The right of every human being to a nationality has been recognized as such by international law.1
IACtHR, Advisory Opinion on the Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica, 1984
After analyzing the link between state sovereignty and citizenship, and critically reflecting on the traditional perception of nationality as an internal matter of sovereign states, the discussion in the previous chapter has shown that the paradigm of nationality as a domaine réservé no longer holds true. Even though states establish the rules for the acquisition and loss of their respective citizenship and implement them at the domestic level, this does not mean they have unlimited discretion in nationality matters. International law knows clear limitations upon that discretion and, in fact, regulates nationality in a broad number of different instruments. Against this evolution of the international legal framework on nationality, the current chapter now zooms in on the protection of the right to nationality in international law. It analyzes the different existing international standards at the universal and regional levels to identify the provisions that guarantee a right to nationality. The bases for this analysis are, in principle, the sources of international law according to Article 38 icj-Statute: international conventions, international custom, general principles of law and soft law — though the focus primarily lies on human rights instruments. Jurisprudence of international and regional tribunals is reviewed where it proves to be particularly pressing for the interpretation of a provision protecting the right to nationality.2
i Article 15 Universal Declaration of Human Rights
- 1.Everyone has the right to a nationality.
- 2.No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
This provision enshrines the right to nationality amidst the most basic rights protecting humanity. With Article 15 udhr, the right to nationality has been included in the most fundamental catalogue of modern human rights law.5 How did the right to nationality end up among the guarantees enshrined in the thirty articles of the Universal Declaration? What does the right to nationality
1 The Drafting History of Article 15 udhr
When the Universal Declaration of Human Rights was adopted by the UN General Assembly on 10 December 1948, World War ii was barely over. The negotiations for the new instruments took place under the impression of the millions of people killed, displaced and made stateless during the war.6 The question of how to effectively protect the “inherent dignity and of the equal and inalienable rights of all members of the human family” was pressing.7 Ultimately, these discussions resulted in a catalogue of universal human rights aimed at protecting all human beings by virtue of their humanity: the Universal Declaration of Human Rights.8 The rights enshrined in the Declaration created the foundation for the subsequent codification of modern human rights law in the decades since World War ii.9
Including the right to nationality in the udhr was visionary,10 but not uncontroversial.11 The drafting history of Article 15 udhr shows that the state representatives had the same concerns that are still being voiced today. They feared that guaranteeing a right to nationality would limit states’ discretion
Every one has the right to a nationality.
Every one is entitled to the nationality of the State where he is born unless and until on attaining majority he declares for the nationality open to him by virtue of descent.
No one shall be deprived of his nationality by way of punishment or be deemed to have lost his nationality in any other way unless he concurrently acquires a new nationality.
Every one has the right to renounce the nationality of his birth, or a previously acquired nationality, upon acquiring the nationality of another State.13
The Drafting Committee, in charge of preparing an international bill of rights,14 shortened this initial proposal in the first session of the negotiations in June 1947. It decided to only include the first paragraph on the right to nationality and deal with the rest in a separate convention.15
The purpose of the right to nationality was to express one of the general principles of mankind and to affirm that every human being should be member of a national group. The United Nations should contribute to putting an end to statelessness by urging the necessary measures upon sovereign states.18
Finally, the Drafting Committee decided to keep the first paragraph according to which “every one has the right to a nationality”.19 A reference to the duty of states and the UN to prevent statelessness, as suggested by Cassin, was however rejected.20
In the third session the provision on the right to nationality was again under discussion. An amendment submitted by the UK and India suggested to replace the previous wording by the phrase “no one shall be arbitrarily deprived of his nationality”.21 Uruguay suggested to add “or denied the right to change his nationality”.22 Both proposals were adopted.23 The initial formulation that everyone has the right to a nationality, by contrast, was omitted. By the end of the deliberations in the Commission on Human Rights, the provision read: “No one shall be arbitrarily deprived of his nationality or denied the right to change his nationality”.24
Still subject to heated discussions, however, was the question concerning the role of the UN in the realization of the right to nationality. For some delegations the possible involvement of the UN was a reason to support the inclusion of the right to nationality, whereas others opposed it for exactly the same reason.28 Namely the US and the UK were against the introduction of an explicit reference to the duties of the UN.29 Strong opposition was further voiced by communist states, which underlined the importance of the principle of state sovereignty and of limitations of individual rights vis-à-vis the state.30 The representative of the Soviet Union, Alexei Pavlov, argued that
the question of nationality — by which was meant a specific relationship between a State and the individual — fell entirely within the internal competence of each State. To grant nationality or to take it away was a prerogative of the sovereign States with which no third party should interfere.31
could not close their eyes to the fact that, in an international order based on the principle of sovereignty, the existence of persons rejected by their countries was a source of friction. The declaration should proclaim that every human being had the right to a nationality, just as it proclaimed that everyone had the right to marry; it was not called upon to implement either right.34
Finally, the Committee decided not to include an explicit reference to the UN in Article 15. The provision, in the wording we know today, was finally adopted by the Third Committee of the UN General Assembly with 38 votes to none and seven abstentions.35
This cursory examination of the travaux préparatoires to the Declaration is interesting for three reasons. First, it seems that the inclusion of a provision on nationality per se was not substantially disputed. During the 18 months of deliberation there was a wide consensus that nationality has a human rights dimension and should be covered by a bill of rights even if that entails some limitations for state sovereignty.36 This general recognition of nationality as a human rights issue probably has to be seen in the context of World War ii and the pressing consequences of mass denaturalization and statelessness.37 Second, the discussions during the drafting process reflect some of the controversies about the characteristics of the right to nationality persisting until today. Whereas the inclusion of the prohibition of arbitrary deprivation of nationality and the right to change one’s nationality were relatively uncontroversial, the right to a nationality in the sense of a general right to acquire
2 The Scope and Content of Article 15 udhr
The final version of Article 15 udhr consists of two separate paragraphs and entails three different guarantees: a right to a nationality according to Paragraph 1 and a prohibition of arbitrary deprivation of nationality and a right to change one’s nationality according to Paragraph 2. With this basic structure, Article 15 udhr provided the basis for all subsequent codifications of the right to nationality in international law. Given this central role of Article 15 udhr in the international legal framework it is worthwhile having a closer look at the interpretation of this provision.
The notion of ‘nationality’ is not defined in the Declaration. Nevertheless, it is clear from the drafting history that the term refers to legal membership in the (nation) state.41 The terminology of ‘everyone’ and ‘no one’ indicates that Article 15 udhr applies to all human beings irrespective of whether they have
The right to have a nationality according to Paragraph 1 guarantees everyone a nationality. This implies, on the one hand, that no one should be without nationality.45 In case someone does not have a nationality they should have an opportunity to obtain a nationality.46 Whether it should, on the other hand, be interpreted as granting an entitlement to a particular nationality or to more than one nationalities will be discussed in the following section.
The second paragraph of Article 15 udhr covers both the right not to be arbitrarily deprived of one’s nationality, as well as the right to change one’s nationality. As Mirna Adjami and Julia Harrington point out, Article 15(2) entails “a distinction between the deprivation of nationality — which is the withdrawal of nationality already conferred, protected by human rights standards — and the denial of access to nationality” if one wants to change nationality.47 Under Article 15(2) only the arbitrary deprivation of nationality is prohibited. Deprivation of nationality, as such, is allowed if it is not arbitrary. The provision itself, however, does not specify when deprivation is to be considered arbitrary. In the drafting process this sparked vivid discussions. Some delegations suggested to use “illegally” or “unjustly” instead of arbitrary.48 A majority, however, opted for the notion of arbitrariness arguing that it would cover situations in which deprivation of nationality occurs without a legal basis or in
Even though Article 15 udhr is not binding and remains “of a promissory and rather platonic nature”, its codification in the udhr has anchored the right to nationality in modern international human rights law.53 With its three elements, Article 15 built the model for all subsequent codifications of the right to nationality.54 However, the provision also anticipated some of the tensions that limit the effectiveness of the right to nationality as a human right until today. The guarantees enshrined in Article 15(2) are relatively concrete, have a clear addressee and limit states’ sovereignty only to a minor extent. Moreover, they are based on a situation where persons already have a nationality that can be lost or changed and which can be withdrawn. The right to a nationality according to Paragraph 1, in comparison, remains relatively vague and unspecified. Emmanuel Decaux argues that the ex post assumption of the possession of a nationality in Paragraph 2 without clarifying ex ante the acquisition of a nationality in Paragraph 1 fails to acknowledge the underlying problem of nationality and statelessness.55 Thereby, the acquisition and possession of a specific nationality risks remaining hypothetical. The discussion in section ii of this chapter will show that this is a common flaw of provisions guaranteeing
3 The Customary Nature of Article 15 udhr
The main flaw of Article 15 udhr is its non-binding nature. The udhr is not a treaty, but purely declaratory and hence not legally binding.56 The provisions of the udhr, therefore, in principle are merely manifestations of intent and do not actually grant entitlements for individuals or impose obligations on states. Nevertheless, as the basic instrument of modern international human rights law, the udhr carries particular legal weight and cannot be compared to other non-binding UN resolutions.57 Its provisions are written in a language that suggests entitlements for individuals and obligations for states rather than just proclaiming ideals. Moreover, the rights set out in the Declaration have been found to constitute authoritative interpretation for the general obligation of UN member states to ensure the respect for, and observance of, human rights and fundamental freedoms as set out in Article 55 UN Charter.58
One might thus ask whether the udhr has acquired the status of customary international law and become a binding standard. The question of whether there is a sufficient international practice of states and a corresponding opinio juris is subject to much debate.59 Some authors argue that the Declaration has
Most scholars, however, agree that many of the provisions of the Declaration have individually become part of customary international law.66 Is this also true for Article 15 udhr? Some still maintain that this is not the case.67 They argue that few sources would substantiate such a claim.68 An increasing number of authors, however, argue that Article 15 forms the basis for a customary right to a nationality.69 The latter position is supported by jurisprudence. Most prominently, the IACtHR has repeatedly reaffirmed the customary nature of the right to nationality. In its Advisory Opinion on the Proposed Amendments
For now, we can conclude that despite the dispute about its binding nature the inclusion of the right to nationality in the Universal Declaration of Human Rights must be considered a milestone. The atrocities of World War ii have shown that nationality is not only crucial to effectively access human rights, it has become apparent that having a nationality has a direct human rights’ dimension. Thus, the ‘right to have rights’ was codified in the udhr. Since its adoption, Article 15 udhr frames nationality in a human rights context and signals its potential as an individual right: everyone should have a nationality, no one should be arbitrarily deprived of her nationality and everyone should have the right to change one’s nationality. Therefore, Article 15 is as important as it is remarkable for the development of modern international human rights law. It has built the foundation for the inclusion of the right to nationality in countless subsequent binding instruments.74 The following section will explore how the model of Article 15 udhr has been transposed in binding international instruments at the universal and regional levels and assess whether these standards succeed in establishing a more robust foundation for the right to nationality.
ii
Article 15 udhr has codified the right to nationality as one of the cornerstones of modern human rights law. Never again should individuals lose their rights because they are not nationals of a state or have lost such nationality. Nationality — as becomes apparent — is so important for the enjoyment of human rights, it itself has the character of a human right.75 This is the promise made by Article 15 udhr. How, then, was this promise implemented in the universal human rights treaties that were supposed to transpose the aspirations of the Universal Declaration in binding law? The following section looks at the codification of the right to nationality in treaty law at both the universal (ii.1) and the regional (ii.2) levels. The universal level provides the foundation for the codification of the right to nationality. The focus here lies on the instruments adopted within the framework of the of the United Nations. The regional instruments complement the international legal framework and offer the possibility of a more tightly knit web of protection and stronger enforcement mechanisms, namely in the European context with the ECtHR. The relevant instruments in the Americas (ii.2.1), in Europe (ii.2.2), on the African continent (ii.2.3), in the Middle Eastern and North African region (ii.2.4), as well as in Asia and the Pacific region (ii.2.5) shall be discussed. The analysis shows that the level of protection of the right to nationality in regional instruments varies significantly. From the high standard enshrined in the American Convention of Human Rights76 to the weak level of protection in the Asian context the legal instruments at regional level have transposed the standards set at the universal level differently.
Ultimately, this review of the relevant legal sources for the right to nationality on universal and regional levels will confirm that the human right to nationality is not new to international human rights law but has its foundation at the very core of the modern international human rights regime. While not all provisions are equally strong, overall there is a large body of provisions that grant a number of enforceable individual rights relating to nationality and set clear limits to state discretion when it comes to the regulation of acquisition and loss of citizenship. Together these standards form the basis for the human right to nationality.
1
At universal level the udhr has been transposed in the nine core UN human rights treaties.77 Of those nine treaties, six guarantee the right to nationality in one form or another.78 The International Covenant on Civil and Political Rights,79 the Convention on the Rights of the Child (crc),80 the Convention on the Elimination of All Forms of Discrimination against Women,81 the Convention on the Elimination of All Forms of Racial Discrimination,82 the Convention on the Rights of Persons with Disabilities (crpd),83 and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (cmw)84 all protect aspects of the right to nationality. The two UN Statelessness Conventions85 and the 1951 Convention relating to the Status of Refugees86 complement this system and create certain obligations for states when it comes to the protection of stateless persons and the reduction of statelessness through naturalization. Thereby, these instruments contribute to further developing the right to nationality.87 In addition to the human rights treaties (i.1.1) and the framework for the protection of stateless persons and refugees (i.1.2), the section briefly looks at soft law instruments covering the right to nationality (i.1.3).
