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146 6467 Biicl Citizenship Rep Acknowledgements We would like to extend our gratitude to our Advisory Board for lending us their expertise: Piers Gardner, Monckton Chambers Professor Margot Horspool, Professorial Fellow at the Institute Professor Kim Rubenstein, Director of the Centre for International and Public Law at the Australian National University Professor Gillian Triggs, Dean of the Faculty of Law, The University of Sydney We also would like to thank our excellent team of interns, without whom this Report would not have been possible: Camilla Bernacchi Andrew Jillions Kismet Johnson Isobel M. Reed Daniel Vasbeck Clare Williams Table of Contents Introduction........................................................................................................................3 International Instruments Affecting the Hallmarks of Citizenship...............................16 Citizenship of the European Union ................................................................................71 National Reports ............................................................................................................125 Australian Citizenship ..................................................................................................125 French Citizenship .......................................................................................................145 Spanish Citizenship .....................................................................................................171 United States Citizenship.............................................................................................192 Rights of Third Country Nationals in Denmark.............................................................216 Citizenship Education: The Nordic Example...............................................................222 Selected Bibliography ...................................................................................................232 Annexes ...............................................................................................................................i © The British Institute of International and Comparative Law 2 Introduction ’Since they properly concern duties, obligations, privileges and rights, discussions of citizenship necessarily proceed in a normative shadow.’1 Difficulty to define the notion of citizenship As a preliminary remark, it must be noted that the debate around citizenship is not facilitated as there is often little agreement among scholars over precisely how to understand the term ‘citizenship’. This is corroborated by the idea that though citizenship is often talked about as a singular concept, the term encompasses in practice a number of discrete but related phenomena surrounding the relationship between the individual and the polity.2 While absent in the terminology used by most legal systems, the dichotomy between nationality and citizenship in much of the literature surrounding the subject is of interest. In this respect, it has to be noted that the concepts of ‘nationality’ and ‘citizenship’ are often distinguished. The two terms reflect two different legal frameworks, although they are essentially the same concept: both terms identify the legal status of an individual in light of his or her State membership, but citizenship is confined mostly to domestic legal forums whereas nationality is connected to the international forum.3 It has been argued that: [T]he idea of nationality is used to connote the relationship between an individual and the nation, regardless of the legal citizenship held by the person. A nation may be defined as a collection of people having some kind of corporate identity recognised by themselves and others, a history of association and a name […] By contrast, the status of citizen is used to denote the link between an individual and a State, a form of political organization with territorial boundaries which may encompass more than one nation (as in the case of the United Kingdom of Great Britain and Northern Ireland).4 In this sense, an individual may hold the legal citizenship of one State, but perceive her status as deriving principally from her attachments to a nation. While not always the case, in the majority of references nationality is characterised as the outward-looking aspect of one's ties to a State. By contrast, citizenship is characterised as the 1 C Tilly, ‘A Primer on Citizenship in Theory and Society’, Vol 26, No 4, Special Issue on Recasting citizenship, August 2007, 599 – 602. 2 K Rubenstein and D Adler,’ International Citizenship: the Future of Nationality in a Globalized World’, 7 Indiana Journal of Global Legal Studies, 519 (Spring 2000). 3 ibid. 4 H Hardy, ‘Citizenship and the Right to Vote’, 17 Oxford J Legal Stud 76 (1997). © The British Institute of International and Comparative Law 3 inward-looking aspect of rights and responsibilities one exercises and performs within the society of that State. In the renowned Nottebohm5 case, the International Court of Justice described nationality as ‘a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties’. Nationality is the legal expression of the fact that the individual, upon whom it is conferred, either directly by law or as a result of an act of the authorities, is in fact more closely connected with the population of the State conferring the nationality than any other State. However, this definition has its problems. The absence of any clear legal or theoretical delineation separating nationality from citizenship has meant the interpretation of the concepts along some rather different lines. Where consensus has occurred, nationality has come to mean the affiliation of an individual with a State from the external point of view of international law, while citizenship implies the internal host of national rights and duties incumbent upon the individual. While Halsbury's Laws of England describe nationality as a term denoting the quality of political membership of a State (in itself a term that implicitly refers to citizenship), Close has defined nationality as ‘the external face of a complex concept which also possesses an internal face which is citizenship’6. For Shaw, the area between the dichotomy that characterises the individual-collective dualism and the multi-level non-state polity sees an interaction definitive of citizenship. This latter can, however, also be characterised as an institution, a ‘dynamic patchwork displayed in the constantly negotiated and re-negotiated tension between identity and rights’7. Defining citizenship, Evans has stated that ‘the constitutional arrangements made for participation by a defined category of individuals in the life of the State’8 sum up the main characteristics. However, given the ideal of access to fundamental rights by all, regardless of nationality or citizenship, plus the attribution of certain rights upon residence status, plus the dependence of citizenship on nationality in some cases, yet their respective independence in others, it becomes easy to see that one rule simply cannot fit all. Citizenship as a relational, ultimately subjective concept is one that requires much more debate. Of particular absence in current discourse on this topic is any discussion of the inherent internalisation of the public/private dichotomy within the individual, and the importance of this process in formulating notions of citizenship. As such, any definitive conclusions cannot claim to have taken into account the whole picture. 5 Nottebohm Case, (second phase), Judgment of April 6th, 1955: ICJ Reports, at 23. 6 Quoted in E Guild ‘The Legal Framework of Citizenship of the European Union’, in Cesarani and Fulbrook, Citizenship, Nationality and Migration in Europe, Routledge 1996, at 32. 7 J Shaw, ‘The Interpretation of European Union Citizenship’, Modern Law Review, Vol 61, Issue 3, May 1998, 293-317 at 294. 8 Evans,’Nationality Law and European Integration’, 16 ELRev 118. © The British Institute of International and Comparative Law 4 Citizenship designates a set of mutually enforceable claims relating categories of persons to agents of government.9 ‘It has the character of a contract: variable in range, never completely specifiable, always depending on unstated assumptions about context, modified by practice, constrained by collective memory, yet ineluctably involving rights and obligations sufficiently defined that either party is likely to express indignation and take corrective action when the other fails to meet expectations built into the relationship.’10 ‘Citizenship represents cohesion in a world increasingly characterised by fragmentation’11. Dual nationality which violated the traditional notions of loyalty to a single State is one indicator of the emergence of postnational citizenship.12 It is obviously difficult to give determinate content to a common national identity in a liberal democracy as one of its core values is its emphasis on individual freedom of belief. Current restrictive conceptions of citizenship have been explained by reference to two theories. Firstly, a number of legal systems have failed to establish a system of differentiation between citizenship and nationality, either as theoretical or legal concepts. As such, citizenship rights are often left indistinguishable from nationality rights, leaving the latter meaningless in the case of substantial expansion of the former. A restrictive interpretation of what constitutes citizenship
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