The Tension Between the Prohibition of Statelessness and the Principle of
Non-Discrimination
An analysis of the amended Dutch Nationality Act in light of the prohibition of discrimination under the European Convention on Human Rights
Eva van der Donk University of Amsterdam
LL.M. International and European Law, track Public International Law 7 January 2019
Thesis supervisor: mr. dr. M. den Heijer Word Count: 12980
2
Abstract
As a tool to counter the international terrorism threat, revocation of nationality has gained new attention in various states. In the Netherlands, the amendment to the Dutch Nationality Act (‘DNA’) that came into force in March 2017 makes it possible to strip foreign fighters of their nationality, when their conduct shows that they have joined a jihadist organization. Unlike the 2010 and 2016 DNA amendments, no prior criminal conviction is required. In order to comply with the international obligation to prevent statelessness, revocation of nationality under the DNA, however, is only possible for foreign fighters possessing dual-Dutch nationality.
This thesis provides a case study on the amended DNA and its compatibility with the principle of non-discrimination under Article 14 and Protocol 12 European Convention on Human Rights (‘ECHR’). It is argued that revocation of nationality, which seriously affects the social identity of the individual, is within the ambit of Article 8 ECHR for the purpose of Article 14 ECHR. Either direct discrimination based on ‘nationality’ or ‘having another nationality’, or indirect discrimination based on ‘race and ethnic origin’ may be at stake. For so-called ‘suspect’ discrimination grounds, a government must give ‘compelling’ or ‘very weighty reasons’ to justify the discriminatory nature of the measure. In these instances, strict judicial scrutiny is required and the European Court of Human Rights (‘the Court’) will more easily accept practical alternative measures.
Even though Contracting States are granted a wide scope of discretion, involving cases that touch upon national security interests, there are indications that there are no suitable justifications for the discriminatory grounds upon which an individual’s nationality may be revoked. The amended DNA might not be suitable to attain the desired aim. Further, the Dutch administrative judge might be unable to pass an adequate proportionality assessment. Moreover, even if the measure would be considered suitable to protect national security interests, the Court can accept practical alternative measures to achieve the same aim. Criminal law measures can provide alternative, and arguably more effective, means for achieving the same aim. Therefore, the existence of a terrorist threat might not as such alter a State’s obligation to prevent discrimination under the ECHR.
3
Table of Contents
Abstract ... 2
1. Introduction ... 5
1.1. Background ... 5
1.2. Aim, Research Structure and Scope ... 7
1.2.1. Aim of the Research ... 7
1.2.2. Research Question ... 8
1.2.3. Methodology and Research Structure ... 8
1.2.4. Scope of the Research ... 8
1.3. Relevance of the Research ... 9
2. The Dutch Nationality Act ... 10
2.1. Introduction ... 10
2.2. Evolution of the Dutch Nationality Act ... 10
2.2.1. Background ... 10
2.2.2. Nationality Revocation Under the 2017 Amendment ... 12
2.3. The Prevention of Statelessness ... 13
2.4. Interim Conclusion ... 13
3. The Prohibition of Discrimination under the ECHR ... 14
3.1. Introduction ... 14
3.2. Article 14 and Protocol 12 ECHR ... 14
3.2.1. Article 14 ECHR ... 14
3.2.2. Protocol 12 ECHR ... 15
3.3. Direct and Indirect Discrimination ... 16
3.4. Discrimination Grounds ... 16 3.5. Justification Test ... 18 3.5.1. Key Questions ... 18 3.5.2. Margin of Appreciation ... 18 3.6. Interim Conclusion ... 21 4. Analysis ... 22 4.1. Introduction ... 22
4.2. The Substantive Convention Provision ... 22
4.2.1. Article 8 ECHR ... 22
4.3. Discrimination Grounds and the Margin of Appreciation ... 24
4
4.3.2. Direct Discrimination: Other Status ... 24
4.3.3. Indirect Discrimination: Race ... 26
4.4. Justification Grounds ... 29
4.4.1. Introduction ... 29
4.4.2. Legitimate Aim ... 30
4.4.3. Proportionality: The Fair Balance Test ... 30
4.4.4. Proportionality: Subsidiarity ... 32
4.5. Interim Conclusion ... 34
5. Conclusion ... 36
Bibliography ... 38
A. International Conventions ... 38
B. United Nations Documents ... 38
C. Dutch Legislation ... 38
Laws (Wetten) ... 38
Decisions (Besluiten) ... 39
D. Case Law ... 40
European Court of Human Rights ... 40
Other ... 42
E. Literature ... 42
Books ... 42
Articles ... 43
Council of Europe Publications ... 44
Dutch Government Publications ... 44
Newspaper Articles ... 44
5
1. Introduction 1.1. Background
In June 2018, the Dutch District Court of The Hague was supposed to give a ruling on the legality of the revocation of nationality of two Dutch-Moroccan foreign fighters.1 The foreign fighters were stripped of their Dutch nationality in September 2017, after an amendment of the Dutch Nationality Act (Rijkswet op het Nederlanderschap, ‘DNA’) in March 2017.2 The amended DNA allows for withdrawal of nationality without previous conviction if a person joined an organization participating in a national or international armed conflict threatening national security.3 In line with the new act, the revocation decision by the Minister of Justice and Security (‘the Minister’) was possible since both foreign fighters possessed dual nationality.4 The defense argued that the revocation decision was discriminatory, while the Dutch state attorney claimed the measure was justified in light of national security.5 However, as a result of the absence of the two suspects, the appeal was declared inadmissible and no substantive assessment could be made.6 Nonetheless, the case fueled the debate about the validity of the Dutch nationality revocation measure in light of the prohibition of discrimination.7
The issue of foreign fighters joining terrorist groups, most prominently Islamic State (‘IS’), has been high on the international agenda in recent years. In 2014, IS proclaimed the establishment of a caliphate.8 Nationals from various countries have since joined different sides of the
1 The definition ‘foreign fighter’ laid down in UNSC resolution 2178 is used: ‘individuals who travel to a State
other than their State of residence or nationality for the purpose of the perpetration, planning, or preparation of, or participation in, terrorist acts or the providing or receiving of terrorist training’.
2 Rijksoverheid, ‘Minister Blok trekt Nederlanderschap in van 4 personen’ (September 2017)
< https://www.rijksoverheid.nl/actueel/nieuws/2017/09/13/minister-blok-trekt-nederlanderschap-in-van-vier-personen>, accessed 5 September 2018.
3 Article 14.4 DNA. 4 Article 14.8 DNA.
5 C. Rosman, ‘Afpakken Nederlanderschap van jihadisten is discriminatie’ AD (15 May 2018)
<https://www.ad.nl/binnenland/afpakken-nederlanderschap-van-jihadisten-is-discriminatie~abef86ae/>, accessed 5 September 2018.
6 District Court of The Hague, 26 June 2018, ECLI:NL:RBDHA:2018:7617.
7 F. Wassenaar, ‘discriminatie van IS en Al-Nusra-strijders bij intrekking Nederlanderschap in Unierechtelijk
perspectief’ (2018) Crimmigratie & Recht, no. 1
<https://www.bjutijdschriften.nl/tijdschrift/CenR/2018/1/CenR_2542-9248_2018_002_001_002.pdf> accessed 5 September 2018; K. van Teeffelen, ‘Verlies Nederlanderschap jihadisten: discriminatie of eigen schud?’ Trouw (16 May 2018) < https://www.trouw.nl/home/verlies-nederlanderschap-jihadisten-discriminatie-of-eigen-schuld-~a2094e1f/> accessed 5 September 2018.