1.1
1.1.1 Article 24(3) International Covenant on Civil and Political Rights
Based on the standards set out in the udhr, the International Covenant on Civil and Political Rights together with its sister treaty, the icescr, forms the foundation of today’s international human rights framework.88 Many of the civil and political rights enshrined in the udhr were transposed to the iccpr, but not Article 15 udhr. During the negotiations of the two Covenants it was found to be too controversial to include a binding, general right to nationality for every person.89 Instead, the state parties decided to only include a right to nationality for children in the iccpr, following the model of the UN Declaration of the Rights of the Child.90 However, not even the inclusion of a right to a nationality for children was uncontroversial.91 It was argued that states could not be obliged to grant its nationality to all children born on their territory irrespective of the circumstances. Invoking states’ sovereignty in nationality matters, delegates stressed that “naturalisation could not be a right of the individual but was accorded by the State at its discretion”.92 Moreover, the recently adopted Convention on the Reduction of Statelessness was used both as an excuse not to include a general right to nationality in the Covenant — as the Convention would provide better protection — and, at the same time, as evidence for the lack of consensus on nationality matters due to the small number of ratifications.93 Nevertheless, the drafters ultimately adopted Article 24(3) iccpr with the aim of addressing childhood statelessness and providing children with additional protection.94
According to Article 24(3) iccpr “every child has the right to acquire a nationality”. It is obvious that the personal scope of Article 24 is limited to
Apart from the scope of Article 24(3) iccpr, the content of the provision also raises questions. Article 24(3) states that every child has the right to acquire nationality without, however, specifying which state would be under an obligation to grant its nationality and how such acquisition should be accomplished.103 Just as Article 15 udhr, Article 24(3) iccpr does not directly identify the addressee of the obligation to grant nationality.104 Manfred Nowak criticizes that wording of Article 24(3) as “so laconic that it raises serious problems of interpretation”.105 He argues that leaving the question of how nationality should be acquired entirely to the domestic legislation would render the right completely void of substance.106 A systematic interpretation of Article 24(3) iccpr in the context of the other provisions of the Covenant offers guidance. Under Article 24(2) iccpr, state parties to the Covenant have an obligation to immediately register the births of all children, ie all children born on their territory.107 Analogously, Article 24(3) should be interpreted as applying to all children born on a state’s territory.108 Such interpretation would be consistent with the position of the Human Rights Committee, according to which Article 24(3) does not “afford an entitlement to a nationality of one’s own choice”.109 The state of birth is not any state of one’s own choice, but a state to which a clear and unique connection exists. Hence, the addressee of the child’s right to a nationality should be the state where the child is born.110
This raises the question whether Article 24(3) iccpr obliges states to grant nationality to all children born in the territory?111 The drafting history does not
The absence of a general right to nationality in the iccpr has been described as “one of the glaring omissions in the transposition of the Universal Declaration”.124 Nevertheless, the codification of the right to nationality for children in Article 24(3) of the Covenant has been an important step in the recognition of nationality as a human right. Today, the provision as such is not largely questioned anymore.125 There is a growing consensus that Article 24(3) iccpr — despite the term ‘acquire’ — obliges states to grant nationality to all
1.1.2 Article 7 and 8 Convention on the Rights of the Child
- 1.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. [sic] as far as possible, the right to know and be cared for by his or her parents. (emphasis added)
- 2.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.
- 1.States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.
- 2.Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity. (emphasis added)
The inclusion of a right to nationality for children in the crc as such was not controversial. Already the first draft for the new instrument on children’s rights proposed a provision stating that “the child shall be entitled from his birth to a name and a nationality”.127 In the subsequent discussions, however, many
The personal scope of the right to nationality in Article 7 and the right to identity in Article 8 crc is limited to children.134 Articles 7 and 8 crc apply to
Article 7(1) crc enshrines the child’s right to acquire a nationality. Article 7(2) complements this and specifies the obligations states have when implementing the right to acquire a nationality.136 The rationale is to prevent statelessness and to oblige states to take all necessary measures to ensure that every child has a nationality.137 As in the case of Article 24(3) iccpr, it is difficult to identify the addressee of the right to nationality and to specify concrete obligations.138 Usually, Article 7(1) crc was interpreted as not amounting to a general right to a nationality for children.139 Accordingly, the CtteeRC found that the provision does not oblige states to grant their nationality to every child born in their territory.140 Nevertheless, the Committee also stressed that granting nationality automatically to every child born on the territory if they would otherwise be stateless would be the ideal solution.141 Moreover, states generally have to ensure that all children acquire a nationality in order to comply with
In combination, Articles 7 and 8 crc grant the child a right to nationality, irrespective of the status of their parents.154 Overall, the right of the child to acquire a nationality under the crc overlaps with the sister provision in the iccpr.155 However, with the combination of Articles 7 and 8 the crc goes beyond Article 24(3) iccpr and clearly also protects the right not to be deprived of one’s nationality. Moreover, the universal application of the crc gives the child’s right to a nationality under Articles 7 and 8 a particular weight. Virtually every state must respect the right of the child to a nationality.156
1.1.3
Each child of a migrant worker shall have the right to a name, to registration of birth and to a nationality.
The obligations under Article 29 cmw are similar to those under Article 24(3) iccpr and Article 7 crc.158 Like Article 24(3) iccpr and Article 7 crc, the scope of Article 29 cmw is limited to children. In addition, the personal scope of the cmw is limited to migrant workers and their families.159 In contrast to the iccpr and the crc, Article 29 cmw does not refer to acquiring a nationality. It plainly states that “each child of a migrant worker shall have the right […] to a nationality”.160
The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families has interpreted Article 29 as obliging state parties to “take all appropriate measures to ensure that children are not deprived of a nationality”.161 One dimension of Article 29 cmw is to protect access to
1.1.4 Article 9 Convention on the Elimination of All Forms of Discrimination against Women
The Convention on the Elimination of All Forms of Discrimination against Women turns the focus to discrimination and the right to nationality.166 According to Article 9
- 1.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. - 2.States Parties shall grant women equal rights with men with respect to the nationality of their children.
Thus, Article 9 cedaw does not grant a right to nationality as such, nor does it directly obligate states to facilitate the acquisition of nationality for women.167 Instead, it prohibits discrimination on the basis of sex or gender in the acquisition and transmission of nationality, or more generally, on equality in the application of nationality laws.168 Hence, Article 9 cedaw has the character of an equality norm.169
Article 9 cedaw is based on the cnw170 and the cnmw.171 172 During the negotiations for the cedaw, the inclusion of a provision on nationality was proposed by the Philippine delegation.173 Again, a controversy arose around
Article 9(1) cedaw guarantees equal rights of women and men in acquiring, changing or retaining one’s nationality. Neither marriage to a foreign national nor change of nationality by the husband during the marriage shall automatically lead to a change in a woman’s nationality, render her stateless or force upon her the nationality of her husband.187 Thus, Article 9(1) rejects the principle of dependent nationality that links the women’s nationality to that of her father or husband, which has historically governed women’s citizenship.188 As the CtteeEDAW stated in General Recommendation No. 21 “nationality should be capable of change by an adult woman”.189 In case of binational couples or children of binational parents, this can imply the recognition and acceptance of dual nationality.190
Thus, while Article 9 cedaw does not guarantee a right to nationality for women as such, it grants women equal rights with men in nationality matters, requires non-arbitrary methods of transmission of nationality and prohibits any discrimination in law, or in fact, against women in nationality matters.197 For that reason, Article 9 cedaw provides a central additional safeguard for women’s nationality rights.198
1.1.5
The 1965 Convention on the Elimination of All Forms of Racial Discrimination also addresses nationality from a non-discrimination perspective. However, nationality has a dual role in the cerd-system.199 On the one hand, the Convention prohibits discrimination against a particular nationality and protects the right to a nationality.200 On the other, the Convention itself allows for a distinction between citizens and non-citizens on the basis of nationality. According to Article 1(2) cerd, provisions of the Convention do not apply to distinctions, exclusions, restrictions or preferences made by a state party between citizens and non-citizens. Thus, the cerd allows for preferential treatment of a state’s own citizens. Article 1(3) adds that nothing in the Convention may be interpreted as affecting domestic legislation concerning nationality, citizenship or naturalization, confirming states’ competence to legislate on nationality matters.201 Hence, states may also privilege certain groups or even ethnicities or nationalities in nationality matters. Because of this, Foster and Baker describe Article 1(3) cerd as a “lingering remnant of state discretion”.202 However, as Article 1(3) clarifies, such provisions may not discriminate against any particular nationality.203 In other words, Article 1(3) cerd does not generally prohibit differential treatment on the basis of nationality, but it prohibits discrimination against any particular nationality in nationality, citizenship or naturalization matters.204 While states may treat their own citizens differently from all other non-citizens, any differential treatment of a particular nationality compared to another nationality is in violation of cerd if such differential
the three terms ‘nationality, citizenship or naturalisation’ should be understood as meaning all norms on issues related to citizenship (conditions, modalities of acquisition, withdrawal, loss and others) which must not discriminate on grounds of national origin.207
Following this approach, the provision has to be interpreted broadly.208 It also covers discrimination based on nationality status, eg against citizens with dual citizenship.209
Article 5(d)(iii) cerd specifies that states have an obligation to guarantee the right to equality before the law in the enjoyment of the right to nationality.210 The prohibition of discrimination in nationality matters obliges states to prevent any discrimination against non-citizens that denies access to citizenship or naturalization, and to pay due attention to possible barriers to naturalization.211 The right to nationality under Article 5(d)(iii) also covers
Foster and Baker criticize that the Committee’s approach to nationality matters is not consistent enough.218 Nevertheless, its practice allows us to draw certain conclusions regarding the the protection of a right to nationality under the cerd. It can be argued that the provisions in the Convention reinforce the right to nationality by obliging states to prohibit and eliminate racial discrimination in all its forms in nationality matters and to guarantee the full enjoyment of the right to nationality. While states may make a distinction between nationals and non-citizens, and may also treat certain groups more favorably in nationality matters, Articles 1(3) and 5(d)(iii) cerd prohibit any discrimination against a particular nationality or a specific person on the grounds of race, color or national or ethnic origin.219
1.1.6 Article 18 Convention on the Rights of Persons with Disabilities
States Parties shall recognize the rights of persons with disabilities to liberty of movement, to freedom to choose their residence and to a nationality, on an equal basis with others, including by ensuring that persons with disabilities:
Have the right to acquire and change a nationality and are not deprived of their nationality arbitrarily or on the basis of their disability;
Are not deprived, on the basis of disability, of their ability to obtain, possess and utilize documentation of their nationality or other documentation of identification, […].
Article 18(2) adds that children with disabilities shall have the right to acquire a nationality.
Article 18 crpd was only included at a late stage in the drafting process.222 However, other than with previous instruments, the proposal for a right to a nationality in principle was not controversial.223 Drawing on the models established by Article 24(3) iccpr and Article 7 crc, the drafters highlighted the importance of the right to liberty of movement and to nationality for persons with disabilities for the full enjoyment of their rights.224 Moreover, they noted that the rights to liberty of movement and to nationality are interlinked and mutually dependent, as free movement and choice of residence in practice require a nationality and identity documents.225 Discussions, however, arose again around the question of which state would be obliged to grant a nationality. Some countries argued that the right to acquire a nationality should only refer to the nationality acquired at birth and not a nationality acquired later in life.226 Nevertheless, Article 18 crpd was broadly accepted. Only two reservations are in plave against Article 18 crpd: one by Kuwait and one by
Article 18(1)(a) crpd enshrines a general right to nationality covering acquisition, change and deprivation of nationality. The aim of the provision is to ensure that persons with disabilities can enjoy their right to nationality on an equal basis with others.229 The right to nationality applies to all persons with disabilities. It goes beyond other instruments and establishes a general right to nationality for adults and children. Article 18(1)(a) not only explicitly prohibits arbitrary deprivation of nationality, but also deprivation of nationality based on a person’s disability. The right of children with disabilities to a nationality is dealt with specifically in Article 18(2) crpd. States must register children with disabilities immediately after their birth and to safeguard the acquisition of a nationality to prevent statelessness.230
Article 18 crpd primarily entails a negative obligation for states not to interfere with the right to nationality; not to hinder persons with disabilities from accessing a nationality — for example, by setting naturalization
Article 18 crpd can be subject to limitations.239 Any restriction must, however, be provided by law, be necessary to protect national security, public order, public health or morals or the rights of freedoms of others, and must be consistent with the other rights recognized in the Convention.240 Moreover, it must be proportionate to the aim pursued.241 One guarantee in Article 18, however, is absolute: a deprivation of nationality that is arbitrary or that is based on disability can never be justified.242 Depriving a person of his or her nationality because that person has a disability would amount to a direct discrimination and aim at directly excluding persons with disabilities as such.243
Creating a strong right to nationality covering access to nationality, access to proof of nationality in the form of documents, change of nationality and deprivation of nationality for both adults and children, Article 18 crpd goes beyond most other provisions codifying the right to nationality.244 It foresees the limitations of the right to nationality but, at the same time, recognizes that deprivation of nationality on the basis of disability, as well as arbitrary deprivation of nationality, can never be justified. Considering, moreover, that the introduction of Article 18 was not particularly disputed and that the crpd is relatively young, the provision shows that the right to nationality is to be recognized as an international human right that imposes — depending on the legal source — specific duties and obligations for states.245
The analysis of the different UN human rights treaties shows how the codification of the right to nationality has evolved. While the general right to nationality of Article 15 udhr was not transposed in the iccpr, but instead reduced to a rather vague right for children to acquire a nationality, the subsequent instruments have contributed to its consolidation. The almost universally applicable Article 7 crc — and its sister provisions in Article 24(3) iccpr and Article 29 cmw — is increasingly interpreted as imposing an obligation on
1.2 The Statelessness Conventions and the Refugee Convention
The previous section looked at the codification of the right to nationality in the core UN human rights treaties. Hence, it has shown that the right to nationality is firmly anchored in the international human rights protection regime. This section shall analyze the two Statelessness Conventions and the Refugee Convention and discuss in how far they contribute to the protection of the right to nationality at the universal level, which developed as a parallel protection regime for stateless persons and refugees.247
1.2.1 The Convention Relating to the Status of Stateless Persons
The Convention relating to the Status of Stateless Persons of 1954 was negotiated in parallel to the 1951 Refugee Convention with the aim of adopting one
Attempts to resolve the legal void in which the stateless person often exists, by identifying the problem of statelessness, promoting the acquisition of a legal identity, and providing for a legal status which will serve as a basis for access to basic social and economic rights.256
The 1954 Convention tries to mitigate the most severe consequences of statelessness and grant stateless persons a number of essential rights.257 However, though the acquisition of a nationality provides the only sustainable legal solution for stateless persons, the css does not directly codify a right to nationality.258 Instead, it merely calls upon states to facilitate naturalization for stateless persons. Article 32 provides that states
shall as far as possible facilitate the assimilation and naturalization of stateless persons. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.259
From the phraseology chosen for this article it is immediately clear that it is not a right to (be considered for) naturalisation that is envisaged for the stateless but, at most, an opportunity to enjoy facilitated naturalisation. Stateless persons cannot demand access to a naturalisation procedure or even insist upon the lowering of the requisite conditions in their favour.264 (original emphasis)
Moreover, as pointed out by Katia Bianchini, the provision “does not mention other ways to acquire a nationality, such as automatically by operation of law or through simple procedures of registration, declaration or option” that would facilitate the procedures compared to a naturalization.265 The wording of Article 32 makes it difficult to find a directly applicable right for stateless persons to be granted citizenship of a particular state. Calling upon states (‘shall’) to facilitate naturalization does not amount to an individual right to nationality or an obligation to grant nationality to stateless persons within its jurisdiction for the state concerned. The addition ‘as far as possible’, moreover, leaves states a wide discretion. Nevertheless, Article 32 css obliges states to provide stateless persons, at a minimum, an opportunity to naturalize and to ensure that such naturalization procedures are less burdensome compared to ordinary naturalization.266 Hence, Article 32 according to van Waas at least provides for the “crucial right of solution by considering access to citizenship” — and thus is perhaps the most important provision of the Convention.267 Similarly, Batchelor finds that while states are under no absolute obligation to naturalize
In addition, the second sentence of Article 32 entails a more specific obligation by specifying that naturalization should be facilitated.269 Such facilitation can occur by means of procedural facilitations, such as reduced fees or expedited or simplified procedures, and through substantive facilitations, such as reduced naturalization requirements.
To sum up, the css protects the fundamental human rights of stateless persons and, importantly, enshrines the legal definition of statelessness. With the growing number of ratifications, the importance of the Convention is increasing. While an actual right to a nationality is not protected by the Convention, Article 32 css obliges states to grant stateless persons access to a naturalization procedure and to facilitate such naturalization.
