an unlimited stay guaranteed in domestic law, entitlement to and exercising of civil and political rights) in case of return, which, moreover, is only possible for a limited time.” Finally, the Court emphasises again that the eventual loss of nationality should not be based on a merely formalistic analysis and should “concretely verify, not only the impossibility to return and re-establish stable residence in the country of origin, but also the impossibility to be recognised by state authorities as a subject of rights that can be exercised vis-à-vis the representatives of public power (political rights) and in relation with other subjects (rights belonging to the legal-economic sphere).”

Introducing the idea that nationality has an indispensable core (nucleo ineludibile) may seem somewhat revolutionary, especially by the highest judicial instance in the country with most probably the wealthiest jurisprudence on statelessness. I would definitely caution against drawing fast conclusions or using a simplistic approach to this issue. At the same time, I believe that there are certain lines of interpretation that can incite valuable debate. Taking advantage of the Italian Supreme Court’s reluctance to present a truly detailed justification for its conclusion, I would propose three possible underlying interpretations. All of these explanations accept the previously presented principle, according to which the existence of a nationality bond is in general independent from the amount of rights it provides.

1)      Unlike any other right, the entitlement to reside on the national territory (or at least a well-defined part thereof) is indispensable for a nationality to exist as such. All persons need a physical space to live (for mere survival), therefore if this is denied, nationality cannot even fulfil its most basic role and becomes illusory. By adopting this line of thinking, the issue of long-term access to national territory is firmly separated from the enjoyment of any other right that a nationality may ensure to its holder. This approach may find some support in state practice: in most cases, even the most dictatorial, undemocratic states with dreadful human rights records ensure the possibility of return for its nationals in general (with the exception of political opponents or other refugees forced into exile, for instance). Relevant UNHCR guidance also seems to leave the door slightly open, when it emphasises that “Generally, at a minimum, [the status of a national] will be associated with the right of entry, re-entry and residence in the State’s territory”, while being clear on the dissociation of nationality from the rights it provides in any other context (see above).

2)      The Cuban case may also be deemed unique as the ban on residing in the country is permanent and clearly defined by law. This may be interpreted as a major difference as compared to the much more frequent case of practical obstacles for which a migrant cannot return to her/his country of nationality, which – in itself – is seldom understood as a sign of having lost one’s nationality. The Cuban regulation in question indicates that the state has permanently and officially “renounced” its national, rather than merely not being motivated to cooperate in her/his return.

3)      Finally, a third line of interpretation may focus on the fact that in this scenario the ban on residence “comes in a package”. Beyond not being able to return to live in Cuba, the emigrante is deprived of a series of rights, which have an extremely harmful impact on her/him. Moreover, this is part of an explicit policy of alienating a certain group of population from the country, weakening all sorts of ties they may have with its territory, society or economy. In this approach, a simple ban on re-entry may not motivate a decision similar to the one made by the Italian Supreme Court, but the cumulative effect of particularly harsh consequences may do so in specific cases.

These lines of interpretation may – separately or in conjunction – provide input to forthcoming discussions about any “minimum content” of nationality in the context of statelessness determination (and beyond). Such debates become increasingly important from a practical aspect as well, with the slow proliferation of dedicated statelessness determination procedures in the world. While the issue in focus is far from being clearly settled, what we can definitely retain from the Italian Supreme Court’s landmark judgment is that the issue of being considered as a national or not cannot be always interpreted in a simple binary system. Statelessness determination mechanisms should be prepared to deal with such intermediate cases as well, keeping in mind the overall human rights and protection-focused objective of such procedures, which will require nuanced and somewhat flexible solutions.

Finally, the good news is that Cuba’s rather unique approach to this issue is changing – this time in a positive direction. With a recent amendment some of the most problematic rules were eliminated (see for example Professor Maryellen Fullerton’s article on these developments), therefore Cuban “test cases” for the above complex debate are likely to become less numerous in the future.

 [Following the international English terminology, the word “nationality” is used throughout this article. Relevant Italian legislation, as well as the judgments quoted use the expression “cittadinanza” (literally citizenship), which is synonymous with nationality in international English legal usage. See more on these linguistic differences in our previous blog entry. All translations in this article are by the author and are therefore unofficial.]

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