International Counter-terrorism Regulation and Citizenship-stripping Laws—Reinforcing Legal Exceptionalism

International Counter-terrorism Regulation and Citizenship-stripping Laws—Reinforcing Legal... Abstract In this article, we conduct a timely analysis of international counter-terrorism law and its relation to domestic measures like citizenship stripping in light of the exceptionalist and extra-legal tendencies of the former. We highlight the ping-pong effect between international and domestic counter-terrorism laws showing that domestic and international law mutually reenforces each other’s exceptionality. We argue, first, that the international law framework for counter-terrorism measures exhibits the characteristics of a ‘model of accommodation’, fostering an extra-ordinary legal approach that is inspired by domestic law designs of counter-terrorism law; second, that international law further enables and encourages domestic law to adopt extra-ordinary or even extra-legal measures in the field of counter-terrorism; and third conversely, domestic measures like citizenship-stripping laws more broadly affect general international law by contributing to the normalization of extra-ordinary legal measures. In this regard, we discuss recent domestic citizenship-stripping laws as an expression of a renewed emphasis on exceptionalism and extra-legalization of counter-terrorism measures. Considering citizenship-stripping laws enacted in various jurisdictions, including Australia, Canada and the UK, we argue that by justifying exceptionalist citizenship-stripping laws as permissible under both, international and domestic law, states will permanently affect the concept of citizenship nationally and internationally. 1. Introduction Confronting terrorism, states have three possible frameworks to set their counter-terrorism measures in, as has been highlighted by Oren Gross for the domestic context:1 (i) they can act within the limits of the existing legal framework and opt for the ‘business as usual model’; (ii) they can create, or resort to, an extraordinary legal framework tailored for the so-called state of exception and different from the law of ‘normal’ times—this would mean choosing a ‘model of accommodation’; (iii) or they can resort to measures which are entirely situated outside of any legal framework and adopt ‘extra-legal measures’. Opting for one of these three possibilities (or hybrids of them)2 is a normative decision—a decision on the extent to which the rule of law or opposing security considerations should prevail. As states mostly act within categories 2 and 3,3 this comes with a variety of considerable risks not only for individuals affected by anti-terrorism laws but also more broadly for the existing legal framework as such: individual rights and liberties are often not effectively guaranteed; a ‘subject community’ might be constructed that differentiates between ‘them’ and ‘us’, initially allowing for more repressive measures against ‘them’ and potentially extending the group of subjects; emergency-specific rules and institutional structures might become an integral part of the regular legal system, blurring the differentiation between normalcy and emergency; this might lead to the perception that ever more radical measures are necessary; and extra-legal measures might undermine the rule of law and the belief in its necessity more broadly, creating a habit of lawlessness.4 Given the increasing importance of international cooperation and international regulation with regard to measures against international terrorism, the aforementioned categorization of modes of action and of designing legal regimes becomes relevant on the international scale as well. One yardstick to measure the success of the international law regulation on counter-terrorism is whether it is able to confine the application of extraordinary and extra-legal measures to extraordinary situations. Put differently, the question raised is whether and to what extent international law can effectively ‘separate emergency and normalcy’.5 Conversely, it can be asked whether the international counter-terrorism regulation in the way it is designed and applied might even encourage or enable states to draw on extraordinary or even extra-legal measures in the context of terrorism, undercutting the effectiveness of international law by domestic regulation. A recent example of how far states are willing to go in the fight against terror are the initiatives of various states to react to certain acts of international terrorism committed by their citizens with what has been come to be known as citizenship-stripping laws. This development has been triggered by the phenomenon of ‘foreign fighters’. Since Islamic State occupied vast sways of territory in Syria and Iraq, thousands of citizens from liberal democracies had joined its ranks. In response, states like the UK, Australia, Canada and Israel (but also several non-Western states)6 have recently adopted new regulations allowing state authorities to revoke the citizenship of individuals convicted or (for some merely) suspected of participating in acts of international terrorism.7 This development is exceptional even in the context of terrorist activity. Other forms of international terrorism, including in the years immediately following the 9/11 terrorist attacks on the USA, did not trigger enactment of citizenship-stripping laws by states at today’s scale. What is more, such a development is in contradiction to the way citizenship law and policy has developed internationally over the preceding decades. Now that Islamic State of Iraq and the Levant (ISIL) has suffered significant military losses, citizenship-stripping laws will only come into sharper focus given that foreign fighters seek to return to denationalizing states. Against this backdrop, we conduct a timely analysis of international counter-terrorism law and its relation to domestic measures like citizenship stripping in the light of exceptionalist and extra-legal tendencies of counter-terrorism measures. We will argue that (i) the international law framework for counter-terrorism measures exhibits the characteristics of a ‘model of accommodation’, fostering an extra-ordinary legal approach that is inspired by domestic law designs of counter-terrorism law; (ii) international law further enables and encourages domestic law to adopt extra-ordinary or even extra-legal measures in the field of counter-terrorism; and (iii) conversely, domestic measures like citizenship-stripping laws more broadly affect general international law by contributing to the normalization of extra-ordinary legal measures. In this regard, we highlight the phenomenon of a ‘ping-pong effect’ of the extraordinary: with the international law design on counter-terrorism being inspired by analogous domestic law approaches based on exceptional measures, with international counter-terrorism law itself then encouraging domestic law to continue to not only adopt existing exceptionalist approaches but to further enact and entrench extraordinary measures; in doing so, domestic law affects—permanently—a variety of important principles of international law. Put differently, international law and domestic law mutually reinforce each other in their exceptionalist approach. In this regard, this article adopts a perspective that considers international law and domestic law as an interlinked analytical object in order to understand their mutual influences and their intertwinement.8 In the first part, we highlight how and to what extent the international law regulation of counter-terrorism measures promotes an exceptionalist or even extra-legal approach by states. Addressing the shortcomings of international law to restrain the extra-legal and extraordinary, we will substantiate a claim of limited effectiveness of international legal regulation in this area. In the second part, we will discuss recent domestic citizenship-stripping laws as an expression of a renewed emphasis on exceptionalism and extra-legalization of counter-terrorism measures. As the broad agreement of the 20th century on restricting citizenship-stripping is gradually reversed,9 domestic law is being used as a tool to hollow both the international counter-terrorism regulation and international law in general. 2. International law regulation of counter-terrorism measures: transcending legal normalcy Legal responses to terrorism present a particular challenge to the regulative function of law, in general, and to international law, in particular.10 This is due to the dichotomy inherent to counter-terrorism measures between ordinary and extraordinary sets of rules or even legal and extra-legal measures. The tendency of states to choose, when facing terrorism, the ‘model of accommodation’ using a state-of-exception framework or the extra-legal measures model confines both the scope and impact of international regulation of counter-terrorism (Section 2.A). At the same time, international law has been unable to sufficiently take into account, and restrict, the inclination of states to place counter-terrorism measures outside the realm of ‘normal’ law (Section 2.B). A. International counter-terrorism regulation as ‘model of accommodation’ International counter-terrorism regulation reflects the tendency of states to react to terrorism with measures transcending the ‘ordinary’ legal framework. Through the process of international lawmaking, states have created a separate legal system for international counter-terrorism measures that mirrors the special regimes existing in their own domestic jurisdictions.11 The domestic legal predominance of extra-ordinary measures (‘model of accommodation’) and even extra-legal measures has been the basis for addressing counter-terrorism issues internationally as well. Already the process of creating the international law regime has thus been characterized by a strong interlinkage between the domestic and international level regarding the legal design of this specific regulatory subject matter. As a result, international counter-terrorism law itself—in the terminology introduced by Oren Gross—would fall into the category of ‘models of accommodation’.12 On the one hand, international lawmaking in the area of counter-terrorism demonstrates that States Parties to the relevant conventions are opting for some sort of legal regulation and are at least not entirely adhering to a model based on extra-legal measures. This guarantees prima facie a continued adherence to the rule of law. On the other hand, special rules for the context of terrorism and counter-terrorism are created because the existing rules are considered inadequate. By way of ‘special emergency regulation’13 which, as it creates a separate regime of counter-terrorism law, goes beyond adapting the existing regimes, the international law framework is accommodated to a context that is normatively considered to be extraordinary. Unlike special regulation required by compelling characteristics of the subject matter itself, eg in the context of environmental or economic law and potential procedural law regimes referring to them, special regimes for counter-terrorism measures single out a subject matter based on a balancing exercise between the values of freedom and security. As the issues created by acts of terrorism as well as the related counter-measures could alternatively be governed by existing legal rules designed eg in view of criminal acts during ‘times of normalcy’ (in the framework of a the ‘business as usual’ model), the creation of special regimes is generally equated with the normative decision to give security considerations a weight that, amongst other things, justifies restricting individual rights that are given more weight in ‘times of normalcy’ by the same legal order. Overall, the international conventions explicitly addressing terrorism are an expression of this special emergency regulation. They single out the situation of terrorism from other situations addressed, for instance, by general (international) criminal law, extradition law, domestic administrative law, etc, and put in place a separate set of rules. Against the background of their domestic law approach to terrorism, states have considered the rules of general international law as inadequate to regulate the phenomenon of terrorism, opting for amendments without due consideration of their practical need, their effectiveness and their impact on international law as a whole.14 It is mostly political pressure and not practical necessity that leads to the creation of special counter-terrorism regimes, be it on the domestic or on the international level.15 With regard to national citizenship-stripping laws, this is graphically exemplified by a statement of former French President Francois Hollande who admitted the mere symbolic nature of such measure as ‘it is not by denationalization that one can fight terrorism’.16 Others go even a step further and argue that the ‘terrorism suppression agenda’ was in fact set by the criminals themselves.17 In line with this overall exceptionist approach to regulating counter-terrorism measures, the various conventions mostly include special regimes for terrorism-related matters.18 With regard to these provisions, some conventions contain explicit ‘conflict rules’, establishing the inapplicability of other international treaty provisions if conflicting with the legal framework for counter-terrorism. The Hostage Convention, for instance, states in its Article 9 (2), that ‘the provisions of all extradition treaties and arrangements applicable between States Parties are modified as between States Parties to the extent that they are incompatible with this Convention’.19 Some provisions explicitly require special domestic law regimes on counter-terrorism, for instance Article 7 (1) of the Nuclear Terrorism Convention provides that States Parties shall take ‘all practicable measures, including, if necessary, adapting their national law …’. In addition to these openly exceptionalist norms, the relevant counter-terrorism conventions also include legal mechanisms implicitly fostering an approach of extraordinary legal standards. This is, for instance, the case when international law adopts the concepts of practicability and appropriateness as standards for the legality of counter-terrorism measures.20 Such notions are, due to the broad discretion given to decision-making authorities, particularly able to allow for measures of exception. Even though the overall legal framework for counter-terrorism is an extraordinary one, not all the individual provisions included in the various conventions related to terrorism are. Some provisions explicitly stress that ordinary international law shall apply; they are mostly shaped as a general clause that nothing in the convention ‘shall affect other rights, obligations or responsibilities of states or individuals under international law’.21 Other provisions stipulate that the ordinary domestic law (as opposed to an extraordinary set of domestic legal rules) shall regulate certain aspects of counter-terrorism. For example, Article 8 (1) of the Terrorist Bombings Convention stipulates that the relevant state authorities shall ‘take decisions in the same manner as in the case of any other offence …’. Similar provisions are, for instance, included in Article 8 (1) of the Hostage Convention, Article 10 (1) of the Financing Convention, Article 10 (1) of the Maritime Convention or Article 11 (1) of the Nuclear Terrorism Convention. In addition to law creation in the form of counter-terrorism conventions, the increased lawmaking role of the United Nations (UN) Security Council has equally been characterized by a predominantly exceptionalist approach. Starting with resolution 1373 (2001), the Security Council shifted from a selective and situation-specific approach dealing with situations of international terrorism on a case-by-case basis towards installing a permanent counter-terrorism regime with obligations for states that relate to terrorism as an abstract phenomenon.22 At the same time, its terrorist sanction regimes provides for a lower standard of (procedural) rights protection for the affected individuals than the general protection under other international law regimes and under domestic law, amongst other things, raising concerns about discriminatory treatment.23 Moreover, with the creation of special mechanisms like the Counter-Terrorism Committee set up to monitor the implementation of this resolution and assisted by the Counter-Terrorism Committee Executive Directorate, even an extraordinary institutional structure has been created.24 Despite the functional limitations and incoherencies of this structure,25 its existence highlights that the ‘model of accommodation’ approach is present on all levels of international counter-terrorism law. The formal accommodation of legal rules to exceptional circumstances by way of lawmaking is complemented by an accommodation of international law through interpretation: other ‘ordinary’ legal regimes are adapted to times of crises by interpreting their legal rules originally designed for normalcy in a manner that would fit the perceived (political) necessities of terrorism-related circumstances.26 For instance, human rights provisions are with regard to counter-terrorism measures interpreted in a way that accommodates terrorism as legal exceptions to human rights standards. Such an interpretation of human rights provisions in the context of counter-terrorism measures are undertaken both by international bodies and by states themselves, the latter trying to justify various unilateral exceptions to human rights.27 However, international human rights instruments have specified a number of non-derogable rights that do not allow for derogation even in the context of counter-terrorism and emergency.28 Despite these unambiguous legal standards, there have been widespread violations even of non-derogable rights.29 In sum, international law predominantly demonstrates the features of a ‘model of accommodation’, creating an extraordinary legal framework for counter-terrorism measures. This assessment is not contradicted by the fact that the relevant international law regulation is—other than this is the case for domestic concepts like ‘state of exception’—not meant to be a merely temporary framework. Its permanent nature does not affect its categorization as substantially exceptionalist. Rather, it is an expression of the risk inherent to this form of legal accommodation used by international law: the risk of the exception becoming the state of normalcy. Being temporarily indefinite, the emergency regime has a permanent substantial effect on the international legal order as a whole and on domestic legal orders.30 What is created is a ‘shadow legal system for terrorism’ that ‘threatens the coherence and unity of international law’ and ‘attacks the principle that every legal subject deserves to be treated with equal respect and concern’.31 B. Gateways for the extraordinary and the extra-legal in international counter-terrorism law International counter-terrorism law has not provided a coherent legal framework restraining the attempts of states to act extra-legally or in an exceptionalist manner. Rather, it enables and encourages domestic law to adopt extra-ordinary or even extra-legal measures in the field of counter-terrorism. The key reason for this shortcoming is of course the overall exceptionist approach to regulating counter-terrorism measures that has been described above. Through this approach, international counter-terrorism law declares extraordinary legal norms and their application to be the method of choice in the context of international terrorism. However, there are several less explicit reasons to why international law creates gateways for extraordinary and extra-legal measures. One of these reasons is the sectorial approach—or ‘piecemeal approach’—taken by counter-terrorism regulation at the international level. It is composed of a considerable amount of treaties and conventions regulating very specific areas concerned with particular acts of terrorism. This includes terrorism committed on aircrafts or in the context of maritime navigation, nuclear terrorism, terrorist bombing, taking hostages, etc with ‘each treaty adopted in response to a specific act of “headline grabbing” terrorism committed by non-state