Neo-Nottebohmian 21st Century Genuine Links and Australia’s Indigenous Non-Citizens

 

The International Court of Justice, in its 1955 judgment of Nottebohm, stated that nationality requires a ‘legal bond having at its basis a social fact of attachment, a genuine connection of existence.’[1] These famous yet contested words, if anything, presuppose an exclusively state-centric view, fixating the decision over in- and exclusion as being solely vested in reference to the sovereign power and control of the nation state.

 

What if this case was decided today? The ‘social facts’ of attachment making a connection between citizen and state ‘genuine’ may since likely have changed. Individual, personal, as well as supranational collective or global perspectives, pertinent to the 21st century, are missing in Nottebohm. The same is true for the flexibility to accommodate transformations of legal membership mechanisms such as on the example of direct sale of citizenship or for any evolving understandings of statehood as such.[2]

 

Neo-Nottebohmian genuine links (‘NNGL’) may then serve as a conceptual lens to infusing membership rules and policy with a new vision, contributing to a focus on existing and emerging social-legal concepts that may well include municipal references, but can also enrich and add to citizenship’s in-and exclusion paradigm, in effect confronting municipal citizenship with references to the world at large. Possibly reconciling the local and the global, Nottebohm itself contains an open formula of ‘genuineness’ that could be extended by the state’s acknowledgement of references to the social or humanitarian facts of the new perimeters in our complex, globalizing world.[3]

 

An example for NNGL’s may be the protection of long-term residents from deportation and of indigenous non-citizens’ in recognition of their multi-faceted personal and collective actual connections to a territory.

 

The UN Human Rights Committee (HRC) has, in the case of Nystrom v Australia, held by a majority of 10 to 5 that the “deportation of Mr. Nystrom to Sweden, a country where he does not speak the language and has no ties” breached the International Covenant on Civil and Political Rights (ICCPR).[4] Article 12 (4) of the covenant states that ‘[n]o one shall be arbitrarily deprived of the right to enter his own country.’[1] The wording ‘own country’ does not mention citizenship nor nationality and may thus find wider application to other links beyond those concepts. More so, Nystrom confirmed the earlier Warsame v Canada where the HRC found that ‘close and enduring connections’ with a country ‘may be stronger than those of nationality’.[2] Nystrom thus had the Committee expand the scope of art 12(4), finding that it could now apply to non-citizens where they had sufficient ‘ties’ to a country. This has arguably resulted in a significant weakening of the nexus previously required by the Committee in Warsame between art 12(4) and nationality. Both decisions do not mention Nottebohm.

 

Australia has disagreed with the HRC’s majority view in Nystrom and indicated that it would not consider itself bound by the Committee’s findings.[3]

 

This narrow reading of membership could now be challenged: Since April 8th of this year, two cases are before the Australian High Court. Both could in effect confirm a broader understanding of citizenship, taking into consideration links beyond exclusionary municipal (and at times fictitious) membership narratives, focusing on the actual existing links in a given legal polity: Two Aboriginal-Australian men (who are also alien non-citizens in Australian immigration detention), are currently bringing actions to the High Court for a finding that indigenous non-citizens cannot be deported.[4] The High Court will have the opportunity to iterate on the legal mechanism of ‘genuineness’ in light of factual links to family, indigenous heritage and to the land, and to the questions of residence and automatic naturalization of non-citizen ‘ancient’ people. Will the Court acknowledge the existence of actual links in reference to the social facts of Australia’s real (and not imagined) population, valuing plurality in membership, or even permitting a supranational (Human Rights) override ‘added’ to citizenship as municipal ‘right-to-have-rights’?

 

Author: Michael Krakat IMCM, Doctoral Researcher and Teaching Fellow at Bond University, The Gold Coast, Australia and solicitor admitted to the Supreme Court of Queensland Australian High Court.