8 E. Bakker and M. Singleton, ‘Foreign Fighters in the Syria and Iraq Conflict: Statistics and Characteristics of a
Rapidly Growing Phenomenon’ in: A. de Guttry, F. Capone and C. Paulussen (eds), Foreign Fighters under
6 conflict.9 In resolution 2178 of 2014, the United Nations Security Council (‘UNSC’) decided that UN Member States ‘shall prevent the entry into their territories of any individual about whom it has reasonable grounds to believe that he or she is seeking entry for the purpose of participating in terrorist acts’.10 By September 2015, at least 30.000 foreign fighters had travelled into Syria and Iraq to join the conflict, among which at least 5.000 were European Union (‘EU’) nationals.11 The average rate of returnees to Western countries is 20 to 30%.12 By 1 November 2017, around 285 foreign fighters had left the Netherlands for ‘jihadist purposes’13, of which approximately 50 have returned.14 Concern raised among several European countries that returnees will perpetrate acts of a terrorist nature in their home country. Between 2014 and 2017, states such as the United Kingdom (‘UK’), France, Belgium and the Netherlands passed amendments to their nationality acts to expand the powers of deprivation of nationality.15 UNSC resolution 2178 does not expressly forbid domestic measures revoking nationality of foreign fighters. In principle, states enjoy a sovereign right to regulate issues of nationality.16 Nevertheless, the resolution specifically requires that its paragraphs are implemented in accordance with international human rights law.17 Furthermore, the Committee of Ministers of the Council of Europe has recognized that all measures taken by Contracting States to fight terrorism must exclude any form of racist or discriminatory treatment.18 To comply with the international obligation of the prevention of statelessness, revocation of nationality under the DNA is only possible for foreign fighters possessing dual-Dutch nationality.19 However, as various human rights organizations, including the Netherlands Institute for Human Rights and the Netherlands Bar Association, have argued, this raises concerns about the compatibility of
9 Bakker and Singleton, n. 8, p. 10.
10 UN Doc S/Res/2178 (2 September 2014), para. 8.
11 C.R. Lister, The Syrian Jihad: Al-Qaeda, the Islamic State and the Evolution of an Insurgency (OUP 2015), p.
1; The Soufan Group, ‘Foreign Fighters, an Updated Assessment of the Flow of Foreign Fighters into Syria and Iraq’ (December 2015) <
http://soufangroup.com/wp-content/uploads/2015/12/TSG_ForeignFightersUpdate3.pdf> accessed 9 September 2018.
12 The Soufan group, n. 11, p. 4.
13 NCTV, ‘Terrorist Threat Assessment for the Netherlands 46 (DTN 46)’ (November 2017), p. 3
<https://english.nctv.nl/binaries/DTN46%20Summary_tcm32-294322.pdf> accessed 15 September 2018.
14 NCTV, n. 13, p. 3.
15 EPRS, ‘The return of foreign fighters to EU soil – ex post evaluation’ (May 2018)
<http://www.europarl.europa.eu/RegData/etudes/STUD/2018/621811/EPRS_STU(2018)621811_EN.pdf> accessed 9 September 2018.
16 S. Mantu, Contingent Citizenship (Brill – Nijhoff 2015), p. 1. 17 UNSC Res 2178, n. 10, recitals, p 3.
18 Council of Europe, ‘Guidelines on human rights and the fight against terrorism’ (July 2002)
<https://www.coe.int/t/dlapil/cahdi/Source/Docs2002/H_2002_4E.pdf> accessed 16 September 2018.
7 the DNA with the prohibition of discrimination under the European Convention on Human Rights (‘ECHR’).20
1.2. Aim, Research Structure and Scope 1.2.1. Aim of the Research
This thesis will provide a case study on the amended DNA and its compatibility with the principle of non-discrimination, from the perspective of the European Court of Human Rights (‘ECtHR’ or ‘the Court’). Neither any national court, nor the ECtHR, have yet given a substantive ruling on the legality of the amended DNA. Therefore, there is currently no clear guidance on its compatibility with the prohibition of discrimination under the ECHR. Recently, in the case of K2 v. UK, the Court was faced with the question of whether a British measure, revoking nationality of a foreign fighter taking part in terroristic activities in Somalia, was in compliance with the principle of non-discrimination.21 The claim was rejected on the technical ground that the applicant had not raised a similar claim before the domestic court.22 Nonetheless, the case shows it is practically possible for an ‘ex-national’ to bring a claim before the Court. From a broader perspective, the case shows that the question of whether such a measure complies with the prohibition of discrimination is still unanswered, and that the debate around this issue will probably remain ongoing.23
The aim of this thesis is to examine if, and to what extent, the amended DNA complies with the prohibition of discrimination, laid down in Article 14 and Article 1 Protocol 12 ECHR. ECtHR jurisprudence will be analyzed to determine whether the Court would uphold a measure depriving dual-Dutch foreign fighters of their Dutch nationality. The scope of the margin of appreciation for the Netherlands is affected by two powerful, but diverging, factors: ‘suspect’ discrimination grounds as well as the aim of national security.
20 College voor de Rechten van de Mens, Advies conceptwetsvoorstel tot wijziging van de Rijkswet op het
Nederlanderschap in verband met het intrekken van het Nederlanderschap in het belang van de nationale veiligheid (February 2015) <
https://publicaties.mensenrechten.nl/file/dd13e8d1-a131-4544-9734-db08bdc6a0e3.pdf> accessed 10 October 2018; Adviescommissies van de Nederlandse Orde van Advocaten inzake Vreemdelingenzaken, Strafrecht en Familierecht, ‘Wijziging Rijkswet op het Nederlanderschap in verband met het intrekken van het Nederlanderschap in het belang van de nationale veiligheid’ (February 2015) <https://www.advocatenorde.nl/juridische-databank/details/wetgevingsadviezen/39706> accessed 10 October 2018.
21 K2 v. UK, (App. 42387/13), 7 February 2017. 22 Ibid, paras. 68-72.
23 See: K2 v. UK, n. 21, annotation T.L. Boekestein and G.R. de Groot (2017) SDU European Human Rights
Cases, Vol, 8 < https://www.sdu.nl/content/ehrc-2017146-ehrm-07-02-2017-4238713-met-annotatie-van-tl-boekestein-en-prof-dr-gr-de-groot> accessed 10 October 2018.
8
1.2.2. Research Question
The question this thesis seeks to answer is:
To what extent is the recently amended Dutch Nationality Act, regulating the revocation of nationality of foreign fighters, in compliance with the prohibition of discrimination under Article 14 ECHR and Article 1 Protocol 12 ECHR?
1.2.3. Methodology and Research Structure
This thesis will be written from an internal-normative perspective as the aim of this research is to reflect on the legal rules that apply in the Dutch legal order and their compliance with the ECHR.24 The research method imitates the judicial method of legal interpretation. A prediction will be made on how the ECtHR would possibly decide on this issue, should it be presented. Chapter 2 will set out what the current Dutch legislation on the revocation of nationality under the DNA is. In particular, it will be explained how the international terrorism threat has led to a more restrictive nationality policy.
Chapter 3 will set out what the legal framework on the prohibition of discrimination under the ECHR is. Case law will be examined in order to understand the scope of the margin of appreciation of States in discrimination cases.
Chapter 4 will examine how revocation of nationality of dual-Dutch foreign fighters can be challenged under the prohibition of discrimination laid down in the ECHR. It will eventually be analyzed whether the revocation of nationality of dual-Dutch foreign fighters can be objectively justified in light of its legitimate aim, proportionality and subsidiarity.
A conclusion will be presented in chapter 5.
