Shearer, Ivan; Opeskin, Brian --- "Nationality and statelessness" [2012] UTSLRS 7; Foundations of International Migration Law, (Cambridge University Press, 2012), Ch 4

Last Updated: 16 May 2017

4. Nationality and Statelessness

Ivan Shearer and Brian Opeskin

1. Principles of Nationality

1.1 The concept of nationality

Nationality is essentially an institution of domestic law but it has consequences in international law. Under domestic law, a national owes a duty of allegiance to the State, and may be obliged to pay taxes and render military service to that State. A national has the right of permanent residence and the right to participate in public life and, in most States, enjoys social benefits available only to nationals. Under the laws of some States, criminal jurisdiction may be exercised over a national even in respect of crimes committed abroad.

Nationality is a key concept in international migration law. The ability of individuals to change their residence to another State, or even to travel abroad temporarily for business or pleasure, is constrained by questions of nationality. Nationality is also important in international law generally. Until the emergence of human rights law in the era of the United Nations, how a State treated its own nationals was regarded as a matter of exclusive domestic jurisdiction and not subject to international law. However, States did have international obligations towards foreign nationals in their territory, and a foreign State could defend the interests of its nationals if they were breached by the host State. Thus, the rights of individuals were mediated through the bond of nationality. The foreign State could act on behalf of its nationals by exercising the right of ‘diplomatic protection’ since an injury to a national was regarded as an injury also to the State of which he or she is a national.^[1]

Historical background

The modern concept of nationality developed only after the emergence of an international community of separate sovereign States following the Peace of Westphalia in 1648. Before that time, people were the subjects of local rulers or city entities which in turn were often subject to superior authorities such as the Pope, the Holy Roman Emperor, or the Emperor of China. During the periods of the Roman Republic and the Roman Empire, Roman citizenship was a proud boast (civis romanus sum – ‘I am a Roman citizen’) and brought with it both privileges and responsibilities, while the peoples of the outlying parts of the Empire were merely subjects not enjoying the full rights of Roman citizens. Beyond the borders of the Empire lived the barbarians whose forms of community were not considered to be of any significance. Within the borders of the Empire, the place of origin of a non-Roman citizen was merely a matter of geographical curiosity rather than having legal consequences.^[2] Apart from these considerations, concepts of citizenship or nationality hardly arose in the periods before travel became a real possibility for larger numbers of people. Foreigners, other than merchants on established trade routes, were often treated with suspicion and even hostility.

Allegiance and protection

The modern concept of nationality embodies the reciprocal notions of allegiance and protection. The idea of allegiance has old roots: it was a duty owed by individuals to their local ruler, such as a king, a prince or a lord. Duties of allegiance were strengthened during the Middle Ages by the feudal system in Europe and elsewhere. Under English law, personal status and land tenure depended upon one’s relationship to the local lord, to whom duties of military service and the payment of produce were owed. Notions of allegiance persist in legal systems today, such as in the oaths of allegiance that many States require as a precondition to acquiring nationality by naturalisation; and in the crime of treason, which can be committed only by nationals who owe a duty of allegiance to the State.

In continental Europe, where laws descended from Roman law, duties of allegiance were balanced by the lords’ duty to protect their subjects. This notion of protection is echoed in contemporary international law and practice, where States may exercise a right of protection of their nationals where they have suffered injury by another State – such as by expropriation of property without adequate compensation, breach of a concession or other agreement, denial of justice by the courts, or police brutality. The topic has received extensive consideration by international courts and more recently by the United Nations International Law Commission (‘ILC’),^[3] which formulated Draft Articles on Diplomatic Protection in 2006.^[4]

Diplomatic protection may begin by way of representations through diplomatic channels, proceed to the stage of formal protest and end with the invocation of available remedies before international judicial or arbitral tribunals. Diplomatic protection gives access to the highest levels of government in the host State, but a State may also act on behalf of its nationals abroad by offering a lower level of consular assistance, such as providing replacement travel documents, registering nationals born abroad and providing help and advice during crises. International law may regulate the circumstances in which a State may espouse a claim on behalf of a national where there is no more than a tenuous link between that individual and the State, as illustrated by the Nottebohm Case (see Case Study 4.1).^[5]

Most States regard the extension of diplomatic protection to its nationals as something lying within the State’s discretion, having regard to all the circumstances and the nature of relations between themselves and the offending State. Although the State has the right to refuse to espouse the claim of one of its nationals, it should give serious consideration to such a request.^[6] The Draft Articles on Diplomatic Protection extend a State’s right of diplomatic protection to persons whom it recognises to be refugees if they are lawfully and habitually resident in the State’s territory at the time of the injury – but not as against the State of the refugees’ nationality.

Citizenship contrasted

The terms ‘citizen’, ‘national’ and ‘subject’ are often used interchangeably today. Yet there was a time when differences between the terms had greater significance. The term ‘subject’ came to be disfavoured, and was replaced by the term ‘citizen’, when former monarchies became republics, such as the United States in 1776 (previously a collection of colonies under the British Crown) and France in 1789. When European colonial empires were extended to Africa, Asia and other places, it became necessary to distinguish between different categories of nationals. ‘Nationals’, ‘subjects’ and ‘protected persons’ were terms used to describe the inhabitants of the colonial territories, while the term ‘citizen’ was often reserved for those inhabitants of the metropolitan territory of the colonial power. Commonly, the latter alone had the right to reside in the metropolitan territory or exercise political rights, such as voting.

The distinction became of increasing importance with the phenomenon of large numbers of people from poorer States fleeing persecution, or seeking a better life, in more affluent States, especially the metropolitan territory of colonial powers. Racial considerations played an important role in this distinction, as well as the ability of often relatively small European States possessing large colonial territories to absorb any sizeable influx.^[7] The United Kingdom has faced particular difficulties in this regard. Protocol 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (1963) provides that ‘No one shall be deprived of the right to enter the territory of the State of which he is a national’ (art. 3(2)).^[8] Because of the complexities of British nationality legislation, whereby some categories of overseas British nationals were excluded from the right of abode in the United Kingdom, the United Kingdom has been obliged to refrain from ratifying that Protocol.^[9]

Today, the term ‘national’ is still commonly used in discussions of public international law, while the term ‘citizen’ is more frequently used in constitutions and national legislation. However, there is no fixed rule and the meaning of the terms will depend on the context in which they are used. The terms may also co-exist: e.g., a person may be both a national of France and a citizen of the European Union, entitling him or her to vote in European elections.^[10]

Sources of law on nationality

Nationality is, in principle, regulated by domestic law.^[11] As stated in art. 1 of the Convention on Certain Questions relating to the Conflict of Nationality Law (1930): ‘It is for each State to determine under its own law who are its nationals. This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.’^[12] In practice, States were relatively slow to establish conditions of nationality by legislation. France was the first, in 1791; others followed in the nineteenth century, such as Great Britain in 1844.

In more recent times, international law has restricted the freedom of States to regulate questions of nationality. Some international conventions prescribe criteria by which a conferring State must be guided, especially for the avoidance of statelessness (discussed below). Mainly, however, international law deals only with the consequences of nationality as conferred by domestic law by nullifying or limiting the effects of an attribution of nationality contrary to international conventions, international custom or general principles of law. An example is the injunction against extending nationality to persons who are totally unconnected to the territory of the national State against their will.^[13]

[insert Case Study 4.1 about here]

1.2 Acquisition of nationality

Article 15 of the Universal Declaration of Human Rights (1948) states that ‘Everyone has the right to a nationality.’^[14] Nationality can be acquired either by birth or by later naturalisation.
Nationality by birth

There are two alternative criteria applied by States in attributing their nationality to persons upon birth. One is to apply jus soli (‘law of the soil’) so that any child, regardless of the status of the parents, acquires the nationality of the State in whose territory it is born. This has traditionally been the approach of countries of the English common law inheritance. It has been extended by some of those States to births occurring on board ships flying the flag of that State or on aircraft registered in that State, and hence regarded as a notional extension of the territory.

A well-known example of jus soli is the Fourteenth Amendment to the United States Constitution, which has provided, since 1868, that all persons born in the United States are ‘citizens of the United States’. There has been ongoing debate about whether ‘birthright citizenship’ should be granted to the children of undocumented migrants,^[15] and particular controversy about the commodification of nationality through ‘birth tourism’ – a practice whereby agents facilitate the travel of pregnant women from foreign States to the United States for the purpose of giving birth on United States soil.

