If (decentralised) naturalisation is the answer, what is the question?
By Amal de Chickera (Institute on Statelessness and Inclusion)
I have been following with great interest the exchange on ‘unblocking access to citizenship in the global South: should the process be decentralised?’, kicked off by Bronwen Manby. The responses so far have covered an impressive range and depth of contexts and issues, critically responding to Manby’s proposition. Should these interventions now all be synthesised and re-packaged as one report, it would offer a nuanced critique of naturalisation practices with a range of valid proposals for reform.
In my contribution to this discourse, I will take a step back, to look at the institution of naturalisation itself. Is naturalisation the answer (decentralised or not)? And if so, to what question? My reflection below, doesn’t relate to all – or even most – situations to which naturalisation is applied. It doesn’t for example, apply to situations where people who were born in another country, and are themselves migrants or have been displaced, require a pathway to citizenship. But it does apply to a significant and often overlooked set of issues related to the deprivation of nationality and statelessness. In particular:
- Situations where individuals or communities have been arbitrarily deprived of their nationality.
- Situations where children are denied the right to acquire a nationality at birth.
In both of these contexts, as the individual’s right to nationality has been undermined and violated by the state (or states) involved, the solution should be to recognise and redress this violation, and not to subject the person to a discretionary naturalisation procedure. In most such situations, discrimination plays an underlying role behind the denial of the right to nationality, often leading to statelessness. It is unrealistic to think that states – which have created or perpetuated statelessness through discriminatory actions – will create fair naturalisation procedures for these very same people to benefit from. It is also unreasonable to leave individuals who have been denied their right to nationality with no option but naturalisation, as a way to restore or acquire the legal status they should be entitled to by law.
The starting point of Manby’s essay is the right one – looking at the right to nationality (which also includes the right to change nationality) under international human rights law. However, having thus framed the issue from a rights perspective, the main focus of her kick-off essay, as well as the responses to it, has been on naturalisation – which as we all know, is a discretionary process far removed from rights. In a naturalisation process, the state is all powerful – to set the rules, interpret them and act on them. An aggrieved applicant may have recourse to administrative law, but the basis of any challenge to a naturalisation decision would relate to whether the decision correctly applied the naturalisation law (within the extensive discretion afforded in such matters), and not whether the naturalisation law itself respects the individual’s right to a nationality. This is why we still have today many naturalisation laws in force which are clearly discriminatory on grounds of disability, religion, sex and race (to name but some characteristics that are frequent grounds of discrimination).
Despite advances in international law, which, as Peter Spiro argues, point to the emergence of norms that require the extension of territorial birthright citizenship in some cases and that limit discretion concerning naturalisation thresholds, it is still widely accepted that states legitimately wield extensive discretion when it comes to naturalisation. This is partly due to a general view that individuals who naturalise already enjoy their right to a nationality in another country. This worldview is of course blind to the phenomenon of statelessness and the deprivation of nationality. Perhaps due to this same blind spot, it is also widely accepted that naturalised citizens can somehow be treated unequally – that they can be barred from access to certain jobs, or that their citizenship can legitimately be made less secure, i.e. that unlike citizens by birth they can lose it if they act in a certain way. This second position is perhaps even more problematic than the first and has significant implications on fundamental norms such as equality before the law and legal personhood.
Situations where individuals or communities have been arbitrarily deprived of their nationality
The power to deprive citizenship is as old as the power to grant citizenship. In fact, the choices that are made when determining and implementing the rules of citizenship, are influenced as much by who (when and upon what terms) to ‘exclude’, as they are by who (when and upon what terms) to ‘include’.[i]
After WWII, with the memory of citizenship deprivation and the holocaust still fresh on the world’s conscience, citizenship stripping was no longer seen as democratic and the prohibition of arbitrary deprivation of nationality became anchored in international human rights law. Today, while most states resist increasing these powers, the policy is regaining traction and deprivation of nationality is in active use across a range of contexts. As more states instrumentalise nationality and treat it as a privilege that can be taken away, members of minority communities, human rights defenders, dissidents and suspected terrorists are all more likely to be stripped of their nationality – facing acute human rights depravations as a result. For such individuals and communities, unfortunately, naturalisation is often viewed as a viable solution.
Having deprived people of their right to nationality, some states wield naturalisation powers more widely than they ever should to channel those who should have a citizenship by right into naturalisation processes, where the state enjoys greater power both in determining if you are in or out and where it creates the looming threat of kicking you out if you ever misbehave. Ironically, the very norms used to strengthen the right to nationality have been used against naturalised citizens to undermine their equality and security.
The experience of the Rohingya community is a case in point. The Rohingya have been systematically and arbitrarily deprived of their nationality in Myanmar through a series of discriminatory and arbitrary laws, policies and regulations, and their implementation. The 1982 citizenship law has reached levels of notoriety, but it is just one of many instruments wielded by the state – to reinforce prejudiced narratives that the Rohingya are not Burmese but that they are foreigners. This has in turn led to ‘naturalisation’ being put forward as a legitimate solution for the statelessness of the Rohingya. Under Myanmar’s citizenship law, the Rohingya – on paper at least – can access naturalisation procedures. But the more fundamental question is, why should they? If they have been arbitrarily stripped of their nationality by a state that has trampled on their right to nationality, why should they now subject themselves to yet another process riddled with arbitrariness, corruption and indignity, to achieve a second-class citizenship status? That naturalisation and ‘pathways to citizenship’ are mooted as credible solutions to this crisis by diplomats, UN agencies and other respected international actors underscores what is problematic with ‘naturalisation’ as a solution. It clearly isn’t a fair solution for ‘unwanted groups’, but it can masquerade as one, while only serving to entrench their exclusion.