1.2.4. Scope of the Research
This research will examine the amended DNA in light of the prohibition of discrimination under the ECHR, by using the ECHR provision and relevant ECtHR case law. It goes beyond the
9 scope of this research to examine the DNA in light of other relevant (European) human rights, such as the right to arbitrary deprivation of nationality25 and the right to a fair trial26.
1.3. Relevance of the Research
As a means of combatting terrorism, the Dutch government has adopted far-reaching measures, such as revocation of nationality for dual national foreign fighters. Even though Contracting States have a wide margin of appreciation in the area of national security, it is relevant to analyze whether the Dutch government has possibly overstepped this margin by discriminating amongst its citizens. Several Contracting States in the Council of Europe have adopted similar nationality revocation measures for dual national foreign fighters. After the K2 v. UK case, it is likely a similar case will be submitted to the Court in the future.27 A prediction of the outcome of a case at the ECtHR is not only relevant for the Netherlands or national courts, but also for other States where similar measures have been adopted. Although as non-parties, other States are not legally bound by a Court’s judgment, they are bound to ‘secure’ the rights guaranteed by the Convention.28 When securing Convention rights, States are expected to amend their laws to bring them in line with the Convention, thus making the aforementioned prediction relevant for all Contracting States.29
25 Article 7 ECN.
26 Article 6 ECHR.
27 See: K2 v. UK, n. 21, annotation T.L. Boekestein and G.R. de Groot.
28 Article 1, 46.1 ECHR; Harris, O’Boyle and Warwick, Law of the European Convention on Human Rights
(OUP 2018), p. 36-37.
10
2. The Dutch Nationality Act 2.1. Introduction
‘Citizenship’ or ‘nationality’30 can be defined as the sum of rights and duties of individuals under domestic law.31 National rules on citizenship express the ideals of the state on membership and identity. As an expression of the principle of sovereignty, it is in principle for each state to design the rules for the acquisition and loss of citizenship.32 This state’s power can be limited by international human rights obligations, such as the prevention of statelessness and the prohibition of discrimination. In the Netherlands, acquisition and loss of nationality are governed by the DNA.33 This chapter will provide an overview of DNA amendments in the sphere of counterterrorism and will show how the Netherlands has used the DNA as a tool to exclude certain people from Dutch society.
2.2. Evolution of the Dutch Nationality Act 2.2.1. Background
The original DNA came into force in 1985 and has evolved over time. In 2010, 2016 and 2017 the international terrorism threat led to additional grounds for revocation of nationality.34 Since 2010, an irrevocable conviction for certain (terroristic) criminal acts is a ground for withdrawing nationality.35 These criminal acts include, among others, acts against the safety of the state36, recruitment of foreign armies37 or criminal acts with terrorist intent.38 Further, the 2010 amendment authorized the Minister to revoke nationality of people who have been convicted of ‘participation in an organization responsible for the commission of terrorist offences’.39
Since 2015, terrorist attacks within Western-Europe increased in numbers. Incidents such as the Charlie Hebdo attack in January 2015, the Paris attacks in November 2015 and the Brussels
30 ‘Citizenship’ and ‘nationality’ will be used interchangeably.
31 M. N. Shaw, International Law, (Cambridge University Press 2014), p. 479. 32 Ibid, p. 479.
33 See also: Article 3(1)(c) Charter Kingdom of the Netherlands. 34 Mantu, n. 16, p. 15; EPRS, n. 15, Annex 2.3.
35 Wijziging van de Rijkswet op het Nederlanderschap met betrekking tot meervoudige nationaliteit en andere
nationaliteitsrechtelijke kwesties, Kamerstukken II 2009-2010, 31813 (R1873);Article 14.2 DNA.
36 Article 14.2.a. DNA jo. Article 92-107a Dutch Criminal Code. 37 Article 14.2.b DNA jo. Article 205 Dutch Criminal Code. 38 Ibid, jo. Article 83 Dutch Criminal Code.
11 bombings in March 2016 caused legislators in several Western-European states to introduce stricter legislation on revocation of nationality.40 Some of these terrorist attacks were associated with returning foreign fighters.41 A specific concern related to these returnees is the so called ‘blowback effect’. This term refers to the possible threat foreign fighters pose when they return to their home country and carry out or support terrorist attacks by using the experience gained in conflict areas.42
A plan for a new nationality policy in the Netherlands was initiated in August 2014, when the Dutch National Coordinator for Security and Counterterrorism (‘NCTV’), the Ministry of Justice and Security and the Ministry of Social Affairs and Employment presented a ‘Comprehensive Action Programme to Combat Jihadism’.43 The Action Programme, together with the increasing terrorist threat, led to both the 2016 and the 2017 DNA amendments. The amendment which came into force in March 2016 allowed for revocation of nationality after conviction for ‘aiding and abetting (preparation of) a terroristic act or training people for terroristic purposes’.44 The proposal for the 2017 amendment was initiated in September 2014, when the Dutch Minister of Justice and Security proposed nationality revocation without prior criminal conviction ‘when dual-Dutch nationals voluntarily enlist in the armed forces of a terrorist militia’. 45 After being passed by both the Senate and the House of Representatives in December 2015, the amendment came into force in March 2017.46 Contrary to the 2010 and 2016 amendments, the revocation ground under the 2017 amendment requires no prior criminal conviction. According to its explanatory memorandum, the 2017 amendment is a ‘preventive’ measure, which prevents legal return to Dutch territory and the Schengen area.47 For the 2017 amendment, the House of Representatives has decided it will only be valid for five years.48 The
40 EPRS, n. 15, p. Annex 2.3.
41 International Centre for Counter-Terrorism, ‘The Foreign Fighters Phenomenon in the European Union:
Profiles, Threats and Policies’ (April 2016), p. 9 <
https://icct.nl/wp-content/uploads/2016/03/ICCT-Report_Foreign-Fighters-Phenomenon-in-the-EU_1-April-2016_including-AnnexesLinks.pdf> accessed 15 September 2018.
42 Memorie van Toelichting (Explanatory Memorandum), Wijziging van de Rijkswet op het Nederlanderschap in
verband met het intrekken van het Nederlanderschap in het belang van de nationale veiligheid, Kamerstukken II 2015-2016, 34356 (R2064) no. 3, p. 3;L. Vidino, F. Marone, E. Entenmann, Fear thy Neighbor: Radicalization
and Jihadist Attacks in the West (Ledizioni LediPublishing 2017), p. 60.
43 Ministry of Security and Justice, NCTB and Ministry of Social Affairs and Employment, ‘The Netherlands
comprehensive action programme to combat jihadism: Overview of measures and actions’ (August 2014) <https://english.nctv.nl/binaries/def-a5-nctvjihadismuk-03-lr_tcm32-83910.pdf> accessed 15 September 2018.
44 Article 134a Dutch Criminal Code.
45 Voorstel van Rijkswet, Wijziging van de Rijkswet op het Nederlanderschap in verband met het intrekken van
het Nederlanderschap in het belang van de nationale veiligheid, Kamerstukken II 2015-2016, 34356 (R2064).
46 Rijkswet van 10 februari 2017, houdende wijziging van de Rijkswet op het Nederlanderschap in verband met
het intrekken van het Nederlanderschap in het belang van nationale veiligheid, Stb 2017, no. 19.
47 Explanatory Memorandum, n. 42, p. 7.
12 amendment will be reviewed on its effectiveness and desirability in March 2022, which may create an opportunity to test its compatibility with the prohibition of discrimination.
