International Human

Rights after The Good

Friday Agreement
THE CITIZENSHIP CONVERSATION IN THE REPUBLIC OF IRELAND
 OUTLINE
1. INTRODUCTION
2. MONTEVIDEO CONVENTION
3. THE CONCEPT OF POPULATION
4. THE GOOD FRIDAY AGREEEMENT AND MULTIPLE IDENTITIES
5. IMMIGRATION AFTER THE GOOD FRIDAY AGREEMENT
6. CONSTITUTIONAL AMENDMENTS
7. IMPLICATIONS OF AMENDMENTS
8. CITIZENSHIP VS. NATIONALITY
9. INTERNATIONAL HUMAN RIGHTS TREATIES
10. FUTURE CHALLENGES AND POSSIBLE REMEDIES
 TWO CAVEATS

1. NOT AN EXPERT ON IRISH POLITICS OR HISTORY

2. FOCUS ON LEGAL DOCTRINE AFTER GOOD FRIDAY

AGREEMENT AND CONFORMITY WITH INTERNATIONAL
HUMAN RIGHTS LAW
 INTRODUCTION

CITIZENSHIP IN IRELAND AFTER GOOD FRIDAY AGREEMENT

STUDIES FOCUS ON DOMESTIC OR COMPARATIVE LAW

IE. J.M. MANCINI & GRAHAM FINLAY, CITIZENSHIP MATTERS: LESSONS FROM THE
IRISH CITIZENSHIP REFERENDUM, 60 AM. Q. 575-599 (2008).

INTERNATIONAL HUMAN RIGHTS TREATIES NOT ALWAYS BINDING

SOME ARE CUSTOMARY INTERNATIONAL LAW
SOME ARE NOT CIL AND NOT RATIFIED DOMESTICALLY
MONTEVIDEO CONVENTION (1933)

CUSTOMARY INTERNATIONAL LAW

FOUR REQUIREMENTS FOR STATEHOOD (ARTICLE 1)

A) PERMANENT POPULATION
B) DEFINED TERRITORY
C) GOVERNMENT
D) CAPACITY TO ENTER INTO RELATIONS WITH OTHER
STATES
PERMANENT POPULATION

As long as a State's population is a group of persons leading a

common life and forming a living community, then it qualifies.
Bederman, Subjects and Objects of International Law

Shared people (nomads included)

No requirement for shared language or culture
No requirement for homogeneous religion, culture or language
Very small states: Naura (9,500)
PERMANENT POPULATION

The requirement of a permanent population stems from the fact that

a State is a means of realizing the shared aspirations of groups that
have united due to cultural, religious, historical or other
characteristics they have in common.
Yuval Shany, Amichal Cohen, Tal Mimran, ISIS: Is the Islamic State Really a State?
The Israel Democracy Institute, Sept. 14, 2014, available at:
http://en.idi.org.il/analysis/articles/.

DE FACTO VS. DE JURE SHARED ASPIRATIONS

THE GOOD FRIDAY AGREEMENT
MULTIPLE IDENTITIES

BRITISH-IRISH AGREEMENT (ARTICLE 1(VI))

The two governments recognise the birthright of all the people
of Northern Ireland to identify themselves and be accepted as Irish
or British, or both, as they may so choose, and accordingly confirm
that their right to hold both British and Irish citizenship is
accepted by both Governments and would not be affected by any
future change in the status of Northern Ireland.
THE GOOD FRIDAY AGREEMENT
MULTIPLE IDENTITIES

BRITISH-IRISH AGREEMENT (ARTICLE 1(V))

. . . the power of the sovereign government with jurisdiction
there shall be exercised with rigorous impartiality on behalf of all
the people in the diversity of their identities and traditions and
shall be founded on the principles of full respect for, and equality
of, civil, political, social and cultural rights, of freedom from
discrimination for all citizens, and of parity of esteem and of just
and equal treatment for the identity, ethos and aspirations of both
communities;
MULTIPLE IDENTITIES
CONFERENCE ON YUSOSLAVIA ARBITRATION COMMISSION OPINION NO. 2