actors’.32 Although certain conventions like the International Convention for the Suppression of the Financing of Terrorism adopt a more cross-sectional approach, most of the international legal instruments address specifics. By this sectorial nature, international law creates the impression that there is a regulative gap that allows for a gap-filling by states that might be outside the scope both of general international law and domestic law.33 This is reinforced by the existing overlaps and incoherencies between different international counter-terrorism instruments and the overall fragmentation of regulation regarding this subject-matter.34 The prolonged attempt to negotiate a comprehensive convention on international terrorism has not been successful.35 Further, the nonexistence of an internationally accepted definition of terrorism reinforces the sectorial approach both internationally and domestically: the application of rules on counter-terrorism is bound to vary and to create inconsistencies not only between different sub-regimes of international counter-terrorism law but also between differing domestic implementation of the international rules.36 These inconsistencies foster potential extra-legal tendencies of states. The case of citizenship-stripping laws which will be more closely analyzed in the second part of this article is an example of how, through the interrelation between international and domestic counter-terrorism law, the sectorial approach and the problems pertaining to it are transposed to other legal orders as well. A second set of reasons for international law facilitating the adoption of extra-ordinary or extra-legal measures concerns jurisdiction. Despite debates about broadening the jurisdictional scope of international judicial bodies in order to include acts of international terrorism, there is to date no permanent international criminal court possessing the jurisdiction to prosecute acts of international or transnational terror; specific courts only possess jurisdiction to try particular acts of terror.37 As a consequence, extra-judicial spaces emerge, fostering the existence of extra-legal gaps in the international counter-terrorism law framework. Moreover, this effect is not confined to the international level. Regarding the interaction of domestic and international counter-terrorism law, an extra-judicial tendency comes in if and when the universal jurisdiction approach of domestic courts is challenged. Further, international counter-terrorism regulation is also relatively isolated from other areas of international law which are crucial to legally capture terrorism and counter-terrorism as a whole. Without an explicit link between the relevant areas of international law, state actors might, when taking counter-terrorism measures, be encourage to disregard what is provided by other areas of law. This is particularly so when the norm content of different international law regimes is, or appears to be, conflicting. Most prominently, human rights considerations are only partly and superficially reflected within the specific provisions of the various international instruments on counter-terrorism.38 Human rights issues are, if at all, merely addressed in the form of general clauses on the respect of human rights. For instance, Article 17 of the Financing Convention stipulates that ‘any person who is taken into custody … shall be guaranteed fair treatment, including enjoyment of all rights and guarantees in conformity with the law of the state in the territory of which that person is present and applicable provisions of international law, including international human rights law’. Only rarely, the norm content is more specific, as it is in the case of Article 12 of the Terrorist Bombing Convention39 or Article 9 (1 a) of the Hostage Convention, both regarding the refusal of extradition in the case of discrimination based on race, religion, nationality, ethnic origin or political opinion.40 A broader use of explicit guarantees would have helped counterbalance fragmentation between different international law regimes41 and better integrate international counter-terrorism law into the existing general international law setting in order to avoid exceptional and extra-legal measures. Instead, the application of counter-terrorism measures highlights the effects of incoherent or absent interlinks between counter-terrorism law and other areas of international law. One of the principle issues again is related to international human rights standards. As has been put forward by many authors, human rights provisions are often not respected when states react to terrorist threats.42 This concerns both procedural and substantive human rights provisions. Counter-terrorism measures adopted by states include torture, arbitrary detention, enforced disappearances, extrajudicial executions, to name just a few.43 Further, as international bodies like the Special Rapporteur on Countering Terrorism or the Venice Commission have pointed out, there is an increasing risk that states use counter-terrorism measures—under the umbrella of the unclear notion of terrorism—to punish political dissent or discriminate against ethnic, regional or other groups, violating the right to freedom of expression, of association and fair trial.44 Moreover, uncertainties concerning the content of a number of related international law rules enable or even encourage extra-legal measures. A prominent example is the use of force in cases of terrorism. The international legal framework related to the use of force is not yet sufficiently adapted to recent phenomena of institutionalized terrorist activity on an international scale—or at least there is no consensus on how the existing framework should be interpreted in order to address current developments.45 This leads to the situation that states are put before the choice between interpreting the existing rules in an unconventional manner, at the same time risking that their interpretation is not approved by the international community or at least a majority of states; or to act without even attempting to justify the action under international law—and therefore openly extra-legally. A key issue in this regard is the law on individual or collective self-defense according to Article 51 of the UN Charter.46 When states experience terrorist attacks on their territory carried out by a non-state actor and wish to react to them by use of force, they are facing the legal problem of whether and to what extent the notion of self-defense under international law can be extended to attacks from terrorist organizations which are not state in the conventional sense and are not attributable to such state.47 Although some claim that ambiguities in this field are gradually being cured,48 there is still considerable uncertainty including on issues like whether the attack must achieve a certain scale; whether cyber-attacks constitute attacks in the legal sense; which targets of the attack are relevant; which consequence has a relationship between a terrorist group and a state below the threshold for attribution. In practice, states have frequently chosen to address the legal uncertainty with unilateral military measures.49 Due to the existing uncertainty about whether and to what extent such measures fall within the scope of a refined rule of self-defense, unilateral decisions by states on this matter at the very least convey a perception of extra-legality. This mere perception which is induced by the international law regime is detrimental to the international rule of law, given the importance of the use of force regime for international relations. It fosters the approach that the argument of fighting terrorism legitimizes any measure whether it is legal or not. Conversely, applying existing international law to international terrorism can occasionally contribute to strengthening the state of exception approach. For a certain time now, it has for instance been discussed whether international humanitarian law should be applicable to the ‘war against terror’.50 Independently of potential substantive advantages of such an application, this has a conceptual downside: as the terrorist threat will most likely never vanish entirely, the state of exception created by the narrative of ‘war against terror’ would be eternally perpetuated. This would lead to a further normalization of the extraordinary, not of exceptional legal norms, but of a justificatory narrative for extraordinary measures—be it legal or extra-legal ones. To sum up, the analysis so far shows that the international law framework for counter-terrorism measures enables and encourages domestic law to adopt extra-ordinary or even extra-legal measures. Inspired by the domestic law design of counter-terrorism laws, the international law framework can be characterized itself as a ‘model of accommodation’ that is based on extra-ordinary legal regulation of the subject matter. In order to further pursue the ‘ping-pong effect’ of the extraordinary, ie the mutually reinforcing effect between domestic and international law, the analysis will now turn to the domestic level. Here, the so-called citizenship-stripping laws will serve as an example to show how domestic counter-terrorism measures affect—in their exceptionalist nature—primary principles of international law by contributing to the normalization of extra-ordinary legal measures. 3. Citizenship-stripping laws in cases of international terrorism: normalizing the exception In times of normalcy, banishment or exile does not find a place as a matter of modern law and policy.51 At least this had been the prevailing view until the foreign fighter phenomenon came along and posed a challenge. The recent citizenship revocation laws do not form a part of the business as usual practice, with the response properly classifiable as out of the ordinary. The current rise in terrorism-related citizenship-stripping regulation is an expression of a general trend towards, on the one hand, counter-terrorism measures that, in their exceptionalist nature, even touch upon the most fundamental principles of international law, attempting to adjusting these principles to the exception; and on the other hand are integrated so deeply into the existing domestic legal framework that legal normalcy is seriously affected. The most obvious and profound effect of these measures relates to the very concepts of nationality and citizenship (Section 3.A). However, other international law aspects highlight the exceptionalist approach of these measures as well (Section 3.B). A. Accommodating the concepts of citizenship and nationality Although the two terms are often used interchangeably, nationality is an international law concept and citizenship a domestic one.52 Of present concern is the meaning of those terms that signifies the formal legal bond between an individual and a nation state. Citizenship as a domestic concept constitutes the national legal recognition of an individual’s formal membership status vis-a-vis a state. It is domestic law that determines the acquisition of citizenship in national law, creating rights and obligations at a national level.53 On the other hand, as an international concept, ‘nationality’ is the means by which legal recognition is given to the relationship between an individual and a state under international law and at the international plane.54 First and foremost, the current citizenship-stripping regulations demonstrably jeopardize the established regulatory regime of nationality and citizenship. They introduce various components of a ‘model of accommodation’ into a legal concept that is fundamental to the interplay between domestic and international law as well as to the domestic legal framing of society (Section 3.A.i). Further, they diverge from established international law rules on nationality and statelessness (Section 3.A.ii). (i) Allegiance and anti-discrimination The duty of allegiance or loyalty underpins the concept of citizenship—while difficult to precisely define and inherently indeterminate.55 A duty of allegiance or loyalty to the sovereign underpinned the basis for an individual’s formal membership of a political community. Increasingly, ‘allegiance’ as the basis of citizenship is rejected as an outdated concept and replaced by a ‘democratic constitutional bond’.56 Terminology aside, the point is that a very basic loyalty to one’s state is an aspect of the concept of citizenship at its core. The debate concerning citizenship revocation ought to be founded in the consequences of a ‘transferred allegiance’.57 Once a foreign fighter travels and fights for a terrorist group hostile to the state of nationality or its allies, states have adopted the position that the individual in question has breached his or her loyalty, allegiance or constitutional bond, making it permissible for the state of nationality to withdraw its citizenship. They argue that the act of a foreign fighter in seeking to join forces with a terrorist group such as ISIL is not functionally dissimilar. As the preparatory discussion paper of the Australian government for the recently amended Australian Citizenship Act put it, it is ‘reasonable to consider measures to act against those who betray the allegiance inherent in their citizenship’.58 The reference to allegiance functions as a justification for externalizing an individual not only from its society of origin but also from its legal order. The individual as legal subject is excluded from its legal order and virtually ‘outlawed’. Thus, the extra-legal approach here comes in a certain variety: albeit the citizenship-stripping measure has a legal form, the result of it is extra-legality. Furthermore, allegiance reflects a well-known element of exceptionalist legal measures, as it can be found in a ‘model of accommodation’. By distinguishing between ‘those with allegiance’ and ‘those without allegiance’, a legal differentiation between ‘them’ and ‘us’ is put in place.59 This facilitates social and political acceptance for more repressive measures because these measures are perceived as only concerning the group of ‘them’ and not of ‘us’. It is natural for a social group to allow for more repressive emergency measures if it is believed they will not be turned against this group itself.60 A second aspect taking up the distinction between ‘us’ and ‘them’ as a justificatory pattern is reflected in the differentiation between different ‘kinds’ of citizenship undertaken by several citizenship-stripping laws. In some states the rules on terrorism-related citizenship stripping are only applicable to dual citizens;61 in other states special rules apply to naturalized citizens.62 Introducing this distinction fosters the exceptionalist nature of these measures. In addition, it establishes or (for some states) expands a categorization between citizens, classifying dual citizens or naturalized citizens as ‘second class citizens’.63 This is squarely evocative of suggested differentiations between ‘citizen criminal law’ as opposed to an ‘enemy criminal law’ discussed by Günther Jacobs as a counter-terrorism measure64—with dual or natural citizens appearing as potential ‘enemies’ and therefore having a distinct citizenship regime applicable to them. In any case, what is created is a category of individuals who are placed under a special regime because they are considered to be undeserving of the same level of legal protection as other individuals.65 An example of recently enacted citizenship revocation laws introducing a distinction between different kinds of citizenship is provided by Australia. Australia has limited the operation of its citizenship-stripping laws to dual citizens, with the recently passed laws allowing the Executive to revoke a person’s citizenship by conduct that amongst other things, includes the commission of several terrorism related offenses.66 Further, one of the states having amended its citizenship revocation laws in view of revoking the citizenship of naturalized citizens on very broad and lose criteria is the UK.67 Amongst other issues (see below), this legislation discriminates against naturalized and natural born citizens creating classes of citizenship. Such discriminatory treatment is not only contrary to the fundamental concept of equal citizenship, but arguably breaches the fundamental human rights principle of nondiscrimination.68 Moreover, it has no basis in the Statelessness Convention 1961 which does not provide distinct rules for naturalized and natural born citizens in terms of citizenship stripping.69 Indeed, in modern times, the mode of acquisition of citizenship, whether through birth, dissent, or naturalization ought to be irrelevant, with the facts of any given case determining the strength or effectiveness of a person’s membership status of a state.70 Accordingly, targeting naturalized citizens as a matter of legal policy must be avoided. Finally, the citizenship stripping rules transpose measures of exception into the legal framework of normalcy regarding citizenship and nationality. That is what makes them especially problematic from a general perspective of the concerned legal order: these rules permanently affect the legal regime of citizenship.71 What is more, they also have the potential to permanently influence the international law concept of nationality and the interplay between the concepts of citizenship and nationality. (ii) Statelessness and procedural rights Although states undoubtedly still possess a broad margin of discretion in regulating their legal regimes on citizenship, the second half of the 20th century witnessed broad international agreement stressing the right to a nationality,72 as well as condemning statelessness.73 Both those developments restricted the considerable freedom states possess concerning the regulation of citizenship, including the circumstances when it may be revoked.74 The recent citizenship-stripping laws transcend these limits, diverging from the established international law rules on nationality and statelessness and potentially pushing the broad agreement towards implementing the exception into the legal framework of normalcy. An important restriction set by international law is found in the Statelessness Convention of 1961, and it is worth bearing in mind Article 15 of the Universal Declaration on Human Rights demanding that no person be deprived of their nationality arbitrarily, ie without due process of law.75 Notably, a total of 62 states are parties to the Statelessness Convention of 1961, including Austria, Australia, Belgium, Canada, Denmark, Finland, France, Germany, the Netherlands, Norway, New Zealand, Sweden and UK—which gives the Statelessness Convention 1961 a principal role in the regulation of nationality internationally. Fundamentally, states party to the Statelessness Convention must not deprive a national of his or her citizenship status if such deprivation will render the national stateless.76 However, Article 8, paragraph 3 of the Statelessness Convention 1961 provides an exception upon the making of an express reservation or a declaration allowing a state party to denationalize in circumstances where the concerned individual breaches his or her duty of loyalty. It states: [A] Contracting State may retain the right to deprive a person of his nationality, if at the time of signature, ratification or accession it specifies its retention of such right on one or more of the following grounds, being grounds existing in its national law at that time: (a) that, inconsistently with his duty of loyalty to the Contracting State, the person … (ii) has conducted himself in a manner seriously prejudicial to the vital interests of the State; (b) that the person has taken an oath, or made a formal declaration, of allegiance to another State, or given definite evidence of his determination to repudiate his allegiance to the Contracting State. Article 8, paragraph 4 of the Statelessness Convention goes on to require that should a state exercise its rights of citizenship deprivation under Article 8, then: A Contracting State shall not exercise a power of deprivation … except in accordance with law, which shall provide for the person concerned the right to a fair hearing by a court or other independent body. Three key features are apparent. First, the exception under Article 8, paragraph 3 only operates if at the time of signature, ratification