Human Rights Law and National Sovereignty in Collusion: The Plight of Quasi-Nationals at Strasbourg
| DOI | 10.1177/016934410302100104 |
| Published date | 01 March 2003 |
| Date | 01 March 2003 |
| Subject Matter | Part A: Article |
*School of Legal Studies, University of Sussex and Vrije Universiteit Brussel. The author presented
parts of this article to the Workshop on Transnationalism at the University of Manchester in May
1998, the Critical Legal Studies Conference at Birbeck College in September 1999 and the
Seminar Series of the Centre for Migratio n Studies at the University of Sussex in November 1999.
She thanks the organisers and participants, as well as Colin Harvey, Emily Haslam, Lawrence
Lustgarden, Robert Morton and Françoise Tulkens for their comments on written drafts. The
final impetus for the artic le came from a research trip a t Strasbourg in September 2001 generously
funded by the Leverhulme Trust as part of a Fellowship to write a book provisionally entitled
Problematizing Human Rights: The European Convention in Question. Amanda Collins helped devising
the tables and edited the text. The usual disclaimers apply. The paper was submitted in January
2002 and revised in September 2002.
Netherlands Quarterly of Human Rights, Vol. 21/1, 63-98, 2003.
© Netherlands Institute of Human Rights (SIM). Printed in the Netherlands. 63
HUMAN RIGHTS LAW AND NATIONAL
SOVEREIGNTY IN COLLUSION: THE PLIGHT OF
QUASI-NATIONALS AT STRASBOURG
MARIE-BENEDICTE DEMBOUR*
Abstract
This article offers a review of the cases where the European Court of Human Rights has
been called upon to decide whether or not the expulsion of a ‘quasi-national’ following
criminal conviction violated the European Convention on Human Rights. The Court
has adopted various findings since its first ruling in 1991. The first part of this article
argues that neither the facts of the cases, nor the composition of the relevant judicial
panels, nor an evolution in the overall political climate explain in themselves the
inconsistency in the case law, qualified as arbitrariness by one of the judges. The second
part of the article moves beyond a close socio-legal analysis to discuss the significance
of the common rule (once inadmissibility decisions are taken into consideration),
according to which quasi-nationals are deportable. Nationality law, at the core of the
case law, is revealed as a fiction that creates privilege at the same time as it obscures the
discriminatory basis of this privilege under the guise of operating a neutral categorisation
of human beings. The article notes in conclusion the continuing grip of the nation State
in the global age and deplores the legitimation, at the highest judicial level, of exclusion
on the basis of unquestioned national privilege.
Marie-Benedicte Dembour
1Moustaquim vs Belgium, judgment of 18 February 1991, A 193, (1991) 13 EHRR 802; Beldjoudi vs
France, judgment of 26 March 1992, A 234-A, (1992) 13 EHRR 802; Nasri vs France, judgment of
13 July 1995, A 320-B, 21 EHRR 458; Boughanemi vs France, judgment of 24 April 1996,(1996) 22
EHRR 228; C. vs Belgium, judgment of 27 June 1996, [1996 III]; Bouchelkia vs France, judgment
of 29 January 1997, (1998) 25 EHRR 686; Mehemi vs France, judgment of 26 September 1997,
(2000) 30 EHRR; El Boujaïdi vs France, judgment of 26 September 1997,(2000) 30 EHRR 223;
Boujlifa vs France, judgment of 21 October 1997,(2000) 30 EHRR 419; Dalia vs France, judgment
of 31 January 1998; Baghli vs France, judgment of 30 November 1999; Ezzouhdi vs France, judgment
of 13 February 2001. The decisions are available on the Court’s website (http://www.echr.coe.int).
2Michel Levinet also uses the term: ‘L’éloignement des étrangers délinquants et l’article 8 de la
Convention européenne des droits de l’homme’, Rev.trim.dr.h., 1999, pp. 89-118 [‘The expulsion
of convicted foreigners and Article 8 of the European Convention on Human rights’].
3By contrast, Judge Martens seemed to suggest that quasi-nationals could be deported in
‘exceptional circumstances’. However he probably held a very restrictive conception of the latter.