The other criterion is jus sanguinis (‘law of the blood’), which determines nationality of a child by descent from that of its parents. This was the general approach of countries of Roman (civil) law inheritance. However, there are now considerable variations in the law and practice of States of both legal traditions. For example, in a study of the nationality laws of twenty-five (mostly developed) States in 2001, over half recognised nationality on the basis of both jus soli and jus sanguinis.^[16]

Consistent with the principle that nationality is regulated by domestic law, international law does not prescribe one approach or the other, but nor is it entirely silent. For example, art. 1 of the Convention on the Reduction of Statelessness (1961) obliges States parties to apply the principle of jus soli where the person would otherwise become stateless.^[17] Conversely, a well-established exception in customary international law is that a child born to parents who are foreign diplomats does not automatically acquire the nationality of a host State that applies jus soli.^[18]

Legislation in a number of countries has employed both approaches, or made exceptions, depending upon the circumstances. In recent years, faced with the possibility of large inflows of refugees, States hitherto applying jus soli have limited attribution of nationality by birth to children born in the territory to parents who are nationals or permanent residents. For example, a child of asylum seekers who arrive in a common law country before the birth will not necessarily obtain the nationality of the State in which asylum is sought.^[19]

In States applying jus sanguinis, the issue arises whether descent depends on the nationality of the mother or the father. State practice has tended to prefer the nationality of the father, but where the father is unknown or the birth occurs outside marriage, the legislation of some States then confers nationality by descent from the mother. Modern legislation tends to avoid discrimination on gender grounds; hence it may be possible in some countries for a child to have three nationalities at birth: that of the place of birth (jus soli), that of the mother (jus sanguinis), and that of the father (jus sanguinis). Gender equality has been promoted by the Convention on the Elimination of All Forms of Discrimination against Women (1979) (‘CEDAW’), which in art. 9 requires States parties to grant women equal rights with men with respect to the nationality of their children.^[20] However, principles of equality are not always upheld in national courts.^[21]

Nationality by naturalisation

Naturalisation is a voluntary act by which a person already possessing a nationality, or a person with no nationality, seeks and is granted the nationality of another State. Legislation frequently requires, as pre-conditions for the grant of nationality, a prolonged residence in the State, good character, knowledge of the language and customs, and ability to be self-supporting. International law does not prescribe particular conditions for naturalisation but it sometimes imposes limitations. For example, in relation to residence, the European Convention on Nationality (1997) provides that a State shall not require a period of residence of more than ten years as a pre-condition for applying for naturalisation.^[22] In relation to competence in the national language, the Council of Europe Convention on the Avoidance of Statelessness in relation to State Succession (2006) obliges parties, in the case of State succession, not to discriminate in granting naturalisation on the basis of language.^[23] Considerations of national security may, however, be a valid ground for denying an application for naturalisation.^[24]

The grant of nationality by naturalisation does not require the consent of the State of original nationality, nor is that State obliged to recognise the change. Cases have occurred, for example, where naturalised persons or their descendants have visited the State of original nationality and have found themselves subject to military call-up or other public duties. It is also a general principle that individuals may not be forced to change their nationality against their will. For example, under the law of armed conflict, it is unlawful for an occupying power to decree that all persons in the occupied territory shall henceforth be nationals of the occupying power.^[25]

State practice in the past discouraged the acquisition of more than one nationality. As a consequence, legislation often provided that the State’s nationality was automatically lost upon voluntary acquisition of another nationality. Similarly, legislation often provided that the grant of nationality by naturalisation required the renunciation of the former nationality by way of a formal declaration. Recent practice, however, has tended to allow a naturalised person to opt to retain the former nationality, thus becoming a dual national (see below).

Particular issues arise in respect of marriage and adoption. Under international conventions, naturalisation of the husband during marriage does not automatically involve a change of nationality of the wife, except with her consent.^[26] Some States impose stringent requirements on the naturalisation of persons who marry nationals of that State. This is to avoid ‘marriages of convenience’, or ‘sham marriages’, in which there is no genuine marital relationship between the parties because the marriage is used merely as a vehicle for acquiring nationality. Many States also confer nationality on an adopted child of a national, although practices vary depending on whether the adoption was completed overseas or locally. The grant of nationality is one way of satisfying the requirement in art. 5 of the Convention on Protection of Children and Cooperation in respect of Intercountry Adoption (1993) that a child adopted under the Convention ‘be authorised to enter and reside permanently’ in the receiving State.^[27]

1.3 Loss of nationality

Article 15 of the Universal Declaration of Human Rights (1948) states that ‘No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.’ In practice, nationality can be lost:

• by a voluntary act of the national;
• by an act of the State of nationality; or, more rarely
• by extinction of the State, or acquisition of part of the State by another State.

The most important example of the first class is voluntary renunciation of nationality, which is permitted under the law of many States as a corollary of the right to change one’s nationality. The third class is considered below under ‘State succession’.

The second class encompasses a wide variety of circumstances in which a State may revoke a person’s nationality automatically by operation of law or in the exercise of executive discretion. Loss of nationality may occur automatically as a result of the actions of a national in obtaining another nationality, or serving in the armed forces or civil service of another State. Nationality might be lost under the laws of some States by a woman who marries a national of a foreign State, the laws of which provide for the automatic attribution of the husband’s nationality to the wife. Such automatic attribution, however, is contrary to art. 9 of CEDAW. Nationality may also be revoked in the case of naturalised persons who have obtained naturalisation by fraud, or abused their status by committing serious criminal offences or giving aid to an enemy power in time of armed conflict.

Nationals by birth are not subject to denationalisation under modern international law, thus making nationality a more robust legal status when acquired by birth than by naturalisation. One example from the past – Nazi Germany’s denationalisation of German Jews in 1941^[28] – would now be contrary to international law since denationalisations based on ethnic, racial or religious discrimination are forbidden by art. 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (1965) and by art. 26 of the International Covenant on Civil and Political Rights (1966) (‘ICCPR’).^[29] The latter provision also prohibits discrimination on the ground of ‘political or other opinion’ – a proscription that would have been breached by the past practice of the Soviet Union and some other Eastern European States of denationalising political dissidents or nationals who had sought asylum abroad.

International law qualifies the competence of a State to revoke an individual’s nationality by the requirement that the deprivation must not be arbitrary. Arbitrariness may take many forms.^[30] A discretionary executive action not sanctioned by law is likely to be arbitrary, but so too are certain actions that are formally authorised by law. Deprivations of nationality that are discriminatory (e.g., on grounds of race, colour, sex, or religion) constitute a violation of human rights and are prima facie arbitrary. So too are deprivations of nationality that do not serve a legitimate State purpose, or lack proportionality because they do not adopt the least intrusive means of achieving the desired goal. Deprivations of nationality may be arbitrary if they are procedurally unfair (e.g., denying the national an opportunity to oppose the proposed action), or if the action is substantively unreasonable in the circumstances. Loss of nationality resulting in statelessness is also generally prohibited: this is expressly provided for in the Convention on the Reduction of Statelessness (1961) subject only to limited exceptions (art. 8), and arguably it is also an instance of unreasonableness that may make the deprivation arbitrary.

2 Principles of Statelessness

2.1 The concept of statelessness

A person is stateless if he or she is not considered to be a national by any State. This definition of statelessness is known as de jure statelessness because it arises from the absence of the formal bond of nationality, where nationality is determined according to the laws of each State. While clearly undesirable, de jure statelessness is not inconsistent with customary international law, which recognises the general competence of States to confer or withdraw their nationality.^[31] The operation of a State’s laws may thus leave a person without any nationality, subject only to important treaty obligations that modify this situation for States parties.

Statelessness, like nationality, is a key concept in international migration law because the absence of nationality can have a significant impact on an individual’s ability to cross international borders and on the treatment of such persons if they do so. The international mobility of stateless persons is adversely affected by the difficulties they face in obtaining identity and travel documents, and by the reluctance of States to admit such persons into their territory when no other State is required to accept their return in the event that the stateless person wishes to leave or is required to do so.

The concept of de jure statelessness has been criticised as being too narrow. Some individuals technically possess a nationality but are unable to enjoy its benefits because they cannot prove their nationality or because the State of their nationality is not able or willing to offer them protection. This lack of effective nationality has been described as a situation of de facto statelessness. An example of de facto statelessness is the situation of women and children who have been subjected to human trafficking and are often held in a foreign State in conditions akin to slavery, with no access to their passports and no practical possibility of seeking the protection of their national State.

The concept of de facto statelessness provides a useful tool for considering the ways in which nationality, or its absence, affects the legal rights of individuals. It may also have operational significance in so far as it affects which international agency has responsibility for affording protection. Yet, if viewed as a legal concept, de facto statelessness is a broad and imprecise notion that generates discord with established legal regimes for protecting refugees and human rights more generally. For this reason, international instruments that address issues of statelessness are generally confined to de jure statelessness. Thus, the Convention relating to the Status of Stateless Persons (1954) defines a stateless person as ‘a person who is not considered as a national by any State under the operation of its law’.^[32]

The number of stateless persons in the world today is very large. At the end of 2010, the United Nations High Commissioner for Refugees (‘UNHCR’) had identified 3.46 million stateless persons in 65 countries, and estimated the global population of stateless persons to be around 12 million.^[33] These figures may be compared with the 9.95 million refugees whose plight is generally much better known. Information on the magnitude of stateless populations is incomplete, however, because the majority of States do not register stateless persons and cannot provide reliable data. Of those States for which reliable data are available, Nepal has the largest stateless population (800,000), followed by Myanmar (797,000) and Thailand (543,000), while stateless populations of more than 100,000 are also found in Latvia, Syria, Iraq and Estonia.^[34]

Difficulties of estimation are compounded by the nexus between statelessness and status as a refugee or internally displaced person. Statelessness, and the lack of State protection that this implies, may be a primary reason why individuals decide to flee their place of origin, but such persons cannot strictly become refugees until they are outside the State of their habitual residence (see Chapter 7).^[35] Many stateless persons do not cross international borders and are unable to access the benefits of the international regime of refugee protection.