or accession, a state makes a reservation or a declaration in terms of that provision. Second, the only citizenship revocation provisions in domestic law that may benefit from the exception are the ones prevailing at the time the state party joined the Statelessness Convention. And third, a person’s citizenship must not be revoked without according that person a fair hearing. Notably, taking advantage of Article 8, paragraph 3, several states made reservations or declarations preserving their existing denationalization laws. These states include Austria, Belgium, France, New Zealand, UK, with states including Australia, Canada, Denmark, Finland, Germany and Sweden not making specific reservations under Article 8, paragraph 3. Mostly, such reservations relate to domestic provisions that allow denationalization in cases in which an individual acts contrary to the national interest by joining the armed forces of an enemy state.77 The Statelessness Convention regime had become business as usual when it came to a state’s citizenship revocation practices. However, international terrorism, and especially the foreign fighter phenomenon has caused a shift, at least in some states. For instance, the UK amended its citizenship revocation laws in 2014 as a response to the Al Jedda case,78 adopting very broad revocation powers. These powers grant the Home Secretary the ability to revoke the citizenship of a naturalized UK citizen on broad criteria,79 even if it renders him or her stateless, and regardless of whether or not the affected individual is outside of the UK, essentially summarily exiling its nationals.80 Such amendments are arguably not compatible with the exception provided in Article 8, paragraph 3 of the Statelessness Convention.81 Further, by allowing for summary exile of its naturalized citizens, the right to a fair hearing for a person whose citizenship has been revoked is rendered practically unrealizable. This effect of the law is also highly questionable given both the requirements of the Statelessness Convention 1961 demanding that citizenship may only be revoked following the grant of a fair hearing, and the right enshrined in Article 15 of the Universal Declaration of Human Rights that no person be deprived of their nationality arbitrarily, ie in the absence of due process and a fair hearing consistent with the rule of law. These basic due process standards also appear to be undermined by the recently enacted citizenship revocation laws in Australia.82 Those laws do not only make possible citizenship revocation following a conviction of a terror related offense—with the Executive possessing a discretion determinative of whether loyalty has been ultimately breached;83 but revocation is also made automatic upon the occurrence of certain prescribed conduct amounting to the commission of broadly prescribed terror related offenses.84 And this without a court of law ever determining whether the conduct was actually engaged in. In other words, once the denationalizing conduct allegedly takes place, an individual would automatically lose his or her citizenship, without the Australian Government, the concerned individual, or indeed the public actually knowing the citizenship status of the affected individual until (if at all) a formal notice confirming revocation is ever served. Given the Australian laws principally target Australians engaged in conduct outside of Australia, it is only but obvious that the requirement of a fair hearing is effectively rendered worthless. It is problematic that a consequence as serious as the deprivation of citizenship can be brought about without it being established in a court of law that a person is in fact guilty of denationalizing conduct. This reflects the general tendency of states to extend the powers of the executive branch in times of crisis and the risk attached to such augmented powers.85 An additional rule of law issue concerns the even graver matter of using denationalization for ulterior motives not reflected in the law. As some have argued, the motivation behind denationalization might also lie in stripping citizenship from accused terrorists and foreign fighters so as to render them less cumbersome targets for summary killing. In this regard, citizenship stripping appears to be a ‘prelude to assassination’, whether by the state itself or by others.86 Serious questions are raised by state action that pursues such ulterior motives when stripping its nationals of their citizenship status. This practice certainly demonstrates not only features of an ‘accommodation model’, but arguably the extra-legal model when using citizenship-stripping laws to counter international terrorism. Finally, from the perspective of the Statelessness Convention 1961, a focus on stripping nationality from dual citizens poses an additional problem of immense practical significance. What are the consequences of one state not recognizing the citizenship revocation engaged in by the state of nationality? Although the UN has cautioned against it,87 some states base their appreciation of whether a person is rendered stateless and the corresponding decision of deprivation simply on a speculation whether a person will acquire citizenship of another country. In practice however, a person could be made stateless even though they may be entitled to nationality in another country. This is due to the tension between nationality as an international concept and citizenship as a domestic one. Whilst a state engages in an act of citizenship stripping, a foreign state may not consider that as a valid act, with the affected party, for the purposes of international law, being considered to be the national of the denationalizing state. This was illustrated in a recent case heard before the Supreme Court of the UK involving a Vietnamese national whose British citizenship was revoked, and Vietnam subsequently refused to recognize him as a national.88 Indeed, the case that caused the 2014 amendments to UK laws, Al-Jeddah, illustrated that revoking a person’s citizenship on the premise that they could obtain citizenship in another country does not necessarily mean the person will not become stateless. If a person becomes stateless because they are not admitted by another state, then serious questions about a state’s compliance with the Statelessness Convention 1961 are raised. Effectively, through their citizenship-stripping laws, states are demonstrably undermining the broad agreement against statelessness as enshrined in the substantive and procedural guarantees contained in the conventions on statelessness. B. Accommodating further international law principles Besides the aforementioned issues that the recent citizenship-stripping laws pose for the concept of nationality, other fundamental principles of international law are affected and in the long run, potentially ‘accommodated’ in the sphere of counter-terrorism. First, the very essence of this citizenship-stripping regulation is the attempt by states to export the problem embodied in the (potential) terrorist to other states. As has been alluded to above, this reflects per se an extralegalization both of an individual and, in a sense, of a whole subject matter. However, this is not the only issue raised by the extraterritorial consequences of state action that summarily exiles citizens. These measures might also affect the fundamental international law principle of noninterference: as the concerned individual is forced elsewhere, the receiving state’s sovereignty is potentially violated. This also concerns the problem that the receiving state can no longer deport this individual.89 In addition, it could be argued that in these circumstances, the no-harm principle if understood broadly might be affected as well. More generally, denationalization will undoubtedly lead to a race between states as to who denationalizes first, creating friction in international relations. As a result, international cooperation in the field of counter-terrorism could significantly fracture.90 Second, domestic citizenship-stripping regulation undermines a key aspect of international counter-terrorism law: the obligation for states to establish jurisdiction, including over their nationals, and prosecute or extradite persons accused of committing international terrorism.91 Denationalizing individuals instead of investigating, prosecuting or extraditing them undermines this obligation which is part and parcel of all counter-terrorism conventions. Further, prosecuting perpetrators of international terrorist acts is not only an obligation imposed on states, but it is critical to guarantee victims’ rights, that includes the right of victims to receive justice, with the perpetrators of international terrorism prosecuted and sanctioned. The enhanced status of the victim in international law demands that states bring to justice perpetrators of terrorism offenses.92 It is states that should prosecute their nationals who are accused of committing grave crimes. Additionally, domestic law might also—at least in certain states—contain an obligation to prosecute if the criminal law framework provides for an extraterritorial application to acts of terrorism committed abroad.93 Third, citizenship-stripping laws adversely affect the international human rights regime. By denationalizing individuals, states deprive these individuals of their social and political rights that are legally attached to the legal status of citizen.94 In this regard, citizenship stripping shows the features of classic exceptionalist legislation within a ‘model of accommodation’, with the basic rights of the person accused of terrorism to be considerably restricted. Whereas generally the rights mostly impacted on are procedural rights, citizenship stripping goes a step further; it takes away a whole set of diverse and essential rights of a individual. Some have argued that this current rise of draconic citizenship-stripping laws in many Western and non-Western states sets the international community backwards in its evolution towards rights promotion.95 However, this equally seems to reflect a certain decline of international human rights law during the past years.96 The significant impact on the level of human rights protection explains the varying success of political efforts in different states concerning the extent to which draconic citizenship-stripping laws have been enacted. The most extensive regulations can be found in states like Australia and the UK that have a less pronounced background of constitutionally protected domestic human rights, making it is both legally and politically possible to accommodate extensive human rights restricting measures into the existing legal framework. In states like France, for instance, which has a strong constitutional protection of human rights, such attempts have not materialized to the same extent.97 Here, accommodation of the legal framework of normalcy encounters more legal obstacles. For instance, the proposed constitutional amendment to denationalize dual nationals convicted of terrorism introduced after the Paris attacks of 2015 has not become law.98 However, in France, the declaration of the state of exception has traditionally been, and recently was for almost two years, the way out when it comes to taking counter-terrorism measures that exceed the law of normalcy. What is more, the new French counter-terrorism law of 30 October 201799 (which does not include provisions on denationalization) seems to have established ‘an exceptional administrative law aiming to be applied in times of normalcy’, yet simultaneously raising concerns in relation to constitutional, European and international law.100 4. Conclusion In this paper, we assessed international counter-terrorism law and its relation to domestic measures like citizenship stripping in the light of exceptionalist and extra-legal tendencies in counter-terrorism measures. We demonstrated how and to what extent the international law regulation of counter-terrorism measures promotes an exceptionalist or even extra-legal approach by states. The international counter-terrorism regime is of an exceptionalist nature itself, modifying the law of normalcy without due consideration of the impact on international law as a whole. International law has not sufficiently taken into account, or restricted, the inclination of states to place counter-terrorism measures outside the realm of ‘normal’ law. Consequently, the recent domestic citizenship-stripping laws reflect a renewed emphasis on exceptionalism and extra-legalization of counter-terrorism measures. A concept as fundamental as citizenship is being redefined by these current developments. Domestic legal responses to international terrorism have been so far-reaching that they even touch upon the most fundamental principles of international law, attempting to accommodate them to the exception. From the perspective both of legal policy and of legal analysis, we consider that when assessing international counter-terrorism law, it is important to be aware of the exceptionalist logic originating from domestic law and adopted by international law. Opting for an exceptionalist approach to counter-terrorism regulation is a normative choice and not a given. Such a normative choice must be reassessed with regard to every new legal regulatory development. This is even more crucial on the international level because of the mutually reinforcing ‘ping-pong’ effect that the interplay of international and domestic law has. If we fail to question the need or justifications for exceptionalism in the regulation of international terrorism, a shift away from the rule of law even beyond the sphere of counter-terrorism law could be the likely outcome, affecting the legal framework of normalcy. Footnotes 1 O Gross, ‘Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?’ (2003) 112 Yale Law J 1011. 2 Gross points out that there is a large scale between the two extremes of political realism arguing for full governmental discretion in times of crises, and of the approach that legal systems must not treat situations of emergency any different. See Gross, ibid 1042–43. 3 International Commission of Jurists, ‘Report of the Eminent Jurist Panel on Terrorism, Counter-Terrorism and Human Rights: Assessing Damage, Urging Action’, 2009 <https://www.icj.org/wp-content/uploads/2012/04/Report-on-Terrorism-Counter-terrorism-and-Human-Rights-Eminent-Jurists-Panel-on-Terrorism-series-2009.pdf > accessed 28 May 2018; C Landa, ‘Executive Power and the Use of the State of Emergency’ in A María Salinas de Frías and others (eds), Counter-Terrorism: International Law and Practice (OUP 2012) 205; Gross (n 1) 1019. 4 Gross (n 1) 1072, 1082–83, 1089, 1091, 1117. For an overview of rule of law implication by international terrorism, see H Owada, ‘International Terrorism and the Rule of Law’ (2010) 20 Swiss Rev Int Eur L 501. 5 Gross (n 1) 1070. 6 See on the relevant practice in Bahrain, Kuwait and Saudi-Arabia, L Esbrook, ‘Citizenship Unmoored: Expatriation as a Counter-Terrorism Tool’ (2016) 37 Univ Pennsylvania J Int Law 1273, 1289–90. 7 For an overview of the citizenship-stripping laws in Australia, Canada and UK, see S Pillai and G Williams, ‘Twenty-First Century Banishment: Citizenship Stripping in Common Law Nations’ (2017) 66 ICLQ 521. 8 On this issue more generally, see D Burchardt, ‘Intertwinement of Legal Spaces in the Transnational Legal Sphere’ (2017) 30 Leiden J Int Law 1. 9 Esbrook (n 6) 1287. 10 On the function of law to regulate social conduct, see E Jenks, ‘The Functions of Law in Society’ (1923) 5 J Compar Legis Int Law 169, 171. 11 D Moeckli, ‘The Emergence of Terrorism as a Distinct Category of International Law’ (2008–2009) 44 Tex Int L J 157, 177. 12 Gross (n 1) 1058. 13 ibid 1065. 14 Moeckli (n 11) 178. 15 ibid 173. 16 Speech by Francois Hollande on 6 April 2016 in the context of renouncing the project of a new citizenship-stripping regulation. Original quote in French: ‘Ce n'est pas en enlevant la nationalité que l'on peut combattre le terrorisme.’ 17 KN Trapp, ‘The Potentialities and Limitations of Reactive Law Making: A Case Study in International Terrorism Suppression’ (2016) 39 UNSW Law J 1191, 1191. 18 Extensive substantive and procedural regulation can be found eg in arts 2 and 4 Financing Convention; art 7 Maritime Convention. 19 See also art 11 (5) Financing Convention; art 11 (7) Maritime Convention. 20 See eg arts 8 (1), (2) and 9 (2) Financing Convention; art 4 Hostage Convention; arts 6 and 11 (1) Aircraft Convention. 21 See eg art 19 of International Convention for the Suppression of Terrorist Bombings or art 4 (1) Nuclear Terrorism Convention. 22 For an analysis of the implementation of the resolution, see LM Hinojosa-Martínez, ‘A Critical Assessment of United Nations Security Council Resolution 1373’ in Ben Saul (ed), Research Handboook on International Law and Terrorism (Edward Elgar 2014) 626. 23 Moeckli (n 11) 180–82. 24 On other terrorism-related committees, see Moeckli (n 11) 165. 25 Hinojosa-Martínez (n 22) 648. 26 On interpretative accommodation, see Gross (n 1) 1059. 27 M Scheinin and M Vermeulen, ‘Unilateral Exceptions to International Law: Systematic legal Analysis and Critique of Doctrines that seek to Deny or Reduce the Applicability of Human Rights Norms in the Fight against Terrorism’ (2011) 8 Essex Hum Right Rev 20. However, for a restrictive approach on counter-terrorism measures violating art 2 ECHR, see McCann v United Kingdom (1995) 21 EHRR 97, paras 146–150. Also, attempts to justify torture through creative interpretations have ultimately not been successful; see B Saul, ‘The Emerging International Law of Terrorism’, Sydney Law School Legal Studies Research Paper No 10/108, 17. 28 See eg art 4 ICCPR; art 15 ECHR; art 27 ACHR. 29 E Stubbins Bates, Terrorism and International Law: Accountability, Remedies, and Reform (OUP 2011) 87ff. 30 Gross (n 1) 1071–72. 31 Moeckli (n 11) 179. 32 Trapp (n 17) 1191. 33 It is questionable, however, whether there is an actual lack of legal regulation in the field. See Report of the High-level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility’, para 159. 34 L van den Herik and N Schrijver, ‘The Fragmented International Legal Response to Terrorism’ in L van der Herik and N Schrijver (eds), Counter-Terrorism Strategies in a Fragmented International Legal Order (CUP 2013) 1; B Saul, ‘Terrorism and International Criminal Law: Questions of (In)Coherence and (Il)Legitimacy’ in G Boas and others (eds), International Criminal Justice: Legitimacy and Coherence (Edward Elgar 2012) 190. 35 For an analysis of the negotiating issues relevant to this convention, see AR Perera, ‘The Draft United Nations Comprehensive Convention on International Terrorism’ in B Saul (ed), Research Handboook on International Law and Terrorism (Edward Elgar 2014) 151. 36 On the issue of defining ‘terrorism’ and the consequences of a non-existing general definition, see R Grozdanova, ‘“Terrorism” – Too Elusive a Term for an International Legal Definition’ (2014) 61 NILJ 305; C Martin, ‘Terrorism as a Crime in International and Domestic Law: Open Issues’ in van der Herik and Schrijver (eds) (n 34) 639; JD Fry, ‘The Swindle of Fragmented Criminalization: Continuing Piecemeal Responses to International Terrorism and Al Qaeda’ (2008–2009) 43 New Eng L Rev 377; B Saul, Defining Terrorism in International Law (OUP 2008). Arguing that a definition of terrorism does exist, A Cassese, ‘Terrorism as an International Crime’ in A Bianchi (ed), Enforcing International Law Norms Against Terrorism (Hart Publishing 2004) 213. For an account of the development of the definition, see H Duffy, The War on Terror and the Framework of International Law (2nd edn, CUP 2015) 31–47. 37 For an indebt discussion of jurisdictional issues in counter-terrorism law, see eg VJ Proulx, ‘Rethinking the Jurisdiction of the International Criminal Court in the Post-September 11th Era: Should Acts of Terrorism Qualify as Crimes Against Humanity?’ (2004) 19 Am U Int L Rev 1009; A Cohen, ‘Prosecuting Terrorists at the International Criminal Court: Reevaluating an Unused Legal Tool to Combat Terrorism’ (2013) 20 Mich St Int L Rev 219; M Aksenova, ‘Conceptualizing Terrorism: International Offence or Domestic Governance Tool?’ (2015) 20 J Conflict Sec Law 277; PA Mazandaran, ‘An International Legal Response to an International Problem: Prosecuting International Terrorists’ (2006) 6 ICLR 503. 