Citizenship proposals must deal with how a ‘state’ is defined

Australia has been reluctant to treat Islamic State as a sovereign entity under international law. AAP/Dean Lewins

The government is this week expected to unveil legislation to strip dual nationals involved in terrorist activities overseas of their Australian citizenship. Even before their public release, the laws have been subject to a great deal of scrutiny and criticism over their potential scope and compliance with the rule of law.

Attorney-General George Brandis has addressed some of the multiple controversies. He argued that the proposed changes were not particularly radical, but:

… merely an extension of an existing power that’s existed in the Citizenship Act since 1948, whereby a person who fights in a foreign army against Australia’s interests can have their citizenship revoked.

This was reaffirmed by Communications Minister Malcolm Turnbull. He said that:

The law doesn’t require a conviction now for people that go and fight in an army of another country against Australia.

The part of the Australian Citizenship Act to which both Brandis and Turnbull are referring is Section 35. This states that:

… a person ceases to be an Australian citizen if the person … serves in the armed forces of a country at war with Australia.

This provision is not an outlier in the world of citizenship law. Both the United Kingdom and Canada have similar laws on the books. These laws were introduced following the second world war, in response to Australian (and Canadian and British) citizens who left home to fight with the Nazis against the Allies.

Cessation of citizenship under Section 35 is automatic – it happens the moment the person actually begins their service in the armed forces of the country at war with Australia. It is not necessary for the minister to take steps to revoke the citizenship in question.

Issues under international law

From an international law perspective, one big issue immediately presents itself – the notion that loss of citizenship is the result of service in the armed force “of a country” at war with Australia. The act doesn’t state whether “country” is meant to mean “sovereign nation”, but it seems likely that this would be the interpretation.

So, if the proposed citizenship revocation laws affect changes to Section 35, is Australia therefore saying that Islamic State (IS) is a sovereign nation?

According to the criteria for statehood under international law, IS would seem to fit the bill. The quintessential statement of statehood under international law is the 1933 Montevideo Convention on the Rights and Duties of States, which provides that:

The state as a person of international law should possess the following qualifications: a) a permanent population; b) a defined territory; c) government; and d) capacity to enter into relations with the other states.

IS seems to fit these criteria, if somewhat superficially. It controls territory in Syria and Iraq; it has a population within that territory; it has a government based in its “capital” Raqqa; and it seems to be independent of control by any other sovereign country.

So what?

It would seem that, as it currently stands, stripping Australian citizenship from those who fight for IS would amount to recognising IS as a sovereign state.

It seems inconceivable that the Australian government would be seriously considering treating IS as a sovereign entity under international law. Turnbull said:

We don’t concede that ISIL is … a state.

As such, the government would need to amend Section 35 – something flagged by Turnbull.

However, morally identical is not legally identical. The terminology in the section, as it currently exists, is clear. The government will have to tread carefully to ensure that, in its rush to deny overseas fighters their Australian citizenship, it doesn’t end up endorsing the very thing it wants to repudiate.

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