Normative problems surrounding citizenship deprivation

The FCI reported last year about citizenship deprivation. This non-consensual withdrawal of nationality from an individual by a State is also called denationalisation. We saw on that occasion that Australia as well as numerous other countries have recently expanded their powers to take away citizenship on the ground of disloyalty from nationals who take part in terrorist activities. In 2018 Italy decided to adopt similar legislation, ‘allowing the revocation of citizenship based on a decision of the Minister of the Interior when a person has been convicted for terrorist offences’. It is important to note that this measure is specifically directed at immigrants and their children because the new deprivation tool is only applicable to naturalised citizens, those who acquired Italian nationality because they married an Italian citizen or those were born and resided in Italy until the age of 18. Also, and in contrast to Dutch legislation for example, someone can be rendered stateless under the new Italian legislation.

Denationalisation has gained much political and academic attention in recent years. Despite deprivation cases being modest in absolute numbers, the involuntary loss of citizenship remains hugely controversial and some see statelessness resulting from citizenship deprivation as the public law equivalent of the death penalty in criminal law. Citizenship stripping is also associated with totalitarian regimes, such as the Nazi policy to denationalise Jews. While citizenship revocation was the first step towards the killing of the Jewish population under the Nazi regime, current denationalisation powers are primarily aimed at deporting undesirable individuals – the modern equivalent of banishment.

Denationalisation only began to replace the historical practice of banishment with the development of formal migration controls and the introduction of travel documentation, which we have seen in our discussion of passports is a relatively recent phenomenon.

The growing body of denationalisation literature is usefully summarized by Matthew Gibney in the Oxford Handbook on Citizenship. In discussing the legitimacy of the expansion of deprivation powers, Gibney identifies three major questions: 1) do individuals have an absolute right to keep citizenship lawfully obtained; 2) under what conditions is denationalisation arbitrary and thus unacceptable; and 3) are other states obliged to accept another state’s denationalisation decision?

The answer to the first question is a cautious no, because there seems to be broad agreement that denationalisation is only unacceptable when it leads to statelessness. This does raise problems of discrimination, as only dual citizens can then be stripped of one of their nationalities. This is all the more problematic if the remaining nationality cannot be renounced, making individuals from countries that adhere to the principle of ‘perpetual allegiance’ more vulnerable than individuals who have the option of (pre-emptively) renouncing the nationality they value least.

On the second question, deprivation practices are considered more acceptable if there are sufficient procedural safeguards. The involvement of a court is thus to be preferred over administrative decisions. A related point, and supported by many legal scholars, is that denationalisation has such a huge impact that it should be considered a form of punishment and can therefore only be lawful when it follows a criminal conviction for serious offences against the State.

The third question is generally answered affirmatively, as one of the foundational principles of international law is that countries are under an obligation to take back their nationals. From the perspective of international justice, however, it is problematic that citizenship deprivation in combination with deportation will shift the responsibility for undesirable individuals to another country.

Author: Dr. Olivier Vonk