38 Conversely, there is no explicit reference to the term ‘terrorism’ in international human rights treaties, see Stubbins Bates (n 29) 82. 39 ‘Nothing in this Convention shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance, if the requested State Party has substantial grounds for believing that the request for extradition for offences set for the in art 2 or for mutual legal assistance with respect to such offences has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin or political opinion or that compliance with the request would cause prejudice to that person’s position for any of these reasons.’ 40 ‘A request for the extradition of an alleged offender, pursuant to this Convention, shall not be granted if the requested State Party has substantial grounds for believing: (a) That the request for extradition for an offence set forth in article 1 has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality, ethnic origin or political opinion …’. 41 On fragmentation, see eg MA Young (ed), Regime Interaction in International Law – Facing Fragmentation (CUP 2012); A Peters, ‘Fragmentation and Constitutionalization’ in A Orford and F Hoffmann (eds), The Oxford Handbook of the Theory of International Law (OUP 2016) 1011. 42 See Stubbins Bates (n 29) ch 3. For an in-debth analysis of the human rights legal framework related to terrorism, see Duffy (n 36) ch 7. 43 Stubbins Bates (n 29) 79. 44 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, 2010, A/HRC/16/51, paras 26 and 27; European Commission for Democracy through Law, Report on Counter-Terrorism Measures and Human Rights (Study 500/2008, CDL-AD (2010)022, 5 July 2010, paras 29–35). See also Martin (n 36) 654–56. 45 Addressing this aspect from the perspective of method, A Bianchi, ‘The International Regulation of the Use of Force: The Politics of Interpretative Method’ in van der Herik and Schrijver (eds) (n 34) 283; for an early discussion of the implications of terrorism on self-defence, see A Cassese, ‘Terrorism is Also Disrupting Some Crucial Legal Categories of International Law’ (2002) 12 EJIL 993. 46 For an overview on this issue including recommendations for future development, see SR Ratner, ‘Self-Defence Against Terrorists: The Meaning of Armed Attack’ in van der Herik and Schrijver (eds) (n 34) 334. 47 See for the opposing views eg CJ Tams, ‘The Use of Force Against Terorists’ (2009) 20 EJIL 359; T Ruys, ‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice (CUP 2010) 485–89; also see R Gulati, ‘The 26/11 Terrorist Attacks and the Application of the Laws of Armed Conflict’ (2012) 10 ISIL Yearbook Int Human Ref Law 91. 48 Saul (n 27) 12–13. 49 A recent example in this regard is France reacting to the Paris terrorist attacks of 13 November 2015 by airstrikes against the territory under the control of ISIS. 50 See on the discussion eg SR Ratner, ‘The War on Terrorism and International Humanitarian Law’ (2006) 14 Michigan State J Int Law 19; E Crawford, ‘Unequal Before the Law: The Case for the Elimination of the Distinction Between International and Non-International Armed Conflict’ (2007) 20 Leiden J Int Law 441; L Condorelli and Y Naqvi, ‘The War against Terrorism and Jus in Bello: Are the Geneva Conventions Out of Date?’ in A Bianchi (ed), Enforcing International Law Norms against Terrorism (Hart Publishing 2004) 25. 51 A Macklin states that after ‘decades in exile, banishment is back’. See A Macklin, ‘Kick-Off Contribution’ in A Macklin and R Baubock (eds), The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship? (EUI Working Paper RSCAS 2015/4), 1; For citizenship laws prevailing in several jurisdictions around the world, see ‘Treatment of Foreign Fighters in Selected Jurisdictions’ <https://www.loc.gov/law/help/foreign-fighters/country-surveys.php> (accessed 28 May 2018). 52 See generally, R Gulati, ‘Nationality in the Age of Google, Skype and Facebook’ in K Rubenstein and M Nolan (eds), Allegiance and Identity in a Globalized World (CUP 2014) 542. 53 M Koessler, ‘“Subject,” “Citizen,” “National,” and “Permanent Allegiance”’ (1946) 56 Yale Law J 58; see also AM Boll, Multiple Nationality and International Law (BRILL 2007) 58. 54 In defining nationality in international law, the International Court of Justice said in the famous Nottebohm case that nationality is: ‘[A] legal bond having as 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 upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State.’ Nottebohm Case (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4, 26. 55 M Murazumi, ‘Comment: Japan’s Laws on Dual Nationality in the Context of a Globalized World’ (2000) 9 Pacific Rim Law Policy J 415: ‘The term “allegiance” in itself has become archaic … It has become a mystic concept which dims, instead of clarifying, definitions. Most people have a working knowledge of the meaning of “nationality”, but even scholars are at a loss to explain “allegiance”…. It seems desirable to eliminate “allegiance” from any technical use and redefine “nationality” in plain words meaning the status of belonging to a state for certain purposes of international law.’ 56 S Lavi, ‘Citizenship Revocation As Punishment: On The Modern Duties Of Citizens And Their Criminal Breach’ (2011) 61 U Toronto LJ 783, 786; also see, K Rubenstein, ‘Submission to the Parliamentary Joint Committee on Intelligence and Security: New inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015’, 20 July 2015, 2 <https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/Citizenship_Bill/Submissions> (accessed 28 May 2018). 57 See PJ Spiro, ‘Expatriating Terrorists’ (2013–2014) 82 Fordham L Rev 2169, 2174–75. 58 Australian Government Discussion Paper 2015 ‘Australian Citizenship – Your Right, Your Responsibility’ <https://www.border.gov.au/about/reports-publications/discussion-papers-submissions/australian-citizenship-your-right-your-responsibility#> (accessed 28 May 2018). In December 2015, Australia modified its law to permit the withdrawal of Australian citizenship on terrorism grounds by passing the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. 59 Gross (n 1) 1084. 60 ibid 1083. 61 Such states include Australia, Canada, Mauritius, amongst others <https://www.loc.gov/law/help/foreign-fighters/country-surveys.php> (accessed 28 May 2018). 62 States that seem to adopt similar legislation in the terrorism context include Bangladesh, Ghana, Kenya, Mauritius, Namibia, Pakistan, South Africa, Tanzania, Uganda, Zambia <https://www.loc.gov/law/help/foreign-fighters/country-surveys.php> (accessed 28 May 2018). 63 See Rubenstein (n 56) 5. 64 G Jakobs, ‘Bürgerstrafrecht und Feindstrafrecht’ [2004] HRRS 88; for a discussion of this approach, see M Putzer, Gerichte, Terror und Verfahren (Mohr Siebeck 2015) 194–205. 65 Moeckli (n 11) 180. 66 It is to be noted that several commentators have raised serious concerns and criticized the breath of the conduct that triggers the citizenship revocation powers in Australia as conduct that does not go to a core loyalty to one’s state of nationality: see the submissions of Ben Saul dated 30 June 2015 and Shipra Chordia, Sangeetha Pillai and George Williams dated 16 July 2015, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 Submission <http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/Citizenship_Bill/Submissions> (accessed 28 May 2018). 67 s 40(2) of the British Nationality Act 1981 (as amended in 2014) states that: ‘The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good’; sub-s (4) provides that ‘The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless’; however, sub-s 4A states that: ‘But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if- (a) the citizenship status results from the person’s naturalisation, (b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom … , and (c) the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory’. 68 Chief Justice Marshall of the US Supreme Court said in Osborn v Bank of the United States, 9 Wheat (22 US) 737, 827 (1824): ‘[A] naturalized citizen … becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national legislature is, to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual.’ While the above is said in the context of the USA, amongst other non-discrimination provisions, arts 2 and 26 prohibit discrimination on characteristics, including place of birth. Naturalized citizens will generally be born outside of the state of acquired nationality. Once the naturalization process is complete, no laws that discriminate against one category of citizen ought to be passed. 69 However, in very narrow circumstances, the Statelessness Convention allows for a naturalized person to be deprived of his citizenship, such as, if there exists fraud in the acquisition of citizenship, see art 8, para 2(b). 70 See R Gulati, ‘Resolving Dual and Multiple Nationality Disputes in a Globalized World’ (2014) 28 J Immig Asylum Nation 27. 71 See also Gross (n 1) 1072. 72 Art 15, para 1 of the Universal Declaration of Human Rights states: ‘Everyone has the right to a nationality’; and art 15, para 2 states: ‘No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality’; for a discussion on the right to a nationality in international law, see, E Fripp, ‘Deprivation of Nationality and Public International Law - An Outline’ (2014) 28 J Immig Asylum Nation Law 367, 373–75. 73 The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness are the key international conventions addressing statelessness. 74 The Permanent Court of International Justice said in the case of the Nationality Decrees in Tunis and Morocco: ‘The question whether a certain matter is or is not solely within the domestic jurisdiction of a State is an essentially relative question; it depends upon the development of international relations. Thus, in the present state of international law, questions of nationality are, in the opinion of the Court, in principle within this reserved domain. For the purpose of the present opinion, it is enough to observe that it may well happen that, in a matter which, like that of nationality, is not, in principle, regulated by international law, the right of a State to use its discretion is nevertheless restricted by obligations which it may have undertaken towards other States. In such a case, jurisdiction which, in principle, belongs solely to the State, is limited by rules of international law’; also see, arts 1 and 2 of the Convention on Certain Questions Relating to the Conflict of Nationality Laws 1930. 75 In the Partial Award: Civilians Claims—Eritrea’s Claims 15, 16, 23 and 27–32 Permanent Court of International Arbitration, the Hague, 17 December 2004, the Eritrea Ethiopia Claims Commission in the context of deciding the issue of arbitrariness in international human rights law in the deprivation of nationality, decided that Ethiopia was in breach of its international law obligations by ‘erroneously depriving at least some Ethiopians who were not dual nationals of their Ethiopian nationality’. The Commission stated that where Ethiopia had ‘devised and implemented a system applying reasonable criteria to identify individual dual nationals thought to pose threats to its wartime security’, deprivation was not shown to be arbitrary: para 72. However, where persons were permitted to remain but treated as aliens, with ‘no process to identify individuals warranting special consideration and no apparent possibility of review or appeal’ then: considering that rights to such benefits as land ownership and business licenses, as well as passports and other travel documents were at stake, the Commission found that ‘this wide-scale deprivation of Ethiopian nationality of persons remaining in Ethiopia was under the circumstances arbitrary and contrary to international law’: para 75. 76 Arts 7 and 8, Statelessness Convention 1961. 77 There have been attempts in some states like Austria to interpret such provisions in a broad way in order to include foreign fighters for organizations like ISIS. 78 See Al Jedda v SSHD [2013] UKSC 62. Hilal Abdul-Razzaq Ali al-Jedda, a refugee from Iraq, was granted UK citizenship in 2000, and deprived of citizenship by the Home Secretary in 2007 for support of terrorism. In 2013, on appeal to the Supreme Court of the UK, the court overturned the deprivation order, finding that under the then prevailing UK law the Home Secretary did not have authority to deprive a person of citizenship if it would lead to statelessness, concluding that the targeted individual must possess a foreign nationality at the time of deprivation for the citizenship-stripping power to be properly exercised: paras 4–8, 24, 32–34. 79 See (n 67) containing UK provisions. 80 For a discussion, see, E Fripp, ‘Conducive Deprivation of British Citizenship Status and Statelessness: Further Problems’ (2013) 27 J Immig Asylum Nation Law 315; GS Goodwin-Gill, ‘Deprivation of Citizenship Resulting in Statelessness and its Implications in International Law’, 12 March 2014 <https://assets.documentcloud.org/documents/1086878/guy-s-goodwin-gill-legal-opinion-on-deprivation.pdf> accessed 28 May 2018; A Harvey, ‘Recent Developments on Deprivation of Nationality on Grounds of National Security and Terrorism Resulting in Statelessness’ (2014) 28 J Immig Asylum Nation 336, 340 (comparing the UK approach to that of the USA); JH Martin, ‘Terrorism-related Loss of Citizenship – A Policy Review’, Thesis, Postgraduate School Monterey, California, September 2016 (where the author compares citizenship-stripping laws in the UK, France, USA and Australia). 81 For a detailed legal analysis, see S Jayaraman, ‘International Terrorism and Statelessness: Revoking the Citizenship of ISIL Foreign Fighters’ (2016) 17 Chicago J Int Law 178, 205ff. 82 A comparable argument is made with regard to the citizenship-stripping laws in Canada, see Jayaraman, ibid 201. 83 Pursuant to s 35A(d) of the Australian Act, it is left to the discretion of the relevant Minister whether a person convicted of a particular offence has engaged in the kind of ‘conduct…demonstrates that the person has repudiated their allegiance to Australia’. 84 There are two circumstances where an Australian dual national may automatically lose his or her Australian citizenship. First, pursuant to s 33AA of the Australian Act, an Australian dual citizen regardless of the mode of acquisition of his or her citizenship renounces his or her citizenship if he or she engages in conduct in breach of his or her loyalty to Australia, being conduct including committing terrorism, financing terrorism, etc, with an intention to advance a political, religious or ideological cause, and with the intention of intimidating the Australian or a foreign Government. Further, a person is assumed to have the requisite intention if he or she was the member of a declared terrorist organization when engaging in the conduct. Interestingly, the provision applies where the conduct was engaged in by a person when he or she was out of Australia, with the citizenship stripping taking effect as soon as the impugned conduct is engaged in. And the Minister is to give notice of the operation of the citizenship stripping to the affected individual, with certain review rights put in place. Second, under s 35 of the Australian Act, an Australian dual citizen who serves for an enemy foreign armed force, or fights for or serves a declared terrorist organization (when the conduct occurs outside of Australia) ceases to be an Australian citizen, with notice requirements in similar terms to the former provision. Finally, the relevant Minister may also expressly revoke an Australian dual national’s Australian citizenship following a criminal conviction for a very broad range of terrorism related offences, where the individual is punished by imprisonment at least for six years (s 35A of the Australian Act). 85 F Ni Aoláin and O Gross, ‘A Skeptical View of Deference to the Executive in Times of Crisis’, Hebrew University of Jerusalem Faculty of Law Research Paper 06-09. 86 L Bosniak, ‘Denationalisation, Assassination, Territory: Some (U.S.-prompted) Reflections’ in A Macklin and R Baubock (eds), The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship? (EUI Working Paper RSCAS 2015/4) 35. Regarding the cases of Britons who were denationalized and subsequently killed by US drone strike in Somalia, L Bosniak further argues: ‘Denationalisation here can be understood to have strategically relieved Britain of the imperative of protecting its own nationals from harm, including assassination, by another state party. In this scenario, denationalisation is not merely a form of political death … it may facilitate bodily death as well’. 87 The UN states that: ‘An individual’s nationality is to be assessed as at the time of determination of eligibility … . It is neither a historic nor a predictive exercise. The question to be answered is whether, at the point of making a … determination, an individual is a national of the country or countries in question. Therefore, if an individual is partway through a process for acquiring nationality but those procedures are yet to be completed, he or she cannot be considered as a national … Similarly, where requirements or procedures for loss, deprivation or renunciation of nationality have only been partially fulfilled or completed, the individual is still a national for the purposes of the stateless person definition’: see UNHCR, Handbook on Protection of Stateless Persons under the 1954 Convention Relating to the Status of Stateless Persons (2014) para 50. 88 Pham v Secretary of State for the Home Department [2015] UKSC 19, paras 19, 38. 89 Jayaraman (n 81) 204, 211. 90 Esbrook (n 6) 1306. 91 Pointing out these obligations with regard to the UK, Goodwin-Gill (n 80) para 30. 92 CF de Casadevante Romani, ‘International Law of Victims’ in A von Bogdandy and R Wolfrum (eds), Max Planck Yearbook of United Nations Law, vol 14 (Brill 2010) 219. 93 Jayaraman (n 81) 212. 94 Esbrook (n 6) 1296. 95 ibid 1306. 96 I Wuerth, ‘International Law in the Post-Human Rights Era’ (2017) 96 Texas Law Rev 279. 97 Despite significant demand for their passage, France has not yet enacted more draconic laws on denationalization. France first addressed terrorism-related loss of nationality before the events of 9/11. Resulting from terrorist activities in the 1990s related to the Algerian Civil War, which included bombings in France, France amended art 25 of the French Civil Code, adding a provision for loss of citizenship upon conviction and sentencing for ‘an offence which constitutes an act of terrorism’. It was already possible to withdraw citizenship from an individual after conviction and sentencing for acts constituting ‘an injury to the fundamental interests of the Nation’. These provisions only apply to naturalized French citizens, and are subject to time limitations which make terrorism-related loss possible only if the act giving rise to the conviction occurred within 15 years of acquisition of French citizenship, and further a decision regarding terrorism-related loss must take place, if at all, within 15 years of acquiring French citizenship. 98 See Le Monde (30 March 2016) <http://www.lemonde.fr/attaques-a-paris/article/2016/03/30/francois-hollande-renonce-a-la-decheance-de-nationalite-et-au-congres_4892426_4809495.html> (accessed 28 May 2018). 99 LOI 2017-1510 du 30 Octobre 2017 renforçant la sécurité intérieure et la lutte contre le terrorisme. 100 See eg the opinion of the ‘Ligue des droit de l’homme’ <https://www.ldh-france.org/wp-content/uploads/2017/10/avis-d%C3%A9taill%C3%A9-sur-le-projet-loi-s%C3%A9curit%C3%A9-int%C3%A9rieure-et-lutte-contre-terrorisme-juillet-2017-envoy%C3%A9-aux-d%C3%A9put%C3%A9s-et-s%C3%A9nateurs.pdf> (accessed 28 May 2018). © Oxford University Press 2018; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Conflict and Security Law Oxford University Press

International Counter-terrorism Regulation and Citizenship-stripping Laws—Reinforcing Legal Exceptionalism

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Abstract