2.2.2. Nationality Revocation Under the 2017 Amendment
Under the grounds added in the 2010, 2016 and 2017 DNA amendments, the Minister can take an independent nationality revocation decision. With the newly added Article 14.4 DNA in the 2017 amendment, the Minister is given the power to:
‘in the interests of national security, revoke Dutch nationality of a person who has reached the age of sixteen years and who is outside the Kingdom of the Netherlands, if his or her conduct shows that the person has joined an organization that, by the Minister, in accordance with the Council of Ministers, is placed on a list of organizations participating in a national or international armed conflict and poses a threat to national security’.49
This revocation ground applies when a person ‘joined an organization’ that is ‘placed on a list of organizations participating in a national or international armed conflict and poses a threat to national security’. No prior criminal conviction is required. It must be established that the person supports the aim of the terrorist organization and that he or she50 has the intention to join the organization.51 Furthermore, the person must perform acts for, or on behalf of, the terrorist organization.52 The Minister has established an exhaustive list of three jihadist organizations that pose a threat to national security, being Al-Qaeda, IS and Hay'at Tahrir al-Sham.53
When revoking Dutch nationality, the Minister must weigh the various interests at stake, particularly taking the use of alternative measures to combat jihadism, such as criminal prosecution, into account.54 Loss of Dutch citizenship causes the loss of the rights linked to Dutch citizenship. After revocation of nationality under the new amendment, foreign fighters are listed as ‘undesirable aliens’ for both the territory of the Netherlands and the Schengen area.55
49 Article 14.4 DNA;
50 In this thesis ‘his’/‘him’ will be used for ‘his or her’/ ‘him or her’. 51 Explanatory Memorandum, n. 42, p. 6.
52 Ibid, p. 6.
53 Besluit van de Minister van Veiligheid en Justitie van 2 maart 2017, no. 2050307, tot vaststelling van de lijst
met organisaties die een bedreiging vormen voor de nationale veiligheid’, Stcrt 2017 no. 13023.
54 Explanatory Memorandum, n. 42, p. 8. 55 Article 67.1.c Dutch Aliens Act.
13
2.3. The Prevention of Statelessness
Article 14.8 DNA states that revocation of Dutch nationality must not lead to statelessness.56 Accordingly, almost all revocation grounds mentioned in the DNA only target people with multiple nationalities. With this distinction, the measure complies with the international obligation to prevent statelessness, laid down in Article 8 of the 1961 Convention on the Reduction of Statelessness (‘1961 Convention’) and Article 7.3 of the European Convention on Nationality (‘ECN’). The Netherlands is party to both Conventions. The 1961 Convention offers safeguards against statelessness that should be implemented through a state’s nationality law.57 The ECN states that renunciation of nationality is allowed, if the person does not become stateless.58
2.4. Interim Conclusion
After amendments to the DNA came into force in 2010 and 2016, a new ground for revocation of nationality was added in 2017. This revocation ground differs from the existing grounds insofar that it can be considered a preventive measure, instead of an addition to a punitive measure. Further, the measure is applicable without prior criminal conviction. The measure intents to protect national security by prohibiting individuals that have joined a jihadist organization from re-entering to Dutch territory. The revocation grounds added with the DNA amendments only apply to people possessing dual-Dutch nationality. The 2017 amendment will be reviewed on its effectiveness and desirability in March 2022. This may create an opportunity to test its compatibility with the prohibition of discrimination.
56 Except when nationality is obtained by fraudulent conduct, article 14.1 DNA. 57 1961 Convention, introductory note.
14
3. The Prohibition of Discrimination under the ECHR 3.1. Introduction
Throughout the 20th century, the creation of an international human rights system has been an important development in qualifying the relationship between state sovereignty and revocation of nationality.59 As described in Chapter 2, the DNA complies with the human rights obligation to prevent statelessness. However, states who deprive dual nationals from one of their nationalities risk violating the principle of non-discrimination. Before analyzing whether the DNA is compatible with the principle of non-discrimination, it is relevant to describe the legal framework of the prohibition of discrimination under Article 14 ECHR and Article 1 Protocol 12 ECHR.
3.2. Article 14 and Protocol 12 ECHR 3.2.1. Article 14 ECHR
Article 14 ECHR prohibits discrimination in the enjoyment of Convention rights on grounds of ‘sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status’.60 Article 14 only applies in respect of ‘the enjoyment of the rights and freedoms as set forth in the Convention’.61 Therefore, it only prohibits discrimination in relation to the exercise of another Convention right.62 However, the application of Article 14 does not presuppose a breach of that Convention provision.63 It is sufficient that the facts of a case fall ‘within the ambit of another substantive provision of the Convention or its Protocols’.64 In other words, the facts of the case have to be broadly related to issues protected under the Convention.65 The next issue is whether there in fact has been a difference of treatment on a prohibited ground. In order for an issue to arise under Article 14 there must be a difference in the treatment of ‘persons in analogous, or
59 Mantu, n. 16, p. 26.
60 Article 14 ECHR. 61 Ibid.
62 Rasmussen v. Denmark, (App. 8777/79), 28 November 1984, Series A No 87, (1985) 7 EHRR 372, para. 29. 63 Ibid, para. 29; Sommerfeld v. Germany, (App. 31871/96), 8 July 2003 [GC], (2008) 46 EHRR 756, ECHR
2003-VIII, para 84.
64 Rasmussen v. Denmark, n. 62, para. 29; Sommerfeld v. Germany, n. 63, para. 84; Stec and Others v. UK,
(Apps. 65731/01 and 65900/01), 12 April 2006 [GC], (2006) 43 EHRR 1017, ECHR 2006-VI, paras. 39-40.
15 relevantly similar situations’.66 Moreover, the alleged reason for the discrimination must be one of the grounds listed in Article 14 ECHR. Finally, a difference in treatment is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.67
3.2.2. Protocol 12 ECHR
For the Contracting Parties who have ratified it, including the Netherlands68, Article 14 is joined by a more general non-discrimination provision in Protocol 12 ECHR. Article 1 Protocol 12 ECHR states that ‘the enjoyment of any right set forth by law shall be secured without discrimination’ and mentions the same discrimination grounds as under Article 14 ECHR. Unlike Article 14, Protocol 12 ECHR requires differential treatment in the enjoyment of any right set forth in national law. Although there is overlap between the two provisions, Protocol 12 is not drafted as a replacement for Article 14 and the interpretation is intended to be in harmony.69
Currently, Protocol 12 and its relevant case law play a minor role when setting the standards of the principle of non-discrimination under the ECHR. As of December 2018, only 20 out of 47 Contracting Parties have ratified the Protocol70 and only a few cases have been decided under it.71 Until a larger number of Contracting Parties ratifies the Protocol, it is unlikely to play a significant role in the development of equality law under the Convention.72 Furthermore, given the Court’s broad interpretation of the ‘scope’ and ‘ambit’ of Article 14, by including areas not strictly covered by the Convention, Protocol 12 may be redundant in some instances.73 The lack of ratifications of Protocol 12 has not dissuaded the Court from developing protection under Article 14.74 According to the drafting history of Protocol 12, inconsistencies in the application
66 D.H. and others v. Czech Republic, (App. 57325/00), 13 November 2007 [GC], (2008) 47 EHRR 59, ECHR
2007-nyr, para. 175; Burden v. UK, (App. 13378/05), 29 April 2008 [GC], (2007) 47 EHRR 857, ECHR 2008-nyr, para. 60; Carson and others v. UK, (App. 42184/05), 16 March 2010, ECHR 2010 [GC], para. 61.
67 Carson and others v. UK, n. 66, para. 61; Biao v. Denmark, (App. 38590/10), 24 May 2016 [GC], para. 90. 68 Council of Europe, ‘Chart of signatures and ratification of Treaty 005, Convention for the Protection of
Human Rights and Fundamental Freedoms’ < https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/005/signatures?desktop=true> accessed 16 December 2018.
