What happens when (a) citizenship is “weaponized” and it is used by the States as an oppressive or discriminatory tool or (b) when dual/multiple citizenship is used by individuals to obtain benefits or priviliges they would not be otherwise entitled to?
Citizenship revocation
Many States are enforcing new rules to increase the power to revoke citizenship from individuals on different grounds (from fraud in the naturalisation process to involvement in terror-related acts) and in some cases against as a measure against political opponents or to expel etnic or religious groups.
An example is the individual and mass denationalization by Nazi Germany in the 1930s and 1940s. 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. Loss or deprivation of nationality is considered arbitrary and therefore prohibited if it does not serve a legitimate aim, or is not proportionate. 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
- serve a legitimate purpose;
- be the least intrusive instrument to achieve the desired result; and
- be proportional to the interest to be protected.
Citizenship renunciation
What happens when you cannot renunce to your citizenship? Roughly one in five States (38 total) prohibits renunciation legally or in administrative practice.
Article 15(2) of the Universal Declaration of Human Rights (“UDHR”) proclaims that no one can be “denied the right to change his nationality.” Following the UDHR’s promulgation in 1948, the general right to have a citizenship, and thus to preclude statelessness, was developed substantially through several major international agreements.
However, the right to renounce citizenship, implicit in the UDHR’s explicit promise of “the right to change” nationality, remained underdeveloped. Despite broad recognition in national laws of a right to renounce citizenship, no international treaty defines the norm.
There are however States that prohibits citizenship renunciation legally or in administrative practice. The list of countries includes five of the 10 largest migration-origin countries (Afghanistan, Bangladesh, Mexico, Pakistan and Syria). The right to citizenship renunciation conflicts with some international rules which govern citizenship, namely
- the norm of citizenship as a permanent status (the 1930 Hague Convention on Conflict of Nationality Laws and art. 15 Universal Declaration of Human Rights);
- the norm that States have broad authority to determine membership policies (Art. 1 Hague Convention on Conflict of Nationality Laws);
- the norm against statelessness (the 1954 Convention relating to the status of Stateless persons and the 1961 Convention on the reduction of statelessness). The right to renounce is relevant for dual nationals or those who wish to renounce their current citizenship in order to acquire a new one. In such cases, renunciation does not render an individual stateless.
Oppressive citizenship attribution
Citizenship attribution can be instrumentalized by states to persecute individuals or make territorial claims against other states. Involuntary nationality attribution can also provide the legal basis for military conscription.
Obtaining a second passport is the dream of many but what happens when a State forcibly attribute citizenship to individuals without their consent? Can nationality cannot be granted against the will of the person concerned?
Scholars call this practice “passportization”, i.e. a fast track and and large-scale extraterritorial naturalization of individuals resident on the territory of another State. “Passportization” practice does not find specific restraints or limitations under international law. The general principle about the power of States to grant citizenship is set forth in the 1930 Convention on Certain Questions Relating to the Conflict of Nationality Law:
Article 1: It is for each State to determine under its own law who are its nationals. This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.
Article 2: Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State.
Most scholars and international organizations affirm however that
- naturalization of adults must be volitional and
- cannot be conferred upon a foreigner without his having shown the will to be naturalized or at least without his being allowed to refuse naturalisation.
Abuse of dual citizenship
Dual nationality is allowed by an increasing number of States and many people are in search of acquiring a second passport. Citizenship cannot however be used to obtain benefits which the individual would not be otherwise entitled to.
Each State can determine who are its own nationals
It is an established principle in international law that it is for each State to determine under its law who are its nationals. However, States’ attribution of nationality under their internal laws shall be recognized by other States in so far as it is consistent with international conventions, international custom and the principle of law generally recognized with regard to nationality.
Genuine link
Most of tribunals have accepted the “dominant and effective link” theory. According to this principle, in case of conflict of nationalities, the nationality of the State of which the individual has a genuine connection and bond will prevail. The genuinity and dominance of the connection shall be assessed taking into account the person’s habitual residence and other factors such as the centre of his interests, his family ties, his participation in public life, and other attachments.
Genuine link doctrine cannot be generalized
Some arbitrators and scholars are questioning the general applicability of the genuine link doctrine, because thousands of persons who possess the nationality of a State but have their centre of interest, family and business in another State, would be exposed to non-recognition of their nationality.
Dual nationality cannot be used fraudulently
Acquisition or renounciation of nationality in order to obtain benefits to which an individual would otherwise not be entitled to is considered an abuse of right (abuse of process). Nationality acquired for the sole purpose of claiming diplomatic protection … forms part of a transaction which is to be regarded as generally fraudulent and a State may refuse to recognize the change of nationality.