Abstract In this article, we conduct a timely analysis of international counter-terrorism law and its relation to domestic measures like citizenship stripping in light of the exceptionalist and extra-legal tendencies of the former. We highlight the ping-pong effect between international and domestic counter-terrorism laws showing that domestic and international law mutually reenforces each other’s exceptionality. We argue, first, that the international law framework for counter-terrorism measures exhibits the characteristics of a ‘model of accommodation’, fostering an extra-ordinary legal approach that is inspired by domestic law designs of counter-terrorism law; second, that international law further enables and encourages domestic law to adopt extra-ordinary or even extra-legal measures in the field of counter-terrorism; and third conversely, domestic measures like citizenship-stripping laws more broadly affect general international law by contributing to the normalization of extra-ordinary legal measures. In this regard, we discuss recent domestic citizenship-stripping laws as an expression of a renewed emphasis on exceptionalism and extra-legalization of counter-terrorism measures. Considering citizenship-stripping laws enacted in various jurisdictions, including Australia, Canada and the UK, we argue that by justifying exceptionalist citizenship-stripping laws as permissible under both, international and domestic law, states will permanently affect the concept of citizenship nationally and internationally. 1. Introduction Confronting terrorism, states have three possible frameworks to set their counter-terrorism measures in, as has been highlighted by Oren Gross for the domestic context:1 (i) they can act within the limits of the existing legal framework and opt for the ‘business as usual model’; (ii) they can create, or resort to, an extraordinary legal framework tailored for the so-called state of exception and different from the law of ‘normal’ times—this would mean choosing a ‘model of accommodation’; (iii) or they can resort to measures which are entirely situated outside of any legal framework and adopt ‘extra-legal measures’. Opting for one of these three possibilities (or hybrids of them)2 is a normative decision—a decision on the extent to which the rule of law or opposing security considerations should prevail. As states mostly act within categories 2 and 3,3 this comes with a variety of considerable risks not only for individuals affected by anti-terrorism laws but also more broadly for the existing legal framework as such: individual rights and liberties are often not effectively guaranteed; a ‘subject community’ might be constructed that differentiates between ‘them’ and ‘us’, initially allowing for more repressive measures against ‘them’ and potentially extending the group of subjects; emergency-specific rules and institutional structures might become an integral part of the regular legal system, blurring the differentiation between normalcy and emergency; this might lead to the perception that ever more radical measures are necessary; and extra-legal measures might undermine the rule of law and the belief in its necessity more broadly, creating a habit of lawlessness.4 Given the increasing importance of international cooperation and international regulation with regard to measures against international terrorism, the aforementioned categorization of modes of action and of designing legal regimes becomes relevant on the international scale as well. One yardstick to measure the success of the international law regulation on counter-terrorism is whether it is able to confine the application of extraordinary and extra-legal measures to extraordinary situations. Put differently, the question raised is whether and to what extent international law can effectively ‘separate emergency and normalcy’.5 Conversely, it can be asked whether the international counter-terrorism regulation in the way it is designed and applied might even encourage or enable states to draw on extraordinary or even extra-legal measures in the context of terrorism, undercutting the effectiveness of international law by domestic regulation. A recent example of how far states are willing to go in the fight against terror are the initiatives of various states to react to certain acts of international terrorism committed by their citizens with what has been come to be known as citizenship-stripping laws. This development has been triggered by the phenomenon of ‘foreign fighters’. Since Islamic State occupied vast sways of territory in Syria and Iraq, thousands of citizens from liberal democracies had joined its ranks. In response, states like the UK, Australia, Canada and Israel (but also several non-Western states)6 have recently adopted new regulations allowing state authorities to revoke the citizenship of individuals convicted or (for some merely) suspected of participating in acts of international terrorism.7 This development is exceptional even in the context of terrorist activity. Other forms of international terrorism, including in the years immediately following the 9/11 terrorist attacks on the USA, did not trigger enactment of citizenship-stripping laws by states at today’s scale. What is more, such a development is in contradiction to the way citizenship law and policy has developed internationally over the preceding decades. Now that Islamic State of Iraq and the Levant (ISIL) has suffered significant military losses, citizenship-stripping laws will only come into sharper focus given that foreign fighters seek to return to denationalizing states. Against this backdrop, we conduct a timely analysis of international counter-terrorism law and its relation to domestic measures like citizenship stripping in the light of exceptionalist and extra-legal tendencies of counter-terrorism measures. We will argue that (i) the international law framework for counter-terrorism measures exhibits the characteristics of a ‘model of accommodation’, fostering an extra-ordinary legal approach that is inspired by domestic law designs of counter-terrorism law; (ii) international law further enables and encourages domestic law to adopt extra-ordinary or even extra-legal measures in the field of counter-terrorism; and (iii) conversely, domestic measures like citizenship-stripping laws more broadly affect general international law by contributing to the normalization of extra-ordinary legal measures. In this regard, we highlight the phenomenon of a ‘ping-pong effect’ of the extraordinary: with the international law design on counter-terrorism being inspired by analogous domestic law approaches based on exceptional measures, with international counter-terrorism law itself then encouraging domestic law to continue to not only adopt existing exceptionalist approaches but to further enact and entrench extraordinary measures; in doing so, domestic law affects—permanently—a variety of important principles of international law. Put differently, international law and domestic law mutually reinforce each other in their exceptionalist approach. In this regard, this article adopts a perspective that considers international law and domestic law as an interlinked analytical object in order to understand their mutual influences and their intertwinement.8 In the first part, we highlight how and to what extent the international law regulation of counter-terrorism measures promotes an exceptionalist or even extra-legal approach by states. Addressing the shortcomings of international law to restrain the extra-legal and extraordinary, we will substantiate a claim of limited effectiveness of international legal regulation in this area. In the second part, we will discuss recent domestic citizenship-stripping laws as an expression of a renewed emphasis on exceptionalism and extra-legalization of counter-terrorism measures. As the broad agreement of the 20th century on restricting citizenship-stripping is gradually reversed,9 domestic law is being used as a tool to hollow both the international counter-terrorism regulation and international law in general. 2. International law regulation of counter-terrorism measures: transcending legal normalcy Legal responses to terrorism present a particular challenge to the regulative function of law, in general, and to international law, in particular.10 This is due to the dichotomy inherent to counter-terrorism measures between ordinary and extraordinary sets of rules or even legal and extra-legal measures. The tendency of states to choose, when facing terrorism, the ‘model of accommodation’ using a state-of-exception framework or the extra-legal measures model confines both the scope and impact of international regulation of counter-terrorism (Section 2.A). At the same time, international law has been unable to sufficiently take into account, and restrict, the inclination of states to place counter-terrorism measures outside the realm of ‘normal’ law (Section 2.B). A. International counter-terrorism regulation as ‘model of accommodation’ International counter-terrorism regulation reflects the tendency of states to react to terrorism with measures transcending the ‘ordinary’ legal framework. Through the process of international lawmaking, states have created a separate legal system for international counter-terrorism measures that mirrors the special regimes existing in their own domestic jurisdictions.11 The domestic legal predominance of extra-ordinary measures (‘model of accommodation’) and even extra-legal measures has been the basis for addressing counter-terrorism issues internationally as well. Already the process of creating the international law regime has thus been characterized by a strong interlinkage between the domestic and international level regarding the legal design of this specific regulatory subject matter. As a result, international counter-terrorism law itself—in the terminology introduced by Oren Gross—would fall into the category of ‘models of accommodation’.12 On the one hand, international lawmaking in the area of counter-terrorism demonstrates that States Parties to the relevant conventions are opting for some sort of legal regulation and are at least not entirely adhering to a model based on extra-legal measures. This guarantees prima facie a continued adherence to the rule of law. On the other hand, special rules for the context of terrorism and counter-terrorism are created because the existing rules are considered inadequate. By way of ‘special emergency regulation’13 which, as it creates a separate regime of counter-terrorism law, goes beyond adapting the existing regimes, the international law framework is accommodated to a context that is normatively considered to be extraordinary. Unlike special regulation required by compelling characteristics of the subject matter itself, eg in the context of environmental or economic law and potential procedural law regimes referring to them, special regimes for counter-terrorism measures single out a subject matter based on a balancing exercise between the values of freedom and security. As the issues created by acts of terrorism as well as the related counter-measures could alternatively be governed by existing legal rules designed eg in view of criminal acts during ‘times of normalcy’ (in the framework of a the ‘business as usual’ model), the creation of special regimes is generally equated with the normative decision to give security considerations a weight that, amongst other things, justifies restricting individual rights that are given more weight in ‘times of normalcy’ by the same legal order. Overall, the international conventions explicitly addressing terrorism are an expression of this special emergency regulation. They single out the situation of terrorism from other situations addressed, for instance, by general (international) criminal law, extradition law, domestic administrative law, etc, and put in place a separate set of rules. Against the background of their domestic law approach to terrorism, states have considered the rules of general international law as inadequate to regulate the phenomenon of terrorism, opting for amendments without due consideration of their practical need, their effectiveness and their impact on international law as a whole.14 It is mostly political pressure and not practical necessity that leads to the creation of special counter-terrorism regimes, be it on the domestic or on the international level.15 With regard to national citizenship-stripping laws, this is graphically exemplified by a statement of former French President Francois Hollande who admitted the mere symbolic nature of such measure as ‘it is not by denationalization that one can fight terrorism’.16 Others go even a step further and argue that the ‘terrorism suppression agenda’ was in fact set by the criminals themselves.17 In line with this overall exceptionist approach to regulating counter-terrorism measures, the various conventions mostly include special regimes for terrorism-related matters.18 With regard to these provisions, some conventions contain explicit ‘conflict rules’, establishing the inapplicability of other international treaty provisions if conflicting with the legal framework for counter-terrorism. The Hostage Convention, for instance, states in its Article 9 (2), that ‘the provisions of all extradition treaties and arrangements applicable between States Parties are modified as between States Parties to the extent that they are incompatible with this Convention’.19 Some provisions explicitly require special domestic law regimes on counter-terrorism, for instance Article 7 (1) of the Nuclear Terrorism Convention provides that States Parties shall take ‘all practicable measures, including, if necessary, adapting their national law …’. In addition to these openly exceptionalist norms, the relevant counter-terrorism conventions also include legal mechanisms implicitly fostering an approach of extraordinary legal standards. This is, for instance, the case when international law adopts the concepts of practicability and appropriateness as standards for the legality of counter-terrorism measures.20 Such notions are, due to the broad discretion given to decision-making authorities, particularly able to allow for measures of exception. Even though the overall legal framework for counter-terrorism is an extraordinary one, not all the individual provisions included in the various conventions related to terrorism are. Some provisions explicitly stress that ordinary international law shall apply; they are mostly shaped as a general clause that nothing in the convention ‘shall affect other rights, obligations or responsibilities of states or individuals under international law’.21 Other provisions stipulate that the ordinary domestic law (as opposed to an extraordinary set of domestic legal rules) shall regulate certain aspects of counter-terrorism. For example, Article 8 (1) of the Terrorist Bombings Convention stipulates that the relevant state authorities shall ‘take decisions in the same manner as in the case of any other offence …’. Similar provisions are, for instance, included in Article 8 (1) of the Hostage Convention, Article 10 (1) of the Financing Convention, Article 10 (1) of the Maritime Convention or Article 11 (1) of the Nuclear Terrorism Convention. In addition to law creation in the form of counter-terrorism conventions, the increased lawmaking role of the United Nations (UN) Security Council has equally been characterized by a predominantly exceptionalist approach. Starting with resolution 1373 (2001), the Security Council shifted from a selective and situation-specific approach dealing with situations of international terrorism on a case-by-case basis towards installing a permanent counter-terrorism regime with obligations for states that relate to terrorism as an abstract phenomenon.22 At the same time, its terrorist sanction regimes provides for a lower standard of (procedural) rights protection for the affected individuals than the general protection under other international law regimes and under domestic law, amongst other things, raising concerns about discriminatory treatment.23 Moreover, with the creation of special mechanisms like the Counter-Terrorism Committee set up to monitor the implementation of this resolution and assisted by the Counter-Terrorism Committee Executive Directorate, even an extraordinary institutional structure has been created.24 Despite the functional limitations and incoherencies of this structure,25 its existence highlights that the ‘model of accommodation’ approach is present on all levels of international counter-terrorism law. The formal accommodation of legal rules to exceptional circumstances by way of lawmaking is complemented by an accommodation of international law through interpretation: other ‘ordinary’ legal regimes are adapted to times of crises by interpreting their legal rules originally designed for normalcy in a manner that would fit the perceived (political) necessities of terrorism-related circumstances.26 For instance, human rights provisions are with regard to counter-terrorism measures interpreted in a way that accommodates terrorism as legal exceptions to human rights standards. Such an interpretation of human rights provisions in the context of counter-terrorism measures are undertaken both by international bodies and by states themselves, the latter trying to justify various unilateral exceptions to human rights.27 However, international human rights instruments have specified a number of non-derogable rights that do not allow for derogation even in the context of counter-terrorism and emergency.28 Despite these unambiguous legal standards, there have been widespread violations even of non-derogable rights.29 In sum, international law predominantly demonstrates the features of a ‘model of accommodation’, creating an extraordinary legal framework for counter-terrorism measures. This assessment is not contradicted by the fact that the relevant international law regulation is—other than this is the case for domestic concepts like ‘state of exception’—not meant to be a merely temporary framework. Its permanent nature does not affect its categorization as substantially exceptionalist. Rather, it is an expression of the risk inherent to this form of legal accommodation used by international law: the risk of the exception becoming the state of normalcy. Being temporarily indefinite, the emergency regime has a permanent substantial effect on the international legal order as a whole and on domestic legal orders.30 What is created is a ‘shadow legal system for terrorism’ that ‘threatens the coherence and unity of international law’ and ‘attacks the principle that every legal subject deserves to be treated with equal respect and concern’.31 B. Gateways for the extraordinary and the extra-legal in international counter-terrorism law International counter-terrorism law has not provided a coherent legal framework restraining the attempts of states to act extra-legally or in an exceptionalist manner. Rather, it enables and encourages domestic law to adopt extra-ordinary or even extra-legal measures in the field of counter-terrorism. The key reason for this shortcoming is of course the overall exceptionist approach to regulating counter-terrorism measures that has been described above. Through this approach, international counter-terrorism law declares extraordinary legal norms and their application to be the method of choice in the context of international terrorism. However, there are several less explicit reasons to why international law creates gateways for extraordinary and extra-legal measures. One of these reasons is the sectorial approach—or ‘piecemeal approach’—taken by counter-terrorism regulation at the international level. It is composed of a considerable amount of treaties and conventions regulating very specific areas concerned with particular acts of terrorism. This includes terrorism committed on aircrafts or in the context of maritime navigation, nuclear terrorism, terrorist bombing, taking hostages, etc with ‘each treaty adopted in response to a specific act of “headline grabbing” terrorism committed by non-state actors’.32 Although certain conventions like the International Convention for the Suppression of the Financing of Terrorism adopt a more cross-sectional approach, most of the international legal instruments address specifics. By this sectorial nature, international law creates the impression that there is a regulative gap that allows for a gap-filling by states that might be outside the scope both of general international law and domestic law.33 This is reinforced by the existing overlaps and incoherencies between different international