69 Jacobs, White and Ovey, The European Convention on Human Rights (OUP 2017), p. 660. 70 Council of Europe, n. 68.
71 Jacobs, White and Ovey, n. 69, p. 660. 72 Ibid.
73 Ibid. 74 Ibid. p. 661.
16 of Articles 14 and 1 of Protocol 12 should be avoided.75 Therefore, when considering the scope of the principle of non-discrimination under the ECHR in this thesis, Article 14 ECHR is primarily relevant.
3.3. Direct and Indirect Discrimination
The principle of non-discrimination laid down in Article 14 and Protocol 12 ECHR covers both direct and indirect discrimination.76 The Court has established that direct discrimination means ‘a difference in the treatment of persons in analogous, or relevantly similar, situations’ which is based on an ‘identifiable characteristic’.77 This occurs when an individual, or a group of people, is directly affected by a measure, based on a certain discrimination ground. Indirect discrimination appears where the same requirement or policy applies to two groups, but where the measure has a disproportionally bigger effect on one group.78 Indirect discrimination focusses on the disproportionate effect on certain groups of people and not individuals.79 In the
Belgian Linguistic case, the Court indicated that the existence of indirect discrimination relates
to the actual effect of the State measure.80 In D.H. et al v. Czech Republic, the Court for the first time distinguished between the terms direct and indirect discrimination.81 In this case, the Court stated that a ‘difference in treatment may take the form of disproportionately prejudicial effects of a general policy which, though couched in neutral terms, discriminates against a group’.82 The Court clarified that such a situation does not necessarily require a discriminatory intent.83 The following chapter will examine whether potentially direct or indirect discrimination occurs in case of the application of the amended DNA.
3.4. Discrimination Grounds
Less favorable treatment can be established by making the comparison to someone in a similar situation. The comparator is a person in materially similar circumstances, with the main
75 F. Edel, The Prohibition of Discrimination under the European Convention on Human Rights (Council of
Europe Publishing, 2010), p. 8.
76 Jacobs, White and Ovey, n. 69, p. 645.
77 See: Carson and others v. UK, n. 66, para. 61; D.H. and others v. Czech Republic, n. 66, para. 175; Burden v.
UK [GC], n. 66, para. 60; Biao v. Denmark [GC], n. 67, para. 89;
78 D.H. and others v. Czech Republic, n. 66, para. 209.
79 O. Mjöll Arnardóttir, Equality and Non-Discrimination under the European Convention on Human Rights
(Nijhoff 2003), p. 123.
80 Belgian Linguistic case (Apps. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63, and 2126/64), 9 February 1967
and 23 July 1968, Series A Nos 5 and 6, (1979-80) 1 EHRR 241 and 252, para. 10.
81 D.H. and others v. Czech Republic, n. 66, para. 184. 82 Ibid; See also: Biao v. Denmark [GC], n. 67, para. 103.
83 D.H. and others v. Czech Republic, n. 66, para. 184; Hugh Jordan v. UK (24746/94), 4 May 2001, (2003) 37
17 difference between the two persons being the ‘protected ground’. When examining a discrimination claim under Article 14 or Protocol 12 ECHR, the first key question is therefore whether the alleged reason for the discrimination falls under one, or more, of the grounds listed. Both articles mention ‘sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth’, and ‘other status’. Article 14 and Protocol 12 state that no discrimination applies on ‘any ground such as…’, implying that the grounds given are illustrative and not exhaustive.84 This has been recognized by the Court in the case of Rasmussen v. Denmark.85 The term ‘other status’ is broadly defined by the ECtHR as ‘a difference based on an identifiable, objective, or personal characteristic or status, by which individuals or groups are distinguishable from another’.86 Originally, the Court required a distinction based on a ‘personal’ characteristic before applying Article 14 ECHR.87 Later, case law suggested that this approach was too narrow and the Court recognized that the protection under Article 14 is not limited to characteristics which are ‘personal in the sense that they are innate or inherent’.88 The ECtHR has developed several grounds under the ‘other status’ category, such as sexual orientation89 and disability90, but also non-inherent characteristics such as membership of an organization91 and place of residence92. Given the wording of the articles and the explanation by the Court, the scope of the non-discrimination grounds is to be interpreted broadly and the notion of ‘other status’ has been given a wide, or even limitless, meaning.93 Under both Article 14 and Protocol 12 ECHR a claim on more than one discrimination ground is possible.94
84 See: Engel and others v. the Netherlands, (Apps. 5100/71, 5101/71, 5102/71, 5354/72, and 5370/72), 8 June
1976, Series A No 22, (1979-80) 1 EHRR 647, para. 72.
85 Rasmussen v. Denmark, n. 62, para. 34.
86 Novruk and others v. Russia, (App. 3109/11), 15 March 2016, para. 90.
87 Kjeldsen, Busk Madsen and Pedersen v. Denmark (Apps. 5095/71, 5920/72 and 5926/72), 7 December 1976,
Series A No 23, (1979-80) 1 EHRR 711, para 56; Hode and Abdi v. UK, (App. 22341/09), 6 November 2012, para. 46.
88 Clift v. UK, (App. 7205/07), 13 July 2010, para. 59; Biao v. Denmark [GC], n. 67, para. 89.
89 E.B. v. France, (App. 43546/02), 22 January 2008 [GC], ECHR 2008-nyr; Vallianatos and others v. Greece,
(Apps. 29381/09 and 32684/09), 7 November 2013 [GC].
90 Glor v. Switzerland, (App. 133044/04), 30 April 2009.
91 Danilenkov and others v. Russia, (App. 67336/01), 30 July 2009. 92 Carson and others v. UK, n. 66.
93 Ibid, para. 70; Biao v. Denmark [GC], n. 67, para. 89.
94 EU Agency for Fundamental Rights and Council of Europe, ‘Handbook on European non-discrimination law’
(February 2018), p. 60 < https://fra.europa.eu/en/publication/2018/handbook-european-law-non-discrimination> accessed 15 October 2018.
18
3.5. Justification Test 3.5.1. Key Questions
After considering the discrimination ground(s) listed in Article 14 and Protocol 12 ECHR, it must be examined whether the difference in treatment can be objectively justified. With regards to the burden of proof, it has been established that it is for the applicant to show there has been a difference of treatment, but for the respondent State to show that the difference in treatment was justified.95 For this justification test, the Court uses a set of key questions.
To justify differential treatment, a Contracting State must both show: i. that the rule or practice in question serves a ‘legitimate aim’;
ii. that the means chosen to achieve that aim is proportionate and necessary to achieve that aim.96
Since the Court has accepted broad policy aims, States will usually have no difficulty in convincing the Court of the legitimate aim of the measures in question.97 With regard to the second ground, the Court must be satisfied that the aim is sufficiently important to justify the level of interference, and that there is no other means of achieving that aim.98 This principle of proportionality has been associated with the ‘fair balance’ test that weighs the public interest against the individual interest involved.99 The Court balances whether certain measures are disproportionate against the consideration of the margin of appreciation States enjoy.100
3.5.2. Margin of Appreciation
Contracting States enjoy a certain margin of appreciation when assessing whether, and to what extent, differences in otherwise similar situations justify a different treatment.101 The scope of
95 Chassagnou and others v. France, (App. 25088/94, 28331/95, and 28443/95), 29 April 1999, (2000) 29 EHRR
615, ECHR 1999-III, paras. 92-92.
96 Burden v. UK, n. 66, para. 60; Guberina v. Croatia, (App. 23682/13), 14 June 2016, para. 69. 97 Mjöll Arnardóttir, n. 79, p. 45; Harris, O’Boyle and Warwick, n. 28, p. 479-480.
