International case law on the right to a nationality

Author: Olivier Vonk

Nationality has traditionally belonged to the reserved domain of States under international law, and States have always jealously guarded their exclusive competence. However, the general rule that each State is autonomous in deciding who its citizens are has not prevented a growing body of international treaties, standards, guidelines, and case law of (regional) judicial tribunals in recent decades. These developments have mainly been limited to Europe, the Americas and Africa, though. As noted by the Institute on Statelessness and Inclusion: ‘Unlike Africa, the Americas and Europe, the Asia and Pacific region does not have a regional human rights framework, with its own treaty, court and commission (or equivalent bodies). This lacuna means that there is a dearth of regional norms and jurisprudence which set out the rights of all persons including the stateless. In the absence of such a regional framework, the importance of the international UN framework is greater’.

Against this backdrop of State discretion in nationality affairs, 2018 has seen a number of remarkable rulings by both European and African courts to protect individuals against excessive discretion in decisions relating to the right to a nationality. On 22 March 2018, the African Court on Human and Peoples’ Rights ruled against Tanzania in the case of Anudo Ochieng Anudo, whose passport was confiscated upon seeking to register his marriage on the grounds that there were doubts about his citizenship. As summarized by the Citizenship Rights in Africa Initiative.

Following an investigation, the immigration service concluded in August 2014 that Anudo had obtained recognition of Tanzanian citizenship on the basis of false documents. He was arrested and beaten, compelled to sign a document stating that he was a Kenyan citizen, and on 1 September 2014 deported to Kenya. Kenya sought to deport him back to Tanzania, saying he was not, in fact, Kenyan. Anudo was stranded in the no-man’s land between Kenya and Tanzania, where he remained for more than three years. The case was brought before the court in May 2015 … In its ground-breaking decision on the merits, the court held that Tanzania had arbitrarily deprived Anudo of citizenship and rendered him stateless, in violation of Article 15(2) of the Universal Declaration of Human Rights, and had then arbitrarily expelled him from Tanzania. The Court consequently also found Tanzania in violation of Articles 13 and 14 of the ICCPR and Article 7 of the African Charter that guarantee due process, including in cases of expulsion from a country. It ordered Tanzania to restore Anudo’s rights and to amend its national laws to bring them into line with international law requirements of due process.

In Europe, the European Court of Human Rights (ECtHR) handed down its decision in Alpeyeva and Dzhalagoniya v. Russia on 12 June 2018. Although the 1997 European Convention on Nationality, just as the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) drafted under the auspices of the Council of Europe, provides in Article 4 that everyone has the right to a nationality, this right is not protected under the ECHR. Simply put, a general right to nationality is not part of the human rights catalogue of the ECHR.

Case law of the ECtHR has nonetheless brought nationality within the scope of the ECHR by relying on Articles 8 and 14 of the convention. On 11 October 2011 the Court already decided in the case Genovese v. Malta that ‘access’ to the nationality of the father affects the social identity of a person, which in turn is part of that person’s private life (Article 8). Consequently, it is forbidden for states to apply discriminatory rules as regards the acquisition of the father’s nationality (Article 14). Article 8 ECHR also played a role in the decisions of 26 June 2014 in Sylvie Mennesson v. France and Francis Labassee v. France. In these judgments the ECtHR stipulated that aspects relating to one’s social identity need to have consequences for the nationality position of children born from cross-border surrogacy arrangements.

Alpeyeva and Dzhalagoniya v. Russia, as analysed by Katja Swider, can be seen as a continuation of the Court’s case law in nationality matters and, we may add, as further proof of international courts making further inroads into the State’s discretion in decisions relating to the right to a nationality.