Passports and Weapons

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In Nicaragua, a court has declared 94 exiled opponents of the Ortega regime – journalists, writers, activists, a former foreign minister, a former vice-president of the Supreme Court, a Catholic bishop – “traitors to the fatherland” and cancelled their citizenship. The fact that Nicaragua has committed itself under international law in the UN Convention on the Reduction of Statelessness of 1961 not to expatriate anyone who thereby becomes stateless seems to bother neither the court nor the government at all.

In Israel, the parliament decided by 94 votes to 10 that in future convicted terrorists can be stripped of their Israeli citizenship if they receive money from the Palestinian Authority or other organisations. Receiving “wages or compensation” for security-related crimes, the bill states, is “tantamount to an admission that he has relinquished his standing as a citizen or resident“. Another law allowing the deportation of terrorists’ families is passing through the parliamentary process and was approved in a preliminary reading by 61 votes to 13. Family members who knew in advance of or praised, encouraged or showed sympathy for the terrorist act, can be deported to the occupied territories. This is supposed to have a deterrent effect. “There is no doubt that many terrorists will refrain from committing a terrorist attack if they know that their families will be punished for it.”

That governments use citizenship law to score security points is nothing new. In the War on Terror, many have considered this and some have followed through, especially with regard to those of their citizens who had joined the terrorist gangs of the “Islamic State”. There seems to be a global trend towards the use of citizenship law as a political tool, though, that can no longer be adequately explained by security interests alone. Not only the withdrawal, but the attribution of citizenship status in general is increasingly being used as a weapon to inflict harm on people and other states. If this is so, then the question arises as to what constitutional and international law have, or should have to say about this weaponization of citizenship law.

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As far as international law is concerned, last week the EUI Global Citizenship Observatory published a very interesting symposium entitled “Weaponised Citizenship“. The status of citizenship, says Neha Jain in her kickoff contribution, suggests a deceptive equality. As long as everyone has a state that is responsible for them and their protection as a sovereign member of the international community of states, international law is by-and-large happy. To whom and according to which criteria a state assigns which status is that state’s sovereign decision. Even if it hands out “zombie citizenships”, such as the passports of the Comoros, which the United Arab Emirates suddenly distributed in 2008 to tens of thousands of inhabitants of less than flawlessly documented Emirati descent and which did not even entitle them to enter the bitterly poor African island state, most of which their new citizens had never heard of in their lives (read Noora Lori’s impressive book “Offshore Citizens” about this). Or the Bangladeshi nationality that the British government attributed to the British IS teenager Shamima Begum so that her fate in a Kurdish POW camp would no longer be their concern. Passportisation – handing out citizenship to people abroad in order to destabilise other states – is a well-documented tactic, not only since Russia used it profusely in the war with Ukraine. Perhaps, says Neha Jain, as with the prohibition of the use of force, the invasion of Ukraine will have an invigorating effect on international law and thus indirectly contribute to the realisation that weaponized citizenship law is not merely an internal sovereign matter after all.

As far as constitutional law is concerned, at least in Germany the level of protection is fairly high. The Nazi regime had used citizenship law as a weapon against oppositional, Jewish and other Germans like hardly any other before or after it, which is why Article 16 (1) of the Basic Law categorically excludes the withdrawal of citizenship and only permits the loss of citizenship insofar as it does not render the person stateless. But the very coexistence of these two terms, withdrawal and loss of nationality, which no one seems to know exactly how to distinguish from each other, indicates that the protection may not be as seamless as one should expect. German law is not free either of the notion that citizenship is subject to the resolutive condition of loyalty to the fatherland. Service in a foreign army or – since 2019 – participation in combat with a terrorist organisation abroad is interpreted as “turning away from Germany“, which results in the loss of citizenship. How is this reconciled with the categorical exclusion of withdrawal of citizenship in the German constitution? Perhaps it isn’t.  “The Federal Republic of Germany is not allowed to solve problems with certain citizens by denaturalisation,” wrote Astrid Wallrabenstein, now a judge in the Second Senate of the Federal Constitutional Court, on Verfassungsblog in 2019. For the time being, however, that is the law.

The week on Verfassungsblog

… summarised by PAULA SCHMIETA:

Considering the constitutional situation in Israel, RODA MUSHKAT stresses the negative economic impact that a lack of independence of the judiciary is likely to have. She foresees “ominous effects on Israel’s future prosperity”.

More than 13 million people in Turkey alone have been affected by the two earthquakes that recently shook Turkey and Syria. BURAK HAYLAMAZ takes a critical look at the Turkish government’s “legal” restriction of internet access, which he says has made it difficult to help those affected.

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Stellenausschreibung Wissenschaftliche*r Mitarbeiter*in (m/w/d) am Lehrstuhl für Öffentliches Recht, Völker- und Europarecht (Prof. Dr. Jörn Axel Kämmerer)

Gesucht wird zum 1.Mai 2023 oder später, befristet auf zunächst 2 Jahre, ein*e wissenschaftliche*r Mitarbeiter*in (m/w/d). Der Stellenumfang beträgt 30 Wochenstunden. Die Staatsprüfung/en sollte/n mindestens mit „vollbefriedigend“ bestanden und gute Englischkenntnisse vorhanden sein. Bewerbungen bitte bis 10.3.2023 an heidrun.meyer-veden@law-school.de. Weitere Informationen finden Sie hier.