ISSUE:
Does the Serbian population in Croatia and Bosnia, as one of the
constituent peoples of Yugoslavia, have the right to self-determination?
Where there are one or more groups within a State constituting one or
more ethnic, religious or language communities, they have the right to
recognition of their identity under international law.
CONCLUSION:
. . . the Republics must afford the members of those minorities and
ethnic groups all the human rights and fundamental freedoms recognized
in international law including, where appropriate, the right to choose
their nationality.
 IMMIGRATION AFTER
THE GOOD FRIDAY AGREEMENT
JUS SOLI
RIGHT OF THE SOIL
CITIZENSHIP BASED ON BIRTH WITHIN NATIONAL TERRITORIES

JUS SANGUINIS
THE RIGHT OF BLOOD
CITIZENSHIP BASED ON DESCENT
 IMMIGRATION AFTER
THE GOOD FRIDAY AGREEMENT
ARTICLE 2:
IT IS THE ENTITLEMENT AND BIRTHRIGHT OF EVERY
PERSON IN THE ISLAND OF IRELAND, WHICH INCLUDES
ITS ISLANDS AND SEAS, TO BE PART OF THE IRISH
NATION. THAT IS ALSO THE ENTITLEMENT OF ALL
PERSONS OTHERWISE QUALIFIED IN ACCORDANCE WITH
LAW TO BE CITIZENS OF IRELAND.
 IMMIGRATION AFTER
THE GOOD FRIDAY AGREEMENT
REFERENDUM CAMPAIGN
LOOSE IMMIGRATION AND TIGHT CITIZENSHIP

LAST EU NATION TO RECOGNIZE UNRESTRICTED JUS SOLI

RACE POLITICS / INTENT OF ARTICLE 2

CHEN V. HOME SECRETARY (2004)

FACTS:
TEMPORARY CHINESE MIGRANTS IN UK
CHOOSE TO GIVE BIRTH IN NORTHERN IRELAND FOR PURPOSES OF
IRISH CITIZENSHIP
THEREFORE, EU NATIONAL
BRITISH AUTHORITIES DENY PERMANENT RESIDENCY
CHEN V. HOME SECRETARY (2004)

JUDGMENT:
a refusal to allow the parent ... who is the carer of a
child ... to reside with that child in the host Member
State would deprive the childs right of residence of
any useful effect. ... enjoyment by a young child of a
right of residence necessarily implies that the child is
entitled to be accompanied by the person who is his or
her primary carer and accordingly that the carer must
be in a position to reside with the child in the host
Member State for the duration of such residence.
LOBE & OSAYANDE V. MINISTER OF
JUSTICE (SUPREME COURT, 2003)
MIGRANT PARENTS OF IRISH CHILDREN DO NOT HAVE AN
AUTOMATIC RIGHT TO REMAIN IN IRELAND FOR AN
INDEFINITE PERIOD

RETROACTIVE APPLICATION TO PENDING APPLICATIONS:

11,000 FAMILIES ISSUED DEPORTATION NOTICES
CONSTITUTIONAL AMENDMENTS
JUS SOLI JUS SANGUINIS

ARTICLE 9.2
Notwithstanding any other provision of this
Constitution, a person born in the island of Ireland,
which includes its islands and seas, who does not have,
at the time of his or her birth, at least one parent who
is an Irish citizen or entitled to be an Irish citizen is not
entitled to Irish citizenship or nationality, unless
otherwise provided for by law.
CONSTITUTIONAL AMENDMENTS

IRISH NATIONALITY AND CITIZENSHIP ACT OF 2004:

6A-(1) A person born in the island of Ireland shall not
be entitled to be an Irish citizen unless a parent of that
person has, during the period of 4 years immediately
preceding the persons birth, been resident in the
island of Ireland for a period of not less than 3 years or
periods the aggregate of which is not less than 3 years.
IMPLICATIONS OF AMENDMENTS

1. CONSTITUTIONAL RIGHT LEGISLATIVE PROCESS

Notwithstanding any other provision of this Constitution, a person
born in the island of Ireland, which includes its islands and seas, who
does not have, at the time of his or her birth, at least one parent who
is an Irish citizen or entitled to be an Irish citizen is not entitled to
Irish citizenship or nationality, unless otherwise provided for by law.

