The dichotomy within denationalisation: Perpetuating or emancipating from its discriminatory past?
| Author | Christian Prener |
| DOI | http://doi.org/10.1177/13582291221115440 |
| Published date | 01 September 2022 |
| Date | 01 September 2022 |
| Subject Matter | Articles |
Article
International Journal of
Discrimination and the Law
2022, Vol. 22(3) 305–325
© The Author(s) 2022
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DOI: 10.1177/13582291221115440
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The dichotomy within
denationalisation: Perpetuating
or emancipating from its
discriminatory past?
Christian Prener
Abstract
This article examines the acceptability of the differential treatment of dual citizens within
contemporary denationalisation from both doctrinal and normative perspectives with
particular focus on the right to non-discrimination as prescribed by the European Con-
vention on Human Rights. The article concludes that denationalisation laws that target only
dual citizens very likely have indirect discriminatory effects on particular subgroups of dual
citizens along and possibly across discriminatory grounds such as ethnicity, race, gender,
religion and national origin. The article contends that prevailing doctrinal justif‌ications are
based on a set of misconceptions concerning t he suitability,eff‌icacy,necessity and conse-
quently proportionality of denationalisationin Western societies and thatthe re-emergenceof
denationalisation in the 21st century is not only illustrative of the inadequacies within current
discrimination law norms but enhances them.
Keywords
Discrimination, citizenship revocation, denationalisation, indirect discrimination,
nationality law, statelessness, intersectionality, ECHR
Introduction
After decades in hibernation, citizenship revocation –or denationalisation –has re-
emerged in Western law and politics as a tool to mitigate the threat posed by citizens
deemed dangerous to national interests or security. Today, a majority of Western states
Department of Law, University of Southern Denmark, Odense, Denmark
Corresponding author:
Christian Prener, Assistant Professor, Department of Law, University of Southern Denmark, Campusvej 55,
Odense 5230, Denmark.
Email: chpr@sam.sdu.dk
have denationalisation powers in place and almost all of these target only dual citizens,
thus exempting mono citizens from their scope.
1
A pertinent question in this regard is
whether this form of differential treatment amounts to discrimination, or whether
denationalisation in the 21st century has become unshackled from its discriminatory
past?
Within international human rights law,prevailing assessments justify the differential
treatment of dual citizens due to interests in preventing the creation of stateless in-
dividuals as prohibited by the 1961 UN Convention on the Reduction of Statelessness
and the 1997 European Convention on Nationality.
2
However, this doctrinal human
rights justif‌ication is at odds with denationalisation’s place in history and arguably also
fundamental principles of liberal democracy.
3
For centuries, citizenship revocation has
been a means to strip unwanted citizens of their right to abode, work, and participate in
society on discriminatory grounds such as ethnicity, race, national origin, or religious
beliefs. The mass denationalisation campaigns carried out by the totalitarian regimes of
the 20th century stand as a stark reminder of the atrocious consequences pertaining to
citizenship deprivation. And while the modus operandi of current-day denationalisation
is partially distinct from its predecessor modes,
4
recent contestations of both a legal,
normative and historical nature suggest that contemporary citizenship revocation have
not truly shaken off its discriminatory past.
5
Matthew Gibney (2019) has pointed to
citizenship revocation laws in the U.K. as an example of how some denationalisation
provisions continue to have discriminatory effects.
6
While underlying motives may
vary from case to case,discrimination is often at the heart of the matter, when states strip
citizens of their status and for this reason alone, the rise of denationalisation across
Western liberal societies calls for scepticism. As almost all present denationalisation
provisions in the West single out dual citizens (and in some states, also naturalised
citizens), denationalisation laws effectively draw a line between mono citizens who
belong unconditionally and dual citizens whose membership is conditioned upon their
behaviour.
7
Beyond the unequal nature of dividing a citizenry into two tiers of such
decisive nature, the concrete discrimination issue of particular interest in this piece lies
in the potential indirect effects that different sub-groups of dual citizens may experience
due to the combination of their citizenship status and their ethnicity, race, national
origin, religion or gender.
How disadvantageous effects can arise for a dual citizen can be illustrated in a case of
criminal allegation. Imagine that a Danish police investigation uncovers a string of wire
transfers to a terrorist organisation abroad and identif‌ies two Danish citizens as sus-
pects. One is a Danish mono citizen, the other a Danish-Moroccan dual citizen. Both
rightfully claim their innocence. To be cleared of all allegations, the mono citizen can be
relatively assured that her innocence will eventually stand the test of scrutiny of a
criminal procedure, where a prosecutor would need to prove beyond reasonable doubt
that she intentionally transferred money to a terrorist organisation before any legal
consequences.
The dual citizen, equally set on her innocence, face, however, a more dismal sit-
uation. Due to her status as a dual citizen, Danish authorities can and likely will strip her
of her Danish citizenship with immediate effect, if they f‌ind,intheirownview,that
306 International Journal of Discrimination and the Law 22(3)
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