International Law on Nationality Through the Lens of Noncitizenism

This paper explores international law on nationality through the lens of noncitizeniship. It illustrates the ineffectiveness of the human right to a nationality in challenging the neocolonial operationalisation of the states’ sovereign right to determine who their nationals are. International law on nationality rests on two normative pillars: the states’ sovereign right to determine who their nationals are, and the human right to a nationality. As a stable population is one of the defining features of statehood, international law has traditionally guarded the states’ sovereign right to determine who its nationals are, and legitimised ignoring legal or political relations with noncitizens. The contemporary operationalisation of the state’s virtually unchallenged right to curate its own citizenry, combined with the right to deny entry to its territory to noncitizens, is an integral part of the neocolonialism of contemporary international migration and nationality law. It is manifested as a systemic exclusion of Third World individuals from accessing resources that are disproportionality concentrated in, and controlled by, the First World. While formally neocolonial international law proclaims sovereignty and self-determination of all states, and thus in theory all states are equal in their right to curate their citizenries, and deny access to their resources for noncitizens, due to the globally unequally distributed resources this right advantages First World nations. The human right to a nationality, while introducing individuals’ interests in state membership into the international legal normative framework on nationality, does little to challenge the neocolonialism of the state’s sovereign right to exclude. The right to a nationality, as embedded and interpreted in international law, is indifferent to the kind of nationality an individual has (the right to), and is blind to the noncitizen relations between states and individuals. As long as an individual has some kind of a nationality – regardless of how that nationality positions this individual with regard to accessing global resources – such an individual’s right to a nationality is considered to be realised under international law. The right to a nationality has thus predominantly featured in efforts to reduce or even eradicate statelessness. Statelessness is the only form of noncitizenship acknowledged by international law on nationality. It is defined as the lack of a nationality in any state, and simplistically presumed to be a homogenous and universally undesirable legal condition. Interestingly, calls for the abolition of statelessness, and of multiple nationalities, pre-date the human rights era, and were historically motivated by the states’ interest to preserve the stability of their populations. While human rights law achieved a broader acceptance of multiple nationalities in international law, the antipathy towards statelessness remained, and got re-branded as the implementation of the human right to a nationality. Thus, the human right to a nationality, by silencing and pathologizing noncitizenship, does not contribute to understanding and addressing the neocolonial noncitizen relations between Third World individuals and First World states, where the latter control access to a disproportionately large share of global resources through their international sovereign right to curate their citizenries.