UNHCR is the principal United Nations agency that addresses the challenges of statelessness. Since its inception, UNHCR has had responsibility for stateless refugees, but this mandate was extended beyond refugees by the United Nations General Assembly in 1974 – when the Convention on the Reduction of Statelessness (1961) came into force – and extended again in 1994 and 1995.^[36] The mandate is universal in that it is not restricted to States parties to the relevant international instruments. There is a degree of similarity, and sometimes overlap, between the agency’s functions with respect to stateless persons and refugees, both of whom lack national protection. UNHCR seeks to collect reliable data on stateless persons for the purpose of discharging its functions; actively promotes wider ratification of the relevant treaties; and has acknowledged the need to ‘redouble its efforts’ to address statelessness in coordination with other agencies, organisations and civil society.^[37]

2.2 Paths to statelessness

De jure statelessness may arise either at birth because a child does not acquire an original nationality according to the law of any State, or it may arise subsequently if a person loses his or her nationality without acquiring another nationality. De facto statelessness usually arises in situations of State repression and is addressed below in relation to the human rights of stateless persons.

Statelessness at birth results from the circumstance that nationality is determined by the law of each State, and States adopt different bases for granting their nationality. If all States adopted the jus soli principle, statelessness at birth would not arise because all children are born in the territory of one State or another (once the principle is extended to ships and aircraft). However, application of the jus sanguinis principle can lead to statelessness at birth in various ways, which are illustrated by the following examples.

The first is where a child is born in a State that applies the jus sanguinis principle to parents who are themselves stateless. With no nationality to receive from its parents by descent, the child inherits the parents’ statelessness, thus perpetuating social and economic disadvantage from one generation to another. This is the experience of many Bidun children born in Kuwait.^[38] A second example is where a child is born in State A (which applies the jus sanguinis principle based only on paternal descent) to a mother who is a national of State A and a father who is stateless. The child is unable to acquire the mother’s nationality because of State A’s gendered nationality laws, while the father has no nationality to confer. A third example is where a child is born in State A (which applies the jus sanguinis principle based only on paternal descent) to a mother who is a national of State A and a father who is a national of State B (which applies the jus soli principle). The mother is unable to confer her nationality on her child because of State A’s gendered nationality laws, while the father’s nationality is unavailable because it is not conferred by descent and the child is not born in State B. As discussed below, a number of human rights treaties address the problem of statelessness at birth by imposing obligations on States to grant nationality to children who would otherwise be stateless.

Statelessness can also arise subsequent to birth if a person loses his or her nationality without acquiring another nationality. There are many ways this can occur, reflecting the variety of circumstances in which nationality may be lost through renunciation, revocation, or State succession, as discussed above. For example, a person may become stateless, even if temporarily, by renouncing an existing nationality in anticipation of acquiring a new one. A person may become stateless if a State revokes its nationality upon discovering that the person obtained it by misstatement or fraud. The United States has done this in respect of naturalised immigrants who were later found to have concealed their Nazi involvement during the Second World War. Large groups of people may become stateless when States fragment or recombine. The complex effects of State succession on nationality are illustrated by the Bihari people of Bangladesh, many of whom have remained stateless since Bangladesh won its war of independence from Pakistan in 1972 (see Case Study 4.2).

Special problems of statelessness arise where a woman’s nationality is dependent on that of her husband. Upon marriage, she may lose her own nationality under the laws of her national State, but might not acquire her husband’s nationality under the laws of his national State, leaving her stateless. Alternatively, if she loses her own nationality and acquires her husband’s, she may be rendered stateless if the husband subsequently changes nationality to that of a third State, or if her married status ceases to exist by virtue of death of the husband or divorce. The effects of dependent nationality on statelessness are ameliorated by the Convention on the Nationality of Married Women (1957), which currently binds seventy-four States.^[39] Under the Convention, neither the celebration nor dissolution of a marriage between a national and a non-national, nor a change of nationality by the husband during marriage, automatically affects the nationality of the wife (art. 1). A wife is also entitled to retain her husband’s nationality notwithstanding that the husband renounces that nationality or voluntarily acquires a new nationality (art. 2).

[insert Case Study 4.2 about here]

2.3 Human rights of stateless persons

Stateless persons are some of the most vulnerable and oppressed people in the world, facing daily obstacles and hardships that do not affect a State’s nationals or even foreign nationals residing within a State. Examples of oppressed stateless peoples can be found all over the world, including the Bihari in Bangladesh (see Case Study 4.2), the Bidun in the Middle East, the Rohingya in Myanmar, the Roma in Europe and the Karen in Thailand. In many States with weak human rights records, stateless persons live on the margins of society and are subjected to discrimination at the hands of the State, its agents or private persons. Even in States with generally sound human rights records, stateless persons must deal with the fact that ‘nationality is a practical prerequisite for accessing political and judicial processes and for obtaining economic, social, and cultural rights’.^[40] Without status or documentation, stateless persons may be unable to obtain health care, employment or education; acquire property; or travel. Some may be caught in a limbo of indefinite migration detention if they have entered a State unlawfully and no other State is willing to accept their return.^[41]

The legal frameworks that have been developed to address these human rights concerns include both specialised and generalised treaties. UNHCR is also developing ‘soft law’ guidelines on statelessness to help States and practitioners to better identify, prevent or reduce statelessness, and to protect the rights of stateless persons.

The 1954 Convention

The first major international attempt to address the human rights of stateless persons came with the conclusion of the Convention relating to the Status of Stateless Persons 1954 (‘1954 Convention’).^[42] In the aftermath of the Second World War, the international community faced the unprecedented challenge of establishing legal protection for millions of people displaced by war, famine and the redrawing of geopolitical boundaries in Europe. The Convention relating to the Status of Refugees (1951) (‘Refugee Convention’) addressed an important dimension of the problem by establishing an international protection regime for those who feared persecution and were outside the State of their nationality or, if stateless, were outside the country of their habitual residence (see Chapter 7).^[43] However, many stateless persons did not qualify for refugee status because they had not crossed international borders or their mistreatment did not amount to persecution within the terms of the Refugee Convention.

The 1954 Convention addressed these concerns by creating a new international status – the ‘stateless person’ – and according a suite of rights to persons holding that status. The 1954 Convention does not require States parties to confer their nationality on stateless persons, which is a matter addressed by a later convention, as discussed below. The 1954 Convention can thus be seen as a temporary response while avenues for the acquisition of nationality are explored.^[44]

The 1954 Convention embodies a de jure conception of statelessness, namely, persons who are not considered to be a national by any State (art. 1(1)). The drafters expressly rejected a broader coverage that would include de facto statelessness.^[45] Stateless persons also fall outside the 1954 Convention if they are receiving protection or assistance from a United Nations agency other than UNHCR; if they enjoy nationality-type rights in their country of residence; or if they are not deserving of protection because they have committed a war crime or other serious non-political crime (art. 1(2)). Like the Refugee Convention, the 1954 Convention does not mandate any particular procedure for determining the status of persons who claim to be stateless – this is a matter for each State, subject to the usual international criterion of procedural fairness.

The rights enjoyed by stateless persons depend on a number of factors, which include the subject matter of the right, the standard adopted (a national standard or an ‘alien’ standard) and the lawfulness of the person’s presence in the territory of the State. These layers of rights share a similar architecture to the Refugee Convention and create a nuanced approach that seeks to accommodate the competing interests of the individual and the State. With respect to some rights, stateless persons within the territory of a State must be treated no less favourably than nationals of that State. This is the case with freedom of religion (art. 4), access to courts (art. 16), terms and conditions of employment (art. 24) and access to social security (art. 24). With respect to other rights, stateless persons must be treated no less favourably than aliens (i.e., non-nationals) within that State. This is the case for the acquisition of property (art. 13) and the right to work (arts. 17–19). In a few cases, stateless persons must be treated no less favourably than aliens, but only where the stateless person is lawfully in the territory of the State. This is the case for freedom of association (art. 15), access to housing (art. 21) and freedom of internal movement (art. 26). The restricted nature of the last-mentioned right allows States to detain stateless persons who have entered their territory irregularly.

The 1954 Convention contains additional provisions that are of special importance to stateless persons. Contracting States are prohibited from expelling a stateless person lawfully in their territory, save on grounds of national security or public order (art. 31). Contracting States are required to issue identity papers to stateless persons in their territory (art. 27). If those persons are lawfully in their territory, States are also required to issue travel documents for travel outside the territory, unless there are compelling reasons of national security or public order (art. 28). A Schedule to the Convention sets out the minimum requirements for the travel document of a stateless person, including regulation of fees and the period of validity.