1.2.2 The Convention on the Reduction of Statelessness
The 1954 Convention is complemented by the Convention on the Reduction of Statelessness, adopted in 1961.270 Similar to the css, the number of ratifications was initially low, but has doubled over the last decade.271 While the css intends to secure the most basic rights of stateless persons, the crs aims at preventing and eradicating statelessness. The crs is “the leading international instrument that sets rules for the conferral and non-withdrawal of citizenship to prevent cases of statelessness from arising”.272 In order to achieve the aim of reducing and preventing statelessness the Convention obliges states to grant nationality under certain circumstances to stateless persons.273 The 1961
the exhaustive character of the list [in Article 1(2)] implies that the state does not have any discretionary power to deny nationality if the conditions mentioned under domestic law in conformity with Article 1(2) are met. To provide for a discretionary naturalization procedure for otherwise stateless children is thus not in conformity with the 1961 Convention.282 (emphasis added)
Article 4 adds that states shall grant their nationality to a person who was not born on their territory if she would otherwise be stateless and if one of the parents had that state’s nationality at the time of birth. Such attribution of nationality based on descent again can be granted automatically at birth or upon application. According to Article 4(2), states may foresee several conditions for such application. In combination the two provisions aim to ensure that otherwise stateless persons have access to a nationality and are not left statelessness. Weis notes that
a balance has been struck between the obligations to be undertaken by jus soli and jus sanguinis countries: original statelessness is to be remedied by the subsidiary application of jus soli in jus sanguinis countries and, where this does not lead to acquisition of nationality, by the application of jus sanguinis by jus soli countries.285 (original emphasis)
The remaining substantive provisions of the 1961 Convention aim at ensuring that state parties grant citizenship to persons fulfilling the criteria for acquisition and limiting the possibilities of loss of citizenship that could render an individual stateless.286 An important provision is Article 8, which prohibits deprivation of nationality if such deprivation would render the person concerned stateless.287 Exceptions to that principle are possible — if nationality was obtained by misrepresentation or fraud, or if domestic legislation provides for deprivation of nationality for breach of loyalty or allegiance and the state party made a declaration to retain such right at the time of signature, ratification or accession to the Convention.288 Hence, Article 8 does not prohibit the deprivation of nationality resulting in statelessness per se. However, Article 9
The 1961 Convention provides a solid framework to avoid future statelessness and reducing statelessness that currently exists. As such it is the most elaborated and detailed instrument at universal level on the avoidance of statelessness.290 It imposes a positive obligation on states to attribute nationality in certain situations and prohibits its withdrawal in certain situation. While it does not directly guarantee a general right to nationality, the Convention indirectly protects the right to nationality and is one of the few instruments that specifies which state has an obligation to grant nationality.291 Thereby, the crs thereby fills to a certain extent the gap left open by Article 15 udhr. As Chan claims, it provides “the right to have a nationality with a substantive content, and is indicative of the extent of obligations of, or the international expectation on, the states in the elimination and reduction of statelessness”.292 Moreover, it identifies the factors of birth and descent as connections that “are sufficient to establish a link between the individual and the State, a foundation upon which it is legally sound to grant nationality, in particular, to a person who has received none”.293 This recognition of the importance of an “individual’s genuine and effective existing connection” (original emphasis) with a state adds new contours to the right to nationality.294 Nevertheless, the Convention neither obliges states to unconditionally grant access to nationality if a person is otherwise stateless, nor does it absolutely prohibit the withdrawal of nationality resulting in statelessness. As the title of the Convention indicates, the main focus is on the reduction of statelessness, and not on its complete eradication, nor generally the protection of the right to nationality as such.295
1.2.3 The Convention Relating to the Status of Refugees
The Convention relating to the Status of Refugees and its Protocol296 address the situation and rights of refugees in the state of asylum.297 As elaborated
The Contracting States shall as far as possible facilitate the assimilation and naturalization of refugees. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.
Article 34 Refugee Convention envisages naturalization (and assimilation)300 as one of the durable solutions for refugees foreseen in the Convention, or even more so, as an end to refugee status.301 James Hathaway even refers to it as a “true solution”.302
Just as Article 32 1954 Convention, Article 34 is mostly interpreted as a recommendation for states, rather than an individual right for refugees to be
The second sentence of Article 34 lists possible ways to facilitate naturalization: through reduced fees and expedited procedures. Other facilitation measures could consist of support for the integration process, leeway in the
The discussion in this section has shown that two Statelessness Conventions and the Refugee Convention do not directly guarantee a general right to nationality. Nevertheless, in particular the 1961 Convention establishes important limitations upon state sovereignty: by defining certain circumstances under which a person should be able to acquire nationality if she would otherwise be stateless and by limiting the competence to deprive an individual of citizenship. Thus, the 1961 Convention thus indirectly gives the right to nationality substantive content. Article 32 of the 1954 Convention and Article 34 Refugee Convention suggest that states should facilitate the naturalization of stateless persons and refugees as far as possible. Overall, the three instruments reinforce the impression that nationality can no longer be described as a domaine réservé and provide guidelines for the identification of the scope and content of the right to nationality.
1.3 Soft Law Instruments at Universal Level
In addition to treaty law, soft law instruments play an important role for the development of the right to nationality at the international level.314 These instruments reinforce and complement existing standards and support the creation of customary international law, as well as the codification of new binding legal instruments.315 Nationality is a good example to illustrate how soft law can play an important role in domains where states are reluctant to adopt binding norms but, at the same time, agree on the need for international cooperation or even regulation.316 The following section looks at the
1.3.1 Resolutions by UN Bodies
1.3.1.1 The UN General Assembly
The Third Committee of the UN General Assembly has on several occasions dealt with questions relating to nationality. Most of these resolutions concern the mandate of the unhcr to address the situation of stateless persons.317 These resolutions express concern about the situation of stateless persons, highlight the connection between statelessness and displacement, call upon states to reduce statelessness and reinforce the mandate of unhcr to support and assist stateless persons. Implicitly, all these resolutions recognize the right to nationality.318 Nevertheless, the unga remains careful to acknowledge states’ domestic jurisdiction in nationality matters. Resolution 50/152, for example, calls upon states to adopt nationality legislation to reduce statelessness and to prevent arbitrary deprivation of nationality, while acknowledging “the right of States to establish laws governing the acquisition, renunciation or loss of nationality”.319 Other resolutions address the issue of state succession,
Overall, the UN General Assembly has shied away from recognizing the right to nationality as a human right that imposes duties on states and grants individuals enforceable legal claims. It has mostly addressed questions relating to nationality in the context of statelessness and reaffirmed states’ discretion in nationality matters. While statelessness is addressed, directly or indirectly, in many of the major initiatives at UN level — such as for example the Sustainable Development Goals321 or the Global Compacts on Migration and Refugees322 — the UN General Assembly has been reluctant to take on a leading role in strengthening the right to nationality as an individual human right.
1.3.1.2 The UN Human Rights Council
The UN Human Rights Council and its predecessor, the UN Commission on Human Rights, have repeatedly dealt with nationality issues. The resolutions of the Human Rights Council and the Commission address the right to nationality directly — namely regarding arbitrary deprivation of nationality, the principle of non-discrimination and birth registration.323
Resolution 20/4, adopted in 2012, addresses the right to a nationality with a focus on women and children.329 The Resolution reaffirms “that the right to a nationality is a universal human right enshrined in the Universal Declaration of Human Rights, and that every man, woman and child has the
Thus, the Human Rights Council resolutions on nationality consistently recognize the right to nationality as a fundamental universal human right. They provide important guidance for the obligations that can be derived from the different legal sources at the international level that guarantee a right to nationality.
1.3.1.3 The Global Compacts on Migration and Refugees
The youngest initiative at the UN level was the adoption of the New York Declaration for Refugees and Migrants on 19 September 2016.333 The Declaration resulted in the Global Compact on Migration — the Global Compact for Safe, Orderly and Regular Migration (gcm)334 — and the Global Compact on Refugees.335 336 The New York Declaration recognizes statelessness as a cause and consequence of forced migration and calls for its reduction.337 On that basis, both the Compacts address statelessness and nationality.338
The Global Compact for Safe, Orderly and Regular Migration calls in Objective 4 to “ensure that all migrants have proof of legal identity and adequate documentation”.339 States should be committed to “fulfil[ling] the right
strengthen measures to reduce statelessness, including by registering migrants’ births, ensuring that women and men an equally confer their nationality on their children, and providing nationality to children born in another State’s territory, especially in situations where a child would otherwise be stateless, fully respecting the human right to a nationality and in accordance with national legislation [and to] review and revise requirements to prove nationality at service delivery centres to ensure that migrants without proof of nationality or legal identity are not precluded from accessing basic services nor denied their human rights.340
Moreover, the Compact calls upon states to issue registration cards to all persons living in a municipality, including migrants, to realize this commitment.341 Objective 4, thereby implicitly recognizes the right to nationality. However, the gcm also reiterates that nationality matters are a matter for domestic legislation, especially that of the country of origin, and fails to reinforce any specific obligation to prevent statelessness or to grant nationality.342 In the gcm, statelessness and nationality are closely linked to questions of documentation and legal identity and, in turn, to questions of migration control, ensuring effective migration procedures, preventing irregular migration and facilitating return procedures, thereby failing to take a comprehensive rights-approach to nationality in the migration context.343
The Global Compact on Refugees recognizes that statelessness may be a cause and a consequence of refugee movements.344 It calls upon states, the unhcr and other actors to support the sharing of good practices for the prevention and reduction of statelessness and the development of instruments on national, regional and international levels to end statelessness.345 It further encourages states to ratify the 1954 and the 1961 Conventions.346
The fact that statelessness and access to citizenship are addressed in the two Global Compacts in the first place shows that statelessness is recognized as an issue that is inherently linked to migration, especially forced migration. It also acknowledges the obligation to prevent and reduce statelessness where possible. This is not obvious.350 Nevertheless, the Compacts fail to establish mechanisms for the protection of individual rights and to recognize effective obligations for states relating to statelessness and nationality. Thereby, the Global Compacts are very much in line with the traditional doctrine of nationality as a matter of domestic legislation and take a cautious approach to recognizing nationality and statelessness as human rights issues.351 Neither the Global Compact on Migration nor the Compact on Refugees take an ambitious approach to reinforcing the right to nationality as an effective, enforceable human right.
1.3.2 Draft Articles of the International Law Commission
[F]rom the aspect of the role of nationality in international law the proceedings of the International Law Commission are of particular importance. The views on the subject of nationality expounded by the members of the International Law Commission (…) are significant, not only as opinions of international law; they can also be regarded (…) as indications of the tendencies of its development.352
In fact, the ilc decided at its first session to make nationality and statelessness some of its central topics. This early work resulted in the crs.353 Thereafter, the ilc resumed its work on nationality only in the 1990ies.354 At that time, the issue of nationality in relation to state succession caught its particular attention.355 The Commission started to prepare an instrument to deal with the impact of state succession on the nationality of natural persons.356 As a result, the Draft Articles on Nationality of Natural Persons in Relation to the Succession of States were adopted in 1999.
The Draft Articles reinforce existing international legal standards and provide authoritative guidance for the interpretation of the right to nationality in the context of state succession. They build on the assumption that nationality is essentially governed by domestic law but — being of direct concern to the international order — is not without the limitations imposed by international
remain the most powerful and detailed statement of the principles that should apply, and, in particular, are the strongest global level statement on the obligation of a state to grant its nationality to a person with the strongest links to that state or on the basis of option.363
Every individual who, on the date of the succession of States, had the nationality of the predecessor State, irrespective of the mode of
acquisition of that nationality, has the right to the nationality of at least one of the States concerned, in accordance with the present draft articles. (emphasis added)
Article 1 is a “key provision, the very foundation of the present draft articles”.364 It aims at applying the general principle of Article 15 udhr to the specific context of state succession.365 Jeffrey Blackman even argues that this provision is the most significant general elaboration of the right to nationality since its introduction in Article 15 udhr.366 Thus, the right to nationality is the main principle on which all other provisions in the Draft Articles are based.367 The right to a nationality under Article 1 ilc Draft Articles aims to guarantee the continuing enjoyment of a nationality despite a change in territorial sovereignty.368 Every person whose nationality might be affected by a state succession has the right to the nationality of at least one of the states involved in the succession.369 Importantly, the right to nationality under Article 1 is not limited to stateless persons.370
The approach to safeguarding the right to a nationality and preventing statelessness foreseen in Article 1 of the ilc Draft Articles addresses one of the main flaws of Article 15 udhr: the lack of an addressee. Article 1 determines which state has a positive obligation to fulfill the right to a nationality and defines the scope of the right to nationality.371 The ilc Draft Articles oblige the successor state, or one of the successor states, to grant its nationality to the individual affected by the succession, and the predecessor state not to deprive an individual of nationality as a consequence of the succession.372 The state that is obliged to attribute its nationality is then identified based on the type of
Article 1 is complemented by Article 4 on the prevention of statelessness.374 This provision reflects the negative duty of states to avoid statelessness. It calls upon states to take all appropriate measures to prevent persons from becoming stateless as a result of the succession. The states involved in the succession do not have to attribute their nationality to all affected individuals (all persons having an appropriate connection to a state375), but instead must take all appropriate measures within their competence to prevent individuals from becoming stateless as a consequence of the state succession.376
Another interesting provision is Article 11 of the ilc Draft Articles which deals with the will of persons concerned.377 Article 11(1) calls upon states to consider the will of persons concerned whenever they can choose which nationality to acquire. Paragraph 2 grants individuals involved in the succession a right to opt for the nationality of a particular state if they have an appropriate connection to that state and would otherwise become stateless. This right to opt aims at “eliminating the risk of statelessness in situations of succession of states” by having the right to ask for the nationality of a state to which an appropriate connection exists.378 According to the Commentary to the Draft Articles the right to opt provided for by Article 11 is not limited to a choice between different nationalities, but refers more broadly to a right to opt-in, that means to voluntarily acquire a particular nationality by declaration, or to opt-out, ie to be free to renounce a nationality acquired ex lege.379 This respect for the will of the individual concerned is an expression of the
There is an emerging right to an effective nationality in the State with which an individual possesses genuine and effective links, at least in the context of state successions. It is also clear that these principles are inquiringly general and indistinguishable. They are not exclusive to State successions but increasingly applicable in general international citizenship law.383
Thus, the ilc Draft Articles provide interesting guidance as to how the right to nationality could be interpreted in order to identify more specific rights and obligations. In particular, the approach that the right to nationality applies vis-à-vis the state to which an individual has the closest connection provides an interesting model of how the right to nationality could be re-interpreted which shall be discussed in more detail in Chapter 6.
2 The Right to Nationality at Regional Level
The previous section has analyzed the codification of the right to nationality in legal instruments at the universal level. In addition, the right to nationality is also addressed in regional human rights treaties. Some of these regional instruments offer important additional layers of protection for the right to nationality.384 The following section discusses these regional protection frameworks in more detail, starting with the Americas (ii.2.1), then turning to Europe
2.1 The Americas
The most elaborated framework for the protection of the right to nationality is found on the American continent — more precisely within the framework of the Organization of American States (oas).385 Already, the American Declaration on the Rights and Duties of Man of 1948386 — adopted six months before the Universal Declaration of Human Rights — included a right to nationality. Article xix of the non-binding Declaration, however, limited the right to nationality to those who already had an entitlement to nationality based on domestic law. This left the decision on the attribution of nationality entirely within the competence of states.
