Thursday, 1 December 2011

Citizenship and the European Court on Human Rights: The case of Genovese v. Malta

Although the right to a nationality is prescribed under several international legal frameworks, it is not contained as a provision in the European Convention of Human Rights.  Subsequently, cases of denial of nationality could not be brought before the European Court, unless one of the consequences of this denial was to violate a separate provision.  In October 2011 however a judgement on a case relating to gender discrimination in Maltese nationality law was passed before the court. The implications of the decision could potentially be a very important step in the right to nationality being accepted under the courts jurisprudence.

The case

Mr. Ben Alexander Genovese was born, out of wedlock, to a British mother and a Maltese father in 1996. Under Maltese law, a child born out of wedlock outside of Maltese territory can only obtain nationality if the mother is Maltese.  The applicant was able to obtain British citizenship, but claims that his right to potentially have a relationship with his father has been violated due to gender discrimination in Maltese nationality law which did not allow him to acquire his father’s citizenship.  The judges considered that the applicant’s right to a private life had been violated due to discrimination in the law.  They voted six to one that there had been a violation of Article 14;

“The enjoyment of the rights and freedoms set forth in (the) Convention shall be secured without discrimination on an ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property birth or other status.’’

In conjunction with Article 8,
’Everyone has the right to respect for his private life, his home and his correspondence.’’

What could this mean?

In this case, discrimination in nationality law has been seen to violate Article 14 in conjunction with Article 8.  Article 8 is a dynamic provision that is continually undergoing renewed interpretation, and now the possibility is that citizenship cases could more readily be brought in and tested under this article.  What is significant about this judgement is that lack of access to nationality can be seen to violate Article 8.  It is implied that not granting nationality could violate the article ‘’because of its impact on the private live of an individual, which concept is wide enough to embrace aspects of a person’s social identity.’’  This implies that denying Genovese’s access to Maltese citizenship is impacting on him exercising his full social identity.  Hence, this is violating his right to a private life, which ultimately is a violation of Article 8.  

What does this mean for other cases regarding nationality that may not involve discriminatory nationality laws?  The applicant in this case had another nationality and therefore it would be difficult to argue that he could not fully exercise his right to a social identity.   However, if an individual is stateless, would that mean that there exists complete violation of their social identity, regardless of whether there was discrimination in the state’s law?   Would citizenship cases of stateless individuals therefore be seen to independently violate Article 8 and be brought to the court on that basis, without also requiring the applicant to invoke article 14?  Although the ambiguity surrounding this relevant paragraph in the judgement does not allow it to explicitly state that denial of citizenship is a violation of Article 8, the door appears to have been eased open.

Zahra Albarazi, MENA Project Coordinator, Statelessness Programme

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