Nationality is a highly sensitive issue as it is a manifestation of a country’s sovereignty and identity. Not surprisingly, disputes about citizenship can, and often do, result in tension and conflict, both within and between States. During the 20th century, there was both an increase in the incidence of statelessness around the world and growing awareness of and concern for human rights. International law on nationality thus evolved along two tracks: to protect and assist those individuals who were already stateless, and to try to eliminate, or at least reduce, the incidence of statelessness.
Who determines whether or not a person is a citizen of a particular country?
In principle, questions of nationality fall within the domestic jurisdiction of each State. However, the applicability of a State’s internal decisions can be limited by the similar actions of other States and by international law.
In its Advisory Opinion on the Tunis and Morocco Nationality Decrees of 1923, the Permanent Court of International Justice stated that:
“The question whether a certain matter is or is not solely within the domestic jurisdiction of a State is an essentially relative question; it depends on the development of international relations.”
In effect, the Permanent Court said that while nationality issues were, in principle, within domestic jurisdiction, States must, nonetheless, honour their obligations to other States as governed by the rules of international law.
This approach was reiterated seven years later in the Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws. Indeed, many States commented on the Permanent Court’s 1923 Advisory Opinion as it related to the preparation of the 1930 Hague Convention on Nationality. Most States interpreted the Advisory Opinion as a limitation on the applicability of a State’s nationality-related decisions outside that State, especially when those decisions conflict with nationality-related decisions made by other States.
The Hague Convention of 1930, held under the auspices of the Assembly of the League of Nations, was the first international attempt to ensure that all persons have a nationality. Article 1 of the Convention states that:
“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.”
In other words, how a State exercises its right to determine its citizens should conform to the relevant provisions in international law. Throughout the 20th century, those provisions gradually developed to favour human rights over claims of State sovereignty.
Article 15 of the 1948 Universal Declaration of Human Rights declares: “Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”
This right is founded on the existence of a genuine and effective link between an individual and a State. The first time this link was acknowledged as the basis of citizenship was in a case decided by the International Court of Justice in 1955, the Nottebohm Case. In that case, the Court stated that:
“According to the practice of States, to arbitral and judicial decisions and to the opinion of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interest and sentiments, together with the existence of reciprocal rights and duties.”
The genuine and effective link, made manifest by birth, residency, and/or descent, is now reflected in the provisions of most States’ nationality legislation as well as in recent international instruments relating to nationality, such as the 1997 European Convention on Nationality.
Nationality is also defined by the Inter-American Court of Human Rights as “the political and legal bond that links a person to a given State and binds him to it with ties of loyalty and fidelity, entitling him to diplomatic protection from that State” (Castillo-Petruzzi et al v. Peru, Judgment of May 1999, IACHR [ser.C] No. 52 1999).
Protection of the rights of stateless persons
Although Article 15 of the Universal Declaration of Human Rights asserts that every person has the right to a nationality, it does not prescribe the specific nationality to which a person is entitled. To ensure that individuals are not deprived of a minimum set of rights associated with nationality, the international community developed two main treaties: the 1951 Convention relating to the Status of Refugees and the 1954 Convention relating to the Status of Stateless Persons.
Link between the 1951 Convention relating to the Status of Refugees and statelessness
In the aftermath of World War II, one of the most pressing issues for the member States of the newly created United Nations was how to address the needs of the millions of individuals whom the war had left as refugees or had rendered stateless. A 1949 resolution of the UN Economic and Social Council (ECOSOC) led to the appointment of an Ad Hoc Committee whose task was to consider formulating a Convention on the status of refugees and stateless persons and to consider proposals for eliminating statelessness.
In the end, Committee members drafted a Convention on the status of refugees and a Protocol to the proposed Convention that focused on stateless persons. The Committee did not fully address the elimination of statelessness largely because it was assumed that the newly formed International Law Commission (ILC) would focus on that issue.
Historically, refugees and stateless persons both received protection and assistance from the international refugee organisations that preceded UNHCR. The draft Protocol on Statelessness was intended to reflect this link between refugees and stateless persons. But the urgent needs of refugees and the impending dissolution of the International Refugee Organization meant that there was not sufficient time for a detailed analysis of the situation of stateless persons at the 1951 Conference of Plenipotentiaries that had been convened to consider both issues. Thus, the 1951 Convention relating to the Status of Refugees was adopted at the Conference, while adoption of the Protocol addressing stateless persons was postponed for a later date.
