Re: non-discrimination regarding naturalisation
Date: Thu, 29 Jan 98 08:55:00 -0500
From: MINELRES moderator <[email protected]>
Message-Id: <[email protected]>
To: "[email protected]" <[email protected]>
Subject: Re: non-discrimination regarding naturalisation
From: MINELRES moderator <[email protected]>
Original sender: Fernand De Varennes <[email protected]>
Re: non-discrimination regarding naturalisation
Dear John,
Because of the interest raised by this issue, my message is also being sent
to MINELRES-L.
The decision involving naturalisation I referred to in my earlier message is
the Costa Rican Naturalization Case. It is a decision of the Inter-American
Court of Human Rights, Advisory Opinion of 19 January 1984 (Case No. OC-4/84
.), on the proposed amendments to the naturalization provisions of the
Constitution of Costa Rica, one of the amendments was to require that an
applicant had the ability to speak, write and read Spanish in order to
acquire citizenship.
To make sure the issue is understood properly, let me make a few
observations, which are resumed and simplified to some extent. I hope to be
able to work on a much more in-depth paper on this topic in a month or so.
1. There is not in international law or European law a "right to
citizenship" as such, although stateleness must be avoided.
2. It is no longer true that in international law citizenship is a sovereign
matter. While such a statement is sometimes still repeated in some legal
textbooks, the more correct position is that whereas states have a great
deal of latitude in the rules they adopt for naturalisation purposes,
international human rights can affect these matters. More precisely, non-
discrimination under Article 26 of the International Covenant on Civil and
Political Rights affects all areas of state regulation, even naturalisation.
No international law expert to my knowledge has seriously suggested that
there are some areas of "sovereignty" that are excluded from Article 26. To
be very short and even provocative, a White-only naturalisation policy would
clearly be discrimination, and in violation of Article 26 of the Covenant.
3. That non-discrimination in international law could affect naturalisation
policies is relatively unknown in Europe (and elsewhere) can be explained by
at least two reasons: the relative youth of the International Covenant on
Civil and Political Rights means that there has not been a large number of
questions involving naturalisation rules (although there have been a few:
there is also one involving discrimination based on sex), and secondly, the
European Convention on Human Rights and Freedoms does not have a general non
-discrimination clause (like the Covenant) or a right to citizenship (like
in the Inter-American human rights system, so that this specific issue in
Europe could essentially not arise.
4. The European Convention on Nationality, and this may also surprise many,
may also be inconsistent with international human rights in its application
because of the non-inclusion of language and a few other grounds in the
prohibition of discrimination. In other words, the protection under this
treaty, which makes real progress in some areas, may be lesser and actually
contrary to the basic human rights recognised at the United Nations (I hope
I do not make too many enemies by saying this publicly). Once again, I will
be writing on this issue in my upcoming paper.
If I can summarise these points, non-discrimination on the ground of
language does not mean a state cannot under any circumstances require
knowledge of the official language for naturalisation purposes. However, and
this was also acknowledged in the Inter-American Court decision above, there
may be situations where the circumstances in a state are such that only
permitting naturalisation if an individual knows the official language could
be discriminatory if "operates in a vacuum" in relation to the social
reality of the state.
>From the decision, it appears that if many people, or traditional groups, in
the country speak a language other than the official language, it may be
necessary to permit naturalisation if an individual is fluent in this other
language used in the state (as is the case in the U.K., where if I remember
correctly knowledge of Gaelic or Welsh can be a "substitute" for knowledge
of English).
That is how the issue of language, naturalisation and non-discrimination are
connected. Under a general non-discrimination provision like Article 26 of
the International Covenant (and unlike the one in the European Convention on
Human Rights and Freedoms and the European Convention on Nationality which
excludes language), naturalisation is no longer the exclusive sovereignty of
the state. This has been shown also by the UN Human Rights Committee
decision involving Mauritian legislation and sex discrimination.
While states have certainly a great deal of latitude in naturalisation,
there are limits imposed by this corner stone of international human rights.
As a general proposition, it is also clear that a state can, to use your own
words: "fix certain criteria to determine their own nationals. These
criteria could result, in given cases, in more preferential treatment in the
field of nationality. Common examples of justified grounds for
differentiation or preferential treatment are the requirement of knowledge
of the national [read State or official] language in order to be naturalised
..."
However, there are limits, and some situations may be deemed as unreasonable
and thus discriminatory if they "operate in a vacuum" in relation to the
composition of the population of the state involved, including in terms of
language requirements.
In closing two comments: one a strong criticism of remarks made in the
explanatory document to the European Convention on Nationality and the last
one much more light-hearted, but which points to dangers that should be
avoided.
There is a statement to the effect that language (and a few other grounds)
discrimination is not prohibited in the European Convention on Nationality
because, essentially, it could never happen. That however is a determination
which should be made on the facts by a judicial body. To simply state that
discrimination is not possible, therefore we will not prohibit it, seems an
approach more worthy of oppressive regimes (Apartheid South Africa would
have loved this reasoning) rather than on a strong commitment to protect the
weaker segments of society.
And now, let me finish with a last comment that illustrates perhaps in a
light-hearted way how the above comment was wrong.
Until about the 1970s, Australia immigration officials had in place what it
called the language requirement. Instead of requiring knowledge of English
as one would expect, it represented a discretionary power available to
immigration officers, who could require from any person they chose to
demonstrate knowledge of any language. In practice, if an official wanted to
keep out some people, such as Chinese, Jews or political undesirables, they
would ask the person to explain an extract in a rather unusual language like
Welsh, Sanskrit or any language that hit the fancy of the immigration
official. Since not many Chinese were fluent in Welsh, you can see how
effective these powers were. They were arbitrary and discriminatory, at
least in international law if not under European treaties...
I will let you know when my in-depth paper is ready if I ever get the time
and resources to finish it.
Au revoir!
Dr Fernand de Varennes
European Academy
Via Weggenstein 12 a I-39100
Bolzano ITALY
Tel: +39-471-30-61-29
Fax: +39-471-30-61-99
--
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