98 Handbook on European non-discrimination law, n. 94, p. 93. 99 Mjöll Arnardóttir, n. 79, p. 46.
100 Ibid, p. 46.
101 Burden v. UK [GC], n. 66, para. 60; Stec and Others v. UK, n. 64, para., 51; Gaygusuz v. Austria (App.
17371/90), 16 September 1996, (1997) 23 EHRR 364, ECHR 1996-IV, para. 42; Larkos v. Cyprus (App. 29515/95), 18 February 1999 [GC], (2000), 30 EHRR 597, ECHR 1999-1, para. 31; D.H. and others v. Czech
19 this margin will vary according to the circumstances, the subject-matter and its background.102 As stated under paragraph 3.4, almost any distinction within the ambit of a Convention right can trigger an Article 14 inquiry. However, it matters for the scope of the margin of appreciation on which specific protection ground the discrimination is based.
ECtHR case law shows that not all discrimination grounds are equally potent. Certain grounds are inherently suspect and will therefore be subject to particularly careful judicial scrutiny. In these instances, it is common for the Court to find violations of Article 14 ECHR as it applies strict review to the State’s justifications of the discriminatory treatment.103 The Court’s jurisprudence generally shows that differential treatment relating to ‘matters considered to be ‘at the core of personal dignity’ or ‘innate personal characteristics’, such as race, ethnic origin or private and family life, are more difficult to justify than those relating to broader social policy considerations.104 Case law recognizes that where differential treatment is based on suspect discrimination grounds such as sex105, race106, religion107, sexual orientation108, disability109 and nationality110, ‘very weighty reasons’ are required to justify the differential treatment.111 Specifically, where the difference in treatment is based on race or ethnic origin, the Court states that objective and reasonable justification must be interpreted ‘as strictly as possible’.112 This
102Inze v. Austria, 28 October 1987, Series A No 126, (1988) 10 EHRR 394, para. 41; Hode and Abdi v. UK, n.
87, para. 45.
103 O. Mjöll Adnardóttir, ‘The Difference that Make a Difference: Recent Developments on the Discrimination
Grounds and the Margin of Appreciation under Article 14 of the European Convention on Human Rights’ (2014) Human Rights Law Review, Vol. 14, Issue 4, p. 649;J.H. Gerards, Rechterlijke toetsing aan het
gelijkheidsbeginsel (Sdu 2002), p. 207.
104 Handbook on European non-discrimination law, n. 94, p. 93; Jacobs, White and Ovey, n. 69, p. 651; Gerards,
n. 103, p. 207.
105 Abdulaziz, Cabales and Balkandali v. UK, (Apps. 9214/80, 9473/81, and 9474/81), 28 May 1985, Series A
No 94, (1985) 7 EHRR 471, para. 78; Van Raalte v. the Netherlands, (App. 20060/92), 21 February 1997, (1997) 24 EHRR 503, ECHR 1997-I, para. 39.
106 Timishev v. Russia, (Apps, 55762/00 and 55974/00), 13 December 2005, (2007) 44 EHRR 776, ECHR
2005-XII, para. 58.
107 Hoffmann v. Austria, (App. 12875/87), 23 June 1993, Series A No 255-C, (1994) 19 EHRR 139, para. 36;
Palau-Martinez v. France, (App. 64927/01), 16 December 2003, ECHR 2003-XII.
108 E. B. v. France, n. 100; Salgueiro da Silva Mouta v. Portugal, (App. 33290/96), 21 December 1999, (2001)
31 EHRR 1055, ECHR 1999-IX; S.L. v. Austria, (App. 45330/99), 9 January 2003, (2003) 37 EHRR 799, ECHR 2003-I.
109 Kiyutin v. Russia, (App. 2700/10), 10 March 2011.
110 Gaygusuz v. Austria, n. 101, para. 42; Koua Poirrez v. France, (App. 40892/98), 30 September 2003, (2005)
40 EHRR 34, ECHR 2003-X, para. 46; Andrejeva v. Latvia, (App. 55707/00), 18 February 2009 [GC], ECHR 2009-nyr, para 87; Biao v. Denmark [GC], n. 67, para. 89.
111 Schuler-Zgraggen v. Switzerland, (App. 14518/89), 24 June 1993, Series A No 263, (1993) 16 EHRR 405,
para. 67.
112 D.H. and others v. Czech Republic, n. 66, para. 196; Orşuş and others v. Croatia, (App. 15766/03), 16 March
2010 [GC], (2009) 49 EHRR 572, para. 156; Sejdić and Finci v. Bosnia and Herzegovina, (Apps. 27996/06 and 34836/06), 22 December 2009, ECHR 2009, para. 44.
20 suggests that the scope of the margin left to States in respect of differences on grounds of race and ethnic origin has been reduced to almost none.113
When suspect discrimination grounds are at stake, the Court assumes a prima facie need for a separate examination of Article 14 and applies a strict standard of proportionality.114 In these instances, a small margin of appreciation is left to the Contracting States and the State has to prove the necessity of differential treatment.115 Further, the disproportionality of the State’s chosen means will be more easily condemned by evidence of practical alternatives.116
Where a difference of treatment is not based on an ‘inherent characteristic’, such as place of residence, the Court mostly requires a lower level of justification and allows a wider margin of appreciation to the State.117 This is the case when it comes to general measures of economic or social strategy.118 Because of their specific and direct knowledge of their society, national authorities are in principle better placed to appreciate what is in the public interest on social or economic grounds. The Court will then generally respect the legislature’s policy choice.119 The Court allowed for a wide margin in cases related to, for example, housing policy120 and social security121.
The Court’s margin of appreciation test is comparable to the Unites States (‘US’) ‘suspect classifications doctrine’.122 Under this doctrine, the US Supreme Court applies strict scrutiny to government actions that affect groups that fall under a ‘suspect classification’. Usually, this concerns groups of people who have an ‘inherent trait’123, or who are ‘part of a group that has historically been subject to discrimination’.124 Similarly as to the ECtHR’s margin of appreciation, discrimination grounds such as gender, nationality or sexual orientation are subject to particularly careful judicial scrutiny.
113 Y. Arai-Takahashi, The Margin of Appreciation Doctrine and the Principle of Proportionality in the
Jurisprudence of the ECHR (Intersentia 2002), p. 174.
114 Arai-Takahashi, n. 113, p. 169. 115 Ibid, 173.
116 Harris, O’Boyle and Warwick, n. 28, p. 776; J.H. Gerards, n. 103, p. 158. 117 Jacobs, White and Ovey, n. 69, p. 654.
118 See: Stec and Others v. UK, n. 64, para 52; Burden v. UK [GC], n. 66; Hode and Abdi v. UK, n. 87, para. 52. 119 Stec and others v. UK, n. 64, para. 52.
120 Gillow v. UK, (App. 9063/80), 24 November 1986, Series A No 109, (1986) 11 EHRR 355; Bah v. UK (App.
56328/07), 27 September 2011.
121 Carson and others v. UK, n. 66. 122 Jacobs, White and Ovey, n. 69, p. 647.
123 US Supreme Court, Lyng v. Castillo, 477 U.S. 635 (1986).
124 Cornell Law School, ‘suspect classification’ at <https://www.law.cornell.edu/wex/suspect_classification>
accessed 20 October 2018; US Legal ‘Suspect Classification Law and Legal Definition’ at <https://definitions.uslegal.com/s/suspect-classification/> accessed 20 October 2018.