The 1954 Convention binds a significant but still modest proportion of the international community – sixty-six States were party to it in mid-2011. In light of the large number of stateless persons, their global geographic reach and the privations they suffer, this level of international commitment is inadequate. This is certainly so in comparison with the Refugee Convention and its 1967 Protocol,^[46] which bind 145 States and 146 States, respectively. In recent years, calls have come from a number of United Nations organs and agencies – the General Assembly, the Human Rights Council, and the UNHCR Executive Committee among them – for greater State accession to the 1954 Convention.

Universal human rights norms

Stateless persons are entitled to enjoy the rights set out in the 1954 Convention when in the territory of States parties. However, with the growth of international human rights law, the human rights of stateless persons have been complemented by a raft of universal norms that overshadow many of the earlier developments (see Chapter 6).

International human rights norms are usually expressed in universal terms. In the words of the Preamble to the Universal Declaration of Human Rights (1948), they constitute ‘a common standard of achievement for all peoples and all nations’. The two international Covenants on human rights thus speak of the rights of ‘all peoples’, ‘every human being’ and ‘everyone’.^[47] It goes without saying that stateless persons are people too, and they are entitled to enjoy the universal benefits of civil, political, economic, social and cultural rights. International human rights treaties have several advantages over the 1954 Convention. They have been ratified by a larger number of States; many of their principles form part of customary international law and bind States irrespective of specific treaty commitments; they protect a broader scope of rights; and there are Charter-based and treaty-based mechanisms for monitoring and enforcing compliance. Nevertheless, as discussed below, there are circumstances in which the human rights of stateless persons remain narrower than those of nationals.

A related question is whether the failure of a State to respect the international human rights of its own nationals can amount to a practical denial of the benefits of nationality such as to render those persons de facto stateless. This typically arises where there are systemic violations of human rights associated with State repression. Some commentators have found it useful to treat the loss of effective national protection as a matter of de facto statelessness.^[48] Others argue there is no need for a special regime for de facto statelessness because the denial of the human rights attached to nationality is already covered by other regimes, namely, the refugee regime for persons who are outside the country of their nationality, and the international human rights regime in other cases.^[49]

2.4 Measures to reduce statelessness

The right to belong to a community has been poignantly described by Hannah Arendt as ‘a right to have rights’^[50] and underpins the importance of practical measures to reduce statelessness. The idea of ‘access to citizenship’ – especially for long-term or permanent residents – is increasingly finding expression in international jurisprudence and is reflected in the views of the United Nations human rights treaty bodies.^[51] States have long promoted a range of measures to reduce statelessness and its attendant ills, while still recognising the competence of each State to determine its membership through nationality laws. Measures to reduce statelessness have been channelled through provisions in both general human rights treaties and specialised treaties addressing questions of nationality and statelessness.

General treaties

International human rights instruments have confronted the issue of statelessness in three ways – by expressly recognising the right of individuals to have a nationality; by facilitating the acquisition of nationality; and by limiting the capacity of States to revoke nationality. All elements can be seen in the Universal Declaration of Human Rights (1948), which states in art. 15 that (1) everyone has the right to a nationality, and (2) no one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. The international human rights treaties express these ideas in different ways.

The ICCPR promotes the acquisition of nationality at birth by providing that ‘every child shall be registered immediately after birth’ and ‘every child has the right to acquire a nationality’ (art. 24). The Convention on the Rights of the Child (1989) reiterates these rights, but with the qualification that implementation shall be in accordance with national law (art. 7).^[52] This makes explicit that, while children have a right to a nationality, they do not have a right to a particular nationality – that is a matter for national laws, informed by any relevant international obligations. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) similarly provides that ‘Each child of a migrant worker shall have the right to a name, to registration of birth and to a nationality’ (art. 29).^[53] CEDAW focusses on gender equality in the acquisition and loss of nationality, since the absence of equality can lead to problems of statelessness. It requires States to grant women equal rights with men in acquiring, changing or retaining their nationality, and to grant women equal rights with men with respect to the nationality of their children (art. 9).

Specialised treaties

The international community recognised the need for a universal instrument that prevents and reduces statelessness well before general human rights treaties began to include measures directed to that end. Since de jure statelessness results from the absence of a formal bond of nationality between an individual and any State, it is States themselves that must take action to ensure everyone has a nationality. The Convention on the Reduction of Statelessness (1961) (‘1961 Convention’) does this by requiring States parties to provide a safety net for persons who would otherwise fall through the cracks – beyond that, the 1961 Convention does not regulate the terms on which a State confers or withdraws its nationality.^[54] Its ratification is presently meagre (thirty-eight parties in mid-2011) but its provisions have had wider influence in informing the development of regional treaties (discussed below) and national legislation.

The first tranche of provisions deals with the grant of nationality. States parties must grant their nationality to a person who would otherwise be stateless if that person was born in its territory (art. 1) or born outside its territory to parents one of whom was a national of the State at the time of the birth (art. 4). These provisions recognise both jus soli and jus sanguinis as a basis for attributing responsibility for providing the safety net. The grant of nationality may be made at birth by operation of law or at a later time upon application. Children are deemed to be born in the territory of a State if they are found there or are born on a ship or aircraft registered to that State (arts. 2–3).

The second tranche of provisions deals with the loss or deprivation of nationality. States parties cannot withdraw their nationality from a person as result of voluntary renunciation (art. 7) or change in personal status (art. 5) unless the person has or acquires another nationality. More generally, the 1961 Convention prohibits a State from depriving a person of its nationality if this would render the person stateless (art. 8). To this general principle there are only limited exceptions, including where the nationality was obtained by misrepresentation or fraud; where the person has acted inconsistently with his or her duty of loyalty to the State; or where the person has made a declaration of allegiance to another State. The latter two exceptions are available only to States parties that reserved their right to apply such laws when they ratified the 1961 Convention (art. 8(3)) – of the thirty-eight States parties, only six have done so.

The third tranche deals with nationality in the context of State succession. Where territory is transferred between States parties, they must include treaty provisions designed to ensure that no person becomes stateless as a result of the transfer. In the absence of such provisions, the relevant States must confer their nationality on persons who would otherwise become stateless as a result of the transfer (art. 10).

The 1961 Convention has had an impact on regional treaties that seek to mitigate statelessness by regulating the acquisition and loss of nationality, such as the American Convention on Human Rights (1969) (art. 20); the African Charter on the Rights and Welfare of the Child (1990) (art. 6); and the European Convention on Nationality (1997) (art. 6).^[55] Each is significant for including the right of every person to the nationality of the State in whose territory he or she was born, if he or she does not have the right to any other nationality. This requires States parties to adopt the principle of jus soli for any person who would otherwise be stateless.

Article 20 of the American Convention on Human Rights was considered by the Inter-American Court of Human Rights in a landmark decision in 2005, Case of Yean and Bosico Children v. Dominican Republic.^[56] The case concerned the nationality of two children who were born in the Dominican Republic to mothers of Dominican nationality and fathers of Haitian nationality. At that time, the Dominican Constitution granted Dominican nationality to children born in the territory unless they were the children of foreign diplomats or foreigners in transit. The Dominican authorities refused to issue the children with birth certificates, as part of a deliberate State policy, because their fathers had been Haitian migrant workers. Without these identity documents, the children were unable to apply for nationality or attend school.

The Court upheld the complaint, stating that the Dominican Republic had breached the right to nationality (art. 20) and the right to equal protection of the law without discrimination (art. 24). In reference to art. 20, the Dominican Republic was not authorised to qualify the children’s right to nationality by the migration status of their fathers: the American Convention on Human Rights provides that Dominican nationality is acquired whenever a person is born in the territory and would otherwise be stateless. The Court ordered the State to compensate the victims, publicise the decision, organise a public act of apology, and amend its legislation. Compensation was ultimately paid, but in other respects the decision was a pyrrhic victory. In 2010 a new constitution entrenched the marginal status of Haitian workers and their offspring by withholding Dominican nationality from those born in the Republic to ‘illegal residents’ (art. 18). This outcome contradicts the obligation of States under art. 68 of the American Convention on Human Rights to comply with judgments of the Court and guarantee implementation of its rulings at the national level. Although the Court monitors compliance with its judgments, the Inter-American system lacks a formal mechanism for enforcing its orders.

3 Particular Issues

3.1 Multiple nationality

Multiple nationality occurs where an individual possesses the nationality of more than one State. Multiple nationality can occur as a result of birth of a child in a State that accords nationality on the basis of jus soli to foreign parents who are nationals of States that recognise nationality by descent (jus sanguinis). It can also occur where individuals become naturalised or married in one State without relinquishing their original nationalities.

