Nationality, community citizenship and the Community

Report
THE RIGHT TO NATIONALITY AND
ECOWAS CITIZENSHIP
YUSUF G. DANMADAMI ESQ.
THE COMMUNITY COURT OF JUSTICE, ECOWAS
ABUJA - NIGERIA
WHY THE RIGHT TO NATIONALITY
• THE RIGHT TO A NATIONALITY IS OF PARAMOUNT IMPORTANCE TO THE
REALIZATION OF OTHER FUNDAMENTAL HUMAN RIGHTS, CIVIL RIGHTS AND
ACCESS TO PUBLIC SERVICES.
• NATIONALITY IS THE LEGAL RELATIONSHIP BETWEEN A PERSON AND
STATE. POSSESSION OF A NATIONALITY CARRIES WITH IT THE DIPLOMATIC
PROTECTION OF THE COUNTRY OF NATIONALITY AND IS ALSO OFTEN A
LEGAL OR PRACTICAL REQUIREMENT FOR THE EXERCISE OF
FUNDAMENTAL RIGHTS. CONSEQUENTLY, THE RIGHT TO A NATIONALITY
HAS BEEN DESCRIBED AS THE “RIGHT TO HAVE RIGHTS” AS SEEN IN
TROP V. DULLES, 356 U.S. 86, 101-102 (1958).
RELATED INTERNATIONAL INSTRUMENTS ON HUMAN
RIGHTS
• ARTICLE 15 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS STATES THAT
“EVERYONE HAS THE RIGHT TO A NATIONALITY” AND THAT “NO ONE SHALL
BE ARBITRARILY DEPRIVED OF HIS NATIONALITY NOR DENIED THE RIGHT TO
CHANGE HIS NATIONALITY.”
• ARTICLE 20 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS.
• ARTICLE 7 OF THE CONVENTION ON THE RIGHTS OF THE CHILD.
• ARTICLE 5 OF THE CONVENTION ON THE ELIMINATION OF ALL FORMS OF
RACIAL DISCRIMINATION.
• INTERNATIONAL COVENANTON CIVIL AND POLITICAL RIGHTS
THE AFRICAN CHARTER PERSPECTIVE
• NO PROVISION FOR A RIGHT TO NATIONALITY AS SEEN IN THE UNIVERSAL DECLARATION ON HUMAN
RIGHTS AND OTHER INTERNATIONAL HUMAN RIGHTS INSTRUMENTS.
• HOWEVER, IT PROVIDES THAT EVERY INDIVIDUAL SHALL BE ENTITLED TO THE ENJOYMENT OF THE
RIGHTS, AND FREEDOMS RECOGNIZED AND GUARANTEED IN THE PRESENT CHARTER WITHOUT
DISTINCTION OF ANY KIND SUCH AS RACE, ETHNIC, GROUP, COLOR, SEX, LANGUAGE, RELIGION,
POLITICAL OR ANY OTHER OPINION, NATIONAL AND SOCIAL, ORIGIN, FORTUNE, BIRTH OR OTHER
STATUS.
• THEREFORE, TO DEPRIVE A PERSON A RIGHT TO A NATIONALITY DUE TO RACE, ETHNIC, ORIGIN ETC.
CAN VERY WELL BE VIEWED AS DISCRIMINATION AGAINST THE PERSON AND THEREFORE A VIOLATION
OF HIS/HER HUMAN RIGHTS UNDER THE AFRICAN CHARTER ON HUMAN AND PEOPLES’ RIGHTS.
• THE ALLEGED DISCRIMINATORY PRACTICE CAN VERY WELL BE LITIGATED UPON BASED ON THE
GROUNDS OF VIOLATIONS OF HUMAN RIGHTS.
GENERAL CONSENSUS
• DESPITE RECOGNITION OF THE RIGHT TO NATIONALITY, AN ESTIMATED 12 MILLION
PEOPLE CURRENTLY DO NOT HAVE A NATIONALITY.
• STATELESSNESS IS A GLOBAL PROBLEM.
• STATELESSNESS HAS TAKEN AN INTERNATIONAL DIMENSION AND THEREFORE NO LONGER
WITHIN THE EXCLUSIVE DOMESTIC REALM.