Under the 1951 Refugee Convention, a stateless refugee receives protection as a refugee, since the arbitrary denial of citizenship because of a person’s race, religion, nationality, membership in a particular social group, or political opinion can indicate that the individual should be recognised as a refugee.
Provisions of 1954 Convention relating to the Status of Stateless Persons
The Protocol on stateless persons that had been drafted as an addendum to the 1951 Refugee Convention was made into a Convention in its own right in 1954. The 1954 Convention is the primary international instrument that aims to regulate and improve the status of stateless persons and to ensure that stateless persons are accorded their fundamental rights and freedoms without discrimination.
The provisions of the Convention are, in many respects, very similar to those of the 1951 Refugee Convention. Acceding to the Convention is not a substitute for granting nationality to those born and habitually resident in a State’s territory. No matter how extensive the rights granted to a stateless person may be, they are not the equivalent of acquiring citizenship.
The 1954 Convention includes a strictly legal definition of a stateless person: “a person who is not considered as a national by any State under the operation of its law” (what is known as de jure stateless).
Although the Convention’s drafters felt it was necessary to make the distinction between de jure stateless persons (those who have not received nationality automatically or through an individual decision under the operation of any State’s laws) and de facto stateless persons (those who cannot establish their nationality), they did recognise the similarity of their positions. The Final Act of the Convention addresses the issue of de facto stateless persons with a non-binding recommendation:
“that each Contracting State, when it recognises as valid the reasons for which a person has renounced the protection of the State of which he is a national, consider sympathetically the possibility of according to that person the treatment which the Convention accords to stateless persons.”
The decision as to whether a person is entitled to the benefits of the Convention is made by each State Party in accordance with its own established procedures. Through its representations/offices or its services at Headquarters, UNHCR is available to provide advice on how to create and implement these procedures, if requested.
Provisions of 1961 Convention on the Reduction of Statelessness
In August 1950, an ECOSOC Resolution requested that the ILC prepare a draft international Convention or Conventions for the elimination of statelessness. The ILC drafted two Conventions for consideration, both addressing the problem of statelessness resulting from conflicts of laws. One Convention, on the elimination of future statelessness, contained provisions that went much further than those contained in the second draft Convention, which focused on reducing the incidence of statelessness in the future. Participants in a conference convened to consider the issue determined that the former Convention was too radical and elected to work with the draft Convention on the Reduction of Future Statelessness. The instrument that finally emerged from this process is the 1961 Convention on the Reduction of Statelessness.
The articles of the Convention aim to avoid statelessness at birth, but they neither prohibit the possibility of revocation of nationality under certain circumstances, nor retroactively grant citizenship to all currently stateless persons. The Convention also provides for the creation of a body to which a person who may benefit from the provisions of the Convention may apply to have his/her claim examined and to seek assistance in presenting the claim to the appropriate authority. The General Assembly subsequently asked UNHCR to fulfil this role.
The ILC and State delegates determined that international assistance was necessary because when an individual is denied citizenship of a State, he / she would have neither the financial resources nor the expertise required to present a claim to nationality to the authorities of that State. Since no other State could plausibly argue for the individual, it for doing so. Representation by an international agency would also sidestep the question of whether or not an individual was a subject of international law. In addition, an agency devoted to this work would eventually develop expertise on the issue that would be useful not only for advising concerned individuals, but also for proposing ways of acquiring an effective nationality and of reducing statelessness, in general.
In seeking to reduce the incidence of statelessness, the 1961 Convention requires that signatory States adopt nationality legislation that reflects prescribed standards relating to the acquisition or loss of nationality. Should disputes concerning the interpretation or application of the Convention arise between Contracting States and they are not resolved by other means, they can be submitted to the International Court of Justice at the request of any one of the parties to the dispute.
The Final Act of the Convention includes a recommendation much like the one contained in the Final Act of the 1954 Convention that encourages States Parties to extend the provisions of the Convention to de facto stateless persons whenever possible.