In past eras, and to some extent in the present, multiple nationality was disfavoured by States, even though the status is permitted by international law. As late as 1974 the German Federal Constitutional Court regarded dual or multilateral nationality as ‘an evil that should be avoided or eliminated in the interests of States as well as the interests of the affected citizens’^[57] because it was thought that a person should owe only one allegiance and thus have only one nationality. In a past age when the treatment by a State of its own nationals lay behind the walls of exclusive ‘domestic jurisdiction’ and was not subject to international law, the invocation of another nationality was regarded as an unwelcome complication and as subversive of exclusive national sovereignty.

Negative attitudes towards multiple nationality have substantially lessened in recent years. The Preamble to the European Convention on Nationality (1997) notes ‘the varied approach of States to the question of multiple nationality’ and adopts a neutral position on the question, except for its prohibition on depriving children born with a foreign nationality, or married women, of multiple nationality (arts. 14–17). The trend of States towards acceptance of multiple nationality has been informed by several forces. For migrant sending countries, it has been prompted by their desire to maintain links with their diasporas and also to sustain the inward flow of remittances from migrants working abroad. For migrant receiving countries, it has been prompted by the desire to encourage the integration of migrant communities by incorporating them into the political and social community of the State, without forcing them to sever all ties of sentiment with their countries of origin. More generally, the incidence of multiple nationality has increased as a result of the greater mobility of individuals through migration and asylum in a globalised world.

Some problems remain, even in States that recognise multiple nationality in principle and accord human rights in their territories to all persons present there, without discrimination. The first of these problems concerns compulsory military service. There are a number of bilateral treaties on this subject, as well as the multilateral Protocol relating to Military Obligations in Certain Cases of Double Nationality (1935).^[58] This Protocol, which binds only thirteen States, provides that military service must be fulfilled only in the State where the dual national is ordinarily resident. This would seem to be a sensible solution even for States not party to a relevant treaty, but some States persist in their attitude of compulsory service for nationals, leading to diplomatic friction with another State of which the individual is also a national and in which he or she is normally resident. The problem is of diminishing significance as the number of States imposing compulsory military service declines.^[59]

The second problem concerns the right of diplomatic protection, including the espousal of an international claim. Article 4 of the Convention on Certain Questions relating to the Conflict of Nationality Law (1930) lays down the rule that ‘A State may not afford diplomatic protection to one of its nationals against a State whose nationality such person also possesses.’ This rule is said to reflect the principle of equality. It has already been noted in connection with the Nottebohm Case that the International Court of Justice, by implication, even extended this notion to rule out a right of protection by the national State against a State of permanent residence, albeit falling short of formal nationality (see Case Study 4.1). However, doubts about the binding nature of this rule in customary international law had been voiced even before 1930, and were deepened with the Merge Claim Case of 1955.^[60] The ILC – a subsidiary organ of the United Nations General Assembly – significantly modified the 1930 formulation in its Draft Articles on Diplomatic Protection (2006), as follows (art. 7):

‘A State of nationality may not exercise diplomatic protection in respect of a person against a State of which that person is also a national unless the nationality of the former State is predominant, both at the date of injury and at the date of the official presentation of the claim.’

A further issue with respect to the right of diplomatic protection arises where a State asserts the right of protection over a person possessing more than one nationality against a third State of which he or she is not a national. The 1930 Convention (art. 5) laid down an ‘effective nationality’ test but this has also been rejected by the ILC Draft Articles, which have adopted a clear-cut approach allowing an unrestricted right by any State to protect its nationals (art. 6):

‘(1) Any State of which a dual or multiple national is a national may exercise diplomatic protection against a State of which that person is not a national.

(2) Two or more States of nationality may jointly exercise diplomatic protection in respect of a dual or multiple national.’

3.2 State succession

A succession of States occurs when one State replaces another in sovereignty over a particular territory. The succession may be complete or partial in relation to the territory. It may involve the extinction of the former State, or the former State may continue to exist in relation to its other territories. Succession may also arise from the unification of two or more States to form a new State. Historically, the most common form of State succession was the result of conquest or annexation. In recent times the emergence of new States by way of independence from former colonial powers is a more common example. So too is the break-up of a State into separate States (e.g., the former Yugoslavia) or the secession of one part of a composite State (e.g., South Sudan).

State succession is to be distinguished from mere governmental succession where, despite even a fundamental change in the nature of the government, the State remains (whether or not under the same name). Examples of governmental succession include Russia after the revolution of 1917, China after the revolution of 1949 and Iran after the revolution of 1979. Questions of nationality arise under all forms of State succession but not with respect to governmental succession.

Normally, the inhabitants of a territory that has undergone a State succession will automatically acquire the nationality of the new State and lose that of the former State. Whether this is an established rule of customary law is open to some doubt, since in many cases specific treaty provisions have regulated the position.^[61] However, State practice, which may support a general principle of customary international law, may be found in the constitutions of States that acquired independence from former colonial powers: typically these declared to be nationals of the new State only those persons who were born in the territory of the new State.

The ILC has produced Draft Articles on Nationality of Natural Persons in relation to the Succession of States (1999) to address some of the difficulties encountered with respect to nationality upon State succession.^[62] Although special rules have been developed for particular types of State succession, the general rules applicable to all types of State succession affirm the fundamental human rights of persons affected by the succession. These protections include:

• the right of persons to the nationality of at least one of the States concerned (i.e., the predecessor State or the successor State) (art. 1);
• the obligation of these States to prevent a person becoming stateless as a result of succession (art. 4);
• the obligation of these States to enact legislation on nationality without undue delay (art. 6);
• a presumption that persons having habitual residence in the affected territory shall acquire the nationality of the successor State (to address the time-lag between the act of succession and the adoption of legislation) (art. 5);
• measures to promote family unity (art. 12); and
• prohibitions on discrimination and arbitrariness in decisions with respect to nationality (arts. 15–16).

These approaches are also reflected in the Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession (2006). Particular problems have been encountered by ethnic Russians in seeking the nationality of Estonia, Latvia and Lithuania, where they have been permanent residents, after those States seceded from the Soviet Union.^[63]

Significantly, where a person is qualified to acquire the nationality of two or more of the States concerned, the States are obliged to give consideration to the will of that person (art. 11). The idea of an option, exercisable by each individual, to reject the nationality of the successor State and to retain that of the predecessor State appears to be a dominant trend in practice in cases of State succession. The ILC Draft Articles do not raise this as high as a right of option in all cases (States are obliged only to ‘give consideration’ to the principle of free choice of nationality), but in some categories of State succession a right of option is recognised, such as where a State dissolves completely and is replaced by two or more successor States (art. 23).

3.3 Evidence of nationality

While the vast majority of people have a single nationality that is rarely called into question, there are many others whose nationality is uncertain – perhaps because they did not acquire a nationality at birth, or lost it, or because they have more than one nationality (e.g., acquired through distant lineage). In situations of uncertainty, how is nationality or its absence – statelessness – to be proved? The establishment of nationality through documentary and other sources is an important practical matter, but it is one that should be distinguished from evidence of a person’s identity and from the documentation required to facilitate international travel. The modern-day passport serves all three functions.

Proof of nationality can arise under domestic law and international law. Because nationality is a legal bond between a State and an individual, the means by which that status can be evidenced is primarily a matter for the law of each State. Laws differ widely in this regard, but it is common for legislation to authorise the executive to issue certificates of nationality or naturalisation. A certificate is usually prima facie evidence that the person named therein is a national of the State. It is not conclusive because the person’s status may be called into question if the certificate was obtained by misstatement or fraud, or if the nationality was subsequently lost.

A State may require proof of nationality for many purposes, including voting in elections and accessing healthcare or social security. While a certificate of nationality will satisfy that requirement, other documents may suffice. In States that confer nationality on the basis of jus soli, it may be sufficient for a person to produce a birth certificate indicating that he or she was born in the State. The birth certificate is not direct proof of nationality but proof of a fact that is constitutive of nationality. In States that confer nationality on the basis of jus sanguinis, it may be sufficient to prove descent from nationals, although the problem then becomes one of proving the nationality of the parents.^[64]

Nationality may also have to be proved for the purposes of international law, but the question will not necessarily receive the same answer here as in domestic law. The manner in which nationality is ascertained is sometimes governed by the terms of a treaty, but where there is no relevant treaty provision the matter will fall to be determined in national or international tribunals, where different approaches can be taken.

An example of a class of treaty that often addresses evidence of nationality is that of bilateral readmission agreements, which provide for the rapid and effective return of irregular migrants from one State to another with a minimum of formality (see Chapter 5). The parties typically agree to accept the return of their own nationals, as well as non-nationals who have transited through their territory. To this end, readmission agreements list a wide range of documents that are accepted as proof of nationality without further investigation. These documents (whether current or expired) might include passports, civilian or military identity cards, certificates of nationality, official documents that mention nationality, and seaman’s registration books. The agreements may go further to include a list of documents that are accepted as prima facie evidence of nationality, including driving licences, birth certificates, company identity cards and statements by witnesses.^[65] When the objective is rapid and effective return, what constitutes ‘evidence’ can be inappropriately fluid.