4Apart from political convenience there are also conceptual advantages in using this term over
others. ‘Second-generation immigrants’ may have acquired the nationality of their ‘host-State’
and not be concerned with the issues debated here; those who are concerned could be, not of
the second, but of the third-, fourth-, or (potentially even) tenth- or twentieth-generation if the
nationality law of their host-State relied exclusively on jus sanguinis. (This was the case in Germany
64
INTRODUCTION
This article concerns human rights, globalisation and the nation State; issues
of migration, identity and multiculturalism; the role of the judiciary and
general questions of governance. Proceeding from the conviction, firmly
anchored in anthropology, that the painstaking examination of a particular
situation is often more telling than sweeping generalisations, its immediate
focus consists in twelve rulings by the European Court of Human Rights
(hereafter ‘the Court’) on the legality of the deportation of a ‘quasi-national’
following criminal conviction.1
I use the term ‘quasi-nationals’ to refer to individuals who do not have the
nationality of their host-country although they have lived there most if not all
their life, so that the host-State is arguably also their home-State. The
expression was first coined by Judge Pettiti, who remarked that the concept
of ‘quasi-Frenchman’ was unknown in international law to oppose the finding
by his colleagues in the Beldjoudi Case that the deportation of the applicant
violated the European Convention on Human Rights (hereafter ‘the Conven-
tion’). Recently Judges Costa and Tulkens, dissenting, spoke of an applicant
as someone who was ‘virtually a French national’, this time to protest against
the verdict in the Baghli Case that the deportation of the applicant did not
violate the Convention.2 It appears that, for these two judges, those who are
‘virtually nationals’, though not nationals in law, should be treated as nationals
and not be subject to deportation, whatever their circumstances and
misdeeds.3 My adoption of the expression ‘quasi-national’ indicates where my
sympathies lie.4
Human Rights Law and National Sovereignty in Collusion
until an element of jus soli was introduced in 2000). The expression ‘integrated aliens’, used with
some frequency by dissenting judges, begs the question of what is meant by integration (infra,
note 68).
5France is deporting ‘aliens’ in far greater number than Belgium. See Rolin, X., ‘La double peine,
une punition de la nationalité’ [‘Double sanction, punishment of nationality’], Revue du droit
des étrangers, 2002, No. 118, pp. 205-207. Even so, it is not immediately clear why France has been
the usual defendant in these cases. One would have thought that cases should equally have been
directed against other countries. The Guardian reported on 1 May 1998 that Bavarian authorities
had ‘ordered the deportation of a Turkish married couple who had lived in Germany for 30 years
because of the criminal record of their son, aged 13’ (p. 17). Crucially the newspaper also
observed that the deportation may have been illegal under German law. Christian Joppke argues
that the German Constitution tends to champion universal human rights over sovereign State
powers, leading national courts to protect guestworkers from deportation: Immigration and the
Nation state: The United States, Germany and Great Britain, Oxford University Press, Oxford, 1999,
p. 267. However, in application 44911/98, Allaoui vs Germany, the applicant referred to the case
of a twenty-five year-old Turkish national who had arrived in Germany aged five and lost his case
against deportation, following criminal conviction, before the Federal Constitutional Court. This
suggests that arguably controversial deportations are carried out in Germany too. To give another
example, during a visit in Norway in 1997 to the Anti-Racist Centre, I was told that foreigners
were commonly deported after the slightest offense. I was referred to the following publication:
Dordy Nybø, and Th. Lilgegren, S., One Strike and You’re Out (ISSN 0803-6616).
6Even here, there are exceptions. See Goodwin-Gill, G., The Refugee in International Law, Clarendon
Press, Oxford, 1996, pp. 77-79; 95-114.
65
Netherlands Quarterly of Human Rights, Vol. 21/1 (2003)
The great majority of applicants in the case law under review had arrived
in the host-country in childhood, along with their mother and siblings, to be
reunited with their father; two were born there. Criminal convictions, for theft,
assault, sexual or most often drug-related offences, attracting sentences varying
between a few months and eight-year imprisonment, had triggered the
threatened or actual deportation of the applicant. The deporting State was
France in ten cases, Belgium in the remaining two.5 With one exception (the
Dalia Case), all applicants were male.
The applicants argued that the enforced or threatened deportation was
in violation of the Convention. Not having adopted the nationality of their
‘host State’, they were legally aliens and could not benefit from the principle
according to which ‘a State does not deport its own nationals’. They were thus
deportable – or were they? Some aliens cannot be deported, for example so-
called Convention refugees.6 In effect, the Court had to decide whether Article
8 of the Convention meant that the applicants, either individually or as a
category, constituted another exception to the principle of the sovereignty
of the State regarding the entry, residence and expulsion of aliens.
The Court leaned towards endorsing a ‘quasi-national’ exception in the
early 1990s. In the cases of Moustaquim, Beldjoudi and Nasri it found that the
deporting State had violated the Convention. This led Ryszard Cholewinski
to applaud the Court in 1994 for pursuing a hidden agenda for the elimination
of a difference in treatment between nationals and second-generation
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