7.5. Arbitrary denial or deprivation of nationality and the right to due process KEY MESSAGES • Arbitrary deprivation of nationality implies the right to due process not only with regard to invocation of administrative measures to deprive a person of nationality that has previously been recognised, but also regarding denial of recognition of nationality to a person who appears to be entitled to such recognition. • Deprivation on grounds of fraud or criminal offences should be subject to a rule of proportionality. • Courts are generally more deferential to the executive in national security cases, but some deprivations have nonetheless been overturned. Arbitrary deprivation of nationality is unlawful in international law and is also likely to be unlawful under the due process provisions of any national constitution. It may be an additional injury that those affected are rendered stateless, but the key issue is the arbitrariness of the decision and the abandonment of the rule of law: if nationality is arbitrarily deprived, it is a violation of human rights even if the person is not thereby rendered stateless. Article 15 of the Universal Declaration of Human Rights provides that “no one shall be arbitrarily deprived of his nationality.” The provision was adopted as a direct response to the denationalisations carried out by Germany before and during the Second World War. More specifics were provided in 1961 by the Convention on the Reduction of Statelessness, which states that a contracting state “shall not exercise a power of deprivation … except in accordance with law, which shall provide for the person concerned the right to a fair hearing by a court or other independent body” (Article 8[4]). Article 9 of the 1961 Convention adds the specific prohibition that “a Contracting State may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds” (u section 7.4: Discrimination based on race, religion, or ethnicity). The prohibition on arbitrary withdrawal thus applies whether or not a person would become stateless. The key question therefore is the nature of state action that counts as “arbitrary deprivation”. The UN Human Rights Committee, considering the word arbitrary in other contexts, has said that “the notion of ‘arbitrariness’ must not be equated with ‘against the law’ but be interpreted more broadly to include such elements as inappropriateness and injustice,” and that “the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the [ICCPR] and should be, in any event, reasonable in the particular circumstances.” Extensive guidance on the application of due process in deprivation of nationality is provided by the UNHCR Guidelines on Statelessness No. 5 on Loss and Deprivation of nationality under Articles 5-9 of the 1961 Convention on the Reduction of Statelessness. The Inter-American Commission has also adopted comprehensive guidelines on due process in the context of the protection of refugees and stateless persons. More generally, an assessment of arbitrariness may draw on the concept of the “rule of law” as recognised by national and international legal systems. Arbitrary denial as deprivation Deprivation of nationality is not restricted to cases where the state invokes formal deprivation proceedings under the law. A retroactive finding that a person was not a national and was issued nationality documents in error, or an arbitrary application of rules relating to loss by operation of law, constitutes deprivation of nationality and is equally subject to rules prohibiting arbitrary deprivation.294 Thus, in the Anudo case against Tanzania before the African Court on Human and Peoples’ Rights, the court stated that if a person had ever held documents recognising citizenship, the burden of proof shifts to the state to prove that the person is not a citizen, if recognition of citizenship is revoked and those documents withdrawn.295 In the Modise case against Botswana, concerning a person whose citizenship had been recognised without difficulty until he decided to run for president, the African Commission considered denial of citizenship on the alleged grounds that the applicant held another citizenship (dual citizenship was not permitted for adults in Botswana), and found that: [F]ailure or refusal of a Respondent State to grant nationality on grounds that the Complainant had obtained another nationality or had accepted it without showing any proof is a violation of the right to recognition of legal status.296 294 UNHCR, Guidelines on Statelessness No. 5, supra n 103, para. 91 et seq. 295 Anudo v. Tanzania, supra n 109. 296 John Modise v. Botswana, Communication 97/93, African Commission on Human and Peoples’ Rights, decision of 6 May 2000, para. 88. 72 U N H C R | L I T I G AT I N G T H E R I G H T T O A N AT I O N A L I T Y: A G U I D E F O R P R AC T I T I O N E R S