Catálogo de publicaciones - libros

It is beyond dispute that any attempt to dislodge a deeply rooted and widespread institution such as ius sanguinis is bound to pose serious practical challenges. However, if one has compelling moral reasons for dismantling such an institution, one ought to work towards this end. Babies are born into a physical world and from actual bodies but they are not naturally born into families and citizenship. The latter are social conventions that demand our acceptance when they are justified and our courage to change and replace them when they are not. To my critics who worried that abolishing ius sanguinis amounts to throwing out the baby with the dirty bathwater I reply that we should not put the baby in the dirty bathwater in the first place.

From antiquity to the late 20th century, denationalisation was a tool used by states to rid themselves of political dissidents, convicted criminals and ethnic, religious or racial minorities. The latest target of denationalisation is the convicted terrorist, or the suspected terrorist, or the potential terrorist, or maybe the associate of a terrorist. He is virtually always Muslim and male. Citizenship-stripping is sometimes defended in the name of strengthening citizenship, but it does precisely the opposite. The defining feature of contemporary legal citizenship is that it is secure. Making legal citizenship contingent on performance demotes citizenship to another category of permanent residence. Citizenship revocation thus weakens citizenship itself. It is an illegitimate form of punishment and it serves no practical purpose.

Expatriation measures adopted by a handful of countries are ill-advised and possibly unlawful. Denationalisation of terror suspects clearly merits the attention of scholars and activists; after decades of disuse, states are now stepping back into the practice of forced expatriation. But denationalisation is increasingly anachronistic and toothless in the face of diminished conceptions of citizenship as an institution and changed locations of allegiance. The expatriation measures are empty gestures, a kind of counter-terror bravado to make up for the deficiency of more important material responses.

Macklin is certainly right to worry about the possible abuses of denationalisation. But a liberal constitutional regime can control such abuses by scrupulously controlling the state’s exercise of this power through a variety of familiar institutions and practices. These include a careful definition and exacting limitation of the grounds for revocation; demanding procedural and evidentiary requirements before such a power can be exercised; a right to legal counsel; and an independent judiciary accustomed to challenging state power in the name of protecting individual rights. We have entrusted our precious liberties to the faithful working through of these institutions and practices. Some of these liberties are even more precious than our right to retain our citizenship when we have knowingly acted in horrendous ways that make it justifiable, under the safeguards I describe, for the state to declare that status forfeited.

This commentary reflects on the changing nature of terror and of citizenship, which militates against the notion of “cruel” banishment. First, Islamist terror is conducted against indiscriminate “citizens”, so that stripping terrorists of their citizenship seems just the adequate response. Secondly, citizenship is ever more privilege and contract, so it is odd to conceive of it as something that can never be lost. In fact, terrorists repudiate their own citizenship.

Today’s rush to strip terrorist suspects of their citizenship should arouse suspicion. One is easily tempted to think that we are living in extraordinarily dangerous times, which warrant a return to what the US Supreme Court considered to be ‘cruel punishment’ half a century ago. Yet as a matter of statistics, and despite our contrary impressions, violence of all kinds in the world is actually declining. On the other hand, the capacity of law enforcement agencies for surveillance and control, especially in the OECD countries, has increased dramatically, so the return to practices which have long been abandoned is difficult to justify. This is not to say that that citizenship is a sacred cow and any return to abandoned practices is excluded by some historic laws of human progress. But it does follow that the proponents of banishment must provide a more subtle justification than we have seen so far.

This chapter outlines the legal provisions on loss and deprivation of nationality in Africa, and the way in which they are implemented in practice. It highlights differences from the European and North American context for most discussion around nationality deprivation on security grounds.

Revocation of citizenship means a substantial interference with individual rights. It can only be justified if tightly defined material conditions in accordance with the constitutional law of each country and its international commitments are fulfilled. Risk assessment and proof of an affiliation, assistance or membership in an international terrorist organisation will be essential elements in this procedure. Whether there is a practical value in revocation of citizenship for citizens engaged in international terrorism in addition to criminal and administrative sanctions is within the framework of law a matter of political expediency which may well lead to different results in different countries.

Denationalising terrorists is neither a necesssary nor an effective tool in fighting terrorism. It is instead a symbolic gesture that aims to affirm the basic values of a liberal constitution and an attempt to divert terrorist threats by inflicting them on other states. I argue that stripping terrorist suspects of their citizenship cannot be justified on either of these grounds.

The best way to avoid The calamities of the rightless for whom no law exists (Arendt) is not only to strengthen citizenship protections. That may well have the perverse consequences of, on the one hand, rendering citizenship ever harder to achieve, and on the other, relegating noncitizens to an increasingly rightless realm. We must do the harder, more basic work of defining and instantiating meaningful human rights protections for all people, regardless of status, or location. Focusing too specifically on the problem of deprivation of citizenship must not blind us ‘to the numerous small and not so small evils with which the road to hell is paved.’