Can a Citizen Be Sovereign?
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Can a Citizen Be Sovereign?
Keywords

Sovereign, citizen, XIVth Amendment, absolute right, denaturalization, negative right, punishment (cruel and unusual), dual citizenship, Supreme Court

Since the Rights of Man were proclaimed to be “inalienable,” irreducible to and undeducible from other right or laws, . . . man appeared as the only sovereign in matters of law as the people was proclaimed the only sovereign in matters of government.

—Hannah Arendt1

Targeted killings by drone strikes ordered by the Obama administration have provoked vigorous debate in the United States about the power the executive holds to order the killing of enemy combatants without due process. However, questions regarding the U.S. administration’s use of drones draw much of their potency from the fact that a number of these targeted persons are, irrevocably, American citizens. If the president could have stripped an American of his citizenship and then authorized his death as a foreign combatant, such an act might have eluded public debate.

The home secretary of the United Kingdom has, since 2006, revoked the nationality of at least fifty-three Britons as part of program targeting UK citizens allegedly linked to militant or terrorist groups.2 Some of these individuals have subsequently been killed by drone attacks, all without provoking any public reaction in the United Kingdom. What is legally possible today in the United Kingdom—to denationalize a citizen if he has done anything “seriously prejudicial to the vital interests” of the state—was a long-standing government right in the United States. This authority was lost in 1967 when the Supreme Court handed down its decision in Afroyim v. Rusk, which ensured that an absolute protection existed for American citizens against forced expatriation.

Both before and during World War II, the Soviet Union and Nazi Germany had rendered hundreds of thousands of their citizens stateless. Since the beginning of the twentieth century, the victorious democracies had also denaturalized some of their own citizens. However, these two categories of denaturalization and of denationalization can be distinguished by their nature.3 The scope of the democratic varieties is strictly limited by law to certain specific situations or crimes, whereas there is no limitation to authoritarian denaturalization, based on a totally discretionary power. In the case of democratic denaturalization, an external control to governmental action, located in the hands of a judiciary power, limits its scope and impact. Regarding democratic denaturalization, there is often a self-restriction of action by the executive: despite the fact that many naturalizations could fall within the limited scope of the denaturalization law and jurisprudence, the executive power tended (in the United [End Page 1] States from 1909 until 1942 and in France since 1927) to self-limit its actions.4 On the contrary, under authoritarian rule, denaturalization action by the executive tends to go to the limit of the “laws.” Yet democratic denationalization categories lead to the same consequence for the subject individual (that is to say, the deprivation of citizenship) and did so during the years after World War II.

However, citizenship in the postwar era has become one of the most respected and protected of all human rights.5 The protection of citizenship is among the landmark achievements of the second half of the twentieth century. It is also one of the most overlooked. Among the numerous rights proclaimed by the nonbinding Universal Declaration of Human Rights adopted by the United Nations General Assembly on December 10, 1948, the “right to a nationality” has become a near absolute right: when a person lacks a citizenship or the functions it plays in linking an individual with a nation-state, the international community provides a proxy through the 1954 Conventions on the Status of Stateless Persons and Refugees and the United Nations High Commissioner for Refugees (UNHCR). This right, while not part of the binding International Covenant on Civil and Political Rights (ICCPR), was increasingly guaranteed through different legal means and instruments—a patchwork of overlapping mechanisms operating at the international and national levels. The 1961 Convention on the Reduction of Statelessness ensures that children are provided with a nationality at birth and prevents the deprivation of citizenship to the extent that an individual cannot...