• IT APPEARS THAT THE GENERAL CONSENSUS IS THAT THE RIGHT TO A NATIONALITY IS
NOW A HUMAN RIGHT.
• THEREFORE IT IS IMPERATIVE TO NOTE HERE THAT IMPORTANT JUDICIAL
PRONOUNCEMENTS WILL GENERALLY LEAD TO LEGISLATIVE AMENDMENTS AND CHANGE
IN GOVERNMENT POLICIES.
THE ECOWAS COURT
• THE COURT IS A HUMAN RIGHTS COURT.
• THE COURT HAS JURISDICTION ON HUMAN RIGHTS MATTER.
• IT’S PROTOCOL DID NOT PRESCRIBE THE APPLICABLE HUMAN RIGHTS INSTRUMENTS TO BE APPLIED.
• ECOWAS DOES NOT HAVE A DISTINCT BILL OF RIGHTS OR HUMAN RIGHTS INSTRUMENT.
• THE COURT, APPLIES THE PROVISIONS OF THE AFRICAN CHARTER BY REFERENCE TO ARTICLE 4(G) OF THE
ECOWAS REVISED TREATY AND AS WELL AS ANY OTHER HUMAN RIGHTS INSTRUMENT ADOPTED AND
RATIFIED BY A MEMBER STATE AGAINST IT.
• ARTICLE 9 (4) OF THE 2005 SUPPLEMENTARY PROTOCOL GIVES THE COURT, JURISDICTION TO DETERMINE
CASES OF VIOLATION OF HUMAN RIGHTS THAT OCCUR IN ANY MEMBER STATE.
• THEREFORE, ISSUES OF NATIONALITY RELATING TO VIOLATION OF HUMAN RIGHTS CAN AND SHOULD BE
ADDRESSED BY THE COURT, PARTICULARLY IN REGARDS TO ARTICLE 9 (4) OF THE 2005 SUPPLEMENTARY
PROTOCOL.
CITIZENSHIP
• CITIZENSHIP CAN BE SAID TO BE THE BEDROCK OF NATIONHOOD. EVERY NATION HAS WITHIN ITS
TERRITORY, PERSONS WHO OWE ALLEGIANCE TO IT, WHO HAVE A STAKE IN ITS EXISTENCE AND TO WHOM
THE NATION OWES SOME OBLIGATIONS, WHICH ARE USUALLY EMBEDDED IN THE CONSTITUTION.
• THIS IDEA IS APTLY CAPTURED BY T.H MARSHALL IN HIS SEMINAR WORK, CITIZENSHIP AND SOCIAL CLASS
(1950) WHERE HE DEFINED CITIZENSHIP AS A STATUS BESTOWED ON THOSE WHO ARE FULL MEMBERS OF A
COMMUNITY. ALL WHO POSSESS THE STATUS, ARE EQUAL WITH RESPECT TO THE RIGHTS AND DUTIES WITH
WHICH THE STATUS IS ENDOWED.
• CITIZENSHIP GENERALLY IS CONTEXTUALIZED WITHIN THE MILIEU OF NATIONAL/MUNICIPAL LAWS. EVERY
COUNTRY OF THE WORLD HAS ITS OWN POLICIES, PRINCIPLES AND LEGISLATION ON THE ACQUISITION,
RIGHTS, LIABILITIES AND LOSS OF CITIZENSHIP. FROM THE ONSET, IT BECAME CLEAR THAT CITIZENSHIP
CARRIED WITH IT A HOST OF PRIVILEGES.
ECOWAS CITIZENSHIP
• ECOWAS CITIZENSHIP BELONGS TO AN ALTERED CATEGORY OF CITIZENSHIP IN VIEW
OF THE FACT THAT ECOWAS IS A SUPRANATIONAL ORGANIZATION, ENCOMPASSING
VARIOUS MEMBER STATES EACH WITH ITS OWN CITIZENSHIP REGIME
• THUS, CITIZENSHIP RULES DO NOT BELONG IN AN ABSTRACT, SEPARATE
COMPARTMENT THAT IS PECULIAR TO ECOWAS QUA THE REGIONAL BODY THAT IT IS.