- 1Every person has the right to a nationality.
- 2Every 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.
- 3
No one shall be arbitrarily deprived of his nationality or the right to change it.
[A] minimal measure of legal protection in international relations through the link [one’s] nationality establishes between him and the state in question; and, second the protection therein accorded the individual against the arbitrary deprivation of his nationality, without which he would be deprived for all practical purposes of all of his political rights as well as of those civil rights that are tied to the nationality of the individual.393
Thus, Article 20 establishes a right to nationality that protects the individual and all her political and civil rights tied to the status of nationality. It is a “basic right that is closely allied to other fundamental liberties”.394 It not only obliges states to refrain from interferences with the right to nationality, but also imposes positive obligations to actively guarantee the rights it secures.395
It is generally accepted today that nationality is an inherent right of all human beings. Not only is nationality the basic requirement for the exercise of political rights, it also has an important bearing on the individual’s legal capacity.403
at the current stage of the development of international human rights law, […] is limited, on the one hand, by their obligation to provide individuals with the equal and effective protection of the law and, on the other hand, by their obligation to prevent, avoid and reduce statelessness.409
- (a)The migratory status of a person cannot be a condition for the State to grant nationality, because migratory status can never constitute a justification for depriving a person of the right to nationality or the enjoyment and exercise of his rights.
- (b)The migratory status of a person is not transmitted to the children, and
- (c)The fact that a person has been born on the territory of a State is the only fact that needs to be proved for the acquisition of nationality, in the case of those persons who would not have the right to another nationality if they did not acquire that of the State where they were born.412
failed to comply with its obligation to guarantee the rights embodied in the American Convention, which implies not only that the State shall respect them (negative obligation), but also that it must adopt all appropriate measures to guarantee them (positive obligation), owing to the situation of extreme vulnerability in which the State placed the Yean and Bosico children […].416
This failure amounted to an arbitrary deprivation of nationality in violation of Article 20 and other Convention rights.417
The judgment of the IACtHR in Yean and Bosico Case is dense and gives a lot of content and weight to the right to nationality under Article 20 achr.418 According to a separate opinion of Judge A.A. Cançado Trinidade, the judgment is to be understood as a warning for states “that discriminatory administrative practices and legislative measures on nationality are prohibited (starting with its attribution and acquisition)”.419 The judgment clarifies that the migratory status of a person cannot be a condition for the possibility to acquire a nationality.420 Moreover, it reaffirms that in cases of persons who cannot acquire a nationality based on any other link than the place of birth, the only fact that needs to be established in order to claim the right to nationality under Article 20 achr is the fact that the person is actually born on the territory of a member state.421 It is also interesting that the Court found a violation of the prohibition of arbitrary deprivation of nationality even though the girls never acquired a nationality in the first place. The Court assumed that an arbitrary denial of the acquisition of nationality amounts to an arbitrary deprivation of nationality.422 Finally, the judgment illustrates how closely the right to nationality
Nationality, as it is mostly accepted, should be considered a natural condition of the human being. This condition is not only the very basis of his political status but also part of his civil status.425
The IACtHR found that “the moment at which the State’s obligation to respect the right to nationality and to prevent statelessness can be required […] is at the time of an individual’s birth”.426 Thus, Article 20(2) achr must be interpreted as obliging states to ensure that every child born on its territory may effectively acquire the nationality of the state of birth or another state immediately after birth.427 If the state is not sure, it has “the obligation to grant it nationality (ex lege, automatically), to avoid a situation of statelessness at birth pursuant to Article 20(2) of the American Convention” (original emphasis).428 This obligation — so the Court stated — also applies if parents are, for factual reasons, not able to register their children in their state of nationality.
Another case that concerned the right to nationality is the case of Baruch Ivcher Bronstein v Peru of 2001.429 Mr. Ivcher Bronstein acquired Peruvian nationality in 1984. In 1997 Peru decided to annul the naturalization in order to prevent Bronstein from criticizing the government through his media companies.430 While the case primarily concerned the lawfulness of political retaliation measures, the Court also found a violation of Article 20 achr.431 According to Torres, it was the first judgment “which really afforded protection
The jurisprudence of the IACtHR on Article 20 achr is consistent. Whether it found a violation437 or not,438 it builds on a human rights’ approach, prioritizes the needs of the individual and interprets states’ discretion in nationality matters in a limited manner. Moreover, it consistently stresses the importance of nationality not only as the basis for one’s political status but also the full enjoyment and exercise of all other rights — as well as its close link to the principle of non-discrimination. With that approach the case law of the Inter-American Court has proven to be extremely important for the development of a rights-based approach to nationality that is unique compared to other regions.439 Thus, in the Americas, Article 20 achr and the jurisprudence of the IACtHR provide for a strong protection of the right to nationality. In the
2.2 Europe
Compared to the Americas, Europe lags behind when it comes to recognizing and safeguarding the right to nationality. The most important regional instrument, the European Convention on Human Rights, does not include a right to nationality at all. The reasons why, as well as the timid attempts of the ECtHR to introduce a right to nationality through the back door, shall be discussed below (ii.2.2.1.2). First, however, a closer look shall be had at the European Convention on Nationality, the most specific instrument on nationality in the European context (ii.2.2.1.1). A third subsection discusses other instruments within the framework of the Council of Europe (ii.2.2.1.3). Going beyond the framework of the Council of Europe, a brief look shall then be held at standards developed by the Organization for Security and Co-Operation in Europe (osce) (ii.2.2.2) and at citizenship in the European Union (ii.2.2.3).441
2.2.1 Council of Europe
2.2.1.1 European Convention on Nationality
The central instrument concerning nationality in the European context is the European Convention on Nationality, adopted under the auspices of the Council of Europe on 6 November 1997.442 It was drafted after the collapse of the Soviet Union and the dissolution of the former Yugoslavia with the aim of creating a comprehensive and contemporary instrument on nationality matters for Europe.443 The idea was “to promote the progressive development of
[I]ts purpose is to make acquisition of a new nationality and recovery of a former one easier, to ensure that nationality is lost only for good reason and that it cannot be arbitrarily withdrawn, and to guarantee that the
procedures governing applications for nationality are just, fair and open to appeal.452
Despite these ambitious goals, the baseline for the Convention codified in Article 3 remains the sovereign competence of states to determine under their own law the rules for acquisition and loss of nationality, as long as these rules are consistent with international law and principles.
The European Convention on Nationality does not grant individuals enforceable rights against states.453 As van Waas writes, it is rather “a consolidation of developments in municipal and international law with regard to nationality” that aims to prevent conflicts between domestic nationality legislations.454 Nevertheless, the Convention reinforces the basic human rights principles in the field of nationality and gives weight not only to the legitimate interests of states, but also to those of individuals.455
[They] could opt for a concrete, individually enforceable right or [they] could hold the view that the right to a nationality is vague because it does not specify who has the right to which nationality. As it stands, therefore, this ‘right’ is virtually unenforceable.456 (original emphasis)
Ultimately, they opted for the latter alternative and codified the right to a nationality as a general principle in Article 4(a) ecn. Article 4(a) recognizes the right to nationality as a human right and obliges member states to realize it in their domestic legislation.457 Article 4 lists three other general principles: the obligation to avoid statelessness (let. b), the prohibition of arbitrary
With the reduction of the right to nationality to a general principle merely guiding the member states, the ecn falls behind the protection established under Article 20 achr. Nevertheless, even the codification of the right to nationality as a general principle strengthens the protection of the right to nationality as a human right and solidifies its status in international law, As Batchelor argues, the ecn “has further developed the right to a given nationality, based on the principles of genuine and effective link”.461 This, to quote Kristin Henrard, “has an undeniable signaling function”.462 Hence, the ecn strengthens the right to nationality, not only directly through the codification as a general principle, but also in the remaining substantive provisions, which all build on the right to nationality.
The substantive provisions in Articles 6 ff. ecn deal with the acquisition and the loss of nationality, procedural questions and special situations — such as multiple nationality and state succession. Article 6 addresses the acquisition of nationality. It stipulates that all member states shall provide for the ex lege acquisition of nationality for children based on descent (Paragraph 1), and foresee a mechanism for children born on the territory, who do not acquire any other nationality at birth, to acquire nationality either ex lege or upon application if they would otherwise remain stateless (Paragraph 2). The provision combines the principles of jus sanguinis and jus soli to ensure that no child born in a member state becomes stateless.463 Moreover, Article 6 ecn obliges
The ecn also limits states’ right to withdraw nationality. Article 7 lists the acceptable grounds for deprivation of nationality exhaustively.472 In addition, Article 8 ecn allows individuals to renounce their nationality, provided they do not become stateless. This implies a right to change one’s nationality even if it is not expressly provided for in the Convention.473 Articles 10–13 ecn provide an important concretization of the procedural aspect of the right to nationality.474 They proscribe that decisions concerning nationality must be processed within a reasonable time, contain reasons in writing and must be open to review by an administrative or judicial authority.475 Moreover, fees must be reasonable and may not be an obstacle for applicants.476 So far, these procedural standards are unique. No other instrument sets up rules relating to procedures in nationality matters.477 Finally, the ecn takes a neutral stance on dual and multiple citizenship.478
The analysis of the substantive provisions of the ecn shows that the Convention with its pragmatic approach to the right to nationality, in fact, contributed to its international recognition. The standards enshrined in the Convention impose concrete obligations for states to implement in their internal nationality legislation.479 One of the central deficiencies of the ecn is, however, the lack of a supervisory body that could monitor the implementation and enforcement of the Convention standards in the member states.480 The initial idea that the Committee of Experts on Nationality in charge of drafting
2.2.1.2 European Convention on Human Rights
The European Convention on Human Rights485 and its Protocols do not comprise a right to nationality among its substantive provisions.486 The traveaux préparatoires to the Convention do not elaborate why the right to nationality was not included.487 In 1988, the Committee of Experts for the Development of
In particular, the case law on the right to private life under Article 8 echr has proven to be important for the development of a right to nationality under the Convention. The Court found that arbitrary denial of nationality492 and arbitrary revocation of nationality,493 the confiscation of passports or identity documents,494 the erasure of register data with the result of statelessness495 and the denial of a right to residence for stateless persons496 can give rise to an interference with Article 8 echr.497 The jurisprudence of the Court under Article 8 echr has been taken up by domestic courts.498
Although right to a citizenship is not as such guaranteed by the Convention or its Protocols […], the Court does not exclude that an arbitrary denial of a citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual […].500 (emphasis added)
I see nationality (citizenship) as part of someone’s identity. If Article 8 covers the right to self-determination in respect of, for example, sexual orientation and so forth, it undoubtedly also covers the right to self determination [sic] in respect of nationality and citizenship.503
Five years later, the ECtHR adopted this argument. In the case of Genovese v Malta it had to decide whether Maltese nationality laws, according to which children born out of wedlock were only eligible for Maltese citizenship if their mother was Maltese, violated Article 14 in conjunction with Article 8 echr.504 The Court found that such a rule discriminated between children born to
[t]he loss of citizenship already acquired or born into can have the same (and possibly a bigger) impact on a person’s private and family life. […] Thus, an arbitrary revocation of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of its impact on the private life of the individual.511 (emphasis added)
[s]ince the Convention guarantees no right to nationality, the question whether a person was denied a State’s nationality arbitrarily in a way susceptible of raising an issue under the Convention is to be determined with reference to the terms of the domestic law.514
In the case of Usmanov v Russia, the Court consolidated its line of case on revocation of nationality.515 The case concerned a man whose Russian citizenship was annulled ten years after his naturalization, as he had not informed the authorities about his siblings when applying for citizenship. The applicant argued that the annulment of his Russian citizenship and his removal from Russian territory violated Article 8 echr.516 In its judgment, the ECtHR reiterated the criteria for revocation of nationality and clarified that it applies a two-step test to determine whether there has been a breach of the Convention: first it looks at the consequences for the individual concerned to establish whether there has been an interference with the right to private life, in a second step it assesses whether the revocation has been arbitrary.517 In order to determine arbitrariness, the Court examines whether the measure in question was in accordance with the law, accompanied by procedural safeguards, subject to judicial review and whether the authorities had acted diligently and swiftly.518 Applying this two-step test to the case at hand the Court found that the annulment of his Russian citizenship indeed amounted to an interference with Article 8 echr, given it deprived him of any legal status in Russia, left him without valid identity documents and ultimately led to his removal from Russia and that it was arbitrary as the legal framework was excessively formalistic and failed to give the individual adequate protection against arbitrary interference.519 Hence, the annulment of citizenship in the case of Usmanov v Russia amounted to a violation of Article 8 echr.520
In sum, the now well-established prohibition of arbitrary denial or revocation of citizenship in the Court’s case-law presupposes, by logical implication, the existence of a right to citizenship under Article 8 of the Convention, read in conjunction with Article 3 of Protocol No. 4. Furthermore, a systemic interpretation of both provisions in line with the Council of Europe standards on statelessness warrants the conclusion that State citizenship belongs to the core of an individual identity. […] taking into account the Convention’s Article 8 right to an identity and to State citizenship […] States parties to the Convention have a negative obligation not to decide on the loss of citizenship if the person would thereby become stateless and a positive obligation to provide its citizenship for stateless persons, at least when they were born — or found in the case of a foundling — in their respective territories, or when one of their parents is a citizen.527
Nevertheless, overall, the case law of the Court on citizenship, as part of a person’s social identity and thus of a person’s private life, in the meantime is quite well-established.528 It also expanded the scope of the citizenship-dimension under the right to private life, from only covering arbitrary denial of citizenship
2.2.1.3 Other Council of Europe Instruments
A Convention on the Reduction of Cases of Multiple Nationality
The Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality of 1963529 was the first instrument on nationality adopted within the framework of the Council of Europe. It aimed at avoiding conflicts between nationality regimes and preventing multiple nationality.530 It does not have a special focus on individual rights. In order to prevent multiple nationality it states that individuals shall lose their former nationality if they acquire the new one.531 Implicitly the Convention, thereby, acknowledges that individuals must be able to change their nationality and states have an obligation to allow for the renunciation of nationality and recognition of the new nationality.532
The Second Protocol amending the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality further loosened the strict approach of the 1963 Convention.533 It allows the retention of the nationality of origin and permits dual citizenship in cases of second-generation migrants, binational marriages if one spouse acquires the nationality of the other and children of binational couples.534 This amendment indirectly amounts to the recognition of dual nationality.535 However, the Second Protocol does not grant an enforceable individual right to
B Convention on the Avoidance of Statelessness in Relation to State Succession
The youngest instrument adopted within the framework of the Council of Europe is the Convention on the Avoidance of Statelessness in Relation to State Succession of 2006.537 Building on the ecn, the Convention aims at preventing, or at least reducing statelessness by setting up more detailed rules for the acquisition of nationality in the context of state succession.538 Its substantive scope is limited to the context of state succession.539 As Roland Schärer notes, this limitation upon the scope of the instrument had the advantage of facilitating a consensus between the state parties, despite the relatively clearly defined obligations for the member states set out in the Convention.540
Everyone who, at the time of the State succession, had the nationality of the predecessor State and who has or would become stateless as a result of the State succession has the right to the nationality of a State concerned, in accordance with the following articles.