 

 


[1] Mr. Nottebohm had obtained Liechtenstein nationality in 1939 for substantial sums of money and in dispensation of the normal residence and naturalization requirements: Nottebohm Case (Liechtenstein v. Guatemala) (Second Phase), 1955 ICJ REP. 4, 23 (Apr. 6): ‘[N]ationality is a legal bond having at its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual […] is in fact more closely connected with the population of the State conferring nationality than with that of any other State.’

[2] See generally: Michael B. Krakat, ‘Genuine Links Beyond State and Market Control: The Sale of Citizenship by Investment in International and Supranational Legal Perspective (2018) 30 (1) Bond Law Review (Special Issue), 145-184; The theory of statehood, the state as a person at international law, as built on Georg Jellinek’s Allgemeine Staatslehre (3. Auflage 1914), in the Montevideo Convention on the Rights and Duties of States 1933, Dec. 26, 1933, 165 L.N.T.S. 19, 28 American Journal of International Law (Supp.) 75 (1934), outlines the following factors pertaining to statehood: A permanent population; a defined territory; government and an added capacity to enter into relations with the other states.

[3] NNGL’s may in effect connect and reconcile the citizen- and state binary with today’s world at large: See ie. Krakat, n2; The links may focus on both the state as the gatekeeper for the Arendtian state centric ‘right to have rights’ (Hannah Arendt, The Origins of Totalitarianism) as well as on the supranational Human Rights regime based on personhood rather than nationality, bringing both citizens’ and non-citizens’ rights together. This is not a shift from sovereignty-oriented practice toward the Human Rights of the individual but a focus on their co-existence. They could include a wide, purposeful reading of residence and at the same time, instantaneous naturalizations of eligible non-residents, philanthropy, supranational Human Rights, references to both personhood individualism as well as a common, shared humanity, a commitment to mobility and plural citizenship, the ecosphere, including the consideration of the effects of the globalized ‘Citizenship- or Residence by Investment’ membership market, of digital (social) networks as well as of decentralised ledgers blockchain technology as conceptual facts.

[4] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (‘ICCPR’).

[5] It is within article 12(4) of the Covenant that the HRC determined that Mr Nystrom has established that Australia is his own country: Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007 (18 July 2011). The HRC affirmed its approach in Warsame, which also dealt with a violation of article 12(4), see Warsame v Canada, UN Doc CCPR/C/102/D/1959/2010. Also see both cases discussed in Devon Whittle, ‘Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007 (18 July 2011)’ (2011) Australian International Law Journal, 235-243.

[6] Wasame, at [8.4.].

[7] Australian Commonwealth Attorney-General, Response of the Australian Government to the Views of the Committee in Communication No 1557/2007, Nystrom et al v Australia (18 July 2011) Australian Government Attorney-General’s Department, available at  http://www.ag.gov.au/RightsAndProtections/HumanRights/DisabilityStandards/Documents/ NystrometalvAustralia-AustralianGovernmentResponse.pdf.

[8] Daniel Love and Brendan Thoms argue that the government cannot deport an Aboriginal person who is not a citizen but has at least one Australian parent, came to Australia as a young child and has only left the country for short periods. Both declare to identify, and are recognised, as Aboriginal: Love is a member of the Kamilaroi people, and Thoms is a member of the Gunggari people and also holds native title. Both are also fathers to Australian children: See Brooke Fryer, ‘High Court will decide if Indigenous people without citizenship can be deported’ (2019) 12 April 2019 – 2:55PM, SBS, https://www.sbs.com.au/nitv/article/2019/04/12/high-court-will-decide-if-indigenous-people-without-citizenship-can-be-deported; Hannah Ryan, ‘This Landmark Case Will Decide Whether Aboriginal Australians Who Aren’t Citizens Can Be Deported’ (2019) Posted on April 8, 2019, at 11:01 a.m., Buzzfeed News https://www.buzzfeed.com/hannahryan/love-thoms-high-court-indigenous-deportation; David Love, Australia High Court to Decide if Aboriginals Without Citizenship Can Be Deported (2019) April 28, https://atlantablackstar.com/2019/04/28/australia-high-court-to-decide-if-aboriginals-without-citizenship-can-be-deported/.