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Power Of International Courts To Intervene In Nationality Matters With Special Reference To  Rottmann  Case

July 17, 2015
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This article is written by Priyal Anand.

“Nationality” is defined as “status of the natural person who is attached to a state by the tie of allegiance”, ( Harvard Draft Conventions on Nationality, ICJ Reports (1955) Pg. 23). “Nationality” has long been considered an internal matter of states wherein a state determines its policies with regards to grant of nationality and revocation of the same ( Article 1, Convention on Certain Questions Relating to the Conflict Nationality Laws 1930 ).

However, the European Court of Justice much recently adjudicating upon the Rottmann Case (Janko Rottmann v. Freistaat Bayern OJ 2010 C 113/4) has transgressed the long standing principles of court’s non-intervention. The court went on to opine on questions presented in the case.

1. If EU law preclude the legal consequence of the loss of Union citizenship  resulting from the fact that a revocation, lawful as such under national law, of a naturalization as a national of a Member State acquired by intentional deception has the effect, in combination with the national law on nationality of another Member State because of the non-revival of the original nationality – that statelessness supervenes?

2. If Question 1 is answered in the affirmative:

Must the Member State which has naturalized the citizen of the Union and now wishes to revoke the naturalization obtained by deception, having due regard to EU law, refrain altogether or temporarily from revoking the naturalization if or as long as revocation would have the legal consequence of loss of Union citizenship described in Question 1, or is the other Member State of former nationality obliged, having due regard to EU law, to interpret and apply, or even adjust, its national law so that that legal consequence does not supervene?

This has been looked at from various perspectives as a challenge to member states sovereignty on nationality law and various other perspectives. The article seeks to critically analyze the opinion of the court with regards to power of international or regional courts to address nationality matters.

 NATIONALITY PRINCIPLE AND ITS IMPORTANCE 

“Nationality” is defined as “status of the natural person who is attached to a state   by the tie of allegiance”(Harvard Draft Conventions on Nationality, ICJ Reports (1955) Pg. 23).  This allegiance in legal sense creates a bond between the national i.e. the person and the state. Nationality creates a base or ground for rights and liabilities of states towards their nationals. A classic example of nationality acting as important ground in international instruments is recognized as a ground to invoke active and passive jurisdiction of states on internationally wrongful acts,(  James Crawford, Brownlie’s principles of public international law, Oxford university Press (8th Ed) 508). ..International humanitarian law recognizes states at its subjects, thus, in various cases the states take up the cause of their nationals in international forums. A similar link can be found in recent case of Enrica Lexie (M.V. Enrica Lexie v. Dronamma) , wherein though India exercised its territorial jurisdiction. One cannot negate the presence of passive jurisdiction of India owing to death of Indian Nationals in the incident. Another example of the same can be found in , ILC articles on diplomatic protection, wherein a state who‟s national has suffered injury due to an internationally wrongful act can exercise diplomatic protection.

Secondly, international customary law casts duties on states with relation to war and neutrality, on acts or omissions of nationals which states may punish or prevent according the terms which are now majorly codified or as part of customary law , ( Supra Note 5).

Thirdly, nationality plays an important role in matters aliens where aliens are affected by acts of states in which they are present. Fourthly, nationality furthers the jurisdiction of states and acts as regular basis of jurisdiction of States.( Ibid)

NATIONALITY AS INTERNAL STATE MATTER 

“Nationality” has long been considered an internal matter of states wherein a state determines its policies with regards to grant of nationality and revocation of the same. { Article 1, Convention on Certain Questions Relating to the Conflict Nationality Laws (1930)} .The permanent court also supported this principle in following words, “The question whether matter is or not solely within the jurisdiction of state is essentially relative question; it depends upon the development of international relations. Thus, in present state of international law, questions of nationality are in opinion of this court, in principle within this reserved domain.” (Nationality decree in tunis and morocco case, (1923) PCIJ  Ser B No. 4, 24).

ILC‟s special rapporteur Manley Hudson draws a similar conclusion stating, “In principle, question of nationality falls within the domestic jurisdiction of the state”. It is pertinent to note that, there is no coherent definition of nationality in international law. (  Cambridge University Press – Malcolm N. Shaw – International Law, 5th Edition Pg. 728) .The International Court of Justice sought explain nationality in terms of state practice as, “a legal bond having as its basis a social fact of attachment, a genuine connection of existence existence of reciprocal rights and duties.” ( Supra Note 10).

However, it is difficult to totally exclude international law from nationality laws in states at highlighted in Article 1 of Hauge Convention on Conflict of Nationality Laws, “it is for each state to determine under its own law who are its nationals. This law shall be recognised by other states in so far as it is consistent with international conventions, international custom and the principles of law generally recognised with regard to nationality.”