By contrast, multilateral treaties rarely address the issue of evidence of nationality directly. The Refugee Convention requires a person to be outside the country of his or her nationality to be a considered a refugee, but proof of alienage is left to the determination of States parties (see Chapter 7). The 1954 Convention similarly leaves the determination of statelessness to States parties; and the issuance of international travel documents to a stateless person does not affect his or her national status (art. 28 and Schedule). In the context of these conventions, questions of nationality are decided in domestic tribunals. However, evidence of nationality can also arise in international tribunals – e.g., where one State espouses a claim of diplomatic protection on behalf of its national, proof of nationality is a precondition for success. Passports are important evidence. The modern passport is a document issued by a State to its own nationals with intended extraterritorial effect. While it serves mainly as an identity and travel document, it is usually taken as prima facie evidence of nationality as well.^[66]

4 Relevance of Status to International Migration

It will be apparent from the foregoing discussion that whether a person is a national of one or more States, or is stateless, is of great significance to many aspects of international migration. These will be explored in detail in later Chapters: this section seeks only to summarise the main contexts in which nationality impacts on freedom of international movement or the treatment of migrants.

First, nationality is relevant to whether a person has a right to enter a State. The ICCPR proclaims that ‘No one shall be arbitrarily deprived of the right to enter his own country’ (art. 12(4)). The Covenant’s travaux préparatoires indicate that this right was intended to inure to the benefit of nationals and permanent residents who, by reason of their connection with a State, were justified in calling it their own. In the case of other individuals (and with the exception of refugees), States are entitled to deny entry, and they do so regularly on the basis of qualitative and quantitative selection criteria. The right of nationals to enter their own State is discussed further in Chapter 5.

Secondly, since the State of nationality has the general obligation to admit its nationals, another State wishing to deport a person of that nationality – for criminality, overstaying or other reasons – is entitled to expect that the deportee will be allowed to re-enter the State of nationality. For practical reasons, deportation cannot be effected otherwise than to a particular destination. However, where the deportee is threatened by persecution in his or her national State, the deportee may be protected by human rights principles analogous to non-refoulement and thus enter into a period of uncertain status in the deporting State until a third State is found willing to accept the deportee.

Thirdly, the failure to possess any nationality, or the possession of a nationality that is regarded with disfavour by other States, has a practical bearing on the ability of individuals to cross international borders. This is not only because of the difficulty they face in obtaining international travel documents. It is also because stateless persons, and nationals of certain States, are unlikely to fare well in the discretionary admission policies of third States. Conversely, some nationalities have been highly prized because they provide entrée to third States – such as Canadian nationality for access to the United States, and United Kingdom nationality for access to Europe.^[67] In time, as the economies of China and India grow in global importance, they too may become highly desired nationalities for future migrants.

Fourthly, nationality is relevant to one dimension of departure from a State. Everyone enjoys the freedom to leave any country, including his or her own (see ICCPR art. 12(2)), but the capacity of a State to require a person to depart depends on national status. A State can lawfully remove non-nationals from its territory, provided certain procedural safeguards are met (art. 13), and this power has been used throughout history ‘to relieve the soil of an obnoxious guest’.^[68] However, it is an established principle of international law that a State cannot deport its own nationals, as a corollary of the right of nationals to re-enter the State of their nationality. One exception to this principle is that States can extradite their own nationals to face criminal charges in another State, with all the protections that the extradition process affords. Yet the strength of the underlying principle is evident in the reluctance of States following the civil law tradition to extradite their own nationals – preferring instead to prosecute them at home for crimes committed abroad. As a legal and symbolic manifestation of a person’s ‘belonging’ to a community, nationality restrains the capacity of States to require persons to leave their territory. The right of States to expel non-nationals is discussed further in Chapter 5.

Fifthly, national status can be important in defining the human rights of migrants, despite the fact that many rights enumerated in the ICCPR are generally to be enjoyed in the territory of States parties ‘without distinction of any kind, such as ... national or social origin ... or other status’ (art. 2). The universal enjoyment of human rights is subject to qualifications. Some rights need only be conferred on nationals, such as the right to vote (art. 25); some rights may be derogated from during times of public emergency, including by making distinctions based on national origin (art. 4); and some rights are subject to permissible limitations if prescribed by law and necessary to protect national security, public order, public health or morals, or the rights and freedoms of others (art. 12). The margin of appreciation given to States in implementing treaty obligations grants them latitude in drawing lawful distinctions between persons on the basis of their status – including their nationality, foreign nationality or statelessness – but the degree of latitude is itself controlled by international law.

One consequence of this latitude is that States often confer graduated entitlements to social goods depending on whether a person’s connection with the State is transient (e.g., tourists), temporary (e.g., seasonal workers or international students), permanent (e.g., permanent residents) or unbounded, as in the case of nationals. To the extent that liberal democracies have conferred an increasing array of entitlements on persons who are not their nationals, the incentives for migrants to be naturalised in their new homes are diminished. Nevertheless, some settler societies have actively encouraged long-term permanent residents to apply for citizenship, and thus acquire the full rights and responsibilities of nationality.

Finally, nationality is relevant to the mechanisms available for redressing violations of rights at the hands of a foreign State, inflicted through physical injury, denial of justice, or expropriation of property without adequate compensation. A State may espouse an international claim against another State for mistreatment of individuals, but only in respect of persons with whom the claimant State has a legal bond of nationality. This right of diplomatic protection is discussed further in Chapter 6.

Key References

Bhabha, Jacqueline (ed.), Children Without a State: A Global Human Rights Challenge (Massachusetts Institute of Technology, 2011)

Blitz, Brad and Lynch, Maureen (eds.), Statelessness and Citizenship: A Comparative Study on the Benefits of Nationality (Edward Elgar, 2011)

Boll, Alfred, Multiple Nationality and International Law (Martinus Nijhoff, 2007)

Donner, Ruth, The Regulation of Nationality in International Law (Transnational, 2nd ed., 1994)

International Law Commission, Draft Articles on Nationality of Natural Persons in Relation to the Succession of States (United Nations, 1999)

International Law Commission, Draft Articles on Diplomatic Protection (United Nations, 2006)

Spiro, Peter, Beyond Citizenship: American Identity after Globalization (Oxford University Press, 2008)

Torpey, John, The Invention of the Passport: Surveillance, Citizenship and the State (Cambridge University Press, 2000)

United Nations High Commissioner for Refugees, ‘UNHCR Action to Address Statelessness: A Strategy Note’ (2010) 22 International Journal of Refugee Law 297

Van Waas, Laura, Nationality Matters: Statelessness under International Law (Intersentia, 2008)

Weis, Paul, Nationality and Statelessness in International Law (Sijthoff and Noordhoff, 2nd ed., 1979)

Weissbrodt, David and Collins, Clay ‘The Human Rights of Stateless Persons’ (2006) 28(1) Human Rights Quarterly 245

Key Resources

Council of Europe, Treaty Office: http://conventions.coe.int

Inter-American Court of Human Rights: www.corteidh.or.cr

International Law Commission: www.un.org/law/ilc

International Organization for Migration, Migration Law Database: www.imldb.iom.int

Refugees International: www.refugeesinternational.org

United Nations High Commissioner for Human Rights: www2.ohchr.org/english/bodies/treaty

United Nations High Commissioner for Refugees: www.unhcr.org

Case Study 4.1: The Nottebohm Case

Nottebohm Case (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4.

In this case the International Court of Justice (ICJ) discussed the nature of nationality and saw it as based on ‘the social fact of attachment’.

Mr Friedrich Nottebohm was a German national who emigrated from Germany to Guatemala, in Central America, in 1905. He established prosperous business interests there and, although making some visits to Germany, made Guatemala his home. On the approach of the Second World War he feared that he might be disadvantaged due to his German nationality. With the help of his brother, who lived in Liechtenstein, he succeeded in obtaining the nationality of that country in 1939 through the payment of substantial sums of money and dispensation from the normal residence requirements. By this act of naturalisation he lost his German nationality by operation of German law. He returned to Guatemala on the basis of a residence visa for Guatemala stamped in his Liechtenstein passport, and resumed his life there. Following the entry of the United States into the war against Germany in December 1941, Guatemala also declared war against Germany. Despite his protestation of neutral (Liechtenstein) nationality, Mr Nottebohm was declared an enemy alien, arrested and deported to the United States, where he was interned. After the war he was denied re-entry to Guatemala. All his property was confiscated in accordance with a Guatemalan decree applicable to enemy aliens.

In proceedings before the ICJ, Liechtenstein sought to assert its right of diplomatic protection in respect of its national, Mr Nottebohm. However, the Court rejected Liechtenstein’s right to espouse the claim of Mr Nottebohm. It did not deny the right of States to determine who are their nationals, but on the basis of the facts the Court decided that Mr Nottebohm lacked a ‘genuine connection’ with Liechtenstein sufficient to justify Liechtenstein’s espousal of his claim against Guatemala. In other words, the Court was not declaring that Liechtenstein’s conferral of nationality on Mr Nottebohm was contrary to international law; rather, that its right of diplomatic protection in respect of this national could not be invoked against Guatemala. Although not expressly stated in the judgment, the crucial factor appears to have been that the case was brought against the State with which Mr Nottebohm was most closely connected, albeit not a national.

