European Convention on Nationality and States’ Competence: The Issue of Human Rights

• Author: Tanel Kerikmäe
• Pages: 25-29

Tanel Kerikmäe

European Convention on Nationality and States' Competence: The Issue of Human Rights

1. Comparative Models Versus Harmonisation

There has been confusion historically with the terms of "citizenship" and "nationality". In some cases, the terms are used as synonyms. However, even when the terms are used in the same legal system, they can designate different phenomena. According to Frank Horn,¹ "citizenship" has been used to denote the status of persons who enjoy full political rights and privileges, while "nationals" are persons who are subjects of the state but who do not have full rights and privileges within the state that they are permanently residing in.

Michel Rosenfeld² has determined three historical models which have influenced national legislation in this field. Firstly, the German model is characterised by a predominance of the ethnos over the demos, that is, the nation is more fundamental than the state. According to the German model, therefore, citizenship is determined on the basis of jus sanguinis. The French model on the other hand is the opposite, whereby the demos predominates over the ethnos. Thus, the nation is a political phenomena. Third, the American model looks very much like its French counterpart as the demos has priority over the ethnos. However, the American state did not precede the American nation as both the state and nation were born at once. The key word of the American model is "constitution" which gives legal meaning to both notions.

Today, the contemporary global doctrine has several features including the values embedded in the Western concept of citizenship. These features are interconnected, interdependent and are found in several international treaties and "soft law". The latest achievement which crystallises the whole set of ideas to positive law is certainly the European Convention on Nationality of 1997.

2. European Convention and International Law

The object of the Convention is set out in Article 1 which provides that this international regional instrument applies only to individuals. For the purpose of the Convention, Article 2a states that "nationality" means the legal bond between a person and a state, and does not indicate the person's ethnic origin. In the same Article, Article 2d gives the legal scope of the term "internal law" extending it to include all types of provisions of a national legal system, including regulations, case law, customary rules and practice. Since the norms of international law can be regarded as an inseparable part of the domestic legal system, the rules derived from binding international instruments are also included.

One of the key provisions and a historical principle of international law is Article 3 of the Convention which states that matters of nationality are within the sphere of a state's domaine reservé. Another existing principle states that nationality should not be granted arbitrarily. In this context, nationality is considered not to have been granted arbitrarily if this was done on the basis of origin (jus sanguinis), place of birth (jus soli) or place of residence (in the case of naturalisation).

The Convention however, recognising developments in international human rights law and a state's limited discretion, states that domestic law must be accepted by other states only if it is consistent with the applicable sources of international law. This provision has been clearly influenced by Article 3 (2) of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws which states "this law shall be recognised by other states in so far as it is consistent with applicable international conventions, customary international law, and the principles of law generally recognised with regard to nationality". The limitations imposed by international law relate to the territorial and personal competence of states, and to the international protection of human rights.

Thus, the discretion of a state to determine by law who its nationals are is relative rather than absolute. Furthermore, Article 5 of the Convention concentrates on non-discrimination, one of the cornerstones of human rights. The provision is directly derived from the European Convention on Human Rights and Fundamental Freedoms (hereafter "ECHR") (Article 14) which is derived from the Universal Declaration on Human Rights (Article 2) accordingly. The relative discretion of a state requires certain criteria to be established. In general, there could be preferential treatment which must be limited by binding human rights norms.

However, to make the criteria clear, the interpretation of human rights norms which may be clarified by international case law and by evaluations of authoritative publications of recognised experts in the field must be borne in mind. The Convention has evident links with existing human rights norms, as the preamble, for example, provides the following: "Aware of the right to respect family life as contained in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms". Also, Articles 3, 6, 8 and 14 of the ECHR and Articles 3 and 4 of Protocol No. 4 have direct relevance in the interpretation of Convention provisions. As the Convention is also open to signature by non-member states of the Council of Europe which have participated in its elaboration, the standards of the ECHR can even be treated as customary international law. Similarly, the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, the 1989 United Nations Convention on the Rights of the Child and the 1966 Convention on the Elimination of All Forms of Racial Discrimination can be treated as customary international law. Furthermore, certain judgements of international tribunals have been considered in drafting the Convention text.

The concept of nationality (as it was stated by an explanatory report) was explored by the International Court of Justice³. The sub-principle, that a state party may exclude non-nationals from employment in the public service only where the employment involves the exercise of sovereign power contains a phrase based on a judgement of the European Court of Justice⁴. Also, judgements of the European Court of Human Rights and the Inter-American Court of Human Rights have significant relevance. Furthermore, some principles mentioned in the text of the...