The Myanmar situation – though extreme – is not exceptional. The same ‘solution’ of naturalisation is also put forward in relation to other groups arbitrarily deprived of the nationality that is rightfully theirs – Dominicans of Haitian origin, ethnic Russian Latvians and many others. It will be the solution that is eventually put forward if India carries through with its deprivation of nationality of 1.9 million people in Assam. As such, states which act in bad faith to strip entire communities of their nationality are rewarded with pleas to consider naturalising those who should instead be compensated and have their nationality restored.
Situations where children are denied the right to acquire a nationality at birth
A second concern with naturalisation as the answer relates to its application to migrant and displaced populations – where it fits more credibly to begin with. But even here, if children are born on a territory and would otherwise be stateless, the solution should not be naturalisation but recognising their nationality as of right. Article 7 of the Convention on the Rights of the Child is clear that every child has the right to acquire a nationality and that states must fulfil this obligation, particularly where the child would otherwise be stateless. This is particularly so when read with Articles 2 (non-discrimination) and 3 (best interests of the child) of the Convention. In other words, children born to refugees or migrants have a right to the nationality of their country of birth, if they would otherwise be stateless. The ius soli norm, which theoretically makes intergenerational statelessness an impossibility, should be applied universally if the child has no access to another nationality. If this principle was respected in practice, naturalisation would not be required as a solution to a child deprived of their right to nationality. Children who would otherwise be stateless would then have the right to obtain the nationality of their country of birth.
Some concluding thoughts
In both of the contexts addressed in this essay – statelessness resulting from deprivation of nationality or denial of the right to nationality at birth – if ‘naturalisation’ is the answer, then the question is the wrong one. In these contexts, ‘naturalisation’ is the answer to a question that states would prefer: ‘How can we side-step our obligations related to everyone’s right to a nationality, while still maintaining a façade of providing solutions to endemic situations?’ Naturalisation will remain the answer to this question, for as long as the institution of naturalisation remains insulated from the progression of international human rights law.
As international law has evolved, there is increasing recognition that state sovereignty to determine who is and is not a citizen, is limited by standards which protect individual human rights. Accordingly, the state has the sovereign authority to set its citizenship rules, but there are some fundamental principles which must be complied with. These include:
- The right to nationality,
- The right to not be arbitrarily deprived of nationality,
- The right to due process and a fair trial,
- The avoidance of statelessness, and
- The prohibition of discrimination.
In the context of citizenship deprivation, these basic rules are articulated in the Principles on Deprivation of Nationality as a National Security Measure, which have been endorsed by a range of experts in the field and further elaborated on in the Commentary to the Principles. In the context of the child’s right to a nationality, they are articulated in various resources including The Child’s Right to a Nationality and Childhood Statelessness and UNHCR’s Guidelines No 4: Ensuring Every Child’s Right to Acquire a Nationality.
There has of course been resistance to the idea that states are bound by international norms when determining who is and isn’t a citizen. But just as the idea that every individual’s freedom from torture cannot be overridden by a state sovereignty argument became mainstream and uncontroversial over a couple of generations (despite the Bush regime’s best intentions to circumvent it in the US in the early 2000s), the right to nationality is also being increasingly recognised as a legitimate factor which shapes how state sovereignty can be exercised.
And so we should ask a different question: ‘How can states be held accountable, to ensure they protect the right to nationality for all?’ In order to answer this question, we should turn to the resources highlighted above (and various others), which clearly articulate the human rights principles at play.
As I mentioned at the beginning of this contribution, my focus is limited and does not apply to all contexts. However, the contexts to which it does apply are deeply problematic, and states should not get a ‘free pass’ by shifting the debate from ‘protecting the right to nationality’ to ‘naturalisation and how it should happen’.
If we move beyond such contexts, we then approach the territory where we can have a constructive discourse around the decentralisation of naturalisation: situations of first-generation migration or displacement. But here too, we should make a greater effort to begin scrutinising naturalisation powers and processes through a human rights lens. Such scrutiny will expose the arbitrariness and discrimination which underpins many naturalisation processes. The question then is, what will we do about it? I do believe that, at this stage, decentralisation would have an important role to play, for all the reasons set out by the other contributors, but only as one of a number of responses needed to bring this widely unchecked power within the scrutiny and bounds of human rights standards.
References
Institute on Statelessness and Inclusion, ‘World’s Stateless Report: Deprivation of Nationality’, (2020), available at: https://files.institutesi.org/WORLD’s_STATELESS_2020.pdf
Institute on Statelessness and Inclusion and UNICEF, ‘The Child’s Right to a Nationality and Childhood Statelessness: Texts and Materials’, (2020), available at: https://files.institutesi.org/crn_texts_materials.pdf
Institute on Statelessness and Inclusion, ‘World’s Stateless Report: Deprivation of Nationality’, (2020), available at: https://files.institutesi.org/WORLD’s_STATELESS_2020.pdf
Institute on Statelessness and Inclusion, ‘World’s Stateless Report: Children’, (2017), available at: https://files.institutesi.org/worldsstateless17.pdf
Institute on Statelessness and Inclusion, ‘Principles on Deprivation of Nationality as a National Security Measure’, (2020), available at: https://files.institutesi.org/PRINCIPLES.pdf
Spiro, P. ‘A New International Law of Citizenship’, 105 American Journal of International Law 694 (2011).
UN High Commissioner for Refugees (UNHCR), ‘Guidelines on Statelessness No. 4: Ensuring Every Child’s Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness’, 21 December 2012, HCR/GS/12/04, available at: https://www.refworld.org/docid/50d460c72.html
[i] Institute on Statelessness and Inclusion, ‘World’s Stateless Report: Deprivation of Nationality’, (2020), page 131, available at: https://files.institutesi.org/WORLD’s_STATELESS_2020.pdf