The notions of ‘real and effective nationality’ and ‘genuine link’, as expressed by the Court, have not escaped criticism by commentators. Although these notions have been applied in treaties in determining the nationality of ships,^[69] the reference to a ‘genuine link’ in the maritime context is not intended to disentitle recognition of a ‘flag of convenience’ by other States, but to ensure that the flag State implements effectively its duties with respect to vessels under its control.^[70] A further move away from the persuasive force of the decision in the Nottebohm Case is marked by the ILC’s Draft Articles on Diplomatic Protection (2006), which omits any qualification by way of a ‘genuine link’ of the right of a State to exercise diplomatic protection of a person who has acquired that nationality ‘in accordance with the law of that State, by birth, descent, naturalisation, succession of States, or in any other manner not inconsistent with international law’.

Thus the Nottebohm Case, although well known to international lawyers, is to be seen now as having limited value as an authority. However, if understood in the light of the assertion of the Court that it was considering only the particular facts of the case, then the Court may have upheld the right of Liechtenstein to protect Mr Nottebohm as against other States, but not as against the State with which he was most closely connected and, in a sense, of which he was a de facto national. That was the view of the Italian–United States Conciliation Commission in the Flegenheimer Case.^[71]

Case Study 4.2: Statelessness and the Bihari People of Bangladesh

The Bihari comprise several hundred thousand Muslims who have been stranded in Bangladesh as stateless persons as a result of the redrawing of geopolitical boundaries in the Indian sub-continent. Some of them have lived in ‘refugee’ camps in abject squalor for over forty years while waiting for the governments of Pakistan and Bangladesh to resolve their national status. Their circumstances provide valuable lessons about the legal challenges of statelessness.

When the British Indian Empire was dissolved in 1947, its territory was partitioned into two States, largely on religious lines. India was created with a predominantly Hindu population and Pakistan was created with a predominantly Muslim population. The territory of Pakistan was not contiguous – it comprised West Pakistan (present-day Pakistan) and East Pakistan (present-day Bangladesh), separated by thousands of kilometres. Because Hindus and Muslims had often lived in mixed communities, the partition led to inter-religious violence that sparked one of the largest population movements in modern history. Eight million Hindus and Sikhs fled Pakistan for India, and six or seven million Muslims fled India for Pakistan; among the latter were the Bihari people, who had lived in the Indian province of Bihar but fled to East Pakistan following a massacre in 1947. However, the high hopes that many held for their relocation to East Pakistan were not realised, and they ‘felt alienated in the new society in terms of language, customs, traditions and culture’.^[72]

In the years following partition, the Bihari supported the ruling elite in West Pakistan, with whom they shared both a common religion (Islam) and a common language (Urdu). As discontent grew in East Pakistan over the concentration of political and economic power in West Pakistan, the Bihari found themselves increasingly isolated, and when East Pakistan won a liberation war against West Pakistan and proclaimed the new State of Bangladesh in 1971, the Bihari found themselves stranded in a newly independent State and ostracised from that community.

Several events occurred after Bangladesh’s independence that had a direct impact on the nationality of the Bihari. In 1971 Bangladesh offered nationality to the Bihari people in its territory. Some 600,000 Bihari accepted this offer but many hundreds of thousands declined. In 1973 Pakistan denationalised the Bihari who were resident in Bangladesh, rendering many of them stateless. In the 1970s and 1980s, a number of attempts were made to resettle the Bihari in Pakistan, under the auspices of UNHCR and other agencies, but none resulted in any large-scale repatriation. The situation has since been one of governmental procrastination and indecision. Some progress was made in this intractable situation in 2008 when the Bangladesh High Court ruled that the Bihari who were permanently resident in Bangladesh in 1971, or had resided there since, are entitled to Bangladeshi nationality and have the right to vote.^[73] Nevertheless, approximately 150,000 stateless persons remain in the camps.

This situation raises complex legal questions, particularly when one takes into account the progressive development of international law over the relevant period. (1) What was the legal effect of the succession of Bangladesh from Pakistan on the nationality of the people who were habitually resident in East Pakistan before independence, including the Bihari? (2) Was the mass denationalisation of the Bihari by Pakistan lawful under international law? (3) Do the Bihari have the right to enter Pakistan as ‘their own country’ in light of the fact that many have never lived there? (4) What legal obligations are owed under treaty or customary law to the Bihari who remain stateless? (5) Were the Bihari entitled to international protection as refugees when they first migrated to East Pakistan, and do they still enjoy that status in Bangladesh today?

[insert Map 4.1: Pakistan, India and Bangladesh about here]

---

^[1] Panevezys-Saldutiskis Railway Case (Estonia v Lithuania) [1939] PCIJ (ser A/B) No 76.

^[2] An exception was that, under Roman law, the law to be applied among non-Roman citizens in their civil affairs, and between citizens and non-citizens, was jus gentium – ‘the law of peoples’.

^[3] The International Law Commission was established by the United Nations in 1947 to work for the ‘progressive development of international law and its codification’. Sometimes its draft articles are submitted to international conferences for adoption as Conventions. In other cases, the draft articles are not submitted for adoption but constitute valuable evidence of state practice and are influential in guiding the future practice of States and the jurisprudence of international courts and tribunals.

^[4] International Law Commission, 'Draft Articles on Diplomatic Protection' (UN GAOR, 61st sess, Supp No. 10, UN Doc A/61/10, 2006).

^[5] Nottebohm Case (Liechtenstein v Guatemala) (Second Phase) [1955] ICJ Rep 4.
^[6] See e.g., Van Zyl v Government of the Republic of South Africa [2007] SCA 109 (RSA) 109.

^[7] See the example of British Protected Persons expelled from Uganda in 1972 by President Idi Amin, considered by the English Court of Appeal in R v Secretary of State for the Home Department; Ex parte Thakrar [1974] QB 684.

^[8] Protocol 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 16 September 1963, ETS 46 (entered into force 2 May 1968).

^[9] Ian Hendry and Susan Dickson, British Overseas Territories Law (Hart, 2011) 151–74, 197–209.

^[10] The Maastricht Treaty (art 20(1)) created European citizenship in 1992 but expressly provided that it ‘shall be additional to and not replace national citizenship’: Treaty on European Union, opened for signature 7 February 1992, 1757 UNTS 3 (entered into force 1 November 1993).

^[11] Nationality Decrees Issued in Tunis and Morocco (Advisory Opinion) [1923] PCIJ (ser B) No 4.

^[12] Convention on Certain Questions relating to the Conflict of Nationality Law, opened for signature 13 April [1937] LNTSer 109; 1930, 179 LNTS 89 (entered into force 1 July 1937).

^[13] Harvard Law School, Draft Convention on Nationality (1929) 23 AJIL, Special Supplement, art. 15.

^[14] Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 (10 December 1948).

^[15] Peter Schuck and Rogers Smith, Citizenship Without Consent: Illegal Aliens in the American Polity (Yale University Press, 1985); Peter Spiro, Beyond Citizenship: American Identity after Globalization (Oxford University Press, 2008) 9–32.

^[16] Patrick Weil, 'Access to Citizenship: A Comparison of Twenty-Five Nationality Laws' in Alexander Aleinikoff and Douglas Klusmeyer (eds), Citizenship Today: Global Perspectives and Practices, (Carnegie Endowment for International Peace, 2001) 17, 20.

^[17] Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975).

^[18] Confirmed by the Convention on Certain Questions relating to the Conflict of Nationality Law, opened for signature 13 April [1937] LNTSer 109; 1930, 179 LNTS 89 (entered into force 1 July 1937) art 12; Optional Protocol concerning the Acquisition of Nationality to the Vienna Convention on Diplomatic Relations, opened for signature 18 April 1961, 500 UNTS 223 (entered into force 24 April 1964) art II; and Optional Protocol concerning Acquisition of Nationality to the Vienna Convention on Consular Relations, opened for signature 24 April 1963, 596 UNTS 469 (entered into force 19 March 1967) art II.

^[19] For example, a child born in Australia to non-citizen parents can obtain citizenship only after ten years of residence: Australian Citizenship Act 2007 (Cth) s 12. In the United States, by contrast, jus soli gives such a child immediate citizenship by birth: United States Constitution amend XIV.

^[20] Convention on the Elimination of All Forms of Discrimination against Women, opened for signature 18 December 1979, 1249 UNTS 13 (entered into force 3 September 1981).

^[21] For example, in 2011 the United States Supreme Court upheld a citizenship law that made it more difficult for fathers to transmit their US citizenship to their children born abroad and out of wedlock than for mothers to do so: Flores-Villar v United States 564 US __ (2011).

^[22] European Convention on Nationality, opened for signature 6 November 1997, ETS No 166 (entered into force 1 March 2000) art. 6(3).