According to Article 5, the right to nationality applies to everyone who, at the time of the succession, had both the nationality of a predecessor state and was a habitual resident or had another appropriate connecting factor to the territory of the successor state.541 The main connecting factor for acquiring
Overall, the Council of Europe Convention on the Avoidance of Statelessness is of limited relevance to the protection and enforcement of the right to nationality. While it does stipulate the right to nationality, its scope remains limited to the prevention of statelessness occurring in the context of state succession. Thus, the 2006 Convention also falls below the standards proposed in the ilc Draft Articles on Nationality of 1999, which stipulate a right to nationality in the context of state succession irrespective of the risk of statelessness.545
C Resolutions and Recommendations of Council of Europe Bodies
every effort to remove, or at least reduce, legal obstacles to naturalisation, such as the minimum period of residence when it exceeds five years, the cost of naturalisation fees when it exceeds the financial possibilities of the majority of refugees, the length of time elapsing between the receipt of applications for naturalisation and their consideration and the requirement that refugees should prove loss of their former nationality.550
Moreover, states should enable refugee children to acquire nationality at birth and refugee youth to obtain the nationality of their country of residence at their request by age of majority, at the latest.551 Thus, from an early stage, the pace thus from an early stage linked access to citizenship to questions of refugee and migrant integration. This was, clearly, a different approach to other organizations, which first and foremost saw nationality matters in the context of statelessness.552
In 2014, the pace adopted Resolution 1989 (2014), which was concerned with access to nationality and the effective implementation of the European
[t]he use of nationality deprivation must in any case be applied in compliance with the standards stemming from the European Convention on Human Rights and other relevant international legal instruments. Any deprivation of nationality for terrorist activities shall be decided or reviewed by a criminal court, with full respect for all procedural guarantees, shall not be discriminatory and shall not lead to statelessness; it shall have suspensive effect and shall be proportionate to the pursued objective and applied only if other measures foreseen in domestic law are not efficient.563
The Committee of Ministers, for its part, dealt with similar issues. The main topics were the nationality of spouses of binational marriages and their children,564 the acquisition of nationality for refugees and migrants,565 and the avoidance of statelessness.566 Recommendation No. R (83) 1 of 1983 addresses the situation of stateless nomads and nomads of undetermined nationality in Europe.567 The Recommendation notes that many nomads in Europe experience difficulties regarding their legal status because they lack a sufficient link
The Committee of Ministers also adopted a recommendation to promote the new European Convention on Nationality.570 The Recommendation, inter alia, calls upon states to apply the principles of the ecn, including the principle that access to the nationality of a state should be possible whenever a person has a genuine and effective link with that state, that nationality should not be arbitrarily deprived and that deprivation should not result in statelessness.571 Moreover, it recommends that states take the genuine and effective link of a person to a state and the gravity of the facts into account when considering the deprivation of nationality due to fraudulent conduct, false information or concealment of relevant facts.572
The Committee of Ministers reaffirmed these principles ten years later in its Recommendation (2009)13 on the nationality of children.573 The appendix to the Recommendation lists principles concerning the nationality of children that should be implemented in order to reduce childhood statelessness and improve children’s access to the nationality of their parents, their country of birth and residence.574 It calls upon states to provide for the acquisition of nationality either jure sanguinis or jure soli if a child would otherwise be stateless.575 States should provide that children who are nevertheless stateless have the right to apply for their nationality after lawful and habitual residence after a maximum of five years.576 Moreover, states should ensure that children who are born on member state’ territory to a foreign parent with lawful and habitual residence have facilitated access to nationality.577 In cases of second and
Thus, both the pace and the Committee of Ministers recognize the right to nationality as a human right. In their resolutions and recommendations, they developed the specific obligations under the right to nationality. They rely on the ecn, but also on the case law of the ECtHR and universal standards. The rights and duties proposed by pace and by the Committee of Ministers, however, are often aspirational and go beyond the current practice of Council of Europe member states. The CoE organs, thereby, make an important contribution to the codification of the right to nationality at European level. All in all, the legal framework on the right to nationality under the auspices of the Council of Europe is well developed. The right to nationality is protected directly or indirectly in binding treaties and reaffirmed in soft law instruments, as well as the case law of the ECtHR. While the CoE might be the most important actor for the protection of the right to nationality in Europe, it is not the only one. The following two subsections shall look at two additional actors: the osce and the European Union.
2.2.2 Organization for Security and Co-operation in Europe
The long-term presence of a significant number of persons without citizenship in a State runs counter to the integration of society and potentially poses risks to cohesion and social stability. It is therefore in the interest of the Stat to provide persons habitually residing on its territory over a prolonged period of time with the opportunity to naturalize without undue obstacles and to actively promote their naturalization.585
Interestingly, the Guidelines also call upon states to respect the principles of friendly, good neighborly relations and territorial sovereignty when granting access to citizenship based on cultural, historical or familial ties.586 Against that background, it is also not surprising that the Guidelines take a positive stance on multiple citizenship, particularly when acquired at birth.587
While not being as prominent as instruments adopted under the auspices of the CoE, the instruments adopted within the framework of the osce add a dimension of security to the discussion about the right to nationality. The recognition of the right to nationality in osce instruments highlights how important a rights-based regulation of citizenship is to secure stable and democratic societies and achieve social cohesion.
2.2.3
Any discussion about nationality in a European context must also have a look at European Union (EU) and the regulation of citizenship in EU law. In EU law, nationality matters are primarily assessed in relation to EU citizenship.588 The legal status of EU citizenship and its relationship with national citizenship is complex and multifaceted, as is often discussed in the literature.589 EU citizenship, introduced by the Treaty of Maastricht in 1992, is a unique form of membership to a supranational, sui generis legal order. According to the cjeu, EU citizenship is “the fundamental status of nationals of the Member States”.590 As enshrined in Article 20(1) of the Treaty on the Functioning of the European Union:591
Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
Even though EU citizenship, according to Article 20(2) tfeu, creates independent rights and duties, it is dependent on the possession of and thus additional to national citizenship. As the Advocate General Maduro held in its Opinion to the Rottman case, “there is no autonomous way of acquiring and losing Union citizenship”.592 This being said, there is also no autonomous right to EU citizenship independent of national citizenship.593 The question whether an individual possesses national citizenship, however, is determined by domestic law of member states.594 Even though the cjeu has developed certain criteria and principles that have to be observed in the regulation of acquisition and loss of citizenship, member states still have the exclusive competence to determine the conditions.595 The obligation to observe
In the case of Tjebbes and others v The Netherlands the cjeu was called to examine the lawfulness of a provision that foresaw that dual nationals would automatically lose their Dutch nationality, and with it Union citizenship, if they reside outside the Netherlands and the EU for an uninterrupted period of more than ten years.597 The Court confirmed that it is legitimate for member states “to take the view that nationality is the expression of a genuine link between it and its nationals, and therefore to prescribe that the absence, or the loss, of any such genuine link entails the loss of nationality”.598 Considering that the Dutch rule does not apply if the person concerned would become stateless and that there is the possibility to retain nationality by declaration, the cjeu concluded that EU law does not preclude such automatic loss of national citizenship even if it entails the loss of EU citizenship.599 However, national authorities must have due regard to the principle of proportionality concerning the consequences of the loss for the person concerned and her family.600 “The loss of nationality of a Member State by operation of law”, so the Court stated, “would be inconsistent with the principle of proportionality if the relevant national rules did not permit at any time an individual examination of the consequences of that loss for the persons concerned from the point of view of EU law”.601 The cjeu’s ruling in Tjebbes is largely in line with the previous case law of the court on the relationship between EU and national citizenship.602 What is interesting about the case, however, is the proportionality assessment, which adds a rights perspective.603 Even though it is legitimate for the state to foresee the loss of nationality, such a rule is an interference with individual rights and must be carefully weighed and justified. The proportionality requirement in citizenship cases was further strengthened by the cjeu in the case of JY v Wiener Landesregierung.604 The case raised questions regarding the relationship between naturalisation procedures and EU citizenship. The
- 1.The nationality of a Member State cannot be lost for the sole reason of using the free movement rights that follow from one’s European citizenship;
- 2.In order to comply with Article 4(2) teu [Treaty on European Union607], nationality cannot be accorded to large numbers of non-Member State citizens without consultation of the EU;
- 3.EU law is violated if a Member State’s provisions on the acquisition and loss of its nationality are contrary to international law. The different Member States cannot, for example, accept the loss of Member State nationality on grounds which violate international law if this loss entails that someone ceases to be a European citizen;
- 4.Lack of coordination of the nationality laws of the Member States may lead to a violation of EU law. This ground for violation of EU law may be illustrated by way of the cjeu’s Rottmann [sic] ruling.608
It would go beyond the scope of this study to discuss EU citizenship and its relationship to national citizenship in more detail. Regarding the question at hand, the right to nationality in international law, this short side note nevertheless allows for the conclusion that EU law does not, as such, guarantee a right to citizenship — neither to EU citizenship nor to national citizenship of an EU member state. The obligation to respect EU law and international law does, however,
To sum up, there are a number of instruments at the European level that codify the right to nationality — some of them directly, such as those within the framework of the Council of Europe, and some indirectly, by recognizing the rights-dimension of nationality matters. In particular, the ecn’s comprehensive codification of relevant standards relating to acquisition and loss nationality and the innovative provisions on naturalization and nationality procedures serve as an important model for the regulation of nationality internationally. Nevertheless, the European system falls below the benchmark set by Article 20 achr. What is absent in the framework of the Council of Europe is an enforceable, general right to nationality. This lacunae is not closed by the echr, which does not include a right to nationality. However, the Convention system, at least, offers indirect protection of the right to nationality through the case law established by the ECtHR under the right to private life, as according to Article 8 echr. EU citizenship, finally, has a special position as a status sui generis within the EU system of free movement and is only indirectly relevant for the discussion on the right to nationality.
2.3 Africa
At first glance, the system of protection of the right to nationality within the African human rights framework seems relatively weak.609 The main regional human rights instruments do not enshrine a right to nationality. However, several initiatives deserve further attention. The developments within the African Union are indicative of a progressive and innovative interpretation of nationality and nationality rights. The developments must be seen in the particular historical context of the African continent, where “the initial establishment of borders by colonial powers, has given questions of nationality and statelessness particular characteristics” and where matters of citizenship and belonging have contributed to many conflicts.610
2.3.1 African Charter on Human and Peoples’ Rights
the right to nationality of every human person is a fundamental human right implied within the provisions of Article 5 of the African Charter on Human and Peoples’ Rights and essential to the enjoyment of other fundamental rights and freedoms under the Charter.618
The Resolution calls upon states to refrain from taking discriminatory decisions in nationality matters, to observe minimum procedural standards to avoid arbitrary decisions, to ensure judicial review, to ratify all relevant international and regional instruments, to ensure civil registration and to prevent and reduce statelessness.619 It recalls that all children have a right to the nationality of the state in which they were born if they would otherwise be stateless and urges states to prohibit arbitrary denial or deprivation of nationality.620 The Resolution is not legally binding.621 However, it mandated
In the absence of a specific provision on the right to nationality in the achpr, the ACmHPR and the ACtHPR have stepped in and regularly address nationality matters indirectly based on other provisions in the Charter. By doing so, the Commission and the Court have made a significant contribution to the development of the right to nationality under the Charter. Many of the cases concerning nationality before the Commission and the Court were complaints against expulsions under Article 12 achpr.624 But other provisions of the Charter — namely the principles of non-discrimination and equality before the law (Articles 2 and 3), the right to human dignity and recognition of legal status (Article 5) and to a fair trial (Article 7) — have also been interpreted by the African Commission in a way that implicitly recognizes the right to nationality.625
The central case on nationality before the ACmHPR is the case of John K. Modise v Botswana.626 627 The complainant, John Modise, was born in South Africa to a Botswanan father and a South African mother and grew up in Botswana.628 After he had started a political career in Botswana, Botswanan authorities refused to recognize him as a citizen, declared him an undesirable immigrant and deported him to South Africa, where he spent several years in homelands and in border zones between the two countries.629 Mr. Modise, inter alia, complained that he should have acquired Botswana nationality by
The protection against unlawful expulsion was also at stake in the cases of Malawi African Association and Others v Mauritania634 and Amnesty International v Zambia.635 The case of Malawi African Association had arisen out of political tensions, during the course of which almost 50’000 persons were deprived of their identity documents, no longer recognized as Mauritanian citizens and expelled to Senegal and Mali.636 The ACmHPR found that the complainants were deprived of their Mauritanian citizenship in violation of Article 12(1) achpr.637 In addition to finding a violation of the Charter, the Commission recommended that Mauritania, as a positive measure, issued the persons concerned new identity cards to allow them to return to their country.638 The case of Amnesty International v Zambia concerned two politicians who were deported from Zambia after losing an election in 1991. The Zambian government refused to recognize them as citizens. The ACmHPR found a a number of violations of the Charter, including a violation of the right to be heard, as the complainants were not granted access to the procedure
nationality is intricately linked to an individual’s juridical personality and that denial of access to identity documents which entitles an individual to enjoy rights associated with citizenship violates an individual’s right to the recognition of his juridical personality. The Commission considers that a claim to citizenship or nationality as a legal status is protected under Article 5 of the Charter.648 (emphasis added)
The ACmHPR then recalled that while states do “enjoy a wide discretion when it comes to determining who qualifies to acquire its nationality”, this discretion is limited by the obligation to prevent statelessness and discrimination.649 Even though Kenya is not a state party to the 1954 Convention or the 1961 Convention, the Commission nevertheless referred to the two Conventions, noting that they “outline the position of international customary law on State obligations to prevent statelessness”.650 It concluded that Kenya failed to take measures preventing members of the Nubian community from becoming stateless and to put in place fair, non-discriminatory and non-arbitrary processes for acquiring identity documents, both of which violated Article 5 achpr.651 The discriminatory treatment faced by members of the Nubian minority resulted in a tenuous citizenship status that left the Nubians in a precarious situation, in violation of other rights in the Charter.652
In short, on the right to nationality as a recognition of legal status, the Commission observes that the Ivorian nationality Code establishes original nationality for Ivorians and acquired nationality for foreigners, but fails to clearly define who an outright Ivorian is, who an Ivorian by origin is and who a foreigner is. This way, the Code and laws […] have prevented access to nationality both theoretically and practically. […] Consequently, the laws and practices of the Respondent State violate the provisions of Article 5 of the Charter with regard to all victims.661
The Commission’s decision in Open Society Justice Initiative v Côte d’Ivoire illustrates for how it interprets the concept of nationality, links it to other international legal instruments and the relevant case law of international tribunals and derives a right to nationality directly from Article 5 achpr.