21
3.6. Interim Conclusion
A State’s power to design rules for revocation of nationality can be limited by the European human right’s obligation of non-discrimination, laid down in Article 14 and Protocol 12 ECHR. A difference in treatment is discriminatory if there is no objective and reasonable justification. States are allowed a certain margin of appreciation when assessing to what extent differences in otherwise similar situations justify differential treatment. However, case law of the ECtHR has identified a trend leading to a narrower margin of appreciation and, thus, a stricter scrutiny in cases involving distinctions on the basis of certain suspect classifications. In cases where significant ‘suspect’ discrimination grounds are at play, strict scrutiny is prima facie indicated and the Court will more easily accept practical alternative measures. The next chapter will examine whether the differential treatment under the amended DNA falls under any suspect discrimination ground and whether the difference in treatment can be justified.
22
4. Analysis 4.1. Introduction
In order to comply with the international obligation to prevent statelessness, the nationality revocation grounds under the DNA added in 2010, 2016 and 2017 are only applicable to people with dual-Dutch nationality. Having set out the different elements of the prohibition of discrimination under the ECHR, this chapter will focus on the application of these elements to the 2017 DNA amendment. After finding a Convention provision that can be ‘linked’ to Article 14, it must be examined whether the complaint potentially falls under any discrimination ground and whether the difference in treatment can be justified. Based on jurisprudence and literature, this chapter will set out the main criteria used by the Court and predict to what extent the revocation of nationality of foreign fighters possessing dual nationality complies with the principle of non-discrimination under the ECHR.
4.2. The Substantive Convention Provision 4.2.1. Article 8 ECHR
If foreign fighters want to challenge deprivation of their citizenship as discriminatory under Article 14 ECHR, they must first show that the deprivation measure falls under the ‘scope or ambit’ of one of the substantive ECHR provisions. Based on the Court’s case law, an applicant may have a case under Article 14 in combination with the right to respect for private and family life, as laid down in Article 8 ECHR. Traditionally, the Court tended to reject cases concerning loss of citizenship as being incompatible ratione materiae within the provision of the Convention, in the absence of such an explicit right laid down in the Convention.125 However, since 2011 the Court elaborates on the applicability of Article 8 in relation to Article 14 ECHR to people who are (at risk of being) deprived of their nationality. The main case in this regard is Genovese v. Malta,126 where the Court found that claims in relation to acquisition of nationality were covered by the scope of Article 8 ECHR.127 The issue concerned a child born out of wedlock to a British mother and a Maltese father. The applicant had British nationality, but also sought to have Maltese nationality. He was not eligible for Maltese nationality because his father did not recognize him on his birth certificate. Additionally, under Maltese law, only
125 X. v. Austria (App. 5212/71), 5 October 1972; Ramadan v. Malta, (App. 76136/12), 21 June 2016, para. 84. 126 Genovese v. Malta (App. 53124/09), 11 October 2011.
23 the mother was able to transfer nationality if the child was born out of wedlock.128 The applicant complained that the Maltese law provisions regulating the acquisition of citizenship by descent discriminated against him.
The Maltese Government argued that since ‘citizenship’ is not a right protected under the Convention, differential treatment based on illegitimate status could not violate Article 14 ECHR.129 The Government continued that the facts of the case did not fall within the ambit of Article 8 ECHR as no family life existed.130 The Court rejected these arguments and stated that ‘even in the absence of family life, the denial of citizenship may raise an issue under Article 8 because of its impact on the private life of an individual, which concept is wide enough to embrace aspects of a person’s social identity’.131 The Court considered that ‘while the right to citizenship is not as such a Convention right and while its denial in this case was not such as to give rise to a violation of Article 8 ECHR, its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that article’.132
In Genovese v. Malta, the Court for the first time ruled that nationality falls under the scope of protection of the ECHR, as part of a person’s social identity, which in turn is part of that person’s private life. It can be argued that the reasoning in the Genovese case is also applicable to situations in which nationality is revoked. Building on the Court’s finding that nationality is ‘part of a person’s social identity’, it can be argued that a citizenship deprivation measure affects a person’s private life and should be scrutinized for its compatibility with Article 8 ECHR.133 In 2016, the Court has elaborated on this idea in the Ramadan v. Malta case.134 As opposed to the right to acquire citizenship, it was stated that ‘the loss of citizenship already acquired or born into can have the same, and possibly a bigger, impact on the person’s private and family life’.135 It follows that no distinction should be made between acquiring or losing citizenship, and that the same test should apply. Therefore, an arbitrary revocation of citizenship might raise an issue under Article 8 ECHR because of its impact on the individual’s private life.136
128 Genovese v. Malta, n. 126, para. 12. 129 Ibid, para. 40.
130 Ibid, para. 27. 131 Ibid, para. 33. 132 Ibid.
133 See: Mantu, n. 16, p. 117; O.W Vonk and G.R. de Groot, ‘Nationality, Statelessness and ECHR’s Article 8:
Comments on Genovese v. Malta’ (2012) European Journal of Migration and Law, Vol. 14, No. 3, p. 323.
134 Ramadan v. Malta, n. 125. 135 Ibid, para. 85.
24 Recently, the Court has confirmed this interpretation in the case of K2 v. UK.137 Following the reasoning of the Court in the mentioned case law, it is therefore likely that the revocation of Dutch nationality falls under the scope and ambit of the right to respect for private life mentioned in Article 8 ECHR. The prohibition of discrimination under Protocol 12 ECHR is freestanding and does not need to be linked to a substantive Convention provision.
4.3. Discrimination Grounds and the Margin of Appreciation 4.3.1. Introduction
The distinction between people with one or multiple nationalities might fall under one, or more, of the discrimination grounds mentioned in Article 14 or Protocol 12 ECHR. The Court has not yet, however, qualified this specific distinction under any ground. In this paragraph the possibilities of direct discrimination based on ‘other status’ and indirect discrimination based on ‘race and ethnicity’ will be discussed. This qualification is relevant, since the margin of appreciation for States in cases of discrimination based on inherent characteristics such as nationality or race and ethnicity is limited.
4.3.2. Direct Discrimination: Other Status
Direct discrimination appears when people in analogous, or relevantly similar, situations are treated differently based on identifiable characteristics.138 Such difference in treatment is discriminatory if it has no objective and reasonable justification. Even though dual-Dutch foreign fighters falling under the new Article 14.4. DNA are in an analogous situation to those with single-Dutch nationality, Article 14.4 DNA only applies to people with dual-Dutch nationality. This can be considered a direct distinction based on either ‘nationality’ or ‘possessing another nationality’. Both of these discrimination grounds could fall under the notion of ‘other status’.
Article 14 and Protocol 12 ECHR do not explicitly mention ‘nationality’ as a discrimination ground. Nevertheless, the Court has recognized that nationality falls under the notion of ‘other status’.139 In almost all cases in which the Court recognized differential treatment based on the
137 K2 v. UK, n. 21, para 49.
138 See: Carson and others v. UK, n. 66, para. 61; D.H. and others v. Czech Republic, n. 66, para. 175; Burden v.
UK [GC], n. 66, para. 60; Biao v. Denmark [GC], n. 67, para. 89.
139 Gaygusuz v. Austria, n. 101, para. 42; Koua Poirrez v. France, n. 110, para. 46; Andrejeva v. Latvia [GC], n.
25 ground of nationality, there was a distinction between nationals and non-nationals.140 However, in the case at hand a distinction is made solely between Dutch nationals, depending on whether they have single or dual nationality. Nevertheless, it can be argued that ‘nationality’ can be the discrimination ground at stake. After all, having a second nationality obviously is the basis for the differential treatment.141 According to the leading case Gaygusuz v. Austria, ‘nationality’ is seen as an inherently ‘suspect’ discrimination ground and is subject to careful judicial scrutiny.142 In this case, the Court stated that the State had a certain margin of appreciation, but added that ‘very weighty reasons would have to be put forward to justify a difference of treatment based exclusively on the ground of nationality’.143 This interpretation is confirmed in cases such as Koua Poirrez v. France, Andrejeva v. Latvia and Biao v. Denmark.144 Therefore, if the Court in the case at hand recognizes differential treatment based exclusively on the ground of nationality, the margin of appreciation left to the Netherlands will be limited.
