Response to Reviewers
Barbara von Rütte, Max Planck Institute
First of all, I would like to thank the reviewers, Abdullah Omar Yassen and Jo Shaw, for taking the time to engage with my book and for their insightful and constructive comments. They have given me much food for thought. Many thanks also to the GLOBALCIT team for organizing this Review Symposium. In my response, I will focus on three main concerns that came up in the comments. First, the difficulty of implementing and enforcing human rights claims in practice. Second, the structural or systemic problems encountered when introducing common standards in nationality matters at a global level. Third, the interplay between the practice of regional and international courts. I will conclude with an outlook on possible avenues of future research based on these comments.
A first concern raised by both commentators relates to the practical difficulties of implementing and enforcing the right to citizenship at the domestic level. Jo Shaw questions how a right to citizenship derived from international law could change national citizenship regimes, especially in view of vastly divergent national practices. As I argue in Chapter 5, human rights-based arguments are inevitably faced with the problem of implementation and enforcement in practice (von Rütte, p. 320). In the case of the right to citizenship, the objection, alas, has particular weight. On the one hand, as long as national citizenship is not abandoned entirely, the right to citizenship necessarily has to be realized – and by consequence also regulated – at the national level. Irrespective of the fact that nationality matters are widely regulated in international law, states thus necessarily retain a considerable amount of power when deciding on the rules and procedures to acquire (or lose) citizenship. On the other hand, there is no dedicated enforcement mechanism that could monitor the implementation and enforcement of the right to citizenship (p. 321). As Abdullah Omar Yassen notes, the implementation of the right to citizenship is therefore ultimately dependent on state cooperation. This applies not only to the right to citizenship as such but, as Shaw points out, in particular to the interpretation of the right to citizenship on the basis of the principle of ius nexi that I argue for in my book. A fully fledged effective right to citizenship for individuals against the state to which that person has close connections thus risks to remain a promise for the time being. The scepticism of the two commentators with regard to my proposal of a ius nexi-based right to citizenship is therefore certainly justified.
Nevertheless, as I argue in the book, the fact that the right to citizenship is not implemented and enforced in practice might diminish its relevance and its practicability, but it does not directly diminish its quality as a human right. Given that many states – as well as legal scholars and practitioners – continue to think of citizenship as a sovereign privilege of states, recognising the right to citizenship as an internationally guaranteed human right is therefore already an improvement. This alone, as Caia Vlieks, Ernst Hirsch Ballin and Maria Recalde-Vela (2017) write, would have the potential to turn the relationship between states and individuals upside down. Effective enforcement of the de lege lata existing obligations based on the current international legal framework would then be an important first step to make a ius nexi-based right to citizenship more persuasive and more powerful. This is a task for domestic courts, but also for domestic law officials and citizenship authorities as well as for lawyers and ultimately for candidates in naturalisation procedures at the national level. Law reform at the national level in the sense of lex ferenda could, in a second step, offer a more solid foundation for this right. This, however, is a much longer and complex process that will involve broad changes in the discourse on (im)migration and social cohesion, engagement of the civil society and law reform. An example of how such change could look like in practice is the new naturalization initiative in Switzerland, which seeks to introduce at the constitutional level a right to citizenship after four years of residence in the country based on the connections a person has built over those four years. What I hoped to contribute with my book is an argumentative toolkit for the different actors who work in that policy area to increasingly challenge state discretion in citizenship matters.