1961 United Nations Convention on the Reduction of Statelessness makes the following main provisions:
On granting nationality (Articles 1, 2, 3, and 4)
Nationality shall be granted to those who would otherwise be stateless who have an effective link with the State through either birth or descent. Nationality shall be granted:
• at birth, by operation of law to a person born in the State’s territory;
• by operation of law at a fixed age, to a person born in the State’s territory, subject to conditions of national law;
• upon application, to a person born in the State’s territory (the application may be made subject to one or more of the following: a fixed period in which the application may be lodged, specified residency requirements, no criminal convictions of a prescribed nature, and/or that the person has always been stateless);
• at birth, to a legitimate child whose mother has the nationality of the State in which the child is born;
• by descent, should the individual be unable to acquire nationality of the Contracting State in whose territory he/she was born due to age or residency requirements (this may be subject to one or more of the following: a fixed period in which the application may be lodged, specified residency requirements, and/or that the person has always been stateless);
• to foundlings found in the territory of a Contracting State;
• at birth, by operation of law, to a person born elsewhere if the nationality of one of the parents at the time of birth was that of the Contracting State;
• upon application, as prescribed by national law, to a person born elsewhere if the nationality of one of the parents at the time of the birth was that of the Contracting State (the application may be subject to one or more of the following: a fixed period in which the application may be lodged, specific residency requirements, no conviction of an offence against national security, and/or that the person has always been stateless).
On the loss or renunciation of nationality (Articles 5, 6, and 7)
Loss or renunciation of nationality should be conditional upon the prior possession or assurance of acquiring another nationality. An exception may be made in the case of naturalised persons who, despite notification of formalities and time-limits, reside abroad for a fixed number of years and fail to express an intention to retain nationality. A naturalised person, in this instance, is a person who has acquired nationality upon applying to the Contracting State concerned, and that Contracting State could have refused the application. Loss of nationality may only take place in accordance with law and accompanied by full procedural guarantees, such as the right to a fair hearing by a court or other independent body.
On the deprivation of nationality (Articles 8 and 9)
No one should be deprived of a nationality if that deprivation will result in statelessness except when:
• nationality is obtained by misrepresentation or fraud;
• the individual has committed acts inconsistent with a duty of loyalty either in violation of an express prohibition or by personal conduct seriously prejudicial to the vital interests of the State;
• the individual has made an oath or formal declaration of allegiance to another State or repudiated allegiance to the Contracting State;
• a naturalised citizen who has lost the effective link to the Contracting State and, despite notification, fails to express an intention to retain that nationality.
A Contracting State can only deprive an individual of its nationality on the previous grounds if stated specifically at the time of signature, ratification or accession and if in accordance with law and accompanied by full procedural guarantees, such as the right to a fair hearing. A Contracting State may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds.
On the transfer of territory (Article 10)
Treaties shall ensure that statelessness does not occur due to a transfer of territory. When no treaty is signed, the State(s) involved shall confer its/their nationality on those who would otherwise become stateless as a result of the transfer or acquisition of territory.
On an international agency (Article 11)
The Convention calls for the establishment, within the framework of the United Nations, of a body to which an individual claiming the benefit of the Convention may apply to have his/her claim examined and to be assisted in presenting that claim to the appropriate authority. The General Assembly has asked UNHCR to fulfill this responsibility.
On resolving disputes (Article 14)
Disputes between Contracting States concerning the interpretation or application of the Convention that have not been resolved by other means shall be submitted to the International Court of Justice at the request of any one of the parties to the dispute.
The Final Act recommends that persons who are stateless de facto should, as far as possible, be treated as de jure stateless to enable them to acquire an effective nationality.
Human rights law and the right to a nationality
Various other international legal instruments address the right to a nationality. The 1957 Convention on the Nationality of Married Women echoes the Universal Declaration of Human Rights by stipulating the right to a nationality and the right not to be deprived of a nationality. It also seeks to promote “universal respect for, and observance of, human rights and fundamental freedoms for all without discrimination as to sex.” The first three Articles of the Convention contain specific provisions concerning a wife’s nationality:
Article 1 asserts that “neither the celebration nor the dissolution of a marriage between one of its nationals and an alien, nor the change of nationality by the husband during marriage, shall automatically affect the nationality of the wife.”
Article 2 states that “neither the voluntary acquisition of the nationality of another State nor the renunciation of its nationality by one of its nationals shall prevent the retention of its nationality by the wife of such national.”