Thus, the Commission and the Court in their jurisprudence, effectively developed a right to nationality under the achpr without an explicit basis in the Charter. As shown by the case of Anudo v Tanzania, the right to nationality can even be directly invoked before the institutions of the African Charter on Human and Peoples’ Rights. This clearly strengthens the right to nationality in the African human rights system.
2.3.2 Draft Protocol on the Specific Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa
A new development promises to significantly strengthen the right to nationality in the African human rights system. Based on a proposal by the Special Rapporteur on Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in Africa, the member states of the African Union are currently negotiating a protocol to the achpr on the right to nationality with the aim of identifying, preventing and reducing statelessness and protecting the right to nationality.675 A first draft of this Protocol on the Specific Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa was published in 2017 and a revised draft and explanatory memorandum released in June 2018.676
- a.Ensure respect for the right to a nationality in Africa;
- b.Establish the obligations and responsibilities of States relative to the specific aspects of the right to a nationality in Africa; and
- c.Ensure that statelessness in Africa is eradicated.677
The instrument aims to facilitate the inclusion of individuals in African States, to provide a legal solution for the recognition and exercise of the right to a nationality, to eradicate statelessness and to identify the principles that govern the relationship between individuals and states in nationality matters.678 It draws, inter alia, on the models of the ecn and the ilc Draft Articles on Nationality.679
Article 3(2) of the Protocol declares the right to nationality to be a general principle. Not only does this right include both a general right to nationality (lit. a) and a prohibition of arbitrary deprivation or denial of recognition of nationality and the right to change one’s nationality (lit. b), it also specifies, that everyone should have the right to the nationality of at least one state to which she has an appropriate connection (lit. c).680 Moreover, it recognizes the principle of the best interests of the child as a primary consideration in nationality matters (lit. d). If adopted, the Draft Protocol would be the first instrument that generally ties the right to nationality to an individual’s actual connections in identifying the state that owes the obligation to grant its nationality. This is a significant change compared to existing instruments.681
The right to nationality based on an appropriate connection is further developed in the substantive provisions on the acquisition of nationality. In cases, where a child would otherwise be stateless, and in those of second generation migrants, states shall always attribute nationality jure soli (Articles 5(1)(b) and (c)).682 Habitual residents must have the possibility to acquire nationality.683 Such acquisition may be made subject to certain conditions, including
As the wording of Article 3(2)(c) (“every person has the right to the nationality of at least one state […]”) indicates, the Draft Protocol allows for multiple nationality.688 In fact, it obliges states not to prohibit multiple nationality in cases where a child has been attributed multiple nationalities at birth, and in cases where someone acquires another nationality automatically through marriage (Article 11(2)). Moreover, states shall not make the renunciation of another nationality a condition for acquiring nationality if such renunciation is not possible, cannot be reasonably required or exposes the person to the risk of statelessness (Article 6(3)). The Draft Protocol, however, intends to leave states a relatively wide margin of discretion to make distinctions between the modes of acquiring of nationality and between single and dual nationals in the exercise of political rights and the deprivation of nationality (Article 4(3)). Here, the Draft Protocol seems to fall below the standards enshrined in other international instruments that establish absolute prohibitions of discrimination in nationality matters.689
A number of provisions in the Draft Protocol deal with procedural questions. States shall provide for documents evidencing the entitlement to nationality, such as birth certificates, and for certificates of nationality and documents that are conclusive proof of a person’s nationality, including identity cards and passports (Articles 12 and 13). Article 21 provides that all rules governing recognition, acquisition, loss, deprivation, renunciation, certification or recovery of nationality must be set out in law, be clear and accessible. It also notes that procedures may not be arbitrary, must be processed within a reasonable time and that fees and other procedural requirements must be reasonable. This is an important protection for the principles of due process in nationality matters.690 Article 22, finally, foresees that the African Commission and the African Court will have jurisdiction to hear individual complaints once the Protocol is in force. Thus, compared to the ecn, the African Union Protocol would have an effective enforcement mechanism.
The Protocol has not yet been adopted. It is still being negotiated among the member states of the AU and since 2018 there have been no significant developments.691 It remains to be seen if, and if so, in which form the African Union Protocol on Nationality will be adopted.692 If it is adopted without significant
2.3.3 African Charter on the Rights and Welfare of the Child
State Parties to the present Charter shall undertake to ensure that their Constitutional legislation recognize the principles according to which a child shall acquire the nationality of the State in the territory of which he has been born if, at the time of the child’s birth he is not granted nationality by any other State in accordance with its laws.
Article 6 acc follows the model of Article 7 crc.698 It introduces a jus soli-mechanism for children who would otherwise be stateless, similar to Article 1 1961 Convention.699 Even though the wording of Paragraph 4 is relatively vague, the African Committee of Experts on the Rights and Welfare of the Child (acerwc) — the monitoring body to the acc — has interpreted Article 6(4) as an obligation of result: “States Parties need to make sure that all necessary measures are taken to prevent the child from having no nationality.”700
The Committee’s General Comment on Article 6 drew substantively on the Committee’s own jurisprudence on the right to nationality. In its decision on Institute for Human Rights and Development in Africa and Open Society Justice Initiative on behalf of Children of Nubian Decent in Kenya v Kenya711 the
although states maintain the sovereign right to regulate nationality, in the African Committee’s view, state discretion must be and is indeed
limited by international human rights standards, in this particular case the African Children’s Charter, as well as customary international law and general principles of law that protect individuals against arbitrary state actions. In particular, states are limited in their discretion to grant nationality by their obligations to guarantee equal protection and to prevent, avoid and reduce statelessness.720
The Committee is careful to not to suggest that the Charter would require states to introduce a jus soli approach. Nevertheless, in line with the principle of the best interests of the child, it notes that the intent of Article 6(4) is that a state should allow a child to acquire its nationality if it is born on its territory and is not granted nationality by another state.721 The merely theoretical possibility that a child might be entitled to acquire the nationality of another state is not enough to abrogate this obligation.722
is perhaps the region most representative of the global shift toward recognition of nationality as a fundamental human right. The attention it has given to the issue of nationality is cause for optimism that any future right to a nationality protected in Africa will be at least as strong as that which is recognized by other regional human rights bodies.723
2.4 Middle East and North Africa
In the Middle East and North Africa, the protection of the right to nationality is relatively weak. As Zahra Albarazi notes, the Middle East and North African region “has always had a complicated relationship with the notion of
2.4.1 Arab Charter on Human Rights
- 1Every person has the right to a nationality, and no citizen shall be deprived of his nationality without a legally valid reason.
- 2The State Parties shall undertake, in accordance with their legislation, all appropriate measures to allow a child to acquire the nationality of his mother with regard to the interest of the child.
- 3No one shall be denied the right to acquire another nationality in accordance with the applicable legal procedures of his country.
Thus, Paragraph 1 of Article 29 ArCHR enshrines both the right to a nationality and a prohibition of deprivation of nationality without a legally valid reason.727 Bialosky argues that it should be interpreted synonymously with the notion of arbitrariness.728 Article 29(2) addresses the right of the child to a nationality. It grants the right of children to acquire the nationality from their mothers “with regard to the interest of the child”. Even though the provision seems to stipulate that women should have (equal) rights in passing on their nationality to their children, this right is limited, in practice, to cases where the father is a foreign national or is stateless.729 Moreover, the already vague obligation (“shall undertake all appropriate measures”) is further narrowed down
2.4.2 Covenant on the Rights of the Child in Islam
Article 7 of the legally binding Covenant on the Rights of the Child in Islam (crci)734 enshrines the right of a child to an identity. The provision is inspired by Article 7 and 8 crc.735 Regarding nationality, Article 7 states the right to have his or her nationality determined (Paragraph 1) and to have safeguarded the elements of one’s identity, including nationality (Paragraph 2). Article 7(2) stipulates that “states shall make every effort to resolve the issue of statelessness for any child born on their territories or to any of their citizens outside their territory”. The provision reflects both jus soli and jus sanguinis by declaring both the state of birth, as well as the country of nationality of one of the parents responsible for granting the child a nationality.736 Article 7(3) concerns children of unknown decent or children who are legally assimilated to this status, and explicitly mentions the right of such children to nationality. The provision not only includes foundlings but also children whose parents may be known and are not legally recognized and cannot transmit their nationality to the child.737 Hence, Article 7 of the Covenant does not grant
Even though the scope of both Article 29 ArCHR and Article 7 of the crci are limited and fall below the standards at universal level, the provisions reflect a certain acceptance of the right to nationality in a region where many people are affected by statelessness, and where discrimination in nationality matters on the basis of gender remains widespread.738 Moreover, in February 2018 the Arab League endorsed the Arab Declaration on Belonging and Identity,739 an instrument calling upon member states of the Arab League to ensure gender equality in conferring nationality to children and spouses in order to respect the right of the child to a nationality, and for women to acquire, change or retain nationality in conformity with international standards.740 It remains to be seen whether this Declaration will contribute to improving the protection of the right to nationality in the Middle Eastern and North African region in the long run.
2.5 Asia and Pacific
Every person has the right to a nationality as prescribed by law. No person shall be arbitrarily deprived of such nationality nor denied the right to change that nationality.
2.6 Interim Conclusion
The international community has made considerable efforts to fill the normative void in the area of nationality, although progress still remains
to be achieved to effectively deal with statelessness around the world, and the right to a nationality is now virtually a universal legal given.745
Thereby, the instruments developed at the regional level — particularly Article 20 achr, the ecn and, if it is to be adopted, the African Union Protocol on Nationality — set the most progressive standards.746 This is reinforced by the innovative and rights-oriented jurisprudence of, particularly, the IACtHR, but also the ACmHPR and the ACtHPR, as well as to some extent the ECtHR. Soft law, moreover, plays an important role in further developing the content of and specifying the obligations under the right to nationality.
In a schematized form, the most important instruments discussed above protecting the right to nationality — at least in a limited form or based on jurisprudence (x) — can be summarized as follows in table 1 on page 204.
Legal sources codifying the right to nationality
Acknowledgement of right to nationality |
Jus soli for otherwise stateless children |
Facilitated acquisition for stateless persons or refugees |
Prohibition of arbitrary deprivation |
Right to change one’s nationality |
Prohibition of discrimination in nationality matters |
|
|---|---|---|---|---|---|---|
15 udhr |
x |
- |
- |
x |
x |
x |
24(3) ccpr |
(x) |
(x) |
- |
- |
- |
x |
7 crc |
(x) |
(x) |
- |
- |
- |
x |
29 cmw |
(x) |
(x) |
- |
- |
- |
x |
9 cedaw |
- |
- |
- |
- |
- |
x |
5 cerd |
(x) |
- |
- |
(x) |
- |
x |
18 crpd |
x |
- |
- |
x |
x |
x |
1954 css |
- |
- |
x |
- |
- |
- |
1961 crs |
- |
x |
- |
x |
- |
x |
1951 csr |
- |
- |
x |
- |
- |
- |
achr |
x |
x |
- |
x |
x |
x |
ecn & 2006 Conv. |
(x) |
x |
x |
x |
x |
x |
achpr & acc |
(x) |
(x) |
- |
(x) |
- |
x |
archr & crci |
(x) |
(x) |
- |
- |
- |
x |
asean |
(x) |
- |
- |
(x) |
(x) |
x |
iii The Right to Nationality as Customary International Law?
Customary international law includes those legal standards considered to be binding, even if they are not enshrined in a treaty to which the state parties explicitly consented.749 An international rule or instrument is recognized as customary international law if there is 1) an international general practice of states consisting of repeated similar practices by several states over a certain period of time, and 2) a corresponding opinio juris, a “sense among states of the existence or non-existence of an obligatory rule”.750
There is no basis in present customary international law for a right to a nationality; neither has the individual a right to acquire a nationality at birth, nor does international law prohibit loss of nationality after birth by
deprivation or otherwise, with the possible exception of the prohibition of discriminatory denationalization.754
It is probably true that there is no rule of international Law imposing a duty on States to confer their nationality. Given the wide difference in approaching the right to nationality in various human rights instruments, they can hardly reflect customary international law. Nor could the
widely divergent State practice in the conferment of nationality support such a claim.761 (emphasis added)
The domestic nationality regulations states recorded in the globalcit Database on Modes of Acquisition of Citizenship shows that in 2016, 174 out of 175 states knew a provision on the acquisition of nationality through naturalization.762 In the very large majority of states, naturalization occurs through a discretionary procedure in which the decision whether to grant citizenship ultimately remains with the state. Few jurisdictions foresee a right to nationality or a general entitlement to acquire nationality by means of naturalization or registration in domestic law.763 In most cases, the entitlement to acquire nationality through naturalization is only available for particular groups of non-citizens; namely, for persons with long periods of residence.764 Hence, Chan’s objection that state practice is too divergent to support a customary right to nationality is still valid. The large acceptance of the possibility of acquiring nationality through naturalization (on a discretionary basis or based on entitlement), however, supports the conclusion that states are under a customary obligation to provide for possibility of naturalization — even if they are free to determine the mode, the procedure and the conditions for such naturalization.765 Stephan Hobe, moreover, argues that there is a customary prohibition of mass naturalization and forced or arbitrary (extraterritorial) naturalization.766 Furthermore, it is increasingly maintained that the right of the child to be granted nationality at birth if it would otherwise
A trend towards the recognition of the duty to prevent and reduce statelessness, or rather a customary obligation for states to prevent and reduce statelessness generally, is identified by other authors.769 However, an obligation to avoid or reduce statelessness does not amount to a prohibition of statelessness. Most authors, furthermore, agree that the prohibition of racial discrimination in nationality matters is a principle of customary international law.770
Finally, a broader consensus also exists regarding the customary nature of the prohibition of arbitrary deprivation of nationality.771 The cjeu has recognized the prohibition of arbitrary deprivation of nationality as a general principle of international law.772 Moreover, while there has been a surge in
To sum up, whether the right to nationality has become customary international law is disputed. State practice and the lack of consistent opinio juris do not support such a conclusion, even though the literature and international courts, namely the IACtHR and the ACtHPR, progressively argue so. Regardless, certain elements of the right to nationality are increasingly recognized as customary international law, namely the right of the child to the nationality of the state of birth if it would otherwise be stateless, the duty to prevent and reduce statelessness, the prohibition of discrimination in nationality matters and the prohibition of arbitrary deprivation of nationality.
iv Conclusion: The Body of International Human Rights Law
In this Chapter I have attempted to substantiate my claim that the traditional perception of nationality as a domaine réservé no longer holds and that the right to nationality attracts growing international support. The in-depth analysis of the international legal framework at the universal and regional levels shows that the right to nationality is, in fact, widely regulated in contemporary international human rights law.775 The relevant legal framework is built, on the one hand, directly by provisions in treaty law that protect the right to nationality as an enforceable right or as a general principle underpinning nationality matters. On the other hand, the right to nationality is indirectly recognized as
Given that the right to nationality was already included in the first modern universal human rights instrument — the Universal Declaration of Human Rights — these developments are consistent. While no UN human rights treaty codifies a general right to nationality, most grant children a right to nationality or recognize the right to nationality through the principle of non-discrimination. Together, these standards protect different aspects of the right to nationality and jointly indicate the existence of a general right to nationality. The importance of right to nationality is confirmed in the practice of the UN human rights treaty bodies. Furthermore, the protection of the right to nationality is the underlying aim of the 1961 Convention and, to a more limited extent, the 1954 Convention. Moreover, the right to nationality is repeatedly recognized in resolutions of UN bodies; namely, by the Human Rights Council. The right to nationality as a general human right is reinforced by instruments at the regional level. In particular, the achr, the ecn and, possibly in the near future, the AU Draft Protocol on Nationality, recognize the right to nationality as a human right. Article 20 achr provides for the only current hard law recognition of a general right to nationality for all. The IACtHR, the ACmHPR, the ACtHPR and, to some extent, the ECtHR have contributed to the development of a coherent jurisprudence on the right to nationality. Regarding customary international legal standards, it remains doubtful whether the right to nationality, as such, has acquired the rank of customary law, particularly due to the lack of a consistent state practice and corresponding opinio juris. Nevertheless, different aspects of the right to nationality are found to be binding on a customary basis; namely, the right of the child to the nationality of the state of birth if it would otherwise be stateless, the principle of prevention and reduction of statelessness and the prohibition of arbitrary deprivation of nationality.
