The challenges of an individual rights-based approach to citizenship as a norm: can the ius nexi doctrine provide a solution?
Jo Shaw, University of Edinburgh and GLOBALCIT Co-Director
In a world of states, citizenship norms inevitably contribute to boundary-building, providing important and often contested building blocks of political legitimacy as well as a stable yet sometimes problematic system under which individuals can know where they are supposed to belong, to whom they owe duties and against whom they can claim rights. Since the Second World War, the question has emerged as to how international human rights law can contribute constructively to the building of a ‘right to citizenship’ (as legally defined regime) and how this can be translated into a changed and more human-rights sensitive environment for norms of citizenship law at the national level. For the most part, this work has been angled towards challenging statelessness as a continued scourge or combatting measures and practices driving involuntary loss and deprivation of citizenship. Some work has also used the lenses of asylum and refugee law. Yet there are, perhaps surprisingly, very few detailed and comprehensive treatments of how a right to citizenship could bridge the gap between the ‘right to a nationality’ articulated in Article 15 of the Universal Declaration of Human Rights and those norms of international law that state that matters of acquisition and loss of nationality are, for the most part, to be regarded as reserved domains of state sovereignty, with all the consequences for national citizenship regimes which follow from this principle.
In her recent book, Barbara von Rütte has grappled carefully and thoroughly with precisely that problem and reached a normative conclusion, based on a rich analysis of the relevant law and scholarship. She argues that using a norm of ius nexi as an interpretative aid, pushing towards the recognition of close connections between an individual and a state as emblematic of the very essence of a membership relationship, could make an important contribution to closing the gap between a bare right in international law and divergent national practice with inadequate enforcement mechanisms. It would tackle both the under inclusion and over inclusion tendencies of citizenship laws dominated by ius soli and ius sanguinis norms, and would provide for more certainty and less state discretion in the broad area of citizenship acquisition after birth, where this comprises various forms of naturalisation and registration. In von Rütte’s words, ‘rarely are political discourses about citizenship framed as human rights issues’ (p.4). In particular, the extant scholarship lacks an ‘individual rights perspective’. As a result, von Rütte provides a defence of ius nexi as an interpretative norm (based on a ‘law of connection’, which should be a mixed question of law and fact) in order to generate the right to citizenship in a specific state, on the basis that this is central to a person’s social identity, essential for the protection of human rights, and constitutive of the functioning of modern democracies. She bases her specifically legal defence of ius nexi on an approving review of normative political theory accounts of principles which ought to underpin the allocation of membership rights in a world of overlapping and interlocking states, such as those put forward by Rainer Bauböck, Joseph Carens, David Owen, Ruth Rubio-Marín and others, drawing legal inspiration in the case she makes for ius nexi primarily from the sources of international law.
There is a surprisingly large body of international law relating to citizenship and von Rütte has provided an extended analysis which alone makes this an invaluable contribution to the literature on citizenship and nationality. At the heart of the analysis lie the contradictions between the Article 15 UDHR, the principle of state sovereignty and the reality of state practice, which is all too often capricious and arbitrary in relation to citizenship acquisition and loss. Von Rütte’s specific focus, in navigating this terrain, is on delivering the argument that it is possible to move from the abstract concept of the right to ‘a’ nationality, in the UDHR, to the right to the nationality of a specific state, necessary in order to recognise the validity and legitimacy of an individual’s relationship with that particular state, however that relationship has come about and for whatever reason national law currently fails to give cognisance to it. To get to that point, von Rütte provides an extended and detailed survey of international law elements, including the classic International Court of Justice case of Nottebohm. This case is often wrongly characterised as providing positive affirmation that citizenship must at root demonstrate a genuine link between individual and state, when in reality it merely sets limits to what a state is obliged to offer by way of recognition of another state’s actions if the latter seeks to exercise diplomatic protection on behalf of a putative citizen. That is to say, there is a clear distinction between the external and internal elements of citizenship. In her argument, von Rütte also finds support in the work of international jurists in the International Law Commission in the form of draft articles, notably on the topic of state succession and access to citizenship. The ILC made substantial use of a proximity and connection principle to determine that individuals should get access to citizenship in that, or those, successor state(s) to which they have the closest connection. The analysis also engages extensively with regional international human rights norms, including those in Europe, in Latin America and in Africa, which place limitations upon the dispositions that states may make in relation to citizenship by reference to principles such as social identity and private and family life. Turning these doctrinal reflections into a fully articulated interpretative norm of ius nexi leads von Rütte to focus on a variety of dynamics of connection: the territorial; the familial (including a range of valid ‘family’ relationships); and the social, cultural, identitarian and economic. This offers a balanced and granular toolkit to assess degrees of connection.
