Retain Ius Sanguinis, but Don’t Take it Literally!

Abstract

Costica Dumbrava has raised an important question about whether to abandon ius sanguinis citizenship. His arguments are that ius sanguinis is historically tainted and unfit to deal with contemporary issues such as developments in reproductive technologies and changes in family practices and norms. He also claims that ius sanguinis is normatively unnecessary, as it is possible to deliver its advantages by other means. In my response I argue that – from a human rights perspective – children need their parents’ citizenship – or rather, the citizenship of their primary caretakers, be they biological parents or not. Consequently, although I concur with the argument that ius sanguinis, if taken literally, is unfit to deal with some new family arrangements, I do not endorse the viewpoint that it is time to abandon ius sanguinis. Rather, ius sanguinis should be translated into ius filiationis by entitling children to their social parents’ citizenship. In order to achieve mutual understanding about this, states should engage in international cooperation with a view to adopting common guidelines on the recognition of the legal parent-child relationship –as happens already with regard to adoption.

The Human Right to Citizenship

“…In legal debates, the term 'nationality' was traditionally used to refer to the international aspect of belonging to a state, linking an individual to a particular state as opposed to others, whereas 'citizenship' was understood as referring to the internal, national and municipal aspect of membership to a state, including the rights and duties of the individual in relation to that state.15 Both terms, therefore, denote the legal status of an individual as a member of a nation state, but reflect two different legal frameworks, ie the international legal framework and the domestic legal framework respectively. 16 In non-legal debates, the two notions are rarely used synonymously.17 In fact, the conflation of citizenship with nationality is often seen as problematic in social sciences. 18 The term nationality, on the one hand, has a strong ethnical, or even nationalistic connotation and is thus rarely used to describe membership in a state.…”

“…Regarding the procedure, deprivation of nationality is considered to be arbitrary -and thus unlawful -if the procedure leading to the deprivation lacks a legal basis, disregards due process guarantees or there is no possibility of judicial or administrative review.463 Procedural safeguards are essential Claims 15,16,23 & to prevent arbitrary decisions and the abuse of law. 464 The procedure leading to the deprivation must be predictable and have a sufficient legal basis in domestic law.465 Any discretion granted to the authorities must be clearly indicated.466 Legal provisions allowing for the deprivation of nationality may not be applied by analogy or retroactively.…”

“…511 See on the practice of declarations to Article 8(3) 1961 Convention also Boekestein and de Groot (n 123). 512 Partial Award -Civilians Claims: Eritrea's Claims 15,16,[23][24][25][26][27][28][29][30][31][32] Statelessness is an important element in the determination of whether deprivation is proportionate and thus lawful.520 States have an obligation to prevent statelessness from occurring.521 This obligation, combined with the severity of interfering with the rights of the individual, will usually outweigh any possible legitimate public interest. Thus, a deprivation of nationality resulting in statelessness will hardly ever be proportionate and will usually lead to an arbitrary deprivation of nationality.…”

“…Specifically, mass denationalizations will often not be based on individual decisions and therefore not meet the requisite procedural standards.552 Because of this disregard of due process guarantees mass denationalizations amount to arbitrary deprivation of nationality and per se violate the right to nationality. This understanding is mirrored in the award of the Eritrea Ethiopia Claims Commission of 2004, which found that the denationalization of about 50'000 Eritrean-Ethiopian dual nationals was arbitrary, as the persons concerned were not individually identified and had no apparent possibility of review or appeal.553 Claims 15,16,[23][24][25][26][27][28][29][30][31][32]) para 75.…”

“…Nationality regimes are subject to frequent change and revision. 16 Some reforms aim at liberalizing access to citizenship.17 instruments, the Universal Declaration of Human Rights (udhr)22. Article 15 udhr states:…”