Overall, the international legal framework on nationality matters has fundamentally changed over the last decades.776 It can no longer be argued that there is no such right as a right ot nationality just because there is an absence of an express recognition of a general right to nationality in a binding universal treaty. While it remains for the state to decide on acquisition and loss of nationality, this decision is subject to a broad framework of international legal sources that, overall, guarantee that everyone has a right to a nationality.777 To
Advisory Opinion on Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica [1984] IACtHR oc-4/84, Series A No. 4 (1984) para 34.
Article 38(1)(d) Statute of the International Court of Justice of 26 June 1945, 892 unts 119 (‘icj-Statute’).
Universal Declaration of Human Rights of 10 December 1948, adopted by General Assembly Resolution 217 A(iii) (‘udhr’).
Jonathan Bialosky, ‘Regional Protection of the Right to a Nationality’ (2015) 24 Cardozo Journal of International & Comparative Law 153, 157.
See also Hurst Hannum, ‘Reinvigorating Human Rights for the Twenty-First Century’ (2016) 16 Human Rights Law Review 409, 414.
See the estimations of the number of stateless persons in International Law Commission, ‘Report on Nationality, Including Statelessness’ (International Law Commission 1952) UN Doc. a/cn.4/50 7 <
Preamble to the udhr, Recital 1.
See also Rhona Smith, International Human Rights Law (8th ed, Oxford University Press 2017) 43.
Hurst Hannum, ‘The Status of the Universal Declaration of Human Rights in National and International Law iii: The Status and Future of the Customary International Law of Human Rights’ (1995) 25 Georgia Journal of International and Comparative Law 287, 289. See also Mary Robinson, ‘The Universal Declaration of Human Rights: A Living Document’ (1998) 52 Australian Journal of International Affairs 117, 118.
Gunnar G Schram, ‘Article 15 UDHR’ in Asbjørn Eide and others (eds), The Universal Declaration of Human Rights: A Commentary (Scandinavian University Press 1992) 233.
See on the drafting process also Alison Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law (Oxford University Press 2012) 48 ff.
Lauterpacht argued in ‘An International Bill of the Rights of Man’, which formed a model for the udhr, that the issue of nationality “touches so significantly upon the question of the status of human personality in international and municipal law that an International Bill of the Rights of Man would be conspicuously incomplete without an attempt to do away with that offensive anomaly”, see Hersch Lauterpacht, An International Bill of the Rights of Man (Reprint) (Oxford University Press 2013) 126.
UN Commission on Human Rights, Drafting Committee, ‘Draft Outline of International Bill of Rights’ (udhr Drafting Committee 1947) UN Doc. e/cn.4/ac.1/3, Article 32.
Ruth Donner, The Regulation of Nationality in International Law (2nd ed, Transnational Publishers 1994) 188.
UN Commission on Human Rights, Drafting Committee, ‘Report of the Drafting Committee to the Commission on Human Rights, First Session’ (udhr Drafting Committee 1947) UN Doc. e/cn.4/21 77. See also Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent (University of Pennsylvania Press 1999) 80.
UN Commission on Human Rights, Drafting Committee, ‘Summary Record of the 37th Meeting, Second Session’ (udhr Drafting Committee 1948) UN Doc. e/cn.4/ac.1/sr.37 13.
UN Commission on Human Rights, Drafting Committee, ‘Summary Record of the 39th Meeting, Second Session’ (udhr Drafting Committee 1948) UN Doc. e/cn.4/ac.1/sr.39 7.
ibid.
ibid 8.
ibid.
UN Commission on Human Rights, Drafting Committee, ‘Proposed Amendments to the Draft Declaration on Human Rights/India and the United Kingdom’ (udhr Drafting Committee 1948) UN Doc. e/cn.4/99 4.
UN Commission on Human Rights, Drafting Committee, ‘Summary Record of the 59th Meeting, Third Session’ (udhr Drafting Committee 1948) UN Doc. e/cn.4/sr.59 7.
ibid 6 ff.
ibid 12.
France, Lebanon and Uruguay proposed to re-introduce the phrase “everyone/every human being has the right to a nationality”, see for the French amendment UN Doc. A/C.3/244, p. 1; for the Lebanese UN Doc. A/C.3/260, p. 1; and for the Uruguayan UN Doc. A/C.3/268, p. 2. An amendment proposed by Cuba, by contrast, suggested to replace the current phrase with a provision stating “every person has a right to the nationality to which he is entitled by law and the right to change it, if he so wishes, for the nationality of any other country that is willing to grant it to him”, see UN Doc. A/C.3/232, p. 2.
See for the discussion the meeting records, UN Commission on Human Rights, Drafting Committee, ‘Summary Record of the 123rd Meeting, Third Session’ (udhr Drafting Committee 1948) UN Doc. a/c.3/sr.123 348 ff.
The provision was voted on twice. In the first vote it was adopted by 21 votes to nine with six abstentions, in the second with 31 votes to one and 11 abstentions, see UN Commission on Human Rights, Drafting Committee, ‘Summary Record of the 124th Meeting, Third Session’ (udhr Drafting Committee 1948) UN Doc. a/c.3/sr.124, 359 and 361.
See Morsink (n 15) 82.
UN Commission on Human Rights, Drafting Committee, ‘Summary Record 123rd Meeting’ (n 26) 352 ff.
See also Manuela Sissy Kraus, Menschenrechtliche Aspekte der Staatenlosigkeit (Pro-Universitate-Verlag 2013) 184.
UN Commission on Human Rights, Drafting Committee, ‘Summary Record 123rd Meeting’ (n 26) 355.
Charter of the United Nations of 24 October 1945, 1 unts xvi (‘UN Charter’).
UN Commission on Human Rights, Drafting Committee, ‘Summary Record 123rd Meeting’ (n 26) 355. This was supported by the representative of the Ukrainian Soviet Socialist Republic, who held that the idea of a right to nationality would violate the principle of national sovereignty, see ibid 358.
UN Commission on Human Rights, Drafting Committee, ‘Summary Record 123rd Meeting’ (n 26) 358.
UN Commission on Human Rights, Drafting Committee, ‘Summary Record 124th Meeting’ (n 27) 362.
Kraus (n 30) 185. See also Donner (n 14) 190; Schram (n 10) 233.
Mirna Adjami and Julia Harrington, ‘The Scope and Content of Article 15 of the Universal Declaration of Human Rights’ (2008) 27 Refugee Survey Quarterly 96.
Sandra Mantu, Contingent Citizenship: The Law and Practice of Citizenship Deprivation in International, European and National Perspectives (Brill Nijhoff 2015) 31.
Gonçalo Matias, Citizenship as a Human Right, The Fundamental Right to a Specific Citizenship (Palgrave Macmillan 2016) 13.
Initially the provision was to be listed in the chapter on liberties, after the guarantees on political rights and before the provisions on rights of aliens, see UN Commission on Human Rights, Drafting Committee, ‘Plan of the Draft Outline of International Bill of Rights’ (udhr Drafting Committee 1947) UN Doc. e/cn.4/ac.1/3/Add.2.
Caia Vlieks, Ernst Hirsch Ballin and Maria Jose Recalde-Vela, ‘Solving Statelessness: Interpreting the Right to Nationality’ (2017) 35 Netherlands Quarterly of Human Rights 158, 163.
See also Chapter 5, ii.1.
Marie-Bénédicte Dembour, When Humans Become Migrants: Study of the European Court of Human Rights with an Inter-American Counterpoint (Oxford University Press 2015) 52.
Article 29(2) udhr, however, allows for limitations as long as they are determined by law and “solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”. See also Mantu (n 38) 33.
Eric Fripp, Nationality and Statelessness in the International Law of Refugee Status (Hart Publishing 2016) 256 f.
Yaffa Zilbershats, The Human Right to Citizenship (Transnational Publishers 2002) 15.
Adjami and Harrington (n 37) 101.
See Morsink (n 15) 82.
See for the discussions UN Commission on Human Rights, Drafting Committee, ‘Summary Record 123rd Meeting’ (n 26) 348 ff. See also Zilbershats (n 46) 16.
Adjami and Harrington (n 37) 104.
Donner (n 14) 190.
Johannes M Chan, ‘The Right to a Nationality as a Human Right’ (1991) 12 Human Rights Law Journal 1, 3; Zilbershats (n 46) 17.
Paul Weis, ‘The United Nations Convention on the Reduction of Statelessness, 1961’ (1962) 11 The International and Comparative Law Quarterly 1073, 1075. See also Kraus (n 30) 202.
Kraus (n 30) 202. See in more detail Chapter 4, ii.
Emmanuel Decaux, ‘Le droit à une nationalité, en tant que droit de l’homme’ (2011) 22 Revue trimestrielle des droits de l’homme 237, 241.
William E Conklin, Statelessness: The Enigma of the International Community (Hart Publishing 2014) 86; Peter J Spiro, ‘Citizenship, Nationality, and Statelessness’ in Vincent Chetail and Céline Bauloz (eds), Research Handbook on International Law and Migration (Edward Elgar Publishing 2014) 285. See already Hersch Lauterpacht, ‘The Universal Declaration of Human Rights’ (1948) 25 British Year Book of International Law 354, 356 ff. See already during the negotiations UN Commission on Human Rights, Drafting Committee, ‘Summary Record of the 89th Meeting, Third Session’ (udhr Drafting Committee 1948) UN Doc. e/cn.4/sr.89 32.
See also Asbjørn Eide and Gudmundur Alfredsson, ‘Introduction’ in Asbjørn Eide and others (eds), The Universal Declaration of Human Rights: A Commentary (Scandinavian University Press 1992) 7.
See Bruno Simma and Philip Alston, ‘The Sources of Human Rights Law: Custom, Jus Cogens, and General Principles’ (1988) 12 Australian Yearbook of International Law 100 ff.
See eg Kay Hailbronner, ‘Der Staat und der Einzelne als Völkerrechtssubjekte’ in Wolfgang Graf Vitzthum (ed), Völkerrecht (4. Aufl., De Gruyter 2007), n 201 ff; Matthias Herdegen, Völkerrecht (16. Aufl., ch Beck 2017) § 47 n 3. For a definition of customary international law see International Law Commission, ‘Memorandum Prepared by the Secretariat on the Formation and Evidence of Customary International Law’ (ilc 2013) UN Doc. a/cn.4/659 28, Observation 19. See also Case of the ss Lotus (Lotus Case) [1927] pcij Series A No. 10 18; North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark and Netherlands) [1969] icj Reports 1969, p. 3 para 60 ff; Colombian-Peruvian Asylum Case (Colombia v Peru) [1950] icj Reports 1950, p. 266 276 f.
See eg Chan (n 52) 3; Robinson (n 9) 119; Zilbershats (n 46) 10.
Schram (n 10) 240 f.
Stephan Hobe, Einführung in das Völkerrecht (10. Aufl., Francke 2014) 408. For the drafting process see UN Commission on Human Rights, Drafting Committee, ‘Summary Record 89th Meeting’ (n 56) 32.
See eg Simma and Alston (n 58) 90 ff.
Another example is Article 14, see also Thomas Gammeltoft-Hansen and Hans Gammeltoft-Hansen, ‘The Right to Seek — Revisited. On the UN Human Rights Declaration Article 14 and Access to Asylum Procedures in the EU’ (2008) 10 European Journal of Migration and Law 439.
According to Hannum, the udhr ‘constitutes at least significant evidence of customary international law’ even though he finds that there is not enough state practice to actually conclude that the Declaration has become part of customary law, see Hannum (n 9) 332 and 340.
ibid 340; Mantu (n 38) 30; Robinson (n 9) 119. For example the prohibition of discrimination on the basis of race (Article 2), the right to live (Article 3), including the prohibition of genocide and mass killings, the prohibition of slavery (Article 4), or the prohibition of torture, including the principle of non-refoulement (Article 5).
See eg Ineta Ziemele, ‘Article 7: The Right to Birth Registration, Name and Nationality, and the Right to Know and Be Cared for by Parents’ in Eugeen Verhellen and others (eds), A Commentary on the United Nations Convention on the Rights of the Child (Brill Nijhoff 2007) para 22.
Hannum (n 9) 346.
Kay Hailbronner and others (eds), Staatsangehörigkeitsrecht (6. Aufl., ch Beck 2017) 37; Schram (n 10) 241.
Advisory Opinion oc-4/84 (n 1) para 34.
Anudo Ochieng Anudo v United Republic of Tanzania [2018] ACtHPR Application No. 012/2015.
See Chan (n 52) 3. The immediate question whether Article 15 udhr has become customary international law in the sense of Article 25 of the German Constitution has, however, been left open by the German Bundesverwaltungsgericht in a case concerning the naturalization of an Iraqi refugee, see Urteil 1 C 2088 [1988] BVerwG 1 C 20.88 para 35. See also Urteil 10 C 5007 [2009] BVerwG 10 C 50.07 para 18.
Kraus (n 30) 205; Stefanie Schmahl, Kinderrechtskonvention: mit Zusatzprotokollen (2. Aufl., Nomos 2017) 132. See also below Chapter 4, iii.
Schram (n 10) 229. See also Gerard-René de Groot and Olivier Vonk, International Standards on Nationality Law: Texts, Cases and Materials (Wolf Legal Publishers 2016) 363.
See Chapter 2, iii.
American Convention on Human Rights, 22 November 1969, 1144 unts 123, oas Treaty Series No. 36 (‘American Convention’, ‘achr’).
See also the website of the UN Office of the High Commissioner on Human Rights,
The right to nationality is not guaranteed by the International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 unts 3; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 unts 85; and the International Convention for the Protection of All Persons from Enforced Disappearance, 20 December 2006, 2716 unts 3.
International Covenant on Civil and Political Rights, 16 December 1966, 999 unts 171 (‘iccpr’).
Convention on the Rights of the Child, 20 November 1989, 1577 unts 3 (‘crc’).
Convention on the Elimination of All Forms of Discrimination against Women (18 December 1979, 1249 unts 13, ‘cedaw’).
Convention on the Elimination of All Forms of Racial Discrimination (21 December 1965, 660 unts 195, ‘cerd’).