counter-terrorism instruments and the overall fragmentation of regulation regarding this subject-matter.34 The prolonged attempt to negotiate a comprehensive convention on international terrorism has not been successful.35 Further, the nonexistence of an internationally accepted definition of terrorism reinforces the sectorial approach both internationally and domestically: the application of rules on counter-terrorism is bound to vary and to create inconsistencies not only between different sub-regimes of international counter-terrorism law but also between differing domestic implementation of the international rules.36 These inconsistencies foster potential extra-legal tendencies of states. The case of citizenship-stripping laws which will be more closely analyzed in the second part of this article is an example of how, through the interrelation between international and domestic counter-terrorism law, the sectorial approach and the problems pertaining to it are transposed to other legal orders as well. A second set of reasons for international law facilitating the adoption of extra-ordinary or extra-legal measures concerns jurisdiction. Despite debates about broadening the jurisdictional scope of international judicial bodies in order to include acts of international terrorism, there is to date no permanent international criminal court possessing the jurisdiction to prosecute acts of international or transnational terror; specific courts only possess jurisdiction to try particular acts of terror.37 As a consequence, extra-judicial spaces emerge, fostering the existence of extra-legal gaps in the international counter-terrorism law framework. Moreover, this effect is not confined to the international level. Regarding the interaction of domestic and international counter-terrorism law, an extra-judicial tendency comes in if and when the universal jurisdiction approach of domestic courts is challenged. Further, international counter-terrorism regulation is also relatively isolated from other areas of international law which are crucial to legally capture terrorism and counter-terrorism as a whole. Without an explicit link between the relevant areas of international law, state actors might, when taking counter-terrorism measures, be encourage to disregard what is provided by other areas of law. This is particularly so when the norm content of different international law regimes is, or appears to be, conflicting. Most prominently, human rights considerations are only partly and superficially reflected within the specific provisions of the various international instruments on counter-terrorism.38 Human rights issues are, if at all, merely addressed in the form of general clauses on the respect of human rights. For instance, Article 17 of the Financing Convention stipulates that ‘any person who is taken into custody … shall be guaranteed fair treatment, including enjoyment of all rights and guarantees in conformity with the law of the state in the territory of which that person is present and applicable provisions of international law, including international human rights law’. Only rarely, the norm content is more specific, as it is in the case of Article 12 of the Terrorist Bombing Convention39 or Article 9 (1 a) of the Hostage Convention, both regarding the refusal of extradition in the case of discrimination based on race, religion, nationality, ethnic origin or political opinion.40 A broader use of explicit guarantees would have helped counterbalance fragmentation between different international law regimes41 and better integrate international counter-terrorism law into the existing general international law setting in order to avoid exceptional and extra-legal measures. Instead, the application of counter-terrorism measures highlights the effects of incoherent or absent interlinks between counter-terrorism law and other areas of international law. One of the principle issues again is related to international human rights standards. As has been put forward by many authors, human rights provisions are often not respected when states react to terrorist threats.42 This concerns both procedural and substantive human rights provisions. Counter-terrorism measures adopted by states include torture, arbitrary detention, enforced disappearances, extrajudicial executions, to name just a few.43 Further, as international bodies like the Special Rapporteur on Countering Terrorism or the Venice Commission have pointed out, there is an increasing risk that states use counter-terrorism measures—under the umbrella of the unclear notion of terrorism—to punish political dissent or discriminate against ethnic, regional or other groups, violating the right to freedom of expression, of association and fair trial.44 Moreover, uncertainties concerning the content of a number of related international law rules enable or even encourage extra-legal measures. A prominent example is the use of force in cases of terrorism. The international legal framework related to the use of force is not yet sufficiently adapted to recent phenomena of institutionalized terrorist activity on an international scale—or at least there is no consensus on how the existing framework should be interpreted in order to address current developments.45 This leads to the situation that states are put before the choice between interpreting the existing rules in an unconventional manner, at the same time risking that their interpretation is not approved by the international community or at least a majority of states; or to act without even attempting to justify the action under international law—and therefore openly extra-legally. A key issue in this regard is the law on individual or collective self-defense according to Article 51 of the UN Charter.46 When states experience terrorist attacks on their territory carried out by a non-state actor and wish to react to them by use of force, they are facing the legal problem of whether and to what extent the notion of self-defense under international law can be extended to attacks from terrorist organizations which are not state in the conventional sense and are not attributable to such state.47 Although some claim that ambiguities in this field are gradually being cured,48 there is still considerable uncertainty including on issues like whether the attack must achieve a certain scale; whether cyber-attacks constitute attacks in the legal sense; which targets of the attack are relevant; which consequence has a relationship between a terrorist group and a state below the threshold for attribution. In practice, states have frequently chosen to address the legal uncertainty with unilateral military measures.49 Due to the existing uncertainty about whether and to what extent such measures fall within the scope of a refined rule of self-defense, unilateral decisions by states on this matter at the very least convey a perception of extra-legality. This mere perception which is induced by the international law regime is detrimental to the international rule of law, given the importance of the use of force regime for international relations. It fosters the approach that the argument of fighting terrorism legitimizes any measure whether it is legal or not. Conversely, applying existing international law to international terrorism can occasionally contribute to strengthening the state of exception approach. For a certain time now, it has for instance been discussed whether international humanitarian law should be applicable to the ‘war against terror’.50 Independently of potential substantive advantages of such an application, this has a conceptual downside: as the terrorist threat will most likely never vanish entirely, the state of exception created by the narrative of ‘war against terror’ would be eternally perpetuated. This would lead to a further normalization of the extraordinary, not of exceptional legal norms, but of a justificatory narrative for extraordinary measures—be it legal or extra-legal ones. To sum up, the analysis so far shows that the international law framework for counter-terrorism measures enables and encourages domestic law to adopt extra-ordinary or even extra-legal measures. Inspired by the domestic law design of counter-terrorism laws, the international law framework can be characterized itself as a ‘model of accommodation’ that is based on extra-ordinary legal regulation of the subject matter. In order to further pursue the ‘ping-pong effect’ of the extraordinary, ie the mutually reinforcing effect between domestic and international law, the analysis will now turn to the domestic level. Here, the so-called citizenship-stripping laws will serve as an example to show how domestic counter-terrorism measures affect—in their exceptionalist nature—primary principles of international law by contributing to the normalization of extra-ordinary legal measures. 3. Citizenship-stripping laws in cases of international terrorism: normalizing the exception In times of normalcy, banishment or exile does not find a place as a matter of modern law and policy.51 At least this had been the prevailing view until the foreign fighter phenomenon came along and posed a challenge. The recent citizenship revocation laws do not form a part of the business as usual practice, with the response properly classifiable as out of the ordinary. The current rise in terrorism-related citizenship-stripping regulation is an expression of a general trend towards, on the one hand, counter-terrorism measures that, in their exceptionalist nature, even touch upon the most fundamental principles of international law, attempting to adjusting these principles to the exception; and on the other hand are integrated so deeply into the existing domestic legal framework that legal normalcy is seriously affected. The most obvious and profound effect of these measures relates to the very concepts of nationality and citizenship (Section 3.A). However, other international law aspects highlight the exceptionalist approach of these measures as well (Section 3.B). A. Accommodating the concepts of citizenship and nationality Although the two terms are often used interchangeably, nationality is an international law concept and citizenship a domestic one.52 Of present concern is the meaning of those terms that signifies the formal legal bond between an individual and a nation state. Citizenship as a domestic concept constitutes the national legal recognition of an individual’s formal membership status vis-a-vis a state. It is domestic law that determines the acquisition of citizenship in national law, creating rights and obligations at a national level.53 On the other hand, as an international concept, ‘nationality’ is the means by which legal recognition is given to the relationship between an individual and a state under international law and at the international plane.54 First and foremost, the current citizenship-stripping regulations demonstrably jeopardize the established regulatory regime of nationality and citizenship. They introduce various components of a ‘model of accommodation’ into a legal concept that is fundamental to the interplay between domestic and international law as well as to the domestic legal framing of society (Section 3.A.i). Further, they diverge from established international law rules on nationality and statelessness (Section 3.A.ii). (i) Allegiance and anti-discrimination The duty of allegiance or loyalty underpins the concept of citizenship—while difficult to precisely define and inherently indeterminate.55 A duty of allegiance or loyalty to the sovereign underpinned the basis for an individual’s formal membership of a political community. Increasingly, ‘allegiance’ as the basis of citizenship is rejected as an outdated concept and replaced by a ‘democratic constitutional bond’.56 Terminology aside, the point is that a very basic loyalty to one’s state is an aspect of the concept of citizenship at its core. The debate concerning citizenship revocation ought to be founded in the consequences of a ‘transferred allegiance’.57 Once a foreign fighter travels and fights for a terrorist group hostile to the state of nationality or its allies, states have adopted the position that the individual in question has breached his or her loyalty, allegiance or constitutional bond, making it permissible for the state of nationality to withdraw its citizenship. They argue that the act of a foreign fighter in seeking to join forces with a terrorist group such as ISIL is not functionally dissimilar. As the preparatory discussion paper of the Australian government for the recently amended Australian Citizenship Act put it, it is ‘reasonable to consider measures to act against those who betray the allegiance inherent in their citizenship’.58 The reference to allegiance functions as a justification for externalizing an individual not only from its society of origin but also from its legal order. The individual as legal subject is excluded from its legal order and virtually ‘outlawed’. Thus, the extra-legal approach here comes in a certain variety: albeit the citizenship-stripping measure has a legal form, the result of it is extra-legality. Furthermore, allegiance reflects a well-known element of exceptionalist legal measures, as it can be found in a ‘model of accommodation’. By distinguishing between ‘those with allegiance’ and ‘those without allegiance’, a legal differentiation between ‘them’ and ‘us’ is put in place.59 This facilitates social and political acceptance for more repressive measures because these measures are perceived as only concerning the group of ‘them’ and not of ‘us’. It is natural for a social group to allow for more repressive emergency measures if it is believed they will not be turned against this group itself.60 A second aspect taking up the distinction between ‘us’ and ‘them’ as a justificatory pattern is reflected in the differentiation between different ‘kinds’ of citizenship undertaken by several citizenship-stripping laws. In some states the rules on terrorism-related citizenship stripping are only applicable to dual citizens;61 in other states special rules apply to naturalized citizens.62 Introducing this distinction fosters the exceptionalist nature of these measures. In addition, it establishes or (for some states) expands a categorization between citizens, classifying dual citizens or naturalized citizens as ‘second class citizens’.63 This is squarely evocative of suggested differentiations between ‘citizen criminal law’ as opposed to an ‘enemy criminal law’ discussed by Günther Jacobs as a counter-terrorism measure64—with dual or natural citizens appearing as potential ‘enemies’ and therefore having a distinct citizenship regime applicable to them. In any case, what is created is a category of individuals who are placed under a special regime because they are considered to be undeserving of the same level of legal protection as other individuals.65 An example of recently enacted citizenship revocation laws introducing a distinction between different kinds of citizenship is provided by Australia. Australia has limited the operation of its citizenship-stripping laws to dual citizens, with the recently passed laws allowing the Executive to revoke a person’s citizenship by conduct that amongst other things, includes the commission of several terrorism related offenses.66 Further, one of the states having amended its citizenship revocation laws in view of revoking the citizenship of naturalized citizens on very broad and lose criteria is the UK.67 Amongst other issues (see below), this legislation discriminates against naturalized and natural born citizens creating classes of citizenship. Such discriminatory treatment is not only contrary to the fundamental concept of equal citizenship, but arguably breaches the fundamental human rights principle of nondiscrimination.68 Moreover, it has no basis in the Statelessness Convention 1961 which does not provide distinct rules for naturalized and natural born citizens in terms of citizenship stripping.69 Indeed, in modern times, the mode of acquisition of citizenship, whether through birth, dissent, or naturalization ought to be irrelevant, with the facts of any given case determining the strength or effectiveness of a person’s membership status of a state.70 Accordingly, targeting naturalized citizens as a matter of legal policy must be avoided. Finally, the citizenship stripping rules transpose measures of exception into the legal framework of normalcy regarding citizenship and nationality. That is what makes them especially problematic from a general perspective of the concerned legal order: these rules permanently affect the legal regime of citizenship.71 What is more, they also have the potential to permanently influence the international law concept of nationality and the interplay between the concepts of citizenship and nationality. (ii) Statelessness and procedural rights Although states undoubtedly still possess a broad margin of discretion in regulating their legal regimes on citizenship, the second half of the 20th century witnessed broad international agreement stressing the right to a nationality,72 as well as condemning statelessness.73 Both those developments restricted the considerable freedom states possess concerning the regulation of citizenship, including the circumstances when it may be revoked.74 The recent citizenship-stripping laws transcend these limits, diverging from the established international law rules on nationality and statelessness and potentially pushing the broad agreement towards implementing the exception into the legal framework of normalcy. An important restriction set by international law is found in the Statelessness Convention of 1961, and it is worth bearing in mind Article 15 of the Universal Declaration on Human Rights demanding that no person be deprived of their nationality arbitrarily, ie without due process of law.75 Notably, a total of 62 states are parties to the Statelessness Convention of 1961, including Austria, Australia, Belgium, Canada, Denmark, Finland, France, Germany, the Netherlands, Norway, New Zealand, Sweden and UK—which gives the Statelessness Convention 1961 a principal role in the regulation of nationality internationally. Fundamentally, states party to the Statelessness Convention must not deprive a national of his or her citizenship status if such deprivation will render the national stateless.76 However, Article 8, paragraph 3 of the Statelessness Convention 1961 provides an exception upon the making of an express reservation or a declaration allowing a state party to denationalize in circumstances where the concerned individual breaches his or her duty of loyalty. It states: [A] Contracting State may retain the right to deprive a person of his nationality, if at the time of signature, ratification or accession it specifies its retention of such right on one or more of the following grounds, being grounds existing in its national law at that time: (a) that, inconsistently with his duty of loyalty to the Contracting State, the person … (ii) has conducted himself in a manner seriously prejudicial to the vital interests of the State; (b) that the person has taken an oath, or made a formal declaration, of allegiance to another State, or given definite evidence of his determination to repudiate his allegiance to the Contracting State. Article 8, paragraph 4 of the Statelessness Convention goes on to require that should a state exercise its rights of citizenship deprivation under Article 8, then: A Contracting State shall not exercise a power of deprivation … except in accordance with law, which shall provide for the person concerned the right to a fair hearing by a court or other independent body. Three key features are apparent. First, the exception under Article 8, paragraph 3 only operates if at the time of signature, ratification or accession, a state makes a reservation or a declaration in terms of that provision. Second, the only citizenship revocation provisions in domestic law that may benefit from the exception are the ones prevailing at the time the state party joined the Statelessness Convention. And third, a person’s citizenship must not be revoked without according that person a fair hearing. Notably, taking advantage of Article 8, paragraph 3, several states made reservations or declarations preserving their existing denationalization laws. These states