Revue Critique de Droit International Privé – Issue 4 of 2021

The new issue of the Revue Critique de Droit International Privé (4/2021) is out. It contains four articles and numerous case notes.

The editorial by Horatia Muir Watt (Sciences Po), Dominique Bureau (University of Paris II) and Sabine Corneloup (University of Paris II) will soon be available in English on Dalloz website (Autour de l’enfant. Interpréter les signes : retour au calme ou déraison du monde ?).

In the first article, Etienne Pataut (University of Paris 1, Sorbonne Law School) discusses the (changing) role of effectiveness in nationality matter (Contrôle de l’État ou protection de l’individu ? Remarques sur l’effectivité de la nationalité).

Effectiveness of nationality seems to be changing. Its traditional role, in the matter of conflicts of nationalities and the international opposability of nationality, seems indeed contested and effectiveness does not seem in a position to oppose the more attentive consideration of the subjective rights of individuals. Conversely, this concern could reinforce the consideration of effectiveness when it makes it possible to demonstrate the existence of a link between the individual and the State which could lead to a challenge to a measure of deprivation of nationality. This development could bear witness to a profound change in the nationality itself.

In the second article, Sabine Corneloup (University of Paris II) analyses the parallel application of the 1980 Hague Child Abduction Convention and the 1951 Geneva Refugee Convention in the context of a recent decision of the UK Supreme Court (Demande de retour d’un enfant enlevé et principe de non-refoulement des réfugiés : lorsque la Convention de La Haye de 1980 rencontre la Convention de Genève de 1951).

Over the past years, there has been an increase in the number of applications for a return of abducted children within families applying for asylum. The parallel application of the 1980 Hague Child Abduction Convention and the 1951 Geneva Refugee Convention may prove to be problematic. Whereas the objective of the former is to ensure the child’s prompt return, the latter establishes the fundamental principle of non-refoulement to the State from which the refugee fled. In France, no case law has emerged so far, making the decision rendered by the UK Supreme Court on 19 March 2021 in G v. G even more interesting, not only as a source of inspiration, but also for the parts raising strong concern. In summary, the Supreme Court ruled that a child named as a dependant on her parent’s asylum request has protection from refoulement pending the determination of that application so that until then a return order in the 1980 Hague Convention proceedings cannot be implemented. In the relationships between two EU Member States, the conflict of the rationales underpinning the regulations Brussels II and Dublin III appears less acute as, in principle, the asylum applicant has no fear of persecution in any of these countries, but difficulties of articulation exist nevertheless, as the recent decision of the Court of Justice of 2 August 2021 in A v. B demonstrates.

In the third article, Rachel Pougnet (Bristol & Manchester Universities) examines a recent decision of the UK Supreme Court in the field of deprivation of nationality (La déchéance de nationalité devant la Cour suprême du Royaume-Uni : déférence judiciaire et sécurité nationale).

For the third time in ten years, the UK Supreme Court has been confronted with a deprivation of nationality order issued by the UK government. In this “Begum” decision of February 2021, the Supreme Court decided that Shamima Begum should not be allowed back into the country to conduct her appeal against the deprivation of her citizenship. The Court enshrined wide deference to the executive on national security grounds. Indeed, the court granted a wide margin of appreciation to the government when exercising its discretion to implement a deprivation order, due to the proximity of the measure with national security interests. In “Begum”, the Supreme Court also put the right to a fair trial on balance with security arguments.

In the fourth article, Christelle Chalas (University of Lille) analyses several rulings of the French Cour de Cassation in the specific context of international child abductions within Franco-Japanese families (La convention de La Haye du 25 octobre 1980 à l’épreuve de l’enlèvement international d’enfants franco-japonais).