Arbitrary stripping of nationality

Jan 20, 2020

This article is written by Marco Mazzeschi and contributed to our publication on Medium.com.Follow us on Medium.com/StudioMazzeschi for more latest articles.

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The appointment of Sandro Gozi, Italy’s minister for European affairs in both the Renzi and Gentiloni cabinets, as EU adviser to French Prime minister has raised fierce reactions amongst political parties and some party leaders have called for Gozi’s citizenship to be “revoked” for working with a foreign government. Under some circumstances and subject to certain conditions, loss and deprivation of nationality — which is provided for in most States’ national legislations — can be legitimate also under international law. On the other hand, citizenship deprivation can be used as discriminatory measure (an example is the individual and mass denationalization by Nazi Germany in the 1930s and 1940s) or for contrasting political opponents under the pretext of national security (the most recent examples are “citizenship stripping” against dissidents in the Gulf States, particularly since the Arab Spring).

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Under international law, loss or deprivation of nationality can be legitimate but if it does not serve a legitimate aim, or is not proportionate, is arbitrary and therefore prohibited.

Art. 8, para 1 of the 1961 Convention on the Reduction of Stateless provides for that “A Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless”. Para 2 provides however some exceptions to this rule. In particular, an individual can be deprived of his nationality where the nationality has been obtained by misrepresentation or fraud and where, inconsistently with his duty of loyalty to the Contracting State, the person (i) has, in disregard of an express prohibition by the Contracting State rendered or continued to render services to, or received or continued to receive emoluments from, another State, or (ii) has conducted himself in a manner seriously prejudicial to the vital interests of the State; (iii) has taken an oath, or made a formal declaration, of allegiance to another State, or given definite evidence of his determination to repudiate his allegiance to the Contracting State.

From a legal standpoint, it must be distinguished the cases of citizenship “loss” and “deprivation”(which is the term utilized by the 1961 Convention). Loss is the automatic lapse of nationality, ex lege and without State interference, while deprivation (or revocation, as it often referred to) are administrative and judicial acts of competent national authorities invoking a stipulation of the nationality law to withdraw nationality.


Citizenship revocation under Italian Law

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The grounds for loss of citizenship in Italy are set forth by Law n. 91/1992, while only recently specific grounds for revocation were introduced by the very controversial Decree 113/2018 (Decreto Sicurezza). More specifically, the Decree established that citizenship can be revoked when a person has been convicted for terrorist offences. This measure applies, however, only to some categories of citizens, namely (i) naturalized citizens or (ii) to those who acquired Italian nationality because they married an Italian citizen or (iii) were born and resided in Italy until the age of 18.

The new provision has been contested by many parties because: (i) it creates two categories of citizens. This would be in conflict with the internationally recognized principle of non discrimination (see also art. 5, para 2 of 1997 European Convention on nationality: “Each State Party shall be guided by the principle of non-discrimination between its nationals, whether they are nationals by birth or have acquired its nationality subsequently”); and (ii) does not establish any caveat or limitations to prevent that a person is left stateless, thus conflicting with the 1961 Convention, ratified by Italy with Law 162/ 2015.


When citizenship deprivation is arbitrary?

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International human rights law explicitly provides for the prohibition of arbitrary deprivation of nationality. The right of States to decide who their nationals are is not absolute (UN Report 2009, A/HRC/13/34). In particular, States must comply with their human rights obligations concerning the granting and loss of nationality. In order to comply with international law and not to be considered arbitrary, deprivation of nationality must (i) serve a legitimate purpose (ii) be the least intrusive instrument to achieve the desired result and (iii) be proportional to the interest to be protected (UN Report 2013, A/HRC/25/28).

To ensure that nationality regulations are not applied arbitrarily and relevant safeguards against statelessness are implemented effectively, States should ensure that adequate procedural standards are in place. In particular, decisions relating to nationality should be “issued in writing and open to effective administrative or judicial review. In addition to providing for the possibility to appeal and related due process guarantees, States should ensure that there is an effective remedy available where a decision on nationality is found to be unlawful or arbitrary (UN Report 2013, A/HRC/25/28).

Conclusions: the consequences of any withdrawal of nationality must be carefully weighed against the gravity of the behavior

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The right of every individual to a nationality is clearly recognized and regulated in international human rights law. States can set their own rules to regulate the acquisition or loss of nationality but under international law, nationality deprivation that does not serve a legitimate aim, or is not proportionate, is arbitrary and therefore prohibited.

Deprivation that leads to statelessness has a severe impact on the individuals’ life. Accordingly, the consequences of any withdrawal of nationality must therefore be carefully weighed against the gravity of the behavior or offence for which the withdrawal of nationality is prescribed.

States must also demonstrate that the loss or deprivation of nationality is proportionate. Even where loss or deprivation of nationality does not lead to statelessness, States must weigh the consequences of loss or deprivation of nationality against the interest that it is seeking to protect, and consider alternative measures that could be imposed.

Marco Mazzeschi

Attorney at law. One of the leading corporate immigration lawyers in Italy. Admitted to the Milan Bar Association (1988) and to the Taipei Bar Association (2016), a member of the American Immigration Lawyers Association (AILA) and an accredited partner of Invest in Tuscany.

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