^[23] Council of Europe Convention on the Avoidance of Statelessness in relation to State Succession, opened for signature 19 May 2006, CETS No 200 (entered into force 1 May 2009) arts. 4–5.
^[24] Borzov v Estonia, Human Rights Committee, UN Doc CCPR/C/81/D/1136/2002 (25 August 2004).
^[25] Hague Convention (IV) respecting the Laws and Customs of War on Land and its Annex: Regulations concerning the Laws and Customs of War on Land, opened for signature 18 October 1907 (entered into force 26 January 1910) arts. 42–56.

^[26] Convention on Certain Questions relating to the Conflict of Nationality Law, opened for signature 13 April [1937] LNTSer 109; 1930, 179 LNTS 89 (entered into force 1 July 1937) art. 10; Convention on the Nationality of Married Women, opened for signature 29 January 1957, 309 UNTS 65 (entered into force 11 August 1958) art. 1; European Convention on Nationality, opened for signature 6 November 1997, ETS No 166 (entered into force 1 March 2000) art. 4(d).

^[27] Convention on Protection of Children and Cooperation in respect of Intercountry Adoption, opened for signature 29 May 1993, 1870 UNTS 167 (entered into force 1 May 1995). There were eighty-four States parties in mid-2011.

^[28] The first step was taken in 1935 when a distinction was drawn between ‘citizens’ and ‘nationals’ of the German Reich. The former were persons of ‘German or kindred blood’ and alone possessed full political rights. Jews thus remained nationals until even this was taken away in 1941.

^[29] International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 21 December 1965, 660 UNTS 195 (entered into force 4 January 1969); International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

^[30] Human Rights Council, 'Human Rights and Arbitrary Deprivation of Nationality' (UN Doc A/HRC/13/34, United Nations, 2009) 5–8.

^[31] Paul Weis, Nationality and Statelessness in International Law (Sijthoff and Noordhoff, 2nd ed, 1979) 162.

^[32] Convention relating to the Status of Stateless Persons, opened for signature 28 September 1954, 360 UNTS 117 (entered into force 6 June 1960) art. 1.

33. ^[33]United Nations High Commissioner for Refugees, '60 Years and Still Counting: Global Trends 2010' (UNHCR, 2011). In 2009, 6.6 million persons were identified as stateless. The reduction to 3.46 million in 2010 reflects changes in the method of counting stateless persons rather than an actual reduction in statelessness.

^[34] Ibid, Annex Table 7.

^[35] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) art. 1A.

^[36] GA Res 3274 (XXIX) (10 December 1974); GA Res 49/169 (23 December 1994); GA Res 50/152 (21 December 1995).

^[37] United Nations High Commissioner for Refugees, 'UNHCR Action to Address Statelessness: A Strategy Note' (2010) 22(2) International Journal of Refugee Law 297, 297.

^[38] Clarisa Bencomo, 'Kuwait: Promises Betrayed: Denial of Rights of Bidun, Women, and Freedom of Expression' (Human Rights Watch, 2000) ch. 4.

^[39] Convention on the Nationality of Married Women, opened for signature 29 January 1957, 309 UNTS 65 (entered into force 11 August 1958).

^[40] David Weissbrodt, The Human Rights of Non-Citizens (Oxford University Press, 2008) 97.

^[41] Christopher Richter, 'Statelessness in Australian Refugee Law: The (Renewed) Case for Complementary Protection' [2005] UQLawJl 32; (2005) 24(2) University of Queensland Law Journal 545, 554–6.

^[42] Convention relating to the Status of Stateless Persons, opened for signature 28 September 1954, 360 UNTS 117 (entered into force 6 June 1960).

^[43] Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954).

^[44] United Nations High Commissioner for Refugees, 'Protecting the Rights of Stateless Persons' (UNHCR, 2010) 9.

^[45] Carol Batchelor, 'Stateless Persons: Some Gaps in International Protection' (1995) 7(2) International Journal of Refugee Law 232, 247–8.

^[46] Protocol relating to the Status of Refugees, opened for accession 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967).

^[47] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976); International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, 993 UNTS 3 (entered into force 3 January 1976).

^[48] Carol Batchelor, 'Statelessness and the Problem of Resolving Nationality Status' (1998) 10(1-2) International Journal of Refugee Law 156; David Weissbrodt and Clay Collins, 'The Human Rights of Stateless Persons' (2006) 28(1) Human Rights Quarterly 245, 251–2.

^[49] Hugh Massey, 'UNHCR and De Facto Statelessness: Legal and Protection Policy Research Series' (UNHCR, 2010) 36–40.

50. ^[50]Hannah Arendt, The Origins of Totalitarianism (Allen and Unwin, 2nd ed, 1958) 296.

^[51] See e.g., Committee on the Elimination of Racial Discrimination, 'General Recommendation No.30, Discrimination against Non-Citizens' (UN Doc CERD/C/64/Misc.11/rev.3, 2004).

^[52] Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

^[53] International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, opened for signature 18 December 1990, 2220 UNTS 3 (entered into force 1 July 2003).

^[54] Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975).

^[55] American Convention on Human Rights, opened for signature 22 November 1969, 1144 UNTS 123 (entered into force 18 July 1978); African Charter on the Rights and Welfare of the Child, opened for signature 11 July 1990, OAU Doc CAB/LEG/24.9/49 (entered into force 29 November 1999) and European Convention on Nationality, opened for signature 6 November 1997, ETS No 166 (entered into force 1 March 2000).

^[56] Case of Yean and Bosico Children v Dominican Republic, Inter-Am Ct HR (8 September 2005).

^[57] Opinion of the German Federal Constitutional Court, 21 May 1974, cited in Alexander Aleinikoff and Douglas Klusmeyer, 'Plural Nationality: Facing the Future in a Migratory World' in Alexander Aleinikoff and Douglas Klusmeyer (eds), Citizenship Today: Global Perspectives and Practices (Carnegie Endowment for International Peace, 2001) 63, 70.

^[58] Protocol relating to Military Obligations in Certain Cases of Double Nationality, opened for signature 12 April 1935, 178 UNTS 227 (entered into force 25 May 1937).

^[59] Nevertheless, it has been estimated that 2.49 million people globally provide forced labour at the behest of the state, including through military service: International Labour Office, 'A Global Alliance Against Forced Labour' (ILO, 2005) 10–12.

^[60] Merge Claim Case (1955) 22 ILR 443.

^[61] For example, special provisions on nationality were contained in the Versailles Peace Treaty 1919, the Treaty of Saint-Germain 1919 and Treaty of Trianon 1920 following the First World War.

^[62] International Law Commission, 'Draft Articles on Nationality of Natural Persons in relation to the Succession of States' (Yearbook of the International Law Commission, 1999).

^[63] John Quigley, 'Baltic Russians: Entitled Inhabitants or Unlawful Settlers?' in Roger Clark, Ferdinand Feldbrugge and Stanislaw Pomorski (eds), International and National Law in Russia and Eastern Europe (Kluwer, 2001) 319.

^[64] Weiss, above n 31, 217.

^[65] See e.g., Agreement between the European Community and the Democratic Socialist Republic of Sri Lanka on the Readmission of Persons Residing without Authorisation, opened for signature 4 June 2004, OJ L124 (entered into force 01 May 2005) Annex 1 and 2.

^[66] Weiss, above n 31, 222–30; Adam Muchmore, 'Passports and Nationality in International Law' (2004) 10(2) University of California Davis Journal of International Law and Policy 301, 317–28.

^[67] Of the 776,000 persons granted citizenship in the 27 member States of the European Union in 2009, the United Kingdom accounted for the largest share (203,600 persons, or 26 per cent). Of the new United Kingdom citizens, more than one-third were from four developing States: India, Pakistan, Bangladesh and the Philippines: Fabio Sartori, 'Acquisitions of Citizenship on the Rise in 2009' (Statistics in Focus 24/2011, Eurostat, 2011).

^[68] Gustave Rolin-Jacquemyns, 'Right of expulsion of foreigners' (1888) 20 Revue de Droit International 498.

^[69] Convention on the High Seas, opened for signature 29 April 1958, 450 UNTS 11 (entered into force 30 September 1962) art. 5(1); United Nations Convention on the Law of the Sea, opened for signature 10 December 1982, 1833 UNTS 3 (entered into force 14 November 1994) art. 91.

^[70] The M/V Saiga (No.2) Case (1999) 120 ILR 143 (International Tribunal for the Law of the Sea).

^[71] Flegenheimer Case, Decision No.182, 14 Reports of International Arbitral Awards 327 (20 September 1958).

^[72] Kazi Farzana, 'The Neglected Stateless Bihari Community in Bangladesh: Victims of Political and Diplomatic Onslaught' (2008) 2(1) Journal of Humanities and Social Sciences 1, 2.

^[73] Katherine Southwick, 'The Urdu-Speakers of Bangladesh: An Unfinished Story of Enforcing Citizenship Rights' in Brad Blitz and Maureen Lynch (eds), Statelessness and Citizenship (Edward Elgar, 2011) 115.