The Human Right to Citizenship: Situating the Right to Citizenship within International and Regional Human Rights Law: International Refugee Law Series, cartea 21
Autor Barbara von Rütteen Limba Engleză Hardback – 21 dec 2022
This book offers a comprehensive analysis of the right to citizenship in international and regional human rights law. It critically reflects on the limitations of state sovereignty in nationality matters and situates the right to citizenship within the existing human rights framework. It identifies the scope and content of the right to citizenship by looking not only at statelessness, deprivation of citizenship or dual citizenship, but more broadly at acquisition, loss and enjoyment of citizenship in a migration context. Exploring the intersection of international migration, human rights law and belonging, the book provides a timely argument for recognizing a right to the citizenship of a specific state on the basis of one’s effective connections to that state according to the principle of jus nexi.
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Specificații
ISBN-13: 9789004517516
ISBN-10: 9004517510
Dimensiuni: 155 x 235 mm
Greutate: 0.84 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria International Refugee Law Series
ISBN-10: 9004517510
Dimensiuni: 155 x 235 mm
Greutate: 0.84 kg
Editura: Brill
Colecția Brill | Nijhoff
Seria International Refugee Law Series
Notă biografică
Barbara von Rütte, Dr.iur. (2020), University of Bern, LL.M., Leiden, is currently a postdoc at the University of Basel. Her work focuses on citizenship, nationality, statelessness and belonging, as well as international human rights and Swiss migration law.
Cuprins
Acknowledgments
List of Tables
List of Abbreviations
1Introduction
i Citizenship and International Migration – Setting the Problem
ii Objective, Scope and Delimitation
iii Approach and Outlook
2Citizenship and Nationality Terms, Concepts and Rights
i Citizenship or Nationality? A Note on Terminology
ii The Concept of Citizenship
1Historical Traces of the Concept of Citizenship
2Theoretical Conceptualizations of Citizenship
3Citizenship as a Legal Status
3.1 The Concept of Citizenship in International Law
3.2 Acquisition and Loss of Citizenship
3.3 Functions of Citizenship
iii Citizenship as a Human Right
1Citizenship as Access to (Human) Rights
2Citizenship as a Moral Human Right
2.1 Hannah Arendt’s Right to Have Rights
2.2 Seyla Benhabib’s Cosmopolitan Right to Membership
2.3 Ruth Rubio-Marín’s Jus Domicilii
2.4 Joseph Caren’s Theory of Social Membership
2.5 Ayelet Shachar’s Jus Nexi
2.6 David Owen’s Right to a Nationality
3Citizenship as a Legal Human Right
3Domaine Réservé? Statehood, Sovereignty and Nationality
i Statehood and Sovereignty in International Law
1Elements of Statehood
2Statehood and Sovereignty
3State Sovereignty and the Doctrine of Domaine Réservé
ii The Traditional Perception of Nationality as a Domaine Réservé and its Development
iii A Historical Perspective on the Regulation of Nationality in International Law
1Early Multilateral Regulation: Avoiding Conflicts
2Internationalization and Specialization: The 1930 Hague Convention
3The After-War Period: The Rise of Individual Rights
4The Parallel Development: The Indirect Regulation of Nationality
iv Conclusion: Growing International Support
4Beyond Sovereignty The Right to Nationality in International Law
i Article 15 Universal Declaration of Human Rights
1The Drafting History of Article 15 udhr
2The Scope and Content of Article 15 udhr
3The Customary Nature of Article 15 udhr
ii The Right to Nationality in International Law
1The Right to Nationality at Universal Level
1.1 The UN Core Human Rights Treaties
1.2 The Statelessness Conventions and the Refugee Convention
1.3 Soft Law Instruments at Universal Level
2The Right to Nationality at Regional Level
2.1 The Americas
2.2 Europe
2.3 Africa
2.4 Middle East and North Africa
2.5 Asia and Pacific
2.6 Interim Conclusion
iii The Right to Nationality as Customary International Law?