Von Rütte’s proposal in relation to ius nexi could, if applied, offer a much-improved baseline against which to set standards for state practice in relation to citizenship and – potentially – deliver a framework for enforcing the right to citizenship as an individual right in appropriate circumstances. It provides guidance to international law-makers, international courts (especially regional human rights courts) and national law-makers and courts when building and interpreting legal frameworks. Citizenship law could be fairer and more equitable in terms of patterns of allocation and – above all – it could be geared around individual needs as well as collective and state interests. Citizenship would be adjusted to recognise meaningful factual connections, through a new norm, which would be used to interpret other norms such as birthright citizenship mechanisms or provisions relating to naturalisation.
On the other hand, there are aspects of citizenship understood as a legal regime of membership that would not be so effectively captured by such an approach. Above all, it needs to be clearer what enforcement mechanisms could be considered for such an individual rights-oriented concept to avoid the suggestion that the ius nexi could become as divorced from citizenship practice as is the rather abstract idea of the UDHR right to a nationality. If ius nexi provides a coherent principle for the attribution of citizenship in a world of states (supplementing the existing principles of ius soli and ius sanguinis rather than supplanting them) how will that work in practice? There are many options, including the proposition that ius nexi is essentially confined to the sphere of law reform rather than law enforcement, but one might be that it could operate through a partnership of national and international human rights defenders, with a crucial role for national and regional human rights courts.
Second, many of the problems that arise with citizenship are structural not individual, even if it is individuals, or groups of them, which suffer the consequences of these structural problems, because they are unjustly denied access to an effective citizenship and thus lack – famously – the right to have rights. One of the structural factors relates to the continued uneven adoption of dual citizenship as a norm, even though there has been a strong trend in this direction since the Second World War. Von Rütte argues that the ius nexi builds a picture of citizenship which is plural and non-exclusive, but it will arguably not work effectively at all unless that pluralism and inclusivity are universal and not partial. Other structural factors include the embeddedness of ideas of allegiance in many systems of citizenship, even those where instrumental approaches to citizenship acquisition are also common. Parsing that contradiction is a tricky task.
Finally, it must be acknowledged that there are problems that a human rights approach is well suited to tackling, and problems which it cannot really solve. For example, a rights-based approach will be very effective at focusing attention on vulnerable groups and individuals and potentially gives them legal recourse, either through remedies at the national level or at regional international level. It also sets a standard against which to measure other international law standards in relation to citizenship, e.g. the European Convention on Nationality as well as national citizenship laws, in order to judge whether their effects are in some manner an expression of oppressive state power (either through under or over inclusion or arbitrary distinctions). But a rights-based approach may struggle effectively to capture the tensions within the sphere of citizenship between the rights, status and identity elements of the concept or to provide answers to the challenges posed by the historical imperial dimensions of many citizenship regimes whether in the former colony or the former metropole. In sum, the idea of a fully-fledged human right to citizenship is an attractive and important innovation. It could not, alone, resolve all the ongoing challenges in relation to the rich and contested concept of citizenship as practice and idea.