include Austria, Belgium, France, New Zealand, UK, with states including Australia, Canada, Denmark, Finland, Germany and Sweden not making specific reservations under Article 8, paragraph 3. Mostly, such reservations relate to domestic provisions that allow denationalization in cases in which an individual acts contrary to the national interest by joining the armed forces of an enemy state.77 The Statelessness Convention regime had become business as usual when it came to a state’s citizenship revocation practices. However, international terrorism, and especially the foreign fighter phenomenon has caused a shift, at least in some states. For instance, the UK amended its citizenship revocation laws in 2014 as a response to the Al Jedda case,78 adopting very broad revocation powers. These powers grant the Home Secretary the ability to revoke the citizenship of a naturalized UK citizen on broad criteria,79 even if it renders him or her stateless, and regardless of whether or not the affected individual is outside of the UK, essentially summarily exiling its nationals.80 Such amendments are arguably not compatible with the exception provided in Article 8, paragraph 3 of the Statelessness Convention.81 Further, by allowing for summary exile of its naturalized citizens, the right to a fair hearing for a person whose citizenship has been revoked is rendered practically unrealizable. This effect of the law is also highly questionable given both the requirements of the Statelessness Convention 1961 demanding that citizenship may only be revoked following the grant of a fair hearing, and the right enshrined in Article 15 of the Universal Declaration of Human Rights that no person be deprived of their nationality arbitrarily, ie in the absence of due process and a fair hearing consistent with the rule of law. These basic due process standards also appear to be undermined by the recently enacted citizenship revocation laws in Australia.82 Those laws do not only make possible citizenship revocation following a conviction of a terror related offense—with the Executive possessing a discretion determinative of whether loyalty has been ultimately breached;83 but revocation is also made automatic upon the occurrence of certain prescribed conduct amounting to the commission of broadly prescribed terror related offenses.84 And this without a court of law ever determining whether the conduct was actually engaged in. In other words, once the denationalizing conduct allegedly takes place, an individual would automatically lose his or her citizenship, without the Australian Government, the concerned individual, or indeed the public actually knowing the citizenship status of the affected individual until (if at all) a formal notice confirming revocation is ever served. Given the Australian laws principally target Australians engaged in conduct outside of Australia, it is only but obvious that the requirement of a fair hearing is effectively rendered worthless. It is problematic that a consequence as serious as the deprivation of citizenship can be brought about without it being established in a court of law that a person is in fact guilty of denationalizing conduct. This reflects the general tendency of states to extend the powers of the executive branch in times of crisis and the risk attached to such augmented powers.85 An additional rule of law issue concerns the even graver matter of using denationalization for ulterior motives not reflected in the law. As some have argued, the motivation behind denationalization might also lie in stripping citizenship from accused terrorists and foreign fighters so as to render them less cumbersome targets for summary killing. In this regard, citizenship stripping appears to be a ‘prelude to assassination’, whether by the state itself or by others.86 Serious questions are raised by state action that pursues such ulterior motives when stripping its nationals of their citizenship status. This practice certainly demonstrates not only features of an ‘accommodation model’, but arguably the extra-legal model when using citizenship-stripping laws to counter international terrorism. Finally, from the perspective of the Statelessness Convention 1961, a focus on stripping nationality from dual citizens poses an additional problem of immense practical significance. What are the consequences of one state not recognizing the citizenship revocation engaged in by the state of nationality? Although the UN has cautioned against it,87 some states base their appreciation of whether a person is rendered stateless and the corresponding decision of deprivation simply on a speculation whether a person will acquire citizenship of another country. In practice however, a person could be made stateless even though they may be entitled to nationality in another country. This is due to the tension between nationality as an international concept and citizenship as a domestic one. Whilst a state engages in an act of citizenship stripping, a foreign state may not consider that as a valid act, with the affected party, for the purposes of international law, being considered to be the national of the denationalizing state. This was illustrated in a recent case heard before the Supreme Court of the UK involving a Vietnamese national whose British citizenship was revoked, and Vietnam subsequently refused to recognize him as a national.88 Indeed, the case that caused the 2014 amendments to UK laws, Al-Jeddah, illustrated that revoking a person’s citizenship on the premise that they could obtain citizenship in another country does not necessarily mean the person will not become stateless. If a person becomes stateless because they are not admitted by another state, then serious questions about a state’s compliance with the Statelessness Convention 1961 are raised. Effectively, through their citizenship-stripping laws, states are demonstrably undermining the broad agreement against statelessness as enshrined in the substantive and procedural guarantees contained in the conventions on statelessness. B. Accommodating further international law principles Besides the aforementioned issues that the recent citizenship-stripping laws pose for the concept of nationality, other fundamental principles of international law are affected and in the long run, potentially ‘accommodated’ in the sphere of counter-terrorism. First, the very essence of this citizenship-stripping regulation is the attempt by states to export the problem embodied in the (potential) terrorist to other states. As has been alluded to above, this reflects per se an extralegalization both of an individual and, in a sense, of a whole subject matter. However, this is not the only issue raised by the extraterritorial consequences of state action that summarily exiles citizens. These measures might also affect the fundamental international law principle of noninterference: as the concerned individual is forced elsewhere, the receiving state’s sovereignty is potentially violated. This also concerns the problem that the receiving state can no longer deport this individual.89 In addition, it could be argued that in these circumstances, the no-harm principle if understood broadly might be affected as well. More generally, denationalization will undoubtedly lead to a race between states as to who denationalizes first, creating friction in international relations. As a result, international cooperation in the field of counter-terrorism could significantly fracture.90 Second, domestic citizenship-stripping regulation undermines a key aspect of international counter-terrorism law: the obligation for states to establish jurisdiction, including over their nationals, and prosecute or extradite persons accused of committing international terrorism.91 Denationalizing individuals instead of investigating, prosecuting or extraditing them undermines this obligation which is part and parcel of all counter-terrorism conventions. Further, prosecuting perpetrators of international terrorist acts is not only an obligation imposed on states, but it is critical to guarantee victims’ rights, that includes the right of victims to receive justice, with the perpetrators of international terrorism prosecuted and sanctioned. The enhanced status of the victim in international law demands that states bring to justice perpetrators of terrorism offenses.92 It is states that should prosecute their nationals who are accused of committing grave crimes. Additionally, domestic law might also—at least in certain states—contain an obligation to prosecute if the criminal law framework provides for an extraterritorial application to acts of terrorism committed abroad.93 Third, citizenship-stripping laws adversely affect the international human rights regime. By denationalizing individuals, states deprive these individuals of their social and political rights that are legally attached to the legal status of citizen.94 In this regard, citizenship stripping shows the features of classic exceptionalist legislation within a ‘model of accommodation’, with the basic rights of the person accused of terrorism to be considerably restricted. Whereas generally the rights mostly impacted on are procedural rights, citizenship stripping goes a step further; it takes away a whole set of diverse and essential rights of a individual. Some have argued that this current rise of draconic citizenship-stripping laws in many Western and non-Western states sets the international community backwards in its evolution towards rights promotion.95 However, this equally seems to reflect a certain decline of international human rights law during the past years.96 The significant impact on the level of human rights protection explains the varying success of political efforts in different states concerning the extent to which draconic citizenship-stripping laws have been enacted. The most extensive regulations can be found in states like Australia and the UK that have a less pronounced background of constitutionally protected domestic human rights, making it is both legally and politically possible to accommodate extensive human rights restricting measures into the existing legal framework. In states like France, for instance, which has a strong constitutional protection of human rights, such attempts have not materialized to the same extent.97 Here, accommodation of the legal framework of normalcy encounters more legal obstacles. For instance, the proposed constitutional amendment to denationalize dual nationals convicted of terrorism introduced after the Paris attacks of 2015 has not become law.98 However, in France, the declaration of the state of exception has traditionally been, and recently was for almost two years, the way out when it comes to taking counter-terrorism measures that exceed the law of normalcy. What is more, the new French counter-terrorism law of 30 October 201799 (which does not include provisions on denationalization) seems to have established ‘an exceptional administrative law aiming to be applied in times of normalcy’, yet simultaneously raising concerns in relation to constitutional, European and international law.100 4. Conclusion In this paper, we assessed international counter-terrorism law and its relation to domestic measures like citizenship stripping in the light of exceptionalist and extra-legal tendencies in counter-terrorism measures. We demonstrated how and to what extent the international law regulation of counter-terrorism measures promotes an exceptionalist or even extra-legal approach by states. The international counter-terrorism regime is of an exceptionalist nature itself, modifying the law of normalcy without due consideration of the impact on international law as a whole. International law has not sufficiently taken into account, or restricted, the inclination of states to place counter-terrorism measures outside the realm of ‘normal’ law. Consequently, the recent domestic citizenship-stripping laws reflect a renewed emphasis on exceptionalism and extra-legalization of counter-terrorism measures. A concept as fundamental as citizenship is being redefined by these current developments. Domestic legal responses to international terrorism have been so far-reaching that they even touch upon the most fundamental principles of international law, attempting to accommodate them to the exception. From the perspective both of legal policy and of legal analysis, we consider that when assessing international counter-terrorism law, it is important to be aware of the exceptionalist logic originating from domestic law and adopted by international law. Opting for an exceptionalist approach to counter-terrorism regulation is a normative choice and not a given. Such a normative choice must be reassessed with regard to every new legal regulatory development. This is even more crucial on the international level because of the mutually reinforcing ‘ping-pong’ effect that the interplay of international and domestic law has. If we fail to question the need or justifications for exceptionalism in the regulation of international terrorism, a shift away from the rule of law even beyond the sphere of counter-terrorism law could be the likely outcome, affecting the legal framework of normalcy. Footnotes 1 O Gross, ‘Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?’ (2003) 112 Yale Law J 1011. 2 Gross points out that there is a large scale between the two extremes of political realism arguing for full governmental discretion in times of crises, and of the approach that legal systems must not treat situations of emergency any different. See Gross, ibid 1042–43. 3 International Commission of Jurists, ‘Report of the Eminent Jurist Panel on Terrorism, Counter-Terrorism and Human Rights: Assessing Damage, Urging Action’, 2009 <https://www.icj.org/wp-content/uploads/2012/04/Report-on-Terrorism-Counter-terrorism-and-Human-Rights-Eminent-Jurists-Panel-on-Terrorism-series-2009.pdf > accessed 28 May 2018; C Landa, ‘Executive Power and the Use of the State of Emergency’ in A María Salinas de Frías and others (eds), Counter-Terrorism: International Law and Practice (OUP 2012) 205; Gross (n 1) 1019. 4 Gross (n 1) 1072, 1082–83, 1089, 1091, 1117. For an overview of rule of law implication by international terrorism, see H Owada, ‘International Terrorism and the Rule of Law’ (2010) 20 Swiss Rev Int Eur L 501. 5 Gross (n 1) 1070. 6 See on the relevant practice in Bahrain, Kuwait and Saudi-Arabia, L Esbrook, ‘Citizenship Unmoored: Expatriation as a Counter-Terrorism Tool’ (2016) 37 Univ Pennsylvania J Int Law 1273, 1289–90. 7 For an overview of the citizenship-stripping laws in Australia, Canada and UK, see S Pillai and G Williams, ‘Twenty-First Century Banishment: Citizenship Stripping in Common Law Nations’ (2017) 66 ICLQ 521. 8 On this issue more generally, see D Burchardt, ‘Intertwinement of Legal Spaces in the Transnational Legal Sphere’ (2017) 30 Leiden J Int Law 1. 9 Esbrook (n 6) 1287. 10 On the function of law to regulate social conduct, see E Jenks, ‘The Functions of Law in Society’ (1923) 5 J Compar Legis Int Law 169, 171. 11 D Moeckli, ‘The Emergence of Terrorism as a Distinct Category of International Law’ (2008–2009) 44 Tex Int L J 157, 177. 12 Gross (n 1) 1058. 13 ibid 1065. 14 Moeckli (n 11) 178. 15 ibid 173. 16 Speech by Francois Hollande on 6 April 2016 in the context of renouncing the project of a new citizenship-stripping regulation. Original quote in French: ‘Ce n'est pas en enlevant la nationalité que l'on peut combattre le terrorisme.’ 17 KN Trapp, ‘The Potentialities and Limitations of Reactive Law Making: A Case Study in International Terrorism Suppression’ (2016) 39 UNSW Law J 1191, 1191. 18 Extensive substantive and procedural regulation can be found eg in arts 2 and 4 Financing Convention; art 7 Maritime Convention. 19 See also art 11 (5) Financing Convention; art 11 (7) Maritime Convention. 20 See eg arts 8 (1), (2) and 9 (2) Financing Convention; art 4 Hostage Convention; arts 6 and 11 (1) Aircraft Convention. 21 See eg art 19 of International Convention for the Suppression of Terrorist Bombings or art 4 (1) Nuclear Terrorism Convention. 22 For an analysis of the implementation of the resolution, see LM Hinojosa-Martínez, ‘A Critical Assessment of United Nations Security Council Resolution 1373’ in Ben Saul (ed), Research Handboook on International Law and Terrorism (Edward Elgar 2014) 626. 23 Moeckli (n 11) 180–82. 24 On other terrorism-related committees, see Moeckli (n 11) 165. 25 Hinojosa-Martínez (n 22) 648. 26 On interpretative accommodation, see Gross (n 1) 1059. 27 M Scheinin and M Vermeulen, ‘Unilateral Exceptions to International Law: Systematic legal Analysis and Critique of Doctrines that seek to Deny or Reduce the Applicability of Human Rights Norms in the Fight against Terrorism’ (2011) 8 Essex Hum Right Rev 20. However, for a restrictive approach on counter-terrorism measures violating art 2 ECHR, see McCann v United Kingdom (1995) 21 EHRR 97, paras 146–150. Also, attempts to justify torture through creative interpretations have ultimately not been successful; see B Saul, ‘The Emerging International Law of Terrorism’, Sydney Law School Legal Studies Research Paper No 10/108, 17. 28 See eg art 4 ICCPR; art 15 ECHR; art 27 ACHR. 29 E Stubbins Bates, Terrorism and International Law: Accountability, Remedies, and Reform (OUP 2011) 87ff. 30 Gross (n 1) 1071–72. 31 Moeckli (n 11) 179. 32 Trapp (n 17) 1191. 33 It is questionable, however, whether there is an actual lack of legal regulation in the field. See Report of the High-level Panel on Threats, Challenges and Change, ‘A More Secure World: Our Shared Responsibility’, para 159. 34 L van den Herik and N Schrijver, ‘The Fragmented International Legal Response to Terrorism’ in L van der Herik and N Schrijver (eds), Counter-Terrorism Strategies in a Fragmented International Legal Order (CUP 2013) 1; B Saul, ‘Terrorism and International Criminal Law: Questions of (In)Coherence and (Il)Legitimacy’ in G Boas and others (eds), International Criminal Justice: Legitimacy and Coherence (Edward Elgar 2012) 190. 35 For an analysis of the negotiating issues relevant to this convention, see AR Perera, ‘The Draft United Nations Comprehensive Convention on International Terrorism’ in B Saul (ed), Research Handboook on International Law and Terrorism (Edward Elgar 2014) 151. 36 On the issue of defining ‘terrorism’ and the consequences of a non-existing general definition, see R Grozdanova, ‘“Terrorism” – Too Elusive a Term for an International Legal Definition’ (2014) 61 NILJ 305; C Martin, ‘Terrorism as a Crime in International and Domestic Law: Open Issues’ in van der Herik and Schrijver (eds) (n 34) 639; JD Fry, ‘The Swindle of Fragmented Criminalization: Continuing Piecemeal Responses to International Terrorism and Al Qaeda’ (2008–2009) 43 New Eng L Rev 377; B Saul, Defining Terrorism in International Law (OUP 2008). Arguing that a definition of terrorism does exist, A Cassese, ‘Terrorism as an International Crime’ in A Bianchi (ed), Enforcing International Law Norms Against Terrorism (Hart Publishing 2004) 213. For an account of the development of the definition, see H Duffy, The War on Terror and the Framework of International Law (2nd edn, CUP 2015) 31–47. 37 For an indebt discussion of jurisdictional issues in counter-terrorism law, see eg VJ Proulx, ‘Rethinking the Jurisdiction of the International Criminal Court in the Post-September 11th Era: Should Acts of Terrorism Qualify as Crimes Against Humanity?’ (2004) 19 Am U Int L Rev 1009; A Cohen, ‘Prosecuting Terrorists at the International Criminal Court: Reevaluating an Unused Legal Tool to Combat Terrorism’ (2013) 20 Mich St Int L Rev 219; M Aksenova, ‘Conceptualizing Terrorism: International Offence or Domestic Governance Tool?’ (2015) 20 J Conflict Sec Law 277; PA Mazandaran, ‘An International Legal Response to an International Problem: Prosecuting International Terrorists’ (2006) 6 ICLR 503. 38 Conversely, there is no explicit reference to the term ‘terrorism’ in international human rights treaties, see Stubbins Bates (n 29) 82. 39 ‘Nothing in this Convention shall be interpreted as imposing an obligation to extradite or to afford mutual legal assistance, if the requested State Party has substantial grounds for believing that the request for extradition for offences set for the in art 2 or for mutual legal assistance with respect to such offences has been made for the purpose of prosecuting or punishing a person on account of that person’s race, religion, nationality, ethnic origin or political opinion or that compliance with the request would cause prejudice to that person’s position for any of these reasons.’ 