ACQUIRING THE NATIONALITY 

Nationality generally has been acquired through ius sanguinis i.e. by birth from a national more recently “Naturalization” has evolved as a mechanism for gaining nationality. Naturalization is explained by Weis, “Naturalization is in narrower sense may be defined as the grant of nationality to an alien by a formal act, on an application made for the specific purpose by the alien… it is generally recognized as a mode of acquiring nationality. The conditions to be complied with for the grant of naturalization vary from country to country, but residence for a certain period of time would seem to be a fairly universal requisite.” ( Weis, Public international law, (2nd ed., 1979) 96,99)

Hudson explains it as, “naturalization must be based on an explicit voluntary act of the individual or of a person acting on his behalf.”

Thus, naturalization is taken as grant of nationality by a state upon fulfillment of certain conditions prescribed in State Laws.

THE ROTTMANN  CONFLICT IN INTERNATIONAL NATIONALITY PRINCIPLE 

The Rottmann case presented set of curious questions before the European Court, which sat to decide upon the suspended nationality of Mr. Rottmann. The idea seems to conflict with the established principles of international law, however one must also understand European Union functions as a closed group states. Thus, dispute resolution mechanism of EU may play an important role in intervention of European Court in certain matter which traditionally has been under the domain of National Law.

FACTS OF ROTTMANN CASE 

The European Court came across a rather distinct set of facts in the Rottmann case. Dr. Janko Rottmann was born in Graz (Austria) as a national of Austria Rottmann born and brought up in Austria was a journalist under investigation for serious fraud in his country of origin. He later shifted to Munich, Germany in 1995. The Austrian agencies carried on the proceeding and in 1997 issued a national warrant against Mr. Rottmann. He then applied for German citizenship through the process of Naturalization wherein an omission was made about regarding the proceeding and warrant issued against Mr. Rottmann. Thus, in February 1999 Mr. Rottmann was granted German nationality through the process of Naturalization.

Consequently, Austrian laws on nationality provided for loss or termination of nationality in case an Austrian national accepts nationality of other state. Later in August 1999, Austrian authorities notified German authorities in Munich on fraud proceedings against Mr. Rottmann .

Subsequently, after hearing the applicant the Freistaat Bayern withdrew the German naturalization by decision of 4 July 2000 with retroactive effect, on the grounds that the applicant had obtained German nationality by deception. The Bayerischer Verwaltungsgerichtshof confirmed the said order on 25 October 2005 even though it implied that Rottmann would become stateless. Rottmann further appealed to the German Bundesverwaltungsgerichtshof, which decided to refer the following questions to the Court of Justice for a preliminary ruling on following issues.

1. If EU law preclude the legal consequence of the loss of Union citizenship resulting from the fact that a revocation, lawful as such under national law, of a naturalization as a national of a Member State acquired by intentional deception has the effect, in combination with the national law on nationality of another Member State because of the non-revival of the original nationality – that statelessness supervenes?

2. If Question 1 is answered in the affirmative:

Must the Member State which has naturalized the citizen of the Union and now wishes to revoke the naturalization obtained by deception, having due regard to EU law, refrain altogether or temporarily from revoking the naturalization if or as long as revocation would have the legal consequence of loss of Union citizenship described in Question 1, or is the other Member State of former nationality obliged, having due regard to EU law, to interpret and apply, or even adjust, its national law so that that legal consequence does not supervene?

THE DECISION OF COURT

The acquisition and loss of nationality come within the competence of each Member State, the Court specified that the situation of a citizen of the Union becoming stateless as a result of withdrawal of his nationality nevertheless comes within the ambit of European Union law. The reason for the same being, loss if Union citizenship is a direct consequence of loss of Member State Nationality, such loss citizenship of the Union conferred by Article 20 of the the EU leads to suspension of fundamental status of member state nationals.

Consequently, the European Court of Justice granted upon itself the power of judicial review of state action, on the touchstone of Union Law. Under this review, the court checked upon the principles of proportionality and public interest.

In Rottmann case, the court reviewed withdrawal of nationalisation granted through naturalisation and reasoned that such was within the purview of public interest as the states in EU have a relationship of solidarity and good faith amongst them. These formed the bedrock of the bond of nationality granting inter-state Nationals various Rights and Duties.

The prong of proportionality, was left upon the national courts to decide in the light of consequences on the person as well as on family of the person who‟s nationality has been suspended. Thus, the court left the second issue unanswered for most part.