Alternatively, the Court might qualify the difference in treatment in the case at hand as ‘having another nationality’. As explained under paragraph 3.4., the ground ‘other status’ has been subject to a broad interpretation. Since ‘having another nationality’ is a ‘difference based on an identifiable, objective or personal characteristic or status, by which individuals or groups are distinguishable from one another’145, it is likely that this ground will fall under the notion of ‘other status’. It is not clear yet how the Court would define the margin of appreciation with regard to the ground of ‘having another nationality’. In light of the Court’s present case law, States enjoy, in principle, a small margin when it comes to grounds related to ‘personal dignity’ or ‘choices that have a significant influence on a person’s identity and existence’.146 A wide margin of appreciation is enjoyed when it comes to grounds not related to personal dignity, such as differences in treatment in involving general measures of economic or social strategy.147 In relation to those characteristics that are not listed under Article 14 or Protocol 12 ECHR, the Court has elevated the grounds that can be considered ‘personal characteristics’ or linked to
140 Gaygusuz v. Austria, n. 101, para. 42; Koua Poirrez v. France, n. 110, para. 46, Andrejeva v. Latvia [GC], n.
110, para. 87.
141 B. de Hart and A.B. Terlouw, ‘Born here. Revocation and the Automatic Loss of Dutch Nationality in Case of
Terrorist Activities’ in: M. van den Brink, S. Burri and J. Goldschmidt (eds), Equality and Human Rights:
Nothing but Trouble (Liber Amicorum Titia Loenen 2015), p. 317.
142 Gaygusuz v. Austria, n. 101, para. 42. 143 Ibid.
144 Ibid; Koua Poirrez v. France, n. 110, para. 46, Andrejeva v. Latvia [GC], n. 110, para. 87; Biao v. Denmark
[GC], n. 67, para. 93.
145 Novruk and others v. Russia, n. 86, para. 90.
146 Handbook on European non-discrimination law, n. 94, p. 48, 87; Mjöll Adnardóttir, n. 103, p. 655; See also:
Carson and Others v. UK, n. 66, para. 68.
26 them, to a similar status in terms of ‘weighty reasons’.148 The Court has recognized that several grounds falling under ‘other status’, such as sexual orientation149, disability150 and health151, require very weighty reasons to justify differential treatment.152
In certain circumstances ‘having another nationality’ may likewise be qualified as an ‘inherent characteristic’, or at least a ‘choice that has a significant influence on a person’s identity’.153 This is particularly the case when people obtained their second nationality by birth and are unable to renounce it. Moroccan nationals, for example, do not have the option to renounce their Moroccan nationality.154 If the Court would define ‘having another nationality’ as a characteristic that is at the core of personal dignity155, differential treatment based on this ground can likewise require ‘very weighty reasons’ for justification.156 However, this reasoning is different if people are able to renounce their second nationality. This is, for example, the case for Turkish nationals.157 When a person has the option to renounce his second nationality, it can be argued that ‘having another nationality’ is not such an inherent personal characteristic, and thereby less weighty reasons are required to justify a difference of treatment based on another nationality.158
4.3.3. Indirect Discrimination: Race
Indirect discrimination arises when a similar requirement or policy applies to two groups, but where the measure has a greater effect on a significant number of one group, notwithstanding that the measure is not specifically aimed at that group.159 The group of people being directly affected by Article 14 DNA, including the amended Article 14.4 DNA, is people with dual-Dutch nationality. It can be claimed that differential treatment on the ground of dual nationality in fact leads to indirect discrimination on the ground of race and ethnic origin, as it practically
148 Jacobs, White and Ovey, n. 69, p. 651.
149 Salgueiro da Silva Mouta v. Portugal, n. 108; S.L. v. Austria, n. 108; E. B. v. France, n. 100. 150 Glor v. Switzerland, n. 90.
151 Kiyutin v. Russia, n. 109; I.B. v. Greece, (App. 552/10), 3 October 2013. 152 Jacobs, White and Ovey, n. 69, p. 651.
153 Ibid; Gerards, n. 103, p. 207, 219.
154 IND, ‘Landenlijst behoud nationaliteit’ <https://ind.nl/Paginas/Landenlijst-behoud-nationaliteit.aspx>
accessed 29 October 2018.
155 See: Burden v. UK [GC], n. 66, para. 60; Stec and Others v. UK, n. 64, paras. 51-52.
156 Gaygusuz v. Austria, n. 101, para. 42; Koua Poirrez v. France, n. 110, para. 46; Andrejeva v. Latvia [GC], n.
110, para. 87; Biao v. Denmark [GC], n. 67, para. 93.
157 IND, ‘Landenlijst behoud nationaliteit’, n. 154. 158 See: Carson and Others v. UK, n. 66, para. 33, 68. 159 See: D.H. and others v. Czech Republic, n. 66, para. 185.
27 only affects people who have acquired their dual nationality due to migration by themselves, their parents or grandparents.160
Article 14 and Article 1 Protocol 12 ECHR only mention ‘race’ as a discrimination ground, this term will both include race and ethnicity, since they can be considered overlapping concept.161 Race is associated with biological classification of human beings according to, for example, skin color or facial characteristics, while ethnicity has its origin in the idea of societal groups featured by, for example, common language or nationality.162 Discrimination because of one’s ethnicity can be considered a form of racial discrimination.163 It is clear that people with dual nationality are more likely to have a (partly) non-Dutch national origin than people with single-Dutch nationality.164 As described, having another nationality is often not a free choice, it depends on where people are born, who their (grand)parents are and if they are able to renounce their second nationality. Since the majority of single-Dutch nationals are ethnically Dutch, while the majority of persons with dual-Dutch nationality have different ethnic backgrounds, the differential treatment could amount to indirect discrimination on the basis of ethnic origin.165 More specifically, the measure can be discriminatory against Dutch people who are not able to renounce their second nationality, such as people with Syrian, Moroccan or Iranian nationality.166 Furthermore, the measure will particularly affect people from Muslim countries, since the measure only affects foreign fighters who have joined one of the three listed jihadist organizations.167 In fact, in many (predominantly) Islamic countries, renunciation of nationality is impossible.168 The measure thus mainly affects a specific group of people, namely dual-Dutch people possessing a second nationality from an Islamic country, who are not able to renounce their second nationality.169
160 See also: De Hart and Terlouw, n. 141, p. 317; C.A. Groenendijk, ‘vragen over het voorontwerp tot wijziging
van de Rijkswet op het Nederlanderschap in verband met het intrekken van het Nederlanderschap in het belang van de nationale veiligheid’ (February 2015) < http://www.internetconsultatie.nl/rwn/reactie/37a3ddda-789b-46f6-af68-c15634042887> accessed 15 November 2018.
161 Timishev v. Russia, n. 106, para. 55. 162 Ibid.
163 Ibid, para. 56.
164 De Hart and Terlouw, n. 141, p. 318.
165 See: Biao v. Denmark [GC], n. 67, para. 102; Groenendijk, n. 160, p. 2-3. 166 IND, ‘Landenlijst behoud nationaliteit’, n. 154.
167 Besluit van de Minister van Veiligheid en Justitie van 2 maart 2017, n. 53.
168 IND, ‘Landenlijst behoud nationaliteit’, n. 154: Iran, Jemen, Libya, Morocco, Somalia, Syria, Tunisia. 169 O.W. Vonk and G.R. de Groot, ‘De ontneming van het Nederlanderschap wegens jihadistische activiteiten’