• THE SITUATION HAS NOT CHANGED, BECAUSE ECOWAS AS AN ORGANIZATION,
DOES NOT IN A STRICT SENSE ENJOY THE RIGHT TO CONFER CITIZENSHIP ON AN
INDIVIDUAL AS WOULD A MEMBER STATE.
ECOWAS CITIZENSHIP
• ECOWAS CITIZENSHIP IS THEREFORE INEXTRICABLY INTERTWINED WITH THE CITIZENSHIP
OF A MEMBER STATE AND THE PROTOCOL HAS LAID OUT THE DIFFERENT MEANS BY
WHICH ECOWAS CITIZENSHIP CAN BE ACQUIRED.
• THE MEANS OF ACQUISITION OF ECOWAS CITIZENSHIP ARE CLEARLY SPELT OUT IN
ARTICLE 1 OF THE PROTOCOL RELATING TO THE DEFINITION OF COMMUNITY CITIZEN
• THE PROTOCOL ON DEFINITION OF ECOWAS CITIZENSHIP OUTLINES THE VARIOUS
CATEGORIES OF PERSONS WHO ARE REGARDED AS ECOWAS CITIZENS AND INHERENTLY
ENCAPSULATES THE MODES OF ACQUISITION.
ECOWAS CITIZENSHIP
• THE DEFINITION SIMPLY STATES THE JURIDICAL PRINCIPLE, WHILE ACQUISITION LAYS
OUT THE CONTEXTUAL FRAMEWORK – I.E., LOOKING AT CITIZENSHIP WITHIN THE
CONTEXT OF THE PARAMETERS ENSHRINED IN ARTICLE 1A AND 1B. CITIZENSHIP OF
A MEMBER STATE IS THE PRIMARY BASIS FOR ALL THE ECOWAS CITIZENSHIP RIGHTS.
• THE CITIZENSHIP REQUIREMENTS OF ECOWAS ARE INEVITABLY LINKED WITH THOSE
OF THE VARIOUS MEMBER STATES BECAUSE AS A SUPRANATIONAL ORGANIZATION,
ECOWAS DOES NOT EXIST SEPARATELY FROM THE MEMBER STATES.
ECOWAS CITIZENSHIP
ARTICLE 1 OF THE PROTOCOL A/P3/5/82 RELATING TO THE DEFINITION OF COMMUNITY CITIZEN
PROVIDES THAT A CITIZEN OF THE COMMUNITY IS:
(A) ANY PERSON WHO IS A NATIONAL BY DESCENT OF A MEMBER STATE AND IS NOT A
NATIONAL OF ANY NON-MEMBER STATE OF THE COMMUNITY;
(B) ANY PERSON WHO IS A NATIONAL BY BIRTH OF ANY OF THE MEMBER STATES EITHER OF
WHOSE PARENTS IS A NATIONAL BY SUB-PARAGRAPH (1) ABOVE PROVIDED THAT SUCH A
PERSON ON ATTAINING THE AGE OF 21 DECIDES TO TAKE UP THE NATIONALITY OF THE MEMBER
STATE( PROVISO: A PERSON HAVING DUAL NATIONALITY AND WHO HAD ATTAINED THE AGE OF
21 YEARS BEFORE THE COMING IN FORCE OF THIS PROTOCOL SHALL RENOUNCE THE
NATIONALITY OUTSIDE THAT OF THE COMMUNITY);
ECOWAS CITIZENSHIP
(C)
I. ANY ADOPTED CHILD WHO AT BIRTH IS NOT A CITIZEN OF THE COMMUNITY OR
WHOSE NATIONALITY IS UNKNOWN BUT EXPRESSLY TAKES UP THE NATIONALITY OF
HIS ADOPTIVE PARENT WHO IS A COMMUNITY CITIZEN ON ATTAINING THE AGE OF 21;
II. AN ADOPTED PERSON WHO HAS ALREADY ATTAINED MATURITY BEFORE THE
COMING INTO FORCE OF THIS PROTOCOL AND OF DUAL NATIONALITY MUST
RENOUNCE THE NATIONALITY OF ANY STATE OUTSIDE THE COMMUNITY;
