The content of the prohibition of arbitrary deprivation of citizenship Arbitrariness, under international human rights law 7 is “not so much something opposed to a rule of law, as something opposed to the rule of law ... it is a wilful disregard of due process of law, an act which shocks, or at least surprises, a sense of judicial propriety”. 8 In the human rights context, the prohibition of arbitrariness aims to ensure that even interference with rights is consistent with the provisions, aims and objectives of the relevant law, and above all, is reasonable. 9 Arbitrariness thus contains both substantive and procedural aspects. We note that according to UNHCR on Statelessness No. 5: Loss and Deprivation of Nationality under Articles 5-9 of the 1961 Convention on the Reduction of Statelessness 10 and the Principles on Deprivation of Nationality as a National Security Measure developed by 60 experts and the Institute on Statelessness and Inclusion, States should strive to strengthen the protection of citizenship and thus not deprive persons of nationality for the purpose of safeguarding national security. The deprivation of nationality of citizens on broadly defined and imprecise national security grounds, given the capacity of the misuse of such terminology and its inherent lack of precision and clarity is presumptively arbitrary. This presumption may only be overridden in circumstances where such deprivation is, at a minimum: carried out in pursuance of a legitimate purpose; provided for by law; necessary; proportionate; and in accordance with procedural safeguards. 11 Key aspects of arbitrariness in the context of the prohibition against the arbitrary deprivation of nationality Principle of Legality The deprivation of nationality must conform to the law – both to its letter and its object (so as to avoid an outcome that is unjust, illegitimate or unpredictable). 12 Any withdrawal of nationality by a State must have a clear basis in law and be sufficiently 7 8 9 10 11 12 It has been described as a general principle of international law: see J. Stone. ‘Arbitrariness, the Fair and Equitable Treatment Standard, and the International Law of Investment’ (2012) 25(1) Leiden Journal of International Law, pp. 85- 87. See also Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while combatting terrorism intervention before the Special Immigration Appeals Commission in the case of Shamima Begum, 26 October 2020, https://www.ohchr.org/Documents/Issues/Terrorism/SR/Submissions26Oct2020.pdf. Elettronica Sicula S.p.A. (ELSI) (United States of America v Italy) [1989] ICJ Rep. 15, para. 128 (emphasis added). This lack of equivalence between unlawfulness and arbitrariness was specifically recognised in the drafting history of Article 15(2) of the UDHR: the majority of State representatives took the view that a person could neither be deprived of nationality in breach of existing laws, nor on the basis of laws that operated arbitrarily: I. Ziemele and G. Schram, ‘Article 15’ in. A. Eide, G. Alfredson (eds), The Universal Declaration of Human Rights: A Common Standard of Achievement (1999), pp. 302-303. UN Human Rights Committee, ‘CCPR General Comment No. 16: The right to respect of privacy, family, home and correspondence, and protection of honour and reputation (Article 17)’ (1988), para. 4. UN High Commissioner for Refugees (UNHCR), Guidelines on Statelessness No. 5: Loss and Deprivation of Nationality under Articles 5-9 of the 1961 Convention on the Reduction of Statelessness, May 2020, HCR/GS/20/05, available at: https://www.refworld.org/docid/5ec5640c4.html [accessed 9 February 2022] See Guidelines on Statelessness No. 5: Loss and Deprivation of Nationality under Articles 5-9 of the 1961 Convention on the Reduction of Statelessness para. 61-68 and 72-75 on access to fair hearing. See too: Institute on Statelessness and Inclusion, ‘Principles on Deprivation of Nationality as a National Security Measure’, Principle 7.1. February 2020, https://files.institutesi.org/PRINCIPLES.pdf Ibid; ‘Human Rights and arbitrary deprivation of nationality: Report of the Secretary-General’, UN Doc. A/HRC/13/34, 14 December 2009, paras 24-25. See, e.g., Ivcher Bronstein v Peru, Inter-American Court of Human Rights, Judgment, 6 February 2001, Ser. C, No. 74, para. 95. 3