2020
Statelessness & Citizenship Review
2(2)
the challenges for the continued international visibility of statelessness is framing
it as a human rights issue. 38
Increased international interest in and scrutiny of citizenship as a human rights
issue is therefore likely to be beneficial for addressing statelessness. Scholars have
argued for a rights-based approach to citizenship which may perhaps lead to an
international law of citizenship or even an international right to citizenship. 39 Of
particular interest here for those who are stateless is the idea of a ius nexi route to
citizenship which recognises the proximity or connectedness of a person to a
polity, 40 or a genuine and effective link. 41 Encouraging developments addressing
both citizenship and statelessness in rights terms include regional human rights
decisions in Africa, the Americas and Europe. 42
However, even though there is a discernible move away from citizenship as
being solely within the regulatory domain of states, what does a ‘global
governance’ approach have to offer? Shaw notes that the case is currently not very
strong for arguing that there is an emergent ‘constitutionalised’ framing of
citizenship practices at the global level as a result of the effects of international
law or a decisive ‘global’ reframing of constitutional citizenship. 43 But, have
international norms on citizenship ‘leaked in’ (using Shaw’s colourful term) to
national constitutions? 44 On the one hand, it is clear that the current Westphalian
system of state sovereignty in relation to membership is not going to collapse any
time soon. On the other, the interest of the international community in
constitutional law and citizenship practices is strengthening and being expressed
in innovative and creative ways. A good example of this is the attempt earlier this
year by the United Nations High Commissioner for Human Rights to intervene in
Supreme Court proceedings in India on the citizenship registration process in
Assam. 45 More of this type of intervention will assist in international norms
shaping and strengthening national constitutional frameworks — to the benefit of
both citizenship and statelessness.
CONCLUSION
Shaw observes that ‘citizenship is always likely to disappoint those who invest in
it the hopes that it will deliver equality and inclusion’. 46 In her contribution,
Johanna Hase also observes that Shaw’s notion of constitutional citizenship has
38
39
40
41
42
43
44
45
46
Michelle Foster and Hélène Lambert, ‘Statelessness as a Human Rights Issue: A Concept
Whose Time Has Come’ (2016) 28(4) International Journal of Refugee Law 564.
See for example Peter J Spiro, ‘A New International Law of Citizenship’ (2011) 105(4)
American Journal of International Law 694; Barbara von Rütte, ‘From State Privilege to
Right — A Proposal for Reinterpreting the Right to Citizenship’ (Conference Paper, Rights
and Status: The Role of Citizenship in Immigrant Integration and Diaspora Building, 29–30
November 2018).
Ayelet Shachar, The Birthright Lottery: Citizenship and Global Inequality (Harvard
University Press 2009).
Jeffrey L Blackman, ‘State Successions and Statelessness: The Emerging Right to an
Effective Nationality under International Law’ (1998) 19(4) Michigan Journal of
International Law 1141.
Shaw (n 1) 247−51.
ibid 242.
ibid 223.
Priya Pillai, ‘Intervention of the UN High Commissioner for Human Rights at the Indian
Supreme Court: International Law and the Citizenship Amendment Act’, Opinio Juris (Blog
Post, 5 March 2020).
Shaw (n 1) 190.
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