Sale of Nationality as a Violation of Human Dignity

On 21 March 2023, the European Commission brought action against Republic of Malta for establishing and maintaining a policy and a practice of naturalisation despite “the absence of a genuine link of the applicants with the country, in exchange for pre-determined payments or investments”. Since 2013, Malta has been running an Individual Investor Program that grants individuals Maltese nationality without any residency requirement before, at the time of, or after naturalization in exchange for a payment of 1.15 million euros. In the eyes of the Commission, Malta thereby “compromises and undermines the essence and integrity of Union citizenship in breach of Article 20 TFEU and in violation of the principle of sincere cooperation enshrined in Article 4(3) TEU.” Malta denies any competence to the EU in matters of nationality (in reference to the Article 20 of the Treaty on the Functioning of the European Union), while the EU Commission can claim that, since the case Micheletti (1992), each member state has to act in matters of nationality with “due regard to Community Law.”

In this blog, I argue that the Court is fully competent because Malta violated article 1 of the EU Charter of Fundamental Rights which holds that “Human dignity is inviolable. It must be respected and protected.” Specifically, I argue that selling nationality violates human dignity because nationality confers legal subjecthood, which is a central condition for guaranteeing the human dignity of European citizens.

Nationality as a Human Right

Contrary to ‘golden’ visas, which grant conditional immigration permits, ‘golden’ passports grant access to nationality. While immigration statuses are changeable, multiple, and often precarious in nature, nationality has become a fundamental and quasi universal right for two reasons. First, nationality is constitutive of nation-states by linking human beings juridically to its territory. Second, since WWII nationality has become one of the most respected and protected of all human rights. Among the numerous rights proclaimed by the UDHR, only the prohibition on slavery found in Article 4 has been fully implemented by all nation states in their legislation, and has become—in law—a universal and absolute right (p.29). By way of comparison, the right to a nationality, guaranteed in Article 15 of the UDHR, has in practice become nearly absolute (p. 29). When a person lacks a nationality or the functions it plays in ensuring an individual’s protection by a nation-state, the international community must provide a proxy nationality through the 1954 Convention on the Status of Stateless Persons and the United Nations High Commissioner for Refugees (UNHCR). This is not provided when another proclaimed right is missing or violated.  While not part of the binding International Covenant on Civil and Political Rights (ICCPR), the recognition of nationality as a fundamental human right has led to its protection against all sorts of losses, including revocation, through a patchwork of overlapping mechanisms operating at both the international and national levels. The 1961 Convention on the Reduction of Statelessness ensures that children are provided with a nationality at birth and prevents the deprivation of citizenship to the extent that an individual cannot be rendered stateless. Signed by a majority of European states, it has limited the possibility of denaturalisation—a prospect revived in Europe following September 11th but meant to apply ‘only’ to bi- or multi-nationals.

Nationality as Legal Subjecthood

This is because as Hannah Arendt correctly analysed nationality provides a dual guarantee of rights. As she notably remarked, “loss of national rights was identical with loss of human rights, that the former inevitably entailed the latter (p. 292).” In addition to being the right that enables access to other important rights, she further noted that to have a nationality also means having a legal subjecthood and a legal home: “the first loss which the rightless suffered was the loss of their homes, and this meant the loss of the entire social texture into which they were born and in which they established for themselves a distinct place in the world (p. 293).” [emphasis added].

Alain Supiot reminds us that before entering the world of meaning, an individual will learn how to speak and so “submit him or herself to the ‘legislator of language.’”  But first of all, one is named, situated in a lineage, and a place and date of birth to become “a subject of law, bound –sub-jectum: thrown under – by words which tie us to others.” (p. viii) That is a core function of nationality, to provide and guarantee by a kind of seal — in the form of documents of identity — a legal subjecthood, a legal status that binds us to other nationals and through them to a common humanity. Nationality connects us and fulfils the anthropological function of instituting human beings as subjects of law. Before affirming the right to a nationality, the first draft of Article 15 of the UDHR only guaranteed the “right to a legal personality everywhere.” ‘Nationality’ replaced ‘legal personality,’ illustrating their close relationship.

Yet, legal personality or legal subjecthood captures something different than the rights conferring status we associate with nationality. The situation of the colonial subjects of the old French or British empires illustrates the distinction. A colonized Algerian—if Muslim—would most often have found himself in a situation of diminished or absent rights. And yet, if he were to have lost his documents while traveling outside of the borders of the French Empire, he would have been able to get new documents and legal protection from a French consulate that would allow for his return to Algeria.^[2] Possessing the Empire’s nationality conferred an entitlement to basic identity documents that detailed one’s names, surnames, and date and place of birth, and allowed one to live within the Empire’s territory e. Similarly, when a person lacks a nationality (is stateless), article 27 of both the UNHCR Convention on Refugees and Statelessness impose a universal and absolute obligation on states to furnish individuals with identity documents. For a refugee or a stateless person, the UNHCR thereby plays the role of a consulate.

Nationality and Human Dignity

Nationality’s role in guaranteeing legal subjecthood is key to understanding its relationship to human dignity.