ANALYSIS

Traditionally nationality has been considered as a matter of state sovereignty and an internal matter of state to regulate upon. Though European Union has recognized the concept of Union citizenship, the approach of such recognition has been tailored to fit the nationality principle granting supremacy of individual states. It is in this sense; the Maastricht Treaty was drafted to recognize union citizens with reference to member state nationality. The states further clarified in the said convention that nationality regulations are in exclusive domain of member states.(Declaration (No 2) on nationality of a Member State, annexed to the Treaty on European Union [1992] OJ C191/98.).

However, it has been recognized that union law has influence over state laws in European Union. Even prior to union citizenship historic decisions of courts suggests that, that the Member States must respect unconditionally nationality measures adopted by other Member States.(Case C-369/90 Micheletti [1992] ECR I-4239 ),This duty has provided for a customary practice amongst European states. Thus, a change in one states practice on nationality regulations has a considerable effect on other member states practice. Indeed, Member States of the union have historically shown considerable flexibility in nationality laws governing inter-union acquisition. The most famous case in point is the restriction of Irish nationality rules in 2004 after the flexible Irish nationality laws had come under pressure in circumstances that gave rise to the Zhu en Chen case,{ Case C-200/02 Zhu and Chen [2004] ECR I-9925, Bernard Ryan, „The Celtic Cubs: The Controversy over Birthright Citizenship in Ireland‟ (2004) 6 Eur. J. Migration & L. 173-193}.

The court quite expressly in Micheletti case, laid down that state laws must have due regard for the union laws especially on acquisition and loss of nationality.{Case C-369/90 Micheletti [1992] ECR I-4239, para 10}.  The same dicta was later reiterated in cases of Mesbah{ Case C-179/98 Mesbah [1999] ECR I-7955, para 29} ,Kaur{Case C-192/99 Kaur [2001] ECR I-1237, para 19}  and Zhu and Chen { Case C-200/02 Zhu and Chen [2004] ECR I-9925, para 37}  However, the court never clarified “having due regards for union law” until the Rottmann Case, wherein the courts at first sought to determine if union law was applicable or not.

The Court for the very first time directly assessed Member State nationality rules in the light of Union law. However, the court first took on the herculean task of justifying is jurisdiction by carrying out this validity assessment by pointing at the intrinsic link between Member State nationality and Union citizenship. The court noted since, loss of nationality of member state would inter alia lead to loss of union citizenship the court was correct to determine and sit upon and adjudicate on the nationality rules of the member state.

Consequently, one will have to note that such reasoning will fall “due to the consequences it creates” within the framework of Union law. This reasoning supports the conclusion that European Court of Justice will have jurisdiction in all cases wherein Union Citizenship is in question leaving aside the only exception in cases where loss of citizenship is attributed to gain of citizenship of other EU member nationality which will not cause any change in person‟s union citizenship.

Another fallacy pointed out by Devies, is leaving an important question unanswered that if the Court‟s reasoning would be confined to cases of loss of nationality or should be held equally applicable in cases of acquisition of nationality, or the refusal thereof. (See the discussion in Gareth T. Davies, „The entirely conventional supremacy of Union citizenship and rights‟ (2010) EUDO Citizenship Forum <http://eudo-citizenship.eu/citizenship-forum/254-has-the-european-court-of- justice-challenged-member-state-sovereignty-in-nationality-law?start=2>) i.e. to say ,when a non EU national acquires EU citizenship by virtue of grant on nationality in one on the member states. Going by the reasoning in present rationale adopted by the court such cases shall also come within the jurisdiction of the court.

Widening of scope of union law in Rottmann finds some support in the future prospect of EU completely uniting and forming a bloc, it is in this sense, the court demonstrating the social change and future policy can validly justify its decision but the validity of present act keeping in view the future prospects is another question.

Another criticism that Rottmann judgment faces is, that by acknowledging that the withdrawal of nationality in case of deception is consistent with international law, the court took a very hasty view and “went in the (…) direction of fetishising the few exceptions from the main rule of international law on statelessness” and, thus, “failed to follow the Micheletti tradition of dismissing the rules of international law dangerous for the success of the European integration project.” Hence, the court should also ensure that the European Union Court follows principles which “are in line with the ideas of liberty and common sense, if not the rule of law”  SEE  D. KOCHENOV, Two Sovereign States vs. a Human Being: ECJ as a Guardian of Arbitrariness in Citizenship Matters, April 20, 2014, available at http://eudo-citizenship.eu/citizenship-forum/254-has-the- european-court-of-justice-challenged-member-state-sovereignty-in-nationality-law?start=3.