2. JUS SOLI JUS SANGUINIS

JUS SANGUINIS RECOGNIZED PRIOR TO AMENDMENTS BEYOND IRISH
BORDERS
BEFORE 2004, NEVER USED PARENTAGE AS BASIS FOR CITIZENSHIP
WITHIN BORDERS
IMPLICATIONS OF AMENDMENTS

3. IMMIGRATION DETERRENCE
CITIZENSHIP UNCERTAINTY
TWO-TIERED CITIZENSHIP

4. HOMOGENEOUS CITIZENRY
CITIZENSHIP VS. NATIONALITY

CITIZENSHIP
LEGAL STATUS

NATIONALITY
IDENTITY
INTERNATIONAL HUMAN RIGHTS TREATIES

UNIVERSAL DECLARATION OF HUMAN RIGHTS

ARTICLE 15.
(1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his nationality nor denied

the right to change his nationality.
INTERNATIONAL HUMAN RIGHTS TREATIES

INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL

DISCRIMINATION
ARTICLE 1:
3. Nothing in this Convention may be interpreted as affecting in any way the legal
provisions of States Parties concerning nationality, citizenship or naturalization,
provided that such provisions do not discriminate against any particular nationality.
ARTICLE 5(D)
In compliance with the fundamental obligations laid down in article 2 of this
Convention, States Parties undertake to prohibit and to eliminate racial
discrimination in all its forms and to guarantee the right of everyone, without
distinction as to race, colour, or national or ethnic origin, to equality before the
law, notably in the enjoyment of the following rights:
(iii) The right to nationality
INTERNATIONAL HUMAN RIGHTS TREATIES

INTERNATIONAL CONVENTION ON CIVIL AND POLITICAL RIGHTS

ARTICLE 24:
3. Every child has the right to acquire a nationality.

CONVENTION ON THE RIGHTS OF THE CHILD

ARTICLE 7:
1. The child shall be registered immediately after birth and shall have the right
from birth to a name, the right to acquire a nationality and, as far as possible, the
right to know and be cared for by his or her parents.
INTERNATIONAL HUMAN RIGHTS TREATIES

CONVENTION ON THE ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST

WOMEN (CEDAW)
ARTICLE 9:
1. States Parties shall grant women equal rights with men to acquire, change or
retain their nationality. They shall ensure in particular that neither marriage to an
alien nor change of nationality by the husband during marriage shall automatically
change the nationality of the wife, render her stateless or force upon her the
nationality of the husband
INTERNATIONAL HUMAN RIGHTS TREATIES

CONVENTION ON THE REDUCTION OF STATELESSNESS

ARTICLE 1
1. A Contracting State shall grant its nationality to a person born in its territory
who would otherwise be stateless.
ARTICLE 4
1. A Contracting State shall grant its nationality to a person, not born in the
territory of a Contracting State, who would otherwise be stateless, if the
nationality of one of his parents at the time of the person's birth was that of that
State. If his parents did not possess the same nationality at the time of his birth,
the question whether the nationality of the person concerned should follow that of
the father or that of the mother shall be determined by the national law of such
Contracting State.
INTERNATIONAL HUMAN RIGHTS TREATIES

OTHER TREATIES
CONVENTION ON NATIONALITY OF MARRIED WOMEN
PREAMBLE, ARTICLES 1, 2, 3, 7

CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES

ARTICLE 18

INTERNATIONAL CONVENTION ON THE PROTECTION OF THE RIGHTS OF ALL

MIGRANT WORKSERS AND MEMBERS OF THEIR FAMILIES
ARTICLE 29
INTERNATIONAL HUMAN RIGHTS TREATIES

TAKEAWAYS
FOCUS ON NATIONALITY NOT CITIZENSHIP

EVERYONE MUST HAVE ONE NATIONALITY

OBLIGATION TO NOT RENDER SOMEONE STATELESS

OTHERWISE NO OBLIGATION
FUTURE CHALLENGES

DE FACTO STATELESSNESS
ASYLUM SEEKERS
ECONOMIC / ENVIRONMENTAL MIGRANTS NOT REFUGEES

XENOPHOBIA

TWO-TIER CITIZENSHIP
POSSIBLE REMEDIES

EXCEPTIONS FOR ASYLUM SEEKERS

EXPEDITED PATHWAYS TO CITIZENSHIP

AFFIRMATIVE ACTION PROGRAMS

NATURALIZATION QUOTAS
THE END