Reflecting on Durkheim and His Studies on Law through Cancellation of British Citizenship

Through an analysis of cancellation of citizenship laws in the United Kingdom, this chapter evaluates Durkheim’s writings on law and its links to moral evolution. It argues that Durkheim’s studies on law are complex and offer rich insights for contemporary sociolegal research. His methodological approaches are also ones that map onto modern-day sociolegal (“law and society” or “law in context”) research. However, Durkheim is overoptimistic in his view that, with time, a modern morality has emerged which venerates the sanctity of the Individual.2 In nationality deprivation cases, analysis reveals the breakdown of social solidarity and the failure to protect people from statelessness. It appears that organic solidarity of the kind that supports human rights is not always a matter of seamless moral and legal progression, contrary to Durkheim’s views.

Birthright Citizenship

Birthright citizenship refers to the legal status of citizenship when acquired through birth to a citizen parent (ius sanguinis) or birth in the territory of a state (ius soli). This is how most people acquire citizenship, often unconditionally and automatically at birth. A minority across the globe acquire citizenship through naturalization. Historically ius soli predominated from the Early Modern period, when those born in the sovereign’s territory automatically became their subjects. Ius sanguinis arose following the French Revolution, reflecting the free citizen father’s right to pass citizenship on to his child. Both forms spread globally through imitation and colonization. All states now award citizenship by birth; most have a combination of the two forms. But the strength of provisions varies. All states have substantial ius sanguinis provision; fewer have strong ius soli. In both, acquisition may depend on certain restrictive conditions related to parental birthplace or residence, marital status, gender, religion, ethnicity, or race. Until recently citizenship has been studied more by lawyers than political scientists, and birthright citizenship has received less attention than naturalization. Studies have tended to focus on the citizenship laws and policies of a limited number of states, mainly in the Global North. Only recently have studies covering a greater number and diversity of countries begun to emerge. Comparative scholars have sought to identify and explain different patterns of birthright citizenship provision related to the strength of ius soli and ius sanguinis. These have been interpreted variously as alternative models reflecting different national conceptions of citizenship, as determined by civil or common law traditions, or as dependent on histories of emigration, immigration, and colonization. Contemporary changes have been understood as a function of domestic electoral politics, developments in international law, norm diffusion among states, or a range of contingent contextual factors. Scholars dispute whether diversity of citizenship regimes has been succeeded by convergence. More complex typologies and indices, including birthright citizenship, have emerged, along with increasing availability of data on citizenship around the world. The justification of birthright citizenship has been much debated. Birthright citizenship has been seen as an appropriate way of allocating democratic membership, providing intergenerational continuity of citizenry, reducing the incidence of statelessness, and integrating immigrants. But ius sanguinis has often been criticized as exclusive and illiberal. It is debated whether ius soli is better justified, or if all forms of birthright citizenship should be seen as conveying arbitrary privilege and contributing to global inequality.

Impact of Citizenship and Immigration Law on National Security of Nepal

The citizenship and immigration laws are regarded as the foundational units to assure the security of citizens and also to serve the national integrity. This article discusses about the impact of Nepali citizenship and immigration law on national security of Nepal. What may be the significance of citizenship and immigration law of a nation in an increasingly global society? Has Nepal considered immigration as a threat to security by focusing on societal, economic, internal and public security? In order to elaborate the issues of human security in Nepal from the perspectives of citizenship realm and trends of immigration, it is necessary to investigate the provisions of citizenship provided in the constitution as well as the laws that oversee the effect of immigration on the socio-cultural, political and economic demographics of Nepal. Importance of strong citizenship laws proliferate continuously from dual and transitional citizenship in the context of globalization. Considering the geopolitical location of Nepal and its vulnerability to the possible threats, Nepal’s citizenship and immigration laws have always been the integral part of debate and discussion among the politicians, intellectuals and general public. The development of national security of any country is dependent upon the quality of dignity, liberty and protection ensured to its citizens by the state. So, the economic, social and political rights should be granted to the citizens in equal manner through citizenship while guarding against pretentious foreign interests. Nepal needs to have strong citizenship and immigration laws to sustain its territorial integrity and protect national interests.

Childhood Statelessness: Critiquing International Norms and Enforcement Strategies

Over the past decade, there has been renewed interest in and commitment to resolving the endemic problem of statelessness, most clearly exemplified by the United Nations High Commissioner for Refugees’ Global Action Plan to End Statelessness 2014-24, which sets out to end statelessness by 2024. Despite the plethora of recent attention to questions of citizenship, its converse, the problem of statelessness and its effect on children, has not been adequately investigated. This paper attempts to delineate the causes of childhood statelessness in particular and to analyze the international legal framework for reducing and preventing it. It examines how statelessness is created, how it persists and why it brings with it the deprivations it does. It then subjects the customary and modern international legal norms governing childhood statelessness and enforcement strategies at Global level to close scrutiny and identifies the clearly discernible drawbacks and road blocks. It concludes with suggestions, inter alia, to make the jus soli citizenship a mandatory default clause in the citizenship laws of every country, to further prioritize birth registration and data collection and to strengthen the UPR process and reporting procedure.

The Right to Citizenship – Slovenia and Australia

Most people across the world automatically assume citizenship at birth or acquire citizenship by descent or naturalisation. Since the growth of the concept of citizenship from the French and American Revolutions, it has become an important principle to the nation state and individual. Citizenship is the right to have rights. However, the right to citizenship is limited. In some cases when territorial rule changes the citizenship laws may exclude individuals resident in the territory. This article compares the development of the first citizenship laws in Australia and Slovenia, and the impact that these new laws had on the residents of both states. The first citizenship laws established by Australia were in 1948. More than forty years later in 1990, when Slovenia finally obtained independence from the former Yugoslavia, the new country was able to establish their own citizenship laws. The result of the Slovenian citizenship laws saw many former Yugoslav citizens who were resident in Slovenia being without citizenship of any state. Subsequently, these people were declared stateless. On the other hand, for Australia, the outcome was relatively smooth with the transition from British subjects to Australian citizenship.

Dispossession, Un-freedom, Precarity

The partition of the Indian subcontinent forced millions of people to flee to the other side of the borders, freshly demarcated by the British colonial rulers just on the eve of their departure from South Asia. Almost a decade-long migration of people could not, however, settle the boundaries and lives of the people once and for all. The postcolonial rulers retained many of the draconian laws of the late colonial period, like the Foreigners’ Act in India, and laced them with new laws and regulations, thus leading to greater dispossession of people of homes, generating widespread situations of un-freedom, and creating countless refugees and stateless persons, mostly forced to survive in sites of precarious life, without any right to have rights. The concern of this contribution is this politics of dispossession in postcolonial South Asia and its relation with citizenship laws of the region.