The Right to Nationality: The Conservative Stance of the European Court of Human Rights in Contrast to its Inter-American and African Counterparts 

By Dr. Vera Wriedt

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Between the 12th and the 22nd of December, Strasbourg Observers is hosting a blog symposium entitled ‘The Role of the European Court of Human Rights: Progressive, Conservative, or Both?‘The introduction to the symposium can be found here. In addition to this post from Vera Wriendt, the symposium also includes contributions from Corina Heri, Esra Demir-Gürsel, Harriet Ní Chinnéide and Tobias Mortier, Betül Durmuş and Jens T. Theilan.

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In the contemporary system of nation-states, states attempt to keep nationality and the regulation of migration within the remit of unfettered sovereign prerogatives notwithstanding fundamental human rights guarantees that limit state discretion. The distinctions constructed between nationals and non-nationals impact access to rights, as non-nationals are maintained in a status with lower protection and remain vulnerable to expulsion, amongst many other consequences. This raises the question to what extent human rights law preserves or contests such differentiations.  

This contribution examines the conservative stance of the European Court of Human Rights in contrast to its Inter-American and African counterparts. The European system does not contain a right to nationality in the European Convention on Human Rights (ECHR or European Convention) and has maintained this status quo in subsequent jurisprudence, marking a conservative stance. The Inter-American system appears more progressive in the sense that it incorporated a right to nationality into the American Convention on Human Rights (ACHR or Inter-American Convention) from its inception and then interpreted it broadly. The African system appears progressive in another sense, as the African Commission and Court on Human and Peoples’ Rights addressed the lack of a right to nationality in the African Charter on Human and Peoples’ Rights (ACHPR or African Charter) by reading the right to nationality into related rights.  

Overview: What is in the Treaties  

At its inception, the 1950 European Convention did not contain any migration-related rights or protections for non-nationals, instead building in numerous restrictions. The territorial application clause in Article 63 (now 56) ECHR made the extension of the newly stipulated rights to colonial territories dependent on an additional declaration by signatory states. This combined with express limitations on the rights of non-nationals. Article 16 restricted the political activities of aliens, exempting their treatment from the rights to freedom of expression under Article 10, freedom of assembly and association under Article 11, and the prohibition of discrimination under Article 14. Article 5 protects the right to liberty, but specifically allows detention for purposes of preventing unauthorised entry or facilitating deportation. Migration-related rights were only added more than a decade later, in the ECHR’s Protocol 4 adopted in 1963, which contains the prohibition of collective expulsion of aliens in its Article 4. It then took another 20 years until the ECHR’s Protocol 7, adopted in 1984, stipulated further due process guarantees in cases of individual expulsions. However, neither the ECHR nor its Protocols contain a right to asylum or a right to nationality.   

In contrast, the 1948 American Declaration of the Rights and Duties of Man, adopted in Bogotá two years before the European Convention, contains both a right to nationality under Article 19 and a right of asylum under Article 27. The American Declaration was followed by the American Convention on Human Rights in 1969, which adopted extensive migration-related rights from its inception. Article 22 ACHR contains the right to seek and be granted asylum, the non-refoulement principle, and safeguards against expulsions. Moreover, Article 20 ACHR incorporated the most far-reaching codification of the right to nationality. It stipulates not only that every person has the right to a nationality and prohibits arbitrary deprivation thereof, but also states that ‘[e]very person has the right to the nationality of the state in whose territory he [sic] was born if he does not have the right to any other nationality’. This moves from an elusive right to a nationality to guaranteeing the right to a specific nationality in a particular state, when the alternative is statelessness. Moreover, the right to nationality is a non-derogable right according to Article 27 ACHR. 

The 1981 African Charter also included migration-related rights from its inception. Article 12 ACHPR contains the right to seek and obtain asylum and safeguards against expulsion, similar to Article 22 of the American Convention. The African Charter does not contain a right to nationality. However, it protects the right to recognition as a person before the law, which is also contained in the American Convention but not in the European Convention. Moreover, the African Charter’s Preamble opposes all forms of colonialism and its vestiges and the 2024 Protocol Relating to Specific Aspects of the Rights to a Nationality and the Eradication of Statelessness in Africa (Nationality Protocol) highlights the initial establishment of borders by colonial powers in its Preamble and explicitly codifies the right to a nationality under Article 3(2).     

Focus: The Right to Nationality   

The European Court of Human Rights fails to see nationality as a human rights issue and instead places nationality within the purview of discretionary state sovereignty, as evinced in a long string of caselaw (Dembour 2015). This is exemplified by judgments such as Ramadan v Malta, decided in 2016, in which the ECtHR tolerated revocation of nationality despite resulting statelessness (Dembour 2016). In the decade since then, examples of continuity abound. The ECtHR has continued to reiterate that a ‘right to citizenship is not as such guaranteed by the Convention or its Protocols’, most recently in the 2024 case of Ali Aba Bakr and Rouhi v Spain, concerning two persons born in Western Sahara in the 1970s who complained against their denial of Spanish nationality. The Court reiterated its mantra that there is no right to citizenship in the European Convention or its Protocols (para 19), reasoned that its denial could therefore not be considered discriminatory (para 38) and found that the right to a fair trial under Article 6(1) ‘does not apply to proceedings regulating a person’s citizenship’ (para 41). The Court denied the right to nationality, negated fair trial rights and relegated non-discrimination to the legal margins in matters of nationality, in line with previous jurisprudence (see also Vries & Spijkerboer).  