Secondly, and relatedly, Jo Shaw commented on the difficulty of establishing a right to citizenship at the international level due to the structural problems that arise around the concept of citizenship that prevent individuals and entire groups from having effective access to it. These structural problems can often be linked to disparate regulations at the national level and thus, again, touch upon the problem of implementation and enforcement. Shaw mentions the uneven acceptance of dual citizenship and continuing expectations of allegiance that prevent many from having effective, instrumental and pragmatic access to citizenship. I fully agree that the clash between different citizenship systems and different degrees of recognition of the individual rights dimension of citizenship is a problem for the effective implementation of the right to citizenship. Indeed, the regulation of citizenship still varies widely amongst states, despite efforts of harmonization, and the acceptance of dual citizenship is an excellent example. A right to dual citizenship – or a ius nexi-based right to citizenship that could give claims vis-à-vis two states if there are equally strong ties to each of them (p. 390 f.) – is illusory if one or both of the states involved do not accept dual citizenship. Disparate national regulations and cultures may again be a problem that is not unique to the right to citizenship, but the commentator is right to point out that it diminishes the practical relevance of a human rights approach to citizenship. Implementing and enforcing the right to citizenship thus not only requires the acceptance that it is indeed a human right and a corresponding willingness to limit state discretion in nationality matters in favour of the individual, it also requires a certain harmonization of citizenship systems and cultures if it is to be effective on a global scale. However, to a certain extent the fragmentation of citizenship systems also allows for more progressive standards to develop and serve as good practice for other legal systems.
The third point concerns the interplay between the practice of regional and international courts and treaty bodies and their respective roles in recognising the right to citizenship as an individual right. Abdullah Omar Yassen is right to mention that it is primarily the regional human rights instruments that have pushed towards a more expansive interpretation of the right to citizenship. This can be explained by the fact that regional courts, especially the European Court of Human Rights and the Court of Justice of the European Union, have stronger enforcement mechanisms than international courts and treaty bodies at the international level. Moreover, the Inter-American Court of Human Rights has a special weight in the development of the right to citizenship due to the fact that the American Convention of Human Rights guarantees the most wide-ranging protection of the right to citizenship to date. In contrast, courts at the international level are either not directly concerned with individual rights, as the International Court of Justice, or do not have effective enforcement mechanisms such as the UN Treaty Bodies. Moreover, in view of their respective treaty bases the UN Treaty Bodies would have the potential to develop a more progressive approach to the right to citizenship but have so far mostly not lived up to this potential. The Committee on the Elimination of Discrimination against Women, the Committee on the Rights of the Child and the Committee on the Rights of Persons with Disabilities have not yet had communications directly dealing with the right to citizenship. The opinion of the Committee on the Elimination of Racial Discrimination in the case of Benon Pjetri v. Switzerland (Communication No. 53/2013) disappointingly failed to recognize an effective right to citizenship (p. 317 f.). Only the Human Rights Committee seems to have adopted an actual human rights approach to citizenship matters in his opinion in the case of Denny Zhao v. the Netherlands (Communication No. 2918/2016) (p. 105). The unequal role of international and regional courts in applying the right to citizenship, one could argue, fragments and therefore weakens the development of the current regulatory framework (p. 85). At the same time, it allows for a more dynamic development of the right to citizenship taking into account regional differences. Finally, in order to really offer effective protection for individuals the jurisprudence of international and regional courts and treaty bodies on the right to citizenship needs to be taken up by domestic courts, as also suggested by Jo Shaw in her comment. Whether this actually happens is a question that should be followed closely in the coming years.
Ultimately, the concerns raised by the commentators all relate back to the initial puzzle of citizenship being a matter that is of vital interest both to individuals as well as to nation states in a state-centred world. As Jo Shaw rightly points out this is a consequence of the different dimensions of citizenship functioning as an individual right, a formal (legal) status, an identity or marker of belonging, a political activity and an ordering principle at the international level (p. 22) and the problems that arise out of the complex interplay of these different dimensions. While my book clearly focuses on the first of these dimensions, the others cannot be neglected and sometimes lead to clashes. As Jo Shaw writes, the right to citizenship can, therefore, clearly not serve as a solution to ‘all the ongoing challenges in relation to the right and contested concept of citizenship’. It will take future research from different disciplines and theoretical standpoints to understand the interactions between these dimensions, their clashes and possible solutions. But I hope to have contributed to advancing the discussion around the relevance and potential of citizenship as a human right.
Schmid, S. D. (2023) Democratizing Switzerland: The Significance of the New Naturalization Initiative , VerfBlog, 2023/6/02, https://verfassungsblog.de/democratizing-switzerland/.
Vlieks, C., Hirsch Ballin, E. & Recalde-Vela, M. (2017), ‘Solving statelessness: Interpreting the right to nationality’, Netherlands Quarterly of Human Rights 35 (3): 158-175.