iv Conclusion: The Body of International Human Rights Law
5Defining the Right to Nationality Rights and Obligations
i Qualifying the Right to Nationality
ii The Scope of the Right to Nationality
1Personal Scope of Application
1.1 Everyone
1.2 Instruments with a Limited Personal Scope
1.3 Legal Persons?
2Substantive Scope of Application
2.1 Nationality
2.2 Acquisition, Change and Loss of Nationality
3Territorial Scope of Application
4Temporal Scope of Application
iii Rights and Obligations Derived from the Right to Nationality
1Negative and Positive Obligations
2Transversal Obligations
2.1 Prohibition of Discrimination
2.2 The Prohibition of Arbitrariness and the Question of Proportionality
2.3 The Duty to Prevent and Reduce Statelessness
3Obligations Regarding the Acquisition of Nationality
3.1 Right of the Child to Acquire a Nationality
3.2 Acquisition of Nationality by Stateless Persons and Refugees
3.3 Acquisition in Situations of State Succession
3.4 Prohibition of Extraterritorial Naturalizations
3.5 Prohibition of Forced Naturalization
3.6 Right to Naturalization
4Obligations Regarding the Effective Enjoyment of Nationality
5Obligations Regarding Change of Nationality
5.1 The Right to Change One’s Nationality
5.2 The Right to Renounce One’s Nationality
5.3 A Right to Dual or Multiple Nationality?
6Obligations Regarding Involuntary Loss of Nationality
6.1 The Prohibition of Arbitrary Deprivation of Nationality
6.2 Prohibition of Deprivation of Nationality of Children
6.3 Prohibition of Mass Deprivation of Nationality
7Obligations Regarding the Procedure
7.1 Access to the Procedure
7.2 Due Process
7.3 Right to Review
iv Lawful Interference with the Right to Nationality?
1Legality of Interference
2Legitimacy of Interference
3Balancing of the Interests
v Enforceability and Implementation of the Right to Nationality
vi Conclusion: Identifiable and Predictable Rights and Obligations
6An Individual Right Realizing the Right to Citizenship
i The Need to Strengthen the Right to Citizenship
1The Limitations of Birthright-Based Modes of Citizenship Acquisition
2The Claim for Political Participation and Representation
3The Exclusionary Effects of Citizenship
4The Individual Rights’ Dimension
iiJus Nexi – a Genuine-Connection Principle for Citizenship Acquisition
1Theoretical Foundations of the Concept of Jus Nexi
2From ‘Private Life’ and ‘One’s Own Country’ to Jus Nexi
2.1 The Right to Private Life and the Concept of Social Identity
2.2 The Right to Enter One’s Own Country
3Connecting Factors for a Jus Nexi
3.1 Territorial Ties
3.2 Familial Ties
3.3 Social, Professional, Cultural or Political Ties
4A Dynamic and Non-exclusive Concept
iii Linking Jus Nexi and the Right to Citizenship
iv The Implications of a Jus Nexi-Based Right to Citizenship
1Scope of a Jus Nexi-Based Right to Citizenship
2Content of a Jus Nexi-Based Right to Citizenship
2.1 The Right to Acquire Citizenship at Birth
2.2 The Right to the Citizenship of a Specific State
2.3 The Right to Dual and Multiple Citizenship
2.4 Limitations upon Involuntary Loss of Citizenship
3Legitimate Interferences — Balancing a Jus Nexi-Based Right to Citizenship
v Conclusion: Strengthening the Right to Citizenship
7Conclusion
Bibliography
Table of Other Materials
Table of Cases
Index
List of Tables
List of Abbreviations
1Introduction
i Citizenship and International Migration – Setting the Problem
ii Objective, Scope and Delimitation
iii Approach and Outlook
2Citizenship and Nationality Terms, Concepts and Rights
i Citizenship or Nationality? A Note on Terminology
ii The Concept of Citizenship
1Historical Traces of the Concept of Citizenship
2Theoretical Conceptualizations of Citizenship
3Citizenship as a Legal Status
3.1 The Concept of Citizenship in International Law
3.2 Acquisition and Loss of Citizenship
3.3 Functions of Citizenship
iii Citizenship as a Human Right
1Citizenship as Access to (Human) Rights
2Citizenship as a Moral Human Right
2.1 Hannah Arendt’s Right to Have Rights
2.2 Seyla Benhabib’s Cosmopolitan Right to Membership
2.3 Ruth Rubio-Marín’s Jus Domicilii
2.4 Joseph Caren’s Theory of Social Membership
2.5 Ayelet Shachar’s Jus Nexi
2.6 David Owen’s Right to a Nationality
3Citizenship as a Legal Human Right
3Domaine Réservé? Statehood, Sovereignty and Nationality
i Statehood and Sovereignty in International Law
1Elements of Statehood
2Statehood and Sovereignty
3State Sovereignty and the Doctrine of Domaine Réservé
ii The Traditional Perception of Nationality as a Domaine Réservé and its Development
iii A Historical Perspective on the Regulation of Nationality in International Law
1Early Multilateral Regulation: Avoiding Conflicts
2Internationalization and Specialization: The 1930 Hague Convention
3The After-War Period: The Rise of Individual Rights
4The Parallel Development: The Indirect Regulation of Nationality
iv Conclusion: Growing International Support
4Beyond Sovereignty The Right to Nationality in International Law
i Article 15 Universal Declaration of Human Rights
1The Drafting History of Article 15 udhr
2The Scope and Content of Article 15 udhr
3The Customary Nature of Article 15 udhr
ii The Right to Nationality in International Law
1The Right to Nationality at Universal Level
1.1 The UN Core Human Rights Treaties
1.2 The Statelessness Conventions and the Refugee Convention
1.3 Soft Law Instruments at Universal Level
2The Right to Nationality at Regional Level
2.1 The Americas
2.2 Europe
2.3 Africa
2.4 Middle East and North Africa
2.5 Asia and Pacific
2.6 Interim Conclusion
iii The Right to Nationality as Customary International Law?