In the Yean and Bosico Children case, the Inter-American Court of Human Rights found that the Dominican Republic violated the Convention’s right to a juridical personality by denying nationality to two girls born on its territory to undocumented immigrant parents. It further noted that “the failure to recognize juridical personality harms human dignity, because it denies absolutely an individual’s condition of being a subject of rights and renders him vulnerable to non-observance of his rights by the State or other individuals (p.179).” Notably, Article 5 of the African Charter on Human and Peoples’ Rights makes a similar connection between the recognition of legal status and human dignity.

The role nationality plays in guaranteeing dignity is further illustrated by France’s attempt to deprive nationals convicted of the crime of terrorism of their nationality.  Article 4 of the 1954 Convention on the Status of Stateless Persons would have excluded them from the protection of the Convention. Single nationality holders would have therefore been deprived of their legal identity, and so would have become human animals deprived of human dignity. Nationality and its proxies (refugee or stateless status) are therefore legal prerequisites for access to human dignity.

EU law considers dignity both a right and a value. As a constitutional right, it is unique and distinguishable from other rights. As a constitutional value, it lays the foundation for all other rights (p.104-113). Consequently, “it results that none of the rights laid down in this Charter may be used to harm the dignity of another person, and that the dignity of the human person is part of the substance of the rights laid down in this Charter. It must therefore be respected, even where a right is restricted.”

The relationship between nationality and human dignity is two-fold:  If nationality is the condition for being a subject of rights, the right to nationality is the prerequisite for access to the guarantee of human dignity. But as nationality is the right to have rights and human dignity irrigates all rights, the position of nationality as providers of major rights connects it to human dignity in a second way for not having a nationality or a proxy of it suppresses human dignity. Therefore, the European Court should recognize access to nationality of a member state i.e. to European citizenship as a condition of the respect for human dignity.

Against Nationality’s Commodification

One of the most fundamental aspects of human dignity is its inviolability. This is expressed not only in the absolute nature of this right, but also in the legal prohibition to renounce it. The State can neither impose nor can the individual consent to dehumanization. The ECJ’s case law is clear on this point. It held that subjecting an asylum seeker to  the performance  of homosexual acts in order to prove his homosexuality violates his human dignity, regardless of his consent. Similarly, AG Yves Bot has noted that the principle of dignity prohibited asking an asylum seeker to “[…] conceal, amend or forego the public demonstration of his faith,” for this would be “asking him to change what is a fundamental element of his identity, that is to say, in a certain sense to deny himself [para 100].” Whether the asylum seeker consents to such a change of faith has no bearing on this conclusion.

Human dignity’s inviolability also forecloses the possibility that its elements become the subject of a property right. This is reflected in Art. 16 of the French Civil Code which after providing that “Legislation […] prohibits any infringement of the latter’s dignity[…],” provides that “the human body, its elements and its products may not form the subject of a patrimonial right.” This link between dignity’s inviolability and the denial of the patrimoniality of its elements is easy to understand. By definition, patrimoniality implies the division of human dignity into a plurality of elements that the individual would then be authorized to transfer as assets. This would call into question the inviolability of human dignity. The ECJ adopted a similar reasoning in a decision on the patentability of elements of the human body. When interpreting Directive 98/44/EC, the Court considered that “the Directive frames the law on patents in a manner sufficiently rigorous to ensure that the human body effectively remains unavailable and inalienable and that human dignity is thus safeguarded [para. 77].” The human body can thus not be turned into intellectual property. Underlying this reasoning is the impossibility of buying or selling the human body because that would imply considering the individual as a means and not as an end.

In Trop v. Dulles, the US Supreme Court extended this link between dignity and the human body to legal subjecthood and nationality by holding that rendering a US national stateless was a form a cruel and unusual punishment. It considered the term ‘cruel and unusual’ to “draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” It is this very evolving standard that has led the Inter-American Court of Human Rights and the African Charter on Human and Peoples’ Rights to associate nationality with human dignity. It is the time for the ECJ to do the same and to decide that in the European Union, human dignity protects not only the physical integrity of persons but also, through nationality, their juridical integrity.

Conclusion

If nationality is a prerequisite for human dignity and if human dignity implies a requirement of inviolability and therefore a refusal of the patrimoniality of its components, then nationality itself should never become a tradable commodity. No price can therefore be attached to nationality.  No State should therefore be permitted to sell access to its nationality: it would be a violation of human dignity and therefore a direct violation of article 1 of section 1 of the European Charter of Fundamental Rights. Accepting the violation of human dignity in the process of accessing European citizenship through the purchase of Maltese nationality would degrade the citizenship of all Europeans. “Buying and selling certain goods corrupts or degrades them,” mentions Michael Sandel. He includes citizenship among them. It would be a violation of the principle of sincere cooperation enshrined in Article 4(3) TEU.

Nationality cannot be sold because it is the prerequisite for access to the guarantees of human dignity. Nobody, no state a fortiori can profit from nationality.

^[2] See Noureddine Amara, « 1830, l’Improbable Frontière. Le Djérid à l’épreuve de la Nationalité Algérienne, » in Penser le National au Maghreb et ailleurs, eds. Fatma Ben Slimane and Hichem Abdessamad, Tunis Arabesques, 2012, 89-105.

The author would like to thank Pierre Auriel for his important contribution to this article and Jules Lepoutre for his insightful suggestions.