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“It’s not an invasion, it’s a repossession” – that’s one narrative Bolsonaro supporters use to justify occupying government buildings and blocking roads in Brazil. BIANCA TAVOLARI & JONAS MEDEIROS analyse the narrative, discuss institutional responses to what is happening and conclude that “de-Bolsonaroisation” is necessary.

A small but important step is the Q v Commissioner of Registration ruling of the Hong Kong high court, says REHAN ABEYRATNE. In this case, two trans* people who had not undergone gender reassignment surgery successfully sought to change the gender entry on their identity cards. This, Abeyratne said, also meant strengthening the rights of the LGBTQ community as a whole.

The Scottish Gender Recognition Act is controversial. It became constitutionally relevant because it was passed by the Scottish Parliament but subsequently blocked by the UK government. STEPHEN TIERNEY contextualises the incident and assesses the UK’s system of devolution.

ANURAG DEB discusses last week’s ruling by the UK Supreme Court in the case of Allister and Peeples’ applications for judicial review. It is another Brexit case, this time asking what the relationship is between the Northern Ireland Protocol and the Union Laws of 1800. It seems that the court is rejecting the idea that certain Acts of the UK Parliament are constitutional in nature. Deb, however, argues that the principle of “constitutional statutes” persists.

CHARLIE BENNETT believes that the current fragmented space law could lead to a tragedy of the commons. He therefore calls for the EU to take the lead in renewing the quasi-constitutional basis for space activities established by the now obsolete 1967 Outer Space Treaty.

MAX VAN DRUNEN, NATALI HELBERGER & RONAN FAHY comment on the proposal for a European Media Freedom Act. They argue that it aims to reshape the relationship between platforms and media organisations and to strengthen the latter. The authors, however, warn that contrary to this intention, the law will undermine media freedom and create new dependencies.

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An der Universität Freiburg, Institut für Öffentliches Recht (Prof. Dr. Jan Henrik Klement), ist zum nächstmöglichen Zeitpunkt eine Stelle als Wissenschaftliche/r Mitarbeiter/in (m/w/d) oder Akademischer Rat/Akademische Rätin (m/w/d) auf Zeit zu besetzen, Stellenumfang 50-100 %. Es wird Gelegenheit zur Promotion oder zur Habilitation gegeben. Bewerbungsfrist: 15.03.2023; nähere Infos hier.

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KIMMO NUOTIO comments on a Finnish case on journalists who published extracts of secret military documents in 2017. The court ruled that while abuses of power could be reported, classified information could not be published just to attract readers. This explosive case, in which both parties have announced they will appeal, remains interesting, not least because of the changing security situation in Europe.

Olivier Vandecasteele, a Belgian humanitarian aid worker, is being held hostage in Iran. There was supposed to be a prisoner exchange, but the Belgian Constitutional Court suspended the crucial law that made this possible. SARAH GANTY & DIMITRY VLADIMIROVICH KOCHENOV complain that the ruling is short-sighted and unbalanced towards the right to life, and also endangers the reputation of the court. They therefore appeal to the court to correct the self-inflicted injustice.

In Italy, the government of Giorgia Meloni has temporarily suspended the transfer of refugees and thus the processing of their asylum applications, contrary to the Dublin III regime. ROSA-LENA LAUTERBACH analyses the no man’s land between Europe and Italy in terms of asylum law.

The Federal Constitutional Court has declared parts of Mecklenburg-Western Pomerania’s security and public order law unconstitutional. THORSTEN KOCH explores the implications of the ruling for federal and state security and public order regulations.

The election in Berlin has been a repeat election. At first glance, the SPD’s position seems to have worsened. But at second glance, the special character of the repeat election as well as the peculiarity of the so-called “eternal senate” could save Governing Mayor Franziska Giffey from losing power, explains JANNIK KLEIN.

ALEXANDER HOBUSCH picks up the debate about Interior Minister Nancy Faeser’s Twitter account from last week. He thinks that there is some evidence that the intended change from ministerial to private account was not carried out.

The Federal Government recently presented a draft for a “Law on the Acceleration of Administrative Court Proceedings in the Infrastructure Sector”. JULIA WULFF thinks it is a paper tiger.

LORENZ BODE points to a problem which gets little attention – new psychogenic substances which, especially in prisons, they have largely replaced conventional drugs. Mostly they reach the prisoners by post through soaked paper. Many prison wards now only hand out copies of letters to prisoners – which causes problems of its own.

Finally, our blog debate on comparative perspectives on abortion law is joined by a belated contribution on the very special case of the Principality of Liechtenstein by CHRISTINA NEIER.

That’s it again for this time. All the best to you and see you next week! And as I said, please don’t forget to donate!

Max Steinbeis

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