80 Pages Posted: 27 Feb 2011
Date Written: 2009
A state‘s decision to expel a national is not in itself a violation of international law if the individual has more than one nationality.
If a state proposes to expel an individual with a single nationality (the nationality of the expelling state), then the state is prohibited from doing so by international law because it would violate the receiving state's sovereignty. The only exception to this rule would be for legitimate derogations from human rights obligations, such as a situation of national emergency.
If the state proposes to expel an individual with more than one nationality (including that of the expelling state), then we must ask whether the state has taken the preliminary step of denationalizing the individual in a non-arbitrary or non-discriminatory fashion and as provided for under municipal law. If it has, then the individual is properly considered an alien under municipal law and may be deported. If the state has not denationalized the person, then we must ask whether the state is invoking its right provided for under municipal law to regard the dual national as an alien for purposes of the right to admission or residence and is accordingly legitimately disregarding his nationality. If not, then the state is prohibited from expelling its own national arbitrarily and without basis in law (with the exception for human rights derogations noted above). If, however, the state is properly regarding the dual national as an alien for the limited purpose of admission or residence, then it may expel its own national or refuse him admission.
However, the foregoing does not excuse the state from complying with other substantive international human rights obligations regarding expulsion, including the prohibitions against expulsion of refugees, deportation to a state that might torture the individual, and other serious violations of human rights. The state must also meet procedural human rights requirements such as due process in reaching the expulsion decision and in permitting the individual to take steps to safeguard his property.
The right to expel also does not necessarily overcome the receiving state‘s equally valid right to denationalize or otherwise refuse admission to its own national, on the same terms of the expelling state (subject to requirements against creating statelessness, etc.).
In sum, the state has the right to expel a dual national and exercising that right does not, in itself, violate international law, although the exercise of the right may be limited by other concerns.
Keywords: expulsion, exclusion, deportation, nationality, citizenship, dual nationality, multiple nationality, denationalization, denaturalization
JEL Classification: K00, K10, K19, K30, K33, K39
Suggested Citation: Suggested Citation
Worster, William Thomas, International Law and the Expulsion of Individuals with More than One Nationality (2009). UCLA Journal of International Law and Foreign Affairs, Vol. 14, No. 2, p. 423, 2009. Available at SSRN: https://ssrn.com/abstract=1770727