2016]
The Prevention and Reduction of Statelessness in Australia
501
on Human Rights.275 As Matthew J Gibney has so eloquently articulated,
‘[t]he loss of citizenship transforms the citizen into an alien in the eyes of the
state, stripping them of all rights held qua citizen and making them vulnerable to deportation power.’276 Given that citizenship is often a precursor to the
enjoyment of many other rights, it is not surprising that the catalogue of
rights potentially affected is wide, spanning both civil and political, as well as
social and economic, rights.277
At the core of concerns relating to denationalisation powers is a deeply
ethical one. Gibney explains that many political theorists have explored the
notion that, regardless of legal entitlement, ‘continued residence over time in
a state gives rise to a moral right to residence and thus to membership’,278 on
the basis that it is ‘unjust not to grant people citizenship in countries where
they have made their lives.’279 The notion of a right to citizenship jus domicilii
is only in nascent form in international law,280 yet international human rights
law recognises that persons other than citizens may have a right to live in the
country in which they have established their life. Specifically, the right to
return to one’s ‘own country’ is enshrined in art 12(4) of the ICCPR. This has
particular pertinence to Australia given that the provisions effecting constructive renunciation can apply when a person is overseas, which has the effect of
denationalising for the purposes of preventing return.281 Yet, art 12(4) is not
subject to any limitation, even on national interest or security grounds.282 As
the UN Human Rights Committee has unequivocally stated:
275
Parliamentary Joint Committee on Human Rights, above n 217, 35--58 [2.38]--[2.153].
276
Matthew J Gibney, ‘‘‘Very Transcendental Power’’: Denaturalisation and the Liberalisation of
Citizenship in the United Kingdom’ (2013) 61 Political Studies 637, 638.
277
See Parliamentary Joint Committee on Human Rights, above n 217, 35--6 [2.38]--[2.39].
278
Matthew J Gibney, ‘Should Citizenship be Conditional? The Ethics of Denationalization’
(2013) 75 Journal of Politics 646, 655.
279
Ibid.
280
One rare provision that does incorporate the residency principle is found in the European
Convention on Nationality, opened for signature 6 November 1997, ETS No 166 (entered into
force 1 March 2000) art 6.
281
This is supported by the background material. The Parliamentary Joint Committee on
Human Rights, above n 217, 46 [2.80] provides that ‘[t]he committee considered that it was
clear from the statement of compatibility to the original bill that the intention was to exclude
Australian citizens who are outside Australia at the time their citizenship ceases, from being
able to return to Australia.’
282
ICCPR art 12(3) allows for limits only to arts 12(1)--(2), not 12(4): see ibid
45--7 [2.75]--[2.86].