One will have to understand that, the character of EU citizenship is the result of interplay between “different levels and different spheres in which individuals claim citizenship rights, carry out citizenship duties and act out citizenship practices.

SEE (J. SHAW, Citizenship: contrasting dynamics at the interface of integration and constitutionalism, EUI working papers, RSCAS 2010/60, 3; S. BESSON / A. UTZINGER, Towards European Citizenship, The Journal of Social Philosophy, 2008, 185 at 196)

Hence, the approach of court of justice in hand picking the law in interest of European community in certain cases goes against the very principles of Rule of Law. This approach allows the judges to impose their view on “common sense” or “logic” or “morality” over the existing positive (national and international) law established by democratic governments through legitimate decision-making processes. The above criticism is highlighted in the opinion of AG that EU along with the member states is subject to international law.

SEE (Rottmann AG Opinion, para. 29)

The final criticism is, the court completely lost the sight of Human Rights involved in the matter, the conflict between two states leading Mr. Rottmann stateless has not been addressed in this case. The court thus, ventured into questions of sovereignty and forgot the rights based approach which forms the core of EU. Kochenov summarizes this view as,

the perspective of an ordinary human being caught between two omnipotent sovereign states able to destroy lives entirely without even noticing, is completely missing from the judgement.

CONCLUSION 

Nationality is defined as the legal bond between the state and its national, this legal bound finds its genesis in social fact of attachment with the state conferring upon the state and national reciprocal rights and duties. The European Union functions with dual nationality i.e to say a person gaining Member state nationality ipso facto gets Union Nationality. In the Rottmann case, Mr. Rottmann was stripped of his German Nationality owing to certain omissions in his naturalization documentation. This, matter was addressed by the European Court granting itself judicial review of Member state action on the grounds that, loss of German nationality consequently, lead to loss of Union Citizenship and Hence, the court exercised power of judicial review in the matter. The Court has been severely criticized on transgression into state sovereignty as nationality is an exclusive domain of state. Further, the reasoning used by the court in present matter grants the court wide powers to intervene in any member state nationality matters leaving aside the only exception in cases where loss of nationality is followed by gain of nationality in other member state of EU. The judgement is also criticised for its hand picking approach towards international law in sense that judges hand pick laws beneficial to EU and negate applicability of other laws. Finally the judgement lacks human rights approach which must form the core of international law rather than abstract sovereignty principles.

 REFERENCES 

CONVENTIONS REFERRED

1. Harvard Draft Conventions on Nationality, ICJ Reports (1955)
2. Convention on Certain Questions Relating to the Conflict Nationality Laws (1930)
3. Declaration (No 2) on nationality of a Member State, annexed to the Treaty
on European Union [1992] OJ C191/98.

BOOKS REFERRED 

4. Joost Pauwelyn; Conflict of norms in public international law, CSICL [2003] 5.  Ed. Sir Robert Jennings and Aurthur Watts; Oppenhim‟s International Law, OUP  [2008] 6. I.A. Sheare, Stark‟s International Law, OUP [1994] 7. James Crawford, Brownlie‟s principles of public international law, Oxford
University Press (8th Ed)
8. Malcolm N. Shaw, International Law, 5th Edition Cambridge University Press.
9. Weis, Public international law, (2nd ed., 1979) 96

CASES REFERRED 

10. Janko Rottmann v. Freistaat Bayern OJ 2010 C 113/4
11. M.V. Enrica Lexie v.Dronamma
12. Nationality decree in tunis and morocco case, (1923) PCIJ Ser B No. 4, 24
13. Case C-369/90 Micheletti [1992] ECR I-4239
14. Case C-179/98 Mesbah [1999] ECR I-7955
15. Case C-192/99 Kaur [2001] ECR I-1237
16 . Case C-200/02 Zhu and Chen [2004] ECR I-9925
17. Rottmann AG Opinion

ARTICLES REFERRED 

18. Gareth T. Davies, „The Entirely Conventional Supremacy Of Union Citizenship  Right (2002) Eudo Citizenship Forum.
19. D. Kochenov, Two Sovereign States Vs. A Human Being: Ecj As A
Guardian of Arbitrariness In Citizenship Matters.
20. J. Shaw, Citizenship: Contrasting Dynamics At The Interface Of Integration And  Constitutionalism, Eui Working Papers, Rscas 2010/60.
21. S. Besson / A. Utzinger, Towards European Citizenship, The Journal Of  Social Philosophy, 2008, 185.
22. Bernard Ryan, „The Celtic Cubs: The Controversy Over Birthright Citizenship In Ireland” (2004) 6 Eur. J. Migration & L. 173.

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