terminology employed by states in defining deprivation powers regularly relies on vague language, leaving considerable room for interpretation at the discretion of the body authorised to take deprivation decisions.34 Deprivation powers are also bestowed most often on the executive branch of government – a head of government, government body, or minister35 – where broader policy considerations may carry more weight and there is likely to be less of a 'balancing' between the interests of the state and the rights of the individual than if deprivation were decided by a court. While not comprehensively addressed in this report, there is also evidence of states evading important procedural protections in the practical application of deprivation powers against citizens. For example, the right to be present during proceedings has been subject to regular violation due to the widespread use of deprivation powers to target citizens while they are abroad. The case of Shamima Begum is illustrative: she was deprived of her British nationality after joining Islamic State and then denied the right to return to the UK to attend her appeal proceedings. While the UK Court of Appeal ruled in 2020 that Ms. Begum’s presence in the proceedings constituted a prerequisite for the fulfilment of the right to a fair trial,36 this was subsequently overturned by the UK Supreme Court in early 2021. The Supreme Court reasoned that: “ […] if a vital public interest – in this case, the safety of the public – makes it impossible for a case to be fairly heard, then the courts cannot ordinarily hear it. The appropriate response to the problem in the present case is for the appeal to be stayed until Ms Begum is in a position to play an effective part in it without the safety of the public being compromised. That is not a perfect solution, as it is not known how long it may be before that is possible”.37 Besides the violation of the right to attend judicial proceedings in person, the position of the Court also threatens the right to be tried without undue delay. When it comes to the recommendations pertaining to the deprivation of nationality in the national security context, UN Treaty Bodies have placed significant emphasis on the need for procedural guarantees. 13 recommendations issued to states that have introduced or expanded deprivation powers in relation to disloyalty since 2000 include language addressing the need for due process. It is an issue that is raised primarily by the CCPR. For instance, in its 2015 concluding observations on the United Kingdom, it noted that: State Party should review its laws to ensure that “ the restrictions on re-entry, and denial of citizenship, on These issues are similarly raised in recommendations concerning deprivation of nationality more generally,39 as well as those pertaining to counter-terrorism measures.40 In the context of the latter, the CCPR recommended Australia to: review its current counter-terrorism “ …comprehensively laws, policies, and practices on a continuing basis with a view to ensuring their full compliance with the Covenant, in particular by ensuring that any limitations of human rights for national security purposes serve legitimate government aims, are necessary and proportionate to those legitimate aims and are subject to appropriate safeguards”.41 Finally, even if the cumulative requirements set out above are fulfilled, deprivation of nationality may still be arbitrary and therefore prohibited where such deprivation would lead to a violation of other rights set forth in international human rights law, international humanitarian law, and international refugee law. These include: • • • • • • • The right to enter and remain in one’s own country; The prohibition of refoulement; The prohibition against torture and cruel, inhuman, or degrading treatment or punishment; The right to liberty and security of the person; The right to legal personhood; The right to private and family life; and The rights of the child.42 The risk of consequential violations flowing from decisions to deprive nationality has also been raised by UN human rights experts in commenting on state practice. For instance, in their communication on the case of Fatima H. in the Netherlands, UN mandate holders remarked that: “ based on assumptions or claims of radicalisation, The removal of citizenship status from a family member extremism or engagement in or support of terrorism and/ or the failure to preserve family units affect the fundamental rights of all its members. The burden that a mother’s deprivation of her nationality will inevitably have on her underage children, even if their right to a nationality is not affected, must therefore be a key aspect of the proportionality assessment”.43 This illustrates how, when exercising deprivation powers, the circumstances of the case must be carefully weighed – including assessing the risk of direct consequential human rights violations – as part of determining whether the principle of proportionality would be violated and thereby whether deprivation would be arbitrary under international law. terrorism grounds, include appropriate procedural protections and are consistent with the principles of legality, necessity and proportionality”.38 ENDNOTES Convention on Certain Questions relating to the Conflict of Nationality Laws, opened for signature 12 April 1930, 179 UNTC 89 (entered into force 1 July 1937) art 1. 2 The UDHR is recognised as part of customary international law. See ACtHPR, Anudo v Tanzania (2018), Application no. 012/2015. 3 The Principles were drafted by the Institute on Statelessness and Inclusion in collaboration with the Open Society Justice Initiative and with support from the Asser Institute and Ashurst LLP. Over a 30 month period, extensive research was conducted into global trends, the effectiveness of citizenship deprivation and international standards related to deprivation, three expert meetings were convened (London – 2017, and The Hague – 2018 & 2019) and multiple drafts were developed by the team, under the guidance of an expert Drafting Committee and subject to the review of a wider group of experts. The Principles were finalised in February 2020 and remain open for institutional and individual endorsement until June 2021. For more information, visit www. institutesi.org. 4 The Principles and the accompanying Commentary are available at: www.institutesi.org. 5 Mandates of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance; the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment; the Special Rapporteur on trafficking in persons, especially women and children and the Working Group on 1 36