III. ANY CHILD ADOPTED BY A CITIZEN OF THE COMMUNITY, PROVIDED THAT THE CHILD
HAS NOT ATTAINED HIS MATURITY TO DECIDE ON THE NATIONALITY
OF
HIS
OWN CHOICE;
ECOWAS CITIZENSHIP
(D) A NATURALIZED PERSON OF A MEMBER STATE WHO HAS BEFOREHAND MADE A FORMAL
APPLICATION AND SATISFIES THE FOLLOWING CONDITIONS:
I. HAD RENOUNCED THE NATIONALITY OF ANY STATE OUTSIDE THE COMMUNITY AND SUCH
RENUNCIATION IS EXPLICITLY SUPPORTED BY AN ACT OF DULY AUTHENTICATED BY THE
APPROPRIATE AUTHORITIES OF THE COUNTRY OR COUNTRIES WHOSE NATIONALITY OR
NATIONALITIES HE FORMERLY ENJOYED AND
II. PERMANENT ESTABLISHMENT OF ABODE ON THE TERRITORY OF A MEMBER STATE WITHOUT
ANY SUBSEQUENT TRANSFER TO ANY STATE FOR A CONTINUOUS PERIOD OF FIFTEEN (15)
YEARS PRECEDING HIS APPLICATION FOR COMMUNITY CITIZENSHIP.
OBSERVATIONS
• THE PROTOCOL ON THE ECOWAS CITIZENSHIP DOES NOT PERMIT DUAL
NATIONALITY EVEN THOUGH A NUMBER OF MEMBER STATES HAVE AMENDED
THEIR CONSTITUTIONS TO RECOGNISE SAME.
• THE PROTOCOL ON THE DEFINITION OF ECOWAS CITIZENSHIP INCLUDES OTHER
ONEROUS REQUIREMENTS WHICH THE PROTOCOL FAILED TO CLARIFY. THIS LACK
OF CLARITY MAKES THE REQUIREMENTS SUPERFLUOUS.
• IT REMAINS THE OPINIONS OF SOME LEGAL SCHOLARS THAT ONCE A
PERSON HAS A VALID CITIZENSHIP OF A MEMBER STATE, FURTHER
CONDITIONS SHOULD NOT BE IMPOSED WITHOUT PREJUDICE TO THE LEGAL
CONDITIONS FOR LOSS OF CITIZENSHIP.
• WHILE I AM NOT DISCUSSING STATELESSNESS, I STATE HERE THAT ECOWAS CITIZENSHIP AS
WE HAVE IT TODAY IS NOT IN A POSITION TO ADDRESS STATELESSNESS.
• I MAKE BOLD TO SAY THAT IN ACTUAL FACT ENCOURAGES STATELESSNESS RATHER THAN
REDUCE SAME.
•
FOR THREE REASONS WHICH ARE FIRSTLY, ECOWAS CITIZENSHIP IS TIED TO THE WHIMS
AND CAPRICE OF THE MEMBER STATES WHO ARE THE ACTUAL VIOLATORS OF STATELESS
PERSONS. SECONDLY THE REFUSAL OF
DUAL NATIONALITY AND THIRDLY THE
MANDATORY LEGAL CONDITION TO RENOUNCE THE NATIONALITY OF A NON- MEMBER
STATE OF THE COMMUNITY.
CONCLUSION
• THE PROTOCOL ON ECOWAS CITIZENSHIP IS CONSTRAINED ON ALL SIDES BY RULES,
REGULATIONS AND NATIONAL LEGISLATION.
• THE EXISTING MODEL OF ECOWAS CITIZENSHIP MUST BE IMPROVED UPON TO MEET
ACCEPTABLE REGIONAL AND INTERNATIONAL BEST PRACTICES.
• I HAVE NOT MADE AN EXHAUSTIVE DISCUSSION ON THE TOPIC BUT DUE TO TIME
CONSTRAINTS I HAVE JUST RAISED ISSUES TO PROVOKE THE DISCUSSION. I MERELY
INTENDED TO INCITE THE DEBATE.
THANK YOU

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