The 2022 judgment on Zeggai v France, the ECtHR denied the right to nationality and recognition of the violation of related rights to a person who lost his nationality due to his date of birth. Mohamed Zeggai was born in France and lived there for more than 60 years, with a French national identity card and voter’s license, and children who are French nationals. However, a French court rejected the legal confirmation of his status through a certificate of French nationality, because Zeggai’s parents, who had been born in ‘French Algeria’ and held French nationality by birth, had not deposited the declaration of recognition of French nationality within the limited period granted for that purpose after independence. In his submission to the ECtHR, Zeggai emphasised that the loss of French nationality was a legal fiction based on interpreting his parents’ inertia as a refusal of French nationality, which was also extended to their minor child. Zeggai, born in France to parents with French nationality before Algerian independence, found himself in a disfavourable situation in comparison to his siblings born after independence who enjoyed French nationality since birth based on jus soli. In the ECtHR’s assessment, the right to a nationality itself featured only in the negative, in the Court’s habitual assertion that the ECHR and its Protocols do not guarantee the right to a nationality as such, but that arbitrary deprivation can pose a problem with regard to Article 8. The ECtHR emphasized the broad margin of appreciation afforded to states on the determination of nationality and concluded that there had been no violation of Article 14 taken together with Article 8.  

Just like the European system, the African system does not have a right to nationality written into its founding treaty. However, unlike their European counterparts, the African Commission and Court on Human and Peoples’ Rights read the right to nationality into related rights under the African Charter. In its 2015 decision on the Nubian Community v Kenya, the African Commission read the right to nationality into the right to recognition of legal status under Article 5 ACHPR. First, the African Commission asserted that ‘recognition of one’s legal status is an indispensable requirement for the enjoyment of the rights enshrined in the Charter because it grants an individual recognition before the law’ (para 138), highlighting the recognition of legal status as a prerequisite for the recognition of further rights. Second, the African Commission extended this reasoning to the recognition of nationality, asserting that ‘a claim to citizenship or nationality as a legal status is protected under Article 5 of the Charter’ (para 140). Moreover, the African Commission linked the denial of nationality to the question of non-discrimination, highlighting that ‘non-discrimination is a general principle which permeates the enjoyment of all rights guaranteed in the Charter’ (para 123). Accordingly, the African Commission found violations of Article 5 on the recognition of legal status and of non-discrimination under Article 2 ACHPR.  

For making the connection between legal status and nationality, the African Commission drew on the jurisprudence of the Inter-American Court of Human Rights. The African Commission’s decision on the Nubian Community (para 139) referenced the case of Yean and Bosico v Dominican Republic, establishing that denial of juridical personality renders persons vulnerable to violations (para 178) and recognising nationality as a prerequisite for claiming further rights (para 137). The judgment on Yean and Bosico also emphasised the obligation to respect non-discrimination irrespective of migratory status (para 155) and extended this to nationality, emphasising that the ‘migratory status of a person cannot be a condition for the State to grant nationality, because migratory status can never constitute a justification for depriving a person of the right to nationality’ (para 156). The Inter-American Court has consolidated these principles in subsequent jurisprudence, such as the Case of Expelled Dominicans and Haitians v Dominican Republic in 2014 (paras 253 and 264).  

More recently, the African Court on Human and Peoples’ Rights followed the footprints of the African Commission and also found violations of the right to nationality in various contexts. In its 2018 judgment on Anudo v Tanzania, the Court made use of its mandate to draw on other relevant human rights instruments and found a violation of the right to nationality under Article 15(2) of the Universal Declaration of Human Rights. In the subsequent judgments on Penessis v Tanzania in 2019 and Akouedenoudje v Benin in 2023, the Court confirmed further violations of the right to nationality as protected under Article 5 ACHPR. These form part of a line of progressive jurisprudence (for an overview, see Chenwi 2021).  

Conclusion 

The right to nationality remains a key arbiter of access to rights in the current system of nation-states. The Inter-American system takes a progressive stance in the sense that it protected the right to nationality since its founding treaty and provided expansive interpretation in subsequent caselaw. The African system takes a progressive stance in the sense that, notwithstanding the lack of a right to nationality in its founding treaty, the African Commission and Court read this right into related rights under the African Charter. This required more innovative and expansive steps than the straightforward application of an expressly codified right. In any case, both systems clearly treat nationality as a human rights issue. The European system stands as the outlier that is neither progressive nor protective in its founding treaty nor in subsequent jurisprudence. The European Convention lacks a right to nationality, and the Court continues to repeat that a ‘right to citizenship is not as such guaranteed by the Convention or its Protocols’ while severing non-discrimination and fair trial rights from nationality-related proceedings.  

Acknowledgements: I would like to thank the Research Colloquium at the Law Faculty’s Institute for Public Law and Human Rights at the University of Münster for their comments.