Comments by Abdullah Omar Yassen, and Jo Shaw. Response by Barbara von Rütte.
REVIEW
Abdullah Omar Yassen, Erbil Polytechnic University
It may be surprising that millions of people have no access to nationality, despite the human right to citizenship being codified in the 1948 Universal Declaration of Human Rights (UDHR). Indeed, having access to a nationality remains a crucial prerequisite not only for the effective enjoyment of human rights but also to enable access to the institutions which secure them. In this context, Barbara von Rütte’s Human Right to Citizenship: Situating the Right to Citizenship within International and Regional Human Rights Law is a timely contribution to the very important and relevant concept of citizenship in international law, particularly international human rights law. Basing the book on her doctoral thesis, she uses a human rights approach to delimit the boundaries of state sovereignty in nationality matters and identify the contours of the human right to citizenship from the perspective of the individual. Von Rütte tests whether there is an effective and enforceable individual human right to citizenship by applying the jus nexi principle of membership. Performed in the context of a person’s effective connections to a state, she determines the conditions under which individuals should have an enforceable right to acquire the citizenship of the state to which they have a significant connection. Moreover, she considers how these conditions can be significantly strengthened in terms of enforcing the right to citizenship.
The right to a nationality is a fundamental human right which implies that each individual has the right to acquire, change, and retain a nationality. The United Nations Human Rights Office of the High Commissioner (OHCHR) argues that ‘international law provides that the right of States to decide who their nationals are is not absolute and, in particular, States must comply with their human rights obligations concerning the granting and loss of nationality’.[1] On the importance of nationality, von Rütte rightly quotes Carol Batchelor, who states that ‘nationality is not only a right of itself, it is a necessary precursor to the exercise of other rights’ (p. 40). These arguments are developed in the book over the course of seven chapters.
In Chapter Two, von Rütte traces the evolution of the right to citizenship from being one of a sovereign privilege to an enforceable individual human right, highlighting the ongoing tensions between the two. She draws attention to the fact that ‘from a legal perspective, citizenship is seen as a legal status, a relationship between an individual and a state, determining membership in the state and giving rise to rights and duties on both parts’. As we move into Chapters Three, Four and Five, the regulatory evolution of citizenship in international law is further unpacked, and it becomes clear that the granting, and loss, of nationality is regulated at the national level, while nationality matters are also widely regulated in international law. Pervious scholars have explored the meaning of nationality from human rights perspectives;[2] however, von Rütte goes further in Chapter Four, supports her compelling argument by referring to a number of international and regional human rights instruments (such as the UDHR and Convention on the Rights of the Child and the American Convention on Human Rights) which codify the right of individuals to acquire nationality as a human right. These could be further explored in the future. Future research could focus further on the role of international and regional human rights instruments in recognising nationality as one of the rights to which individuals are entitled.To date, regional human rights instruments have filled the gap left by the international human rights instruments in recognising the right to be granted nationality as a subjective right of individuals,[3] rather than as a sovereign right of States. This should result in individuals being able to enjoy such a right as an individual, so that the right of citizenship is not a State granted right to individuals.
In Chapter Six, von Rütte reinterprets the right to citizenship based on the principle of jus nexi— this is an incredibly interesting chapter that could, arguably, be an entire book in itself. ‘The principle of jus nexi [is] the genuine- connection principle of membership acquisition based on a person’s effective ties as developed by Shachar’ (p 401).[4] The author suggests state cooperation is required for the full recognition of the right to citizenship and its effective implementation and enforcement at the domestic level. Although this is a good suggestion, a lack of cooperation from states means the rights of the individual might not be safeguarded. As outlined by the author (p, 33), States do impose a number of pre-requisite requirements such as period of residency, immigration status, criminal record, potential risks to national security, economic self-sufficiency, civic integration (i.e. language skills) and number of other criteria have be to be met before States grant nationality. Therefore, despite of developments of human rights, in most cases naturalisation still is at the discretionary of the States and governments set a high threshold, such as those noted above, to individuals before being able to acquire citizenship through naturalisation.[5]
The book as a whole describes the matter from which citizenship is composed and thereby reminds the reader to claim their rights as citizens. Von Rütte ends the book by arguing that access to nationality should be a legal entitlement for individuals rather than a discretionary award from a state (p. 388). She supports this argument using case law from bodies which implement human rights, such as treaty bodies and human rights tribunals. Despite the strength of her argument that international law offers a framework for improving the recognition and protection of citizenship as a human right, it is questionable whether—in a world structured by sovereign states—the international human rights framework can protect the right of individuals.[6] Indeed, even von Rütte concedes that the right to citizenship does not automatically grant equal rights and participation for all, and therefore one must agree with Arendt’s claim that ‘the right to have rights, or the right of every individual to belong to humanity, should be guaranteed by humanity itself’.[7] And yet, it is the state that is the guarantor of human rights. However, the view that the human rights of individuals are the concern of the state and its national sovereignty, rather than the international community, is no longer a sustainable argument due to the development of international human rights law in the twentieth century, as outlined by von Rütte in this timely book.
What makes this book stand out is the range of interrelated topics that it covers, from statelessness, deprivation of citizenship, and multiple citizenship, to more general themes on the acquisition, enjoyment, and loss of citizenship in the migration context. Ultimately, the book is a key contribution to the field of citizenship studies in that it provides readers with a fresh understanding of the right of individuals to acquire citizenship. It also shows us how to navigate the protection gaps that leave individuals at risk of violations of their right to citizenship, through the identification of those rights and obligations that can be derived from the right to citizenship as enshrined in international legal standards. As von Rütte concludes, ‘recognizing the right to citizenship as an effective and judiciable human right ultimately means that citizenship is no longer a matter of states choosing their ideal citizens but of individuals claiming a right to membership in the place they belong’ (p. 402).
[1] See, OHCHR and the right to a nationality, available at: https://www.ohchr.org/en/nationality-and-statelessness accessed 30 March, 2023.
[2] See for example, Alice Edwards, The meaning of nationality in international law in an era of human rights Procedural and substantive aspects’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press, 2014) pp. 11 – 43.
[3] Refworld, Extracts relating to nationality and statelessness from selected universal and regional human rights instruments, available at: <https://www.refworld.org/pdfid/4c29aec02.pdf> accessed 10 June 2023
[4] Here, von Rutte refers to: Ayelet Shachar, The birthright lottery: Citizenship and global inequality (Harvard University Press, 2009).
[5] Ricky van Oers, Deserving Citizenship. Citizenship Tests in Germany, the Netherlands and the United Kingdom (Brill Nijhoff 2013).
[6] Owen D, ‘On the Right to Have Nationality Rights: Statelessness, Citizenship and Human Rights’ (2018) 65 Netherlands International Law Review 299.
[7] Arendt H, The Origins of Totalitarianism (Harcourt 1973).