By Amal de Chickera and Caia Vlieks (Institute on Statelessness and Inclusion).
Concerned about the growing instrumentalisation of nationality and deterioration of the institution of citizenship, the Institute on Statelessness and Inclusion (ISI), Open Society Justice Initiative (OSJI) and other partners have initiated a Year of Action Against Citizenship Stripping. The Year of Action provides a unifying banner under which all actors opposed to citizenship stripping may come together to raise awareness, strengthen discourse and advocate for change. In this short essay, we set out why it is so important to protect the institution of citizenship and challenge the increasing use of deprivation of nationality, and invite you to join us in our efforts under the Year of Action.
Citizenship Stripping: A New Era?
Citizenship deprivation has a long history. Indeed, 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’.
Over the course of modern history, we have witnessed the most egregious and shocking consequences of the power to deprive, when concentrated in the hands of a few, unchecked by democratic institutions, and targeted at vulnerable minorities. Deprivation of citizenship was a necessary precursor to the Holocaust, just as it was to the genocide of the Rohingya. In both contexts, highly militarised and authoritarian states, obsessed with the notion of ethnic and racial purity, targeted unwanted minorities to be disenfranchised and persecuted.
The aftermath of World War II, a moment of great introspection and despair, saw a hitherto unprecedented coming together of states to shape a rules-based order premised on individual rights and a global commitment to peace. This brave new world recognised the centrality of protecting everyone’s right to a nationality (Article 15 of the Universal Declaration of Human Rights), while also protecting those who had no nationality or protection of the state (the Refugee and Statelessness Conventions). However, the promise of this era has – at best – been only half delivered. We have stronger rules and institutions in place to protect the right to a nationality, but the wielders of power continue to find new ways to circumvent the trappings of the law, justify their actions and shield themselves from scrutiny.
After World War II, citizenship stripping was no longer seen as acceptable in the context of liberal conceptions of individual and minority rights, 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. In this new era of rising authoritarianism, growth of the security state, genocide, and increasing populism, xenophobia and racism, citizenship is under threat in ways not seen for generations.
At the centre of this picture is the deep deterioration of the situation of the Rohingya community of Myanmar, who endured large-scale atrocity crimes in August 2017, leading to well-founded allegations of crimes against humanity and genocide being levelled against Myanmar; and the mass disenfranchisement of 1.9 million people in Assam, India, in August 2019. Beyond the headlines, other stateless communities that are fighting for recognition and rights have also experienced regression of their position in society, or felt the consequences of shrinking democratic space. Meanwhile, people whose belonging was not previously questioned have had their citizenship status challenged – including as came to light in the UK’s ‘Windrush scandal’.
The securitisation and instrumentalisation of citizenship policy has led to a wider resurgence of denationalisation, with national security or counter-terrorism arguments offered as justification for its use against so-called ‘foreign fighters’ by several Western countries, such as the Netherlands. The political use of individual denationalisation has also made a worrying comeback, with human rights defenders, journalists and political opponents being silenced or side-lined through (the threat of) deprivation of nationality across numerous countries including Bahrain, Azerbaijan and Turkey.
Deeply concerned by the re-emergence of citizenship stripping as a tool that states are willing to utilise and legitimise, ISI and our partners have been working to better understand the phenomenon; its use, justification and the legal principles at play. Over a 30-month period, we have conducted research and facilitated the coming together of legal experts from a number of disciplines, in order to consolidate and strengthen our collective understanding of the issues at play. Two of the most important resources to have come out of this process, are set out below:
The World’s Stateless 2020: Deprivation of Nationality
The 2020 edition of ISI’s flagship World’s Stateless Report explores citizenship deprivation by offering a series of interventions which relate to different aspects of the issue of citizenship deprivation and from different perspectives. It gives us a sense of the citizenship deprivation landscape: from a closer analysis of legal standards, to an overview of current trends; a look at situations of mass deprivation of nationality, to an unpacking of the effectiveness of citizenship deprivation as a national security measure; an exploration of some of the more idiosyncratic aspects of the problem like quasi-loss and retroactive denial, to a critique of justifying deprivation on the grounds that nationality was acquired by fraud. Interspersed between these interventions, are a series of ‘Perspectives’ – reflections by experts from different backgrounds (historians, philosophers, legal practitioners, psychologists, security experts and victims of citizenship deprivation, to name but a few), which serve to provoke thought by challenging us to view this issue through different lenses. The report also features an exclusive interview with the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance.
Principles on Deprivation of Nationality as a National Security Measure
The Principles on Deprivation of Nationality were created in response to the increased use of deprivation of nationality as a counterterrorism and national security measure. While some states have amended their laws to expand existing powers or introduce new powers to enable deprivation of nationality, others have relied on existing powers, which have been construed expansively to apply to situations not previously envisaged. There has also been an increase in deprivation of nationality for other stated purposes (such as fraud), which serve as proxies to the purpose of safeguarding national security; as well proxy measures, which do not amount to deprivation of nationality but are likely to have a similarly adverse impact on individual human rights (such as the revocation of passports, refusal to repatriate and the imposition of travel and entry bans).
The Principles were developed with input from more than 60 leading experts in the fields of human rights, nationality and statelessness, counter-terrorism, refugee protection, child rights, migration and other related areas. The Principles restate or reflect international law and legal standards under the UN Charter, treaty law, customary international law, general principles of law, judicial decisions and legal scholarship, regional and national law and practice. They articulate the international law obligations of states and apply to all situations in which states take or consider taking steps to deprive a person of nationality as a national security measure. The Principles are open for institutional and individual endorsement. Currently, more than 50 individual experts have endorsed as well as over 20 organisations. Endorsers already include four UN Special Rapporteurs, two former Council of Europe Commissioners for Human Rights, several MEPs, professors, academic experts, lawyers and judges from all over the world, as well as different organisations around the globe that work on international law, human rights, minority rights, nationality and statelessness. A full list with all the latest endorsements of the Principles is available here.
The Basic Rule, articulated in Principle 4, synthesises all relevant international standards, to conclude that “States shall not deprive persons of nationality for the purpose of safeguarding national security”. It asserts that any exercise of an exception to this rule, must be “interpreted and applied narrowly”, and is further limited by other well-established standards of international law, including the avoidance of statelessness; the prohibition of discrimination; the prohibition of arbitrary deprivation of nationality; the right to a fair trial, remedy and reparation; and other obligations and standards set forth in international human rights law, international humanitarian law and international refugee law.
We hope that the Principles and the World’s Stateless Report 2020 will be a useful tool in the hands of the legal community and other stakeholders to promote and protect fundamental human rights, security and the rule of law, and that they will be drawn on over the course of the Year of Action.
The objective of the Year of Action Against Citizenship Stripping is to encourage states to align their laws, policies and practices on the deprivation of nationality with their international legal obligations. The Year of Action includes different activities and resources to achieve this aim, including a webinar series. More information about the Year of Action and ways to collaborate or get involved are available on its dedicated website.
The Principles on Deprivation of Nationality as a National Security Measure remain open for institutional and individual endorsement throughout the Year of Action. If you are interested in endorsing Principles and/or would like to collaborate within the context of the Year of Action, please write to the Year of Action coordinator.