iv Conclusion: The Body of International Human Rights Law
5Defining the Right to Nationality Rights and Obligations
i Qualifying the Right to Nationality
ii The Scope of the Right to Nationality
1Personal Scope of Application
1.1 Everyone
1.2 Instruments with a Limited Personal Scope
1.3 Legal Persons?
2Substantive Scope of Application
2.1 Nationality
2.2 Acquisition, Change and Loss of Nationality
3Territorial Scope of Application
4Temporal Scope of Application
iii Rights and Obligations Derived from the Right to Nationality
1Negative and Positive Obligations
2Transversal Obligations
2.1 Prohibition of Discrimination
2.2 The Prohibition of Arbitrariness and the Question of Proportionality
2.3 The Duty to Prevent and Reduce Statelessness
3Obligations Regarding the Acquisition of Nationality
3.1 Right of the Child to Acquire a Nationality
3.2 Acquisition of Nationality by Stateless Persons and Refugees
3.3 Acquisition in Situations of State Succession
3.4 Prohibition of Extraterritorial Naturalizations
3.5 Prohibition of Forced Naturalization
3.6 Right to Naturalization
4Obligations Regarding the Effective Enjoyment of Nationality
5Obligations Regarding Change of Nationality
5.1 The Right to Change One’s Nationality
5.2 The Right to Renounce One’s Nationality
5.3 A Right to Dual or Multiple Nationality?
6Obligations Regarding Involuntary Loss of Nationality
6.1 The Prohibition of Arbitrary Deprivation of Nationality
6.2 Prohibition of Deprivation of Nationality of Children
6.3 Prohibition of Mass Deprivation of Nationality
7Obligations Regarding the Procedure
7.1 Access to the Procedure
7.2 Due Process
7.3 Right to Review
iv Lawful Interference with the Right to Nationality?
1Legality of Interference
2Legitimacy of Interference
3Balancing of the Interests
v Enforceability and Implementation of the Right to Nationality
vi Conclusion: Identifiable and Predictable Rights and Obligations
6An Individual Right Realizing the Right to Citizenship
i The Need to Strengthen the Right to Citizenship
1The Limitations of Birthright-Based Modes of Citizenship Acquisition
2The Claim for Political Participation and Representation
3The Exclusionary Effects of Citizenship
4The Individual Rights’ Dimension
iiJus Nexi – a Genuine-Connection Principle for Citizenship Acquisition
1Theoretical Foundations of the Concept of Jus Nexi
2From ‘Private Life’ and ‘One’s Own Country’ to Jus Nexi
2.1 The Right to Private Life and the Concept of Social Identity
2.2 The Right to Enter One’s Own Country
3Connecting Factors for a Jus Nexi
3.1 Territorial Ties
3.2 Familial Ties
3.3 Social, Professional, Cultural or Political Ties
4A Dynamic and Non-exclusive Concept
iii Linking Jus Nexi and the Right to Citizenship
iv The Implications of a Jus Nexi-Based Right to Citizenship
1Scope of a Jus Nexi-Based Right to Citizenship
2Content of a Jus Nexi-Based Right to Citizenship
2.1 The Right to Acquire Citizenship at Birth
2.2 The Right to the Citizenship of a Specific State
2.3 The Right to Dual and Multiple Citizenship
2.4 Limitations upon Involuntary Loss of Citizenship
3Legitimate Interferences — Balancing a Jus Nexi-Based Right to Citizenship
v Conclusion: Strengthening the Right to Citizenship
7Conclusion
Bibliography
Table of Other Materials
Table of Cases
Index