Article 3, which is divided into two parts, states that “the alien wife of one of [the Contracting State’s] nationals may, at her request, acquire the nationality of her husband through specially privileged naturalisation procedures” and that “the grant of such nationality may be subject to such limitations as may be imposed in the interests of national security or public policy.” It also stipulates that the Contracting State shall not construe the Convention “as affecting any legislation or judicial practice by which the alien wife of one of its nationals may, at her request, acquire her husband’s nationality as a matter of right.”
The 1965 Convention on the Elimination of All Forms of Racial Discrimination obliges States to “guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law,” particularly in the enjoyment of several fundamental human rights, including the right to nationality (Article 5).
Article 24 of the 1966 International Covenant on Civil and Political Rights states that: “Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth the right to such measures of protection as are required by his status as a minor, on the part of his family, society and State.”
“Every child shall be registered immediately after birth and shall have a name.”
“Every child has the right to acquire a nationality.”
Article 26 of that Covenant also asserts that “All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Article 9 of the 1979 Convention on the Elimination of All Forms of Discrimination against Women states that:
“States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband.”
“States Parties shall grant women equal rights with men with respect to the nationality of their children.”
The 1989 Convention on the Rights of the Child, which has been ratified by almost every State, contains two important articles relevant to nationality:
Article 2 stipulates that “States Parties shall respect and ensure the rights set forth in the... Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child’s or his or her parent’s or legal guardian’s race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.”
Article 7 states that “The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality, and, as far as possible, the right to know and be cared for by his or her parents.” The Article also stipulates that “States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.”
Regional treaties addressing the right to a nationality
Regional instruments reinforce the legal basis of the right to a nationality. Article 20 of the American Convention on Human Rights (1969) states that:
“Every person has the right to a nationality. Every person has the right to the nationality of the State in whose territory he was born if he does not have the right to any other nationality. No one shall be arbitrarily deprived of his nationality or of the right to change it.”
These principles have subsequently been upheld by the jurisprudence of the Inter-American Court. While the Court has confirmed that the conditions under which nationality is granted remain within the domestic jurisdiction of the State, the Court also found that:
“Despite the fact that it is traditionally accepted that the conferral and recognition of nationality are matters for each State to decide, contemporary developments indicate that international law does impose certain limits on the broad powers enjoyed by the States in that area and that the manner in which States regulate matters bearing on nationality cannot today be deemed to be within their sole jurisdiction.” (Inter-American Court on Human Rights, Advisory Opinion, “Amendments to the Naturalization Provision of the Constitution of Costa Rica,” paragraphs 32-34; text in 5 HRLJ 1984.)
In other words, States must take into consideration the international repercussions of their domestic nationality legislation, particularly if the application of that legislation may result in statelessness.
In 1963, a Europe-wide Convention on the reduction of cases of multiple nationality and on military obligations in cases of multiple nationality was adopted. That Convention is based on the notion, accepted by many Western European States at the time, that having multiple nationalities is undesirable and should be avoided. As the 1963 Convention is limited in scope to just the issue of multiple nationalities, two Protocols were added in 1977 and 1993 to cover related issues and to reflect developments in thinking and practice about nationality. For example, the Second Protocol to the Convention allows for the acquisition of multiple nationalities in the cases of second-generation migrants and spouses of mixed marriages and their children.
The 1997 European Convention on Nationality, another regional instrument drafted by the Council of Europe, was born out of the perceived need to create a single text that consolidated all the developments in domestic and international law regarding nationality since the 1930 Hague Convention addressed the issue of conflicts of nationality laws. The Convention neither modifies the 1963 Convention nor is it incompatible with that earlier Convention. Indeed, the 1997 Convention on Nationality allows for the acquisition of multiple nationalities for married persons of different nationalities and their children.
In 1999, the Organization of African Unity (now the African Union) adopted the African Charter on the Rights and Welfare of the Child. Modelled on the Convention on the Rights of the Child, the Charter shares some key principles with that earlier treaty, including non-discrimination and the primary consideration of the best interests of the child. Article 6 of the Charter, which focuses on name and nationality, asserts that:
• Every child shall have the right from his birth to a name; • Every child shall be registered immediately after birth;
• Every child has the right to acquire a nationality;
• States Parties to the Charter shall undertake to ensure that their Constitutional legislation recognises the principles according to which a child shall acquire the nationality of the State in the territory in which he was born if, at the time of the child’s birth, he is not granted nationality by any other State in accordance with its laws.
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