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RAMADAN v. MALTA JUDGMENT – SEPARATE OPINION
administrative authorities. States enjoy a degree of discretion with regard to
the criteria governing acquisition of citizenship, but these criteria must not
be arbitrary. In particular, international human rights law places a clear
responsibility that the State should refrain from implementing citizenship
policies that would contribute to the creation or perpetuation of
statelessness. In addition to the right to citizenship, two core rights of
international human rights law are also of particular relevance to
statelessness and the protection of stateless persons. These are the right to
equal protection by law and non-discrimination.
The right to citizenship in European human rights law
7. The right to a citizenship was neither included in the Convention nor
in any of the Protocols thereto. The committee which drafted Protocol No. 4
to the ECHR contemplated inserting a provision to the effect that “a State
would be forbidden to deprive a national of his nationality for the purpose
of expelling him”27. Although the principle which inspired the proposal was
approved by the committee, the majority of experts thought it inadvisable to
tackle the delicate question of the legitimacy of measures depriving
individuals of nationality. It was also noted that it would be very difficult to
prove whether or not the deprivation of nationality had been ordered with
the intention of expelling the person concerned. In 1988 the Council of
Europe’s Committee of Experts for the Development of Human Rights
started examining the question of the right to a nationality as a human right
and considering the possibility of inserting such right into the ECHR
through an additional protocol to the Convention. However, States were not
ready to adopt an additional protocol on the right to a nationality. In 1992 an
expert committee on nationality initiated a feasibility study for a new,
comprehensive convention on nationality.
As a result, the European Convention on Nationality was adopted in
199728.
27. See Explanatory Report to Protocol No. 4, § 23.
28. The explanatory report to this Convention states that “Even if the ECHR and its
protocols do not, except for Article 3 of Protocol No. 4 (prohibitions on the expulsion of
nationals), contain provisions directly addressing matters relating to nationality, certain
provisions may apply also to matters related to nationality questions. … Persons who have
their family life in a particular country, for example having lived there for many years with
their family, even if they have not been able to become a national of this country, may have
the right to remain in the country if they can show that they are entitled to respect for
family life under Article 8 of the ECHR. This right will be particularly important in cases in
which, following State succession, a large number of persons have not acquired the
nationality of the State where they reside. Concerning the prohibition of inhuman or
degrading treatment (Article 3 of the ECHR), actions that lower a national or alien in rank,
position or reputation and are designed to debase or humiliate can be a violation of
Article 3. Article 3 of Protocol No. 4 of the ECHR includes the right of nationals to enter