40 ‘A request for the extradition of an alleged offender, pursuant to this Convention, shall not be granted if the requested State Party has substantial grounds for believing: (a) That the request for extradition for an offence set forth in article 1 has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality, ethnic origin or political opinion …’. 41 On fragmentation, see eg MA Young (ed), Regime Interaction in International Law – Facing Fragmentation (CUP 2012); A Peters, ‘Fragmentation and Constitutionalization’ in A Orford and F Hoffmann (eds), The Oxford Handbook of the Theory of International Law (OUP 2016) 1011. 42 See Stubbins Bates (n 29) ch 3. For an in-debth analysis of the human rights legal framework related to terrorism, see Duffy (n 36) ch 7. 43 Stubbins Bates (n 29) 79. 44 Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, 2010, A/HRC/16/51, paras 26 and 27; European Commission for Democracy through Law, Report on Counter-Terrorism Measures and Human Rights (Study 500/2008, CDL-AD (2010)022, 5 July 2010, paras 29–35). See also Martin (n 36) 654–56. 45 Addressing this aspect from the perspective of method, A Bianchi, ‘The International Regulation of the Use of Force: The Politics of Interpretative Method’ in van der Herik and Schrijver (eds) (n 34) 283; for an early discussion of the implications of terrorism on self-defence, see A Cassese, ‘Terrorism is Also Disrupting Some Crucial Legal Categories of International Law’ (2002) 12 EJIL 993. 46 For an overview on this issue including recommendations for future development, see SR Ratner, ‘Self-Defence Against Terrorists: The Meaning of Armed Attack’ in van der Herik and Schrijver (eds) (n 34) 334. 47 See for the opposing views eg CJ Tams, ‘The Use of Force Against Terorists’ (2009) 20 EJIL 359; T Ruys, ‘Armed Attack’ and Article 51 of the UN Charter: Evolutions in Customary Law and Practice (CUP 2010) 485–89; also see R Gulati, ‘The 26/11 Terrorist Attacks and the Application of the Laws of Armed Conflict’ (2012) 10 ISIL Yearbook Int Human Ref Law 91. 48 Saul (n 27) 12–13. 49 A recent example in this regard is France reacting to the Paris terrorist attacks of 13 November 2015 by airstrikes against the territory under the control of ISIS. 50 See on the discussion eg SR Ratner, ‘The War on Terrorism and International Humanitarian Law’ (2006) 14 Michigan State J Int Law 19; E Crawford, ‘Unequal Before the Law: The Case for the Elimination of the Distinction Between International and Non-International Armed Conflict’ (2007) 20 Leiden J Int Law 441; L Condorelli and Y Naqvi, ‘The War against Terrorism and Jus in Bello: Are the Geneva Conventions Out of Date?’ in A Bianchi (ed), Enforcing International Law Norms against Terrorism (Hart Publishing 2004) 25. 51 A Macklin states that after ‘decades in exile, banishment is back’. See A Macklin, ‘Kick-Off Contribution’ in A Macklin and R Baubock (eds), The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship? (EUI Working Paper RSCAS 2015/4), 1; For citizenship laws prevailing in several jurisdictions around the world, see ‘Treatment of Foreign Fighters in Selected Jurisdictions’ <https://www.loc.gov/law/help/foreign-fighters/country-surveys.php> (accessed 28 May 2018). 52 See generally, R Gulati, ‘Nationality in the Age of Google, Skype and Facebook’ in K Rubenstein and M Nolan (eds), Allegiance and Identity in a Globalized World (CUP 2014) 542. 53 M Koessler, ‘“Subject,” “Citizen,” “National,” and “Permanent Allegiance”’ (1946) 56 Yale Law J 58; see also AM Boll, Multiple Nationality and International Law (BRILL 2007) 58. 54 In defining nationality in international law, the International Court of Justice said in the famous Nottebohm case that nationality is: ‘[A] legal bond having as 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 upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State.’ Nottebohm Case (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4, 26. 55 M Murazumi, ‘Comment: Japan’s Laws on Dual Nationality in the Context of a Globalized World’ (2000) 9 Pacific Rim Law Policy J 415: ‘The term “allegiance” in itself has become archaic … It has become a mystic concept which dims, instead of clarifying, definitions. Most people have a working knowledge of the meaning of “nationality”, but even scholars are at a loss to explain “allegiance”…. It seems desirable to eliminate “allegiance” from any technical use and redefine “nationality” in plain words meaning the status of belonging to a state for certain purposes of international law.’ 56 S Lavi, ‘Citizenship Revocation As Punishment: On The Modern Duties Of Citizens And Their Criminal Breach’ (2011) 61 U Toronto LJ 783, 786; also see, K Rubenstein, ‘Submission to the Parliamentary Joint Committee on Intelligence and Security: New inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015’, 20 July 2015, 2 <https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/Citizenship_Bill/Submissions> (accessed 28 May 2018). 57 See PJ Spiro, ‘Expatriating Terrorists’ (2013–2014) 82 Fordham L Rev 2169, 2174–75. 58 Australian Government Discussion Paper 2015 ‘Australian Citizenship – Your Right, Your Responsibility’ <https://www.border.gov.au/about/reports-publications/discussion-papers-submissions/australian-citizenship-your-right-your-responsibility#> (accessed 28 May 2018). In December 2015, Australia modified its law to permit the withdrawal of Australian citizenship on terrorism grounds by passing the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015. 59 Gross (n 1) 1084. 60 ibid 1083. 61 Such states include Australia, Canada, Mauritius, amongst others <https://www.loc.gov/law/help/foreign-fighters/country-surveys.php> (accessed 28 May 2018). 62 States that seem to adopt similar legislation in the terrorism context include Bangladesh, Ghana, Kenya, Mauritius, Namibia, Pakistan, South Africa, Tanzania, Uganda, Zambia <https://www.loc.gov/law/help/foreign-fighters/country-surveys.php> (accessed 28 May 2018). 63 See Rubenstein (n 56) 5. 64 G Jakobs, ‘Bürgerstrafrecht und Feindstrafrecht’ [2004] HRRS 88; for a discussion of this approach, see M Putzer, Gerichte, Terror und Verfahren (Mohr Siebeck 2015) 194–205. 65 Moeckli (n 11) 180. 66 It is to be noted that several commentators have raised serious concerns and criticized the breath of the conduct that triggers the citizenship revocation powers in Australia as conduct that does not go to a core loyalty to one’s state of nationality: see the submissions of Ben Saul dated 30 June 2015 and Shipra Chordia, Sangeetha Pillai and George Williams dated 16 July 2015, Inquiry into the Australian Citizenship Amendment (Allegiance to Australia) Bill 2015 Submission <http://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Intelligence_and_Security/Citizenship_Bill/Submissions> (accessed 28 May 2018). 67 s 40(2) of the British Nationality Act 1981 (as amended in 2014) states that: ‘The Secretary of State may by order deprive a person of a citizenship status if the Secretary of State is satisfied that deprivation is conducive to the public good’; sub-s (4) provides that ‘The Secretary of State may not make an order under subsection (2) if he is satisfied that the order would make a person stateless’; however, sub-s 4A states that: ‘But that does not prevent the Secretary of State from making an order under subsection (2) to deprive a person of a citizenship status if- (a) the citizenship status results from the person’s naturalisation, (b) the Secretary of State is satisfied that the deprivation is conducive to the public good because the person, while having that citizenship status, has conducted him or herself in a manner which is seriously prejudicial to the vital interests of the United Kingdom … , and (c) the Secretary of State has reasonable grounds for believing that the person is able, under the law of a country or territory outside the United Kingdom, to become a national of such a country or territory’. 68 Chief Justice Marshall of the US Supreme Court said in Osborn v Bank of the United States, 9 Wheat (22 US) 737, 827 (1824): ‘[A] naturalized citizen … becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the Constitution, on the footing of a native. The Constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national legislature is, to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual.’ While the above is said in the context of the USA, amongst other non-discrimination provisions, arts 2 and 26 prohibit discrimination on characteristics, including place of birth. Naturalized citizens will generally be born outside of the state of acquired nationality. Once the naturalization process is complete, no laws that discriminate against one category of citizen ought to be passed. 69 However, in very narrow circumstances, the Statelessness Convention allows for a naturalized person to be deprived of his citizenship, such as, if there exists fraud in the acquisition of citizenship, see art 8, para 2(b). 70 See R Gulati, ‘Resolving Dual and Multiple Nationality Disputes in a Globalized World’ (2014) 28 J Immig Asylum Nation 27. 71 See also Gross (n 1) 1072. 72 Art 15, para 1 of the Universal Declaration of Human Rights states: ‘Everyone has the right to a nationality’; and art 15, para 2 states: ‘No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality’; for a discussion on the right to a nationality in international law, see, E Fripp, ‘Deprivation of Nationality and Public International Law - An Outline’ (2014) 28 J Immig Asylum Nation Law 367, 373–75. 73 The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness are the key international conventions addressing statelessness. 74 The Permanent Court of International Justice said in the case of the Nationality Decrees in Tunis and Morocco: ‘The question whether a certain matter is or is not solely within the domestic jurisdiction of a State is an essentially relative question; it depends upon the development of international relations. Thus, in the present state of international law, questions of nationality are, in the opinion of the Court, in principle within this reserved domain. For the purpose of the present opinion, it is enough to observe that it may well happen that, in a matter which, like that of nationality, is not, in principle, regulated by international law, the right of a State to use its discretion is nevertheless restricted by obligations which it may have undertaken towards other States. In such a case, jurisdiction which, in principle, belongs solely to the State, is limited by rules of international law’; also see, arts 1 and 2 of the Convention on Certain Questions Relating to the Conflict of Nationality Laws 1930. 75 In the Partial Award: Civilians Claims—Eritrea’s Claims 15, 16, 23 and 27–32 Permanent Court of International Arbitration, the Hague, 17 December 2004, the Eritrea Ethiopia Claims Commission in the context of deciding the issue of arbitrariness in international human rights law in the deprivation of nationality, decided that Ethiopia was in breach of its international law obligations by ‘erroneously depriving at least some Ethiopians who were not dual nationals of their Ethiopian nationality’. The Commission stated that where Ethiopia had ‘devised and implemented a system applying reasonable criteria to identify individual dual nationals thought to pose threats to its wartime security’, deprivation was not shown to be arbitrary: para 72. However, where persons were permitted to remain but treated as aliens, with ‘no process to identify individuals warranting special consideration and no apparent possibility of review or appeal’ then: considering that rights to such benefits as land ownership and business licenses, as well as passports and other travel documents were at stake, the Commission found that ‘this wide-scale deprivation of Ethiopian nationality of persons remaining in Ethiopia was under the circumstances arbitrary and contrary to international law’: para 75. 76 Arts 7 and 8, Statelessness Convention 1961. 77 There have been attempts in some states like Austria to interpret such provisions in a broad way in order to include foreign fighters for organizations like ISIS. 78 See Al Jedda v SSHD [2013] UKSC 62. Hilal Abdul-Razzaq Ali al-Jedda, a refugee from Iraq, was granted UK citizenship in 2000, and deprived of citizenship by the Home Secretary in 2007 for support of terrorism. In 2013, on appeal to the Supreme Court of the UK, the court overturned the deprivation order, finding that under the then prevailing UK law the Home Secretary did not have authority to deprive a person of citizenship if it would lead to statelessness, concluding that the targeted individual must possess a foreign nationality at the time of deprivation for the citizenship-stripping power to be properly exercised: paras 4–8, 24, 32–34. 79 See (n 67) containing UK provisions. 80 For a discussion, see, E Fripp, ‘Conducive Deprivation of British Citizenship Status and Statelessness: Further Problems’ (2013) 27 J Immig Asylum Nation Law 315; GS Goodwin-Gill, ‘Deprivation of Citizenship Resulting in Statelessness and its Implications in International Law’, 12 March 2014 <https://assets.documentcloud.org/documents/1086878/guy-s-goodwin-gill-legal-opinion-on-deprivation.pdf> accessed 28 May 2018; A Harvey, ‘Recent Developments on Deprivation of Nationality on Grounds of National Security and Terrorism Resulting in Statelessness’ (2014) 28 J Immig Asylum Nation 336, 340 (comparing the UK approach to that of the USA); JH Martin, ‘Terrorism-related Loss of Citizenship – A Policy Review’, Thesis, Postgraduate School Monterey, California, September 2016 (where the author compares citizenship-stripping laws in the UK, France, USA and Australia). 81 For a detailed legal analysis, see S Jayaraman, ‘International Terrorism and Statelessness: Revoking the Citizenship of ISIL Foreign Fighters’ (2016) 17 Chicago J Int Law 178, 205ff. 82 A comparable argument is made with regard to the citizenship-stripping laws in Canada, see Jayaraman, ibid 201. 83 Pursuant to s 35A(d) of the Australian Act, it is left to the discretion of the relevant Minister whether a person convicted of a particular offence has engaged in the kind of ‘conduct…demonstrates that the person has repudiated their allegiance to Australia’. 84 There are two circumstances where an Australian dual national may automatically lose his or her Australian citizenship. First, pursuant to s 33AA of the Australian Act, an Australian dual citizen regardless of the mode of acquisition of his or her citizenship renounces his or her citizenship if he or she engages in conduct in breach of his or her loyalty to Australia, being conduct including committing terrorism, financing terrorism, etc, with an intention to advance a political, religious or ideological cause, and with the intention of intimidating the Australian or a foreign Government. Further, a person is assumed to have the requisite intention if he or she was the member of a declared terrorist organization when engaging in the conduct. Interestingly, the provision applies where the conduct was engaged in by a person when he or she was out of Australia, with the citizenship stripping taking effect as soon as the impugned conduct is engaged in. And the Minister is to give notice of the operation of the citizenship stripping to the affected individual, with certain review rights put in place. Second, under s 35 of the Australian Act, an Australian dual citizen who serves for an enemy foreign armed force, or fights for or serves a declared terrorist organization (when the conduct occurs outside of Australia) ceases to be an Australian citizen, with notice requirements in similar terms to the former provision. Finally, the relevant Minister may also expressly revoke an Australian dual national’s Australian citizenship following a criminal conviction for a very broad range of terrorism related offences, where the individual is punished by imprisonment at least for six years (s 35A of the Australian Act). 85 F Ni Aoláin and O Gross, ‘A Skeptical View of Deference to the Executive in Times of Crisis’, Hebrew University of Jerusalem Faculty of Law Research Paper 06-09. 86 L Bosniak, ‘Denationalisation, Assassination, Territory: Some (U.S.-prompted) Reflections’ in A Macklin and R Baubock (eds), The Return of Banishment: Do the New Denationalisation Policies Weaken Citizenship? (EUI Working Paper RSCAS 2015/4) 35. Regarding the cases of Britons who were denationalized and subsequently killed by US drone strike in Somalia, L Bosniak further argues: ‘Denationalisation here can be understood to have strategically relieved Britain of the imperative of protecting its own nationals from harm, including assassination, by another state party. In this scenario, denationalisation is not merely a form of political death … it may facilitate bodily death as well’. 87 The UN states that: ‘An individual’s nationality is to be assessed as at the time of determination of eligibility … . It is neither a historic nor a predictive exercise. The question to be answered is whether, at the point of making a … determination, an individual is a national of the country or countries in question. Therefore, if an individual is partway through a process for acquiring nationality but those procedures are yet to be completed, he or she cannot be considered as a national … Similarly, where requirements or procedures for loss, deprivation or renunciation of nationality have only been partially fulfilled or completed, the individual is still a national for the purposes of the stateless person definition’: see UNHCR, Handbook on Protection of Stateless Persons under the 1954 Convention Relating to the Status of Stateless Persons (2014) para 50. 88 Pham v Secretary of State for the Home Department [2015] UKSC 19, paras 19, 38. 89 Jayaraman (n 81) 204, 211. 90 Esbrook (n 6) 1306. 91 Pointing out these obligations with regard to the UK, Goodwin-Gill (n 80) para 30. 92 CF de Casadevante Romani, ‘International Law of Victims’ in A von Bogdandy and R Wolfrum (eds), Max Planck Yearbook of United Nations Law, vol 14 (Brill 2010) 219. 93 Jayaraman (n 81) 212. 94 Esbrook (n 6) 1296. 95 ibid 1306. 96 I Wuerth, ‘International Law in the Post-Human Rights Era’ (2017) 96 Texas Law Rev 279. 97 Despite significant demand for their passage, France has not yet enacted more draconic laws on denationalization. France first addressed terrorism-related loss of nationality before the events of 9/11. Resulting from terrorist activities in the 1990s related to the Algerian Civil War, which included bombings in France, France amended art 25 of the French Civil Code, adding a provision for loss of citizenship upon conviction and sentencing for ‘an offence which constitutes an act of terrorism’. It was already possible to withdraw citizenship from an individual after conviction and sentencing for acts constituting ‘an injury to the fundamental interests of the Nation’. These provisions only apply to naturalized French citizens, and are subject to time limitations which make terrorism-related loss possible only if the act giving rise to the conviction occurred within 15 years of acquisition of French citizenship, and further a decision regarding terrorism-related loss must take place, if at all, within 15 years of acquiring French citizenship. 98 See Le Monde (30 March 2016) <http://www.lemonde.fr/attaques-a-paris/article/2016/03/30/francois-hollande-renonce-a-la-decheance-de-nationalite-et-au-congres_4892426_4809495.html> (accessed 28 May 2018). 99 LOI 2017-1510 du 30 Octobre 2017 renforçant la sécurité intérieure et la lutte contre le terrorisme. 100 See eg the opinion of the ‘Ligue des droit de l’homme’ <https://www.ldh-france.org/wp-content/uploads/2017/10/avis-d%C3%A9taill%C3%A9-sur-le-projet-loi-s%C3%A9curit%C3%A9-int%C3%A9rieure-et-lutte-contre-terrorisme-juillet-2017-envoy%C3%A9-aux-d%C3%A9put%C3%A9s-et-s%C3%A9nateurs.pdf> (accessed 28 May 2018). © Oxford University Press 2018; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Journal of Conflict and Security LawOxford University Press

Published: Jun 4, 2018

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