Convention on the Rights of Persons with Disabilities, 13 December 2006, 2515 unts 3 (‘crpd’).
International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, 18 December 1990, 2220 unts 3 (‘cmw’).
The Convention Relating to the Status of Stateless Persons, 28 September 1954, 360 unts 117 (‘1954 Convention’, ‘css’) and the Convention on the Reduction of Statelessness, 30 August 1961, 989 unts 175 (‘1961 Convention’, ‘crs’).
Convention relating to the Status of Refugees, 28 July 1951, 189 unts 137 (‘1951 Refugee Convention’, ‘csr’).
See also Adjami and Harrington (n 37) 98.
See Walter Kälin and Jörg Künzli, Universeller Menschenrechtsschutz: der Schutz des Individuums auf globaler und regionaler Ebene (4. Aufl., Helbing Lichtenhahn Verlag 2019) 44.
Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (2nd ed, np Engel 2005) 560.
See Chan (n 52) 4; Decaux (n 55) 244.
Nowak (n 89) 545. See for a summary of the discussions UN General Assembly, Third Committee, ‘Draft International Covenants on Human Rights, Report of the 17th Session’ (UN General Assembly 1963) UN Doc. A/5655 14 ff.
UN General Assembly, Third Committee (n 91) 19.
Chan (n 52) 5.
Human Rights Committee, ‘General Comment No. 17: Article 24 (Rights of the Child)’ (HRCttee 1989) UN Doc. ccpr/c/21/Rev.1/Add.9 para 2. See also Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials, and Commentary (3rd ed, Oxford University Press 2013) para 21.01.
Gorji-Dinka v Cameroon, Communication No 1134/2002 [2005] HRCttee UN Doc. ccpr/c/83/d/1134/2002 para 4.10. Article 24 does not specify when a person is considered to be a minor. It is for the state parties to determine the age of majority. However, persons under the age of 18 are always to be considered as children in the sense of Article 24, see Human Rights Committee, ‘General Comment No. 17’ (n 94) para 4.
See eg Human Rights Committee, ‘General Comment No. 17’ (n 94) para 8. See also Human Rights Committee, ‘Concluding Observations on the Fourth Periodic Report of Ecuador’ (HRCttee 1998) UN Doc. ccpr/c/79/Add.92 para 18.
See UN General Assembly, Third Committee (n 91). See also Jaap E Doek, ‘The crc and the Right to Acquire and to Preserve a Nationality’ (2006) 25 Refugee Survey Quarterly 26, 26.
Peter Rodrigues and Jill Stein, ‘The Prevention of Child Statelessness at Birth: A Multilevel Perspective’ in Ton Liefaard and Julia Sloth-Nielsen (eds), The United Nations Convention on the Rights of the Child: Taking stock after 25 years and looking ahead (Brill Nijhoff 2017) 396.
See Decaux (n 55) 245; Kraus (n 30) 218 ff; Nowak (n 89) 561; Rodrigues and Stein (n 98) 396.
Douglas Hodgson, ‘The International Legal Protection of the Child’s Right to a Legal Identity and the Problem of Statelessness’ (1993) 7 International Journal of Law, Policy and the Family 255, 258. See also Kraus (n 30) 238 f.
See also Kraus (n 30) 218. See similarly Decaux (n 55) 245.
Nowak (n 89) 561. Implicitly also William Worster, ‘The Obligation to Grant Nationality to Stateless Children Under Treaty Law’ (2019) 24 Tilburg Law Review 204.
See also Decaux (n 55) 245.
Nowak (n 89) 561. See also Worster, ‘The Obligation to Grant Nationality under Treaty Law’ (n 102) 207.
Nowak (n 89) 560. See also Kraus (n 30) 211.
Nowak (n 89) 561.
Human Rights Committee, ‘General Comment No. 17’ (n 94) para 7.
See also Nowak (n 89) 561. A systematic interpretation of Article 24(3) in conjunction with Article 24(2) would also clarify that ideally, a child would be given access to nationality at or immediately after its birth, see Gerard-René de Groot, ‘Children, Their Right to a Nationality and Child Statelessness’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014) 145.
Gorji-Dinka v Cameroon (n 95) para 4.10. See also Human Rights Committee, ‘General Comment No. 17’ (n 94) para 8.
See also Worster, ‘The Obligation to Grant Nationality under Treaty Law’ (n 102).
See Fripp (n 45) 265. See also Chapter 5, iii.3.1.
See also Chan (n 52) 5; Zilbershats (n 46) 18.
See UN General Assembly, Third Committee (n 91).
Human Rights Committee, ‘General Comment No. 17’ (n 94) para 8.
Human Rights Committee, ‘Concluding Observations on the Fourth Periodic Report of Colombia’ (HRCttee 1997) UN Doc. ccpr/c/79/Add.76 para 43; Human Rights Committee, ‘Concluding Observations on the Third Periodic Report of the Syrian Arab Republic’ (HRCttee 2005) UN Doc. ccpr/co/84/syr para 19; Human Rights Committee, ‘Concluding Observations on the Second Periodic Report of Cambodia’ (HRCttee 2015) UN Doc. ccpr/c/khm/co/2 para 27. See also Joseph and Castan (n 94) 21.62; Kraus (n 30) 217; Nowak (n 89) 561 f; Laura van Waas, Nationality Matters: Statelessness under International Law (Intersentia 2008) 59.
Denny Zhao v The Netherlands, Communication No. 2918/2016 [2020] HRCttee UN Doc. ccpr/c/130/d/82918/2016. The communication is the first that deals directly with the interpretation of Article 24(3) iccpr.
ibid 2.3.
ibid.
ibid 8.5.
The child concerned did not become stateless as she still had a second nationality, see Keshva Rajan and Sashi Kantra Rajan v New Zealand, Communication No 820/1998 [2003] HRCttee UN Doc. ccpr/c/78/d/820/1998 para 7.5. The complaint was declared inadmissible. See also Deepan Budlakoti v Canada, Communication No 2264/2013 [2018] HRCttee UN Doc. ccpr/c/122/d/2264/2013.
See eg Nowak who argues that the revocation of citizenship would violate the right to acquire a nationality if a child would thereby become stateless, even if the acquisition of nationality was fraudulent, Nowak (n 89) 562.
Human Rights Committee, ‘General Comment No. 17’ (n 94) para 8; de Groot, ‘Children, Their Right to a Nationality and Child Statelessness’ (n 108) 146. See also Chapter 5, iii.2.1.
See eg the Concluding Observations on Ecuador where the HRCttee found that refugee children were prevented from acquiring Ecuoadorian citizenship despite an entitlement in the domestic legislation. The Committee did however not make an explicit reference to Article 24(3). See Human Rights Committee, ‘CO Ecuador 1998’ (n 96) para 18.
Chan (n 52) 4.
Only the UK has reservations in place against Article 24(3) iccpr, see the list of declarations and reservations, <
See eg Human Rights Committee, ‘co Cambodia 2015’ (n 115) para 27. See also van Waas, Nationality Matters (n 115) 59; Worster, ‘The Obligation to Grant Nationality under Treaty Law’ (n 102) 208. See in more detail Chapter 5, iii.3.1.
UN Commission on Human Rights, ‘Report on the 34th Session’ (UN Commission on Human Rights 1978) UN Doc. e/cn.4/1292 124. See for a detailed discussion of the drafting of Article 7 crc, Office of the High Commissioner for Human Rights, ‘Legislative History of the Convention on the Rights of the Child, Volume 1’ (ohchr 1978) 370 ff <
See for the discussions UN Commission on Human Rights, ‘Question of a Convention on the Rights of the Child, Report of the Secretary-General’ (UN Commission on Human Rights 1978) UN Doc. e/cn.4/1324. See also Rodrigues and Stein (n 98) 396.
See eg the concerns raised by the Federal Republic of Germany, UN Commission on Human Rights, ‘Report of the Secretary-General’ (n 128) 30 para 3.
See UN Commission on Human Rights, ‘Report on the 36th Session’ (UN Commission on Human Rights 1980) UN Doc. e/cn.4/1408 para 277. See further Jill Stein, ‘The Prevention of Child Statelessness at Birth: The uncrc Committee’s Role and Potential’ (2016) 24 The International Journal of Children’s Rights 599, 604; Schmahl (n 73) 132. See also Chapter 4, ii.1.1.1.
See UN Commission on Human Rights, ‘Report of the Working Group on a Draft Convention on the Rights of the Child, 41st Session’ (UN Commission on Human Rights 1985) UN Doc. e/cn.4/1408, Annex ii. The provision has to be seen in the context of enforced disappearances during the time of the Argentinian military dictatorship, see Doek (n 97) 29.
UN Commission on Human Rights, ‘Report 41st Session’ (n 131) para 9.
See for the list of declarations and reservations the UN Treaty Collection,
Article 1 crc defines children as human beings below the age of eighteen, unless the domestic law foresees a lower age of majority. This is one of the differences to Article 24(3) iccpr, see above Chapter 4, ii.1.1.1, note 95.
See eg Committee on the Rights of the Child, ‘Concluding Observations on the Combined Fourth and Fifth Periodic Reports of Chile’ (CtteeRC 2015) UN Doc. crc/c/chl/co/4-5 para 32; Committee on the Rights of the Child, ‘Concluding Observations on the Second Periodic Report of Gabon’ (CtteeRC 2016) UN Doc. crc/c/gab/co/2 para 26 f; Committee on the Rights of the Child, ‘Concluding Observations on the Combined Third to Fifth Periodic Reports of Kenya’ (CtteeRC 2016) UN Doc. crc/c/ken/co/3-5 para 29; Committee on the Rights of the Child, ‘Concluding Observations on the Fourth Periodic Report of Georgia’ (CtteeRC 2017) UN Doc. crc/c/geo/co/4 para 19.
Stein (n 130) 607.
Committee on the Protection of the Rights of All Migrant Workers and their Families and Committee on the Rights of the Child, ‘Joint General Comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the Rights of the Child on State Obligations Regarding the Human Rights of Children in the Context of International Migration in Countries of Origin, Transit, Destination and Return’ (CtteeMW and CtteeRC 2017) UN Doc. cmw/c/gc/4-crc/c/gc/23 paras 23 and 24.
Rodrigues and Stein (n 98) 397.
Doek (n 97) 26.
Committee on the Protection of the Rights of All Migrant Workers and their Families and Committee on the Rights of the Child (n 137) para 24. So far, the CtteeRC has only interpreted Article 7 and 8 crc in General Comments and Concluding Observations but not decided any cases. Two cases invoking Article 8 were rejected as inadmissible, see aha v Spain, Communication No 001/2014 [2015] CtteeRC UN Doc. crc/c/69/d/1/2014; JABS v Costa Rica, Communication No 005/2016 [2017] CtteeRC UN Doc. crc/c/74/d/5/2016. See also Doek (n 97) 28.
Committee on the Protection of the Rights of All Migrant Workers and their Families and Committee on the Rights of the Child (n 137) para 24. See also Committee on the Rights of the Child, ‘Concluding Observations on the Third to Fifth Periodic Reports of Latvia’ (CtteeRC 2016) UN Doc. crc/c/lva/co/3-5 para 35.
Committee on the Rights of the Child, ‘General Comment No. 11 (2009) on Indigenous Children and Their Rights Under the Convention’ (CtteeRC 2009) UN Doc. crc/c/gc/11 para 41. See also Doek (n 97) 28.
A.M. (on behalf of M.K.A.H.) v Switzerland, Communication No 95/2019 [2021] CtteeRC UN Doc. crc/c/88/d/95/2019 para 10.10.
ibid.
See de Groot, ‘Children, Their Right to a Nationality and Child Statelessness’ (n 108) 147.
Committee on the Protection of the Rights of All Migrant Workers and their Families and Committee on the Rights of the Child (n 137) para 25. On the prohibited ground of ethnicity, see Committee on the Rights of the Child, ‘Concluding Observations on the Fifth Periodic Report of Pakistan’ (CtteeRC 2016) UN Doc. crc/c/pak/co/5 para 66. On the prohibited ground of disability, see ‘Concluding Observations on the Combined Third to Fifth Periodic Reports of Senegal’ (CtteeRC 2016) UN Doc. crc/c/sen/co/3-5 para 33. On the ground of (irregular) migrant status, see ‘CO Chile 2015’ (n 135) para 32; ‘Concluding observations on the fourth period report of the Netherlands’ (CtteeRC 2015) UN Doc. crc/c/nld/co/4 para 33.
See also Doek (n 97) 27. Namely on grounds such as residence status or gender, Committee on the Protection of the Rights of All Migrant Workers and their Families and Committee on the Rights of the Child (n 137) para 25; Committee on the Rights of the Child, ‘Concluding Observations on the Combined Third to Fifth Periodic Report of Nepal’ (CtteeRC 2016) UN Doc. crc/c/npl/co/3-5 para 26 f; Committee on the Rights of the Child, ‘Concluding Observations on the Second Periodic Report of Barbados’ (CtteeRC 2017) UN Doc. crc/c/brb/co/2 para 29.
Committee on the Rights of the Child, ‘Concluding Observations on the Initial Report of Myanmar’ (CtteeRC 1997) UN Doc. crc/c/15/Add.69 para 14; Committee on the Rights of the Child, ‘Concluding Observations on the Combined Second to Fourth Periodic Reports of Turkmenistan’ (CtteeRC 2015) UN Doc. crc/c/tkm/co/2-4 para 21. See also Tamás Molnár, ‘The Prohibition of Arbitrary Deprivation of Nationality under International Law and EU Law: New Perspectives’ [2014] Hungarian Yearbook of International Law and European Law 67, 81; Ziemele, ‘Article 7 crc’ (n 67) para 50.
See also Schmahl (n 73) 135.
Doek (n 97) 29.
Donner (n 14) 200.
Doek (n 97) 30.
See also Molnár (n 148) 81.
See Donner (n 14) 200.
Fripp (n 45) 273; Worster, ‘The Obligation to Grant Nationality under Treaty Law’ (n 102) 210.
Worster, ‘The Obligation to Grant Nationality under Treaty Law’ (n 102) 207.
The practical impact of the cmw, however, is limited. So far, it has been ratified by 51 states, most of them migrant sending countries. All of them are also state parties to the crc and the iccpr. See also Paul De Guchteneire and Antoine Pécoud, ‘Introduction: The UN Convention on Migrant Workers’ Rights’ in Ryszard Cholewinski, Antoine Pécoud and Paul De Guchteneire (eds), Migration and Human Rights: The United Nations Convention on Migrant Workers’ Rights (Paris : unesco Publishing ; Cambridge, England : Cambridge University Press 2009) 1. The only reservation made to Article 29 by Sri Lanka has been withdrawn in 2016, see the list of declarations and reservations <
Committee on the Protection of the Rights of All Migrant Workers and their Families and Committee on the Rights of the Child (n 137) para 23.
A migrant worker is a “person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national” (Article 2(1) cmw).
See Nevena Vučković Šahović, Jaap E Doek and Jean Zermatten, The Rights of the Child in International Law: Rights of the Child in a Nutshell and in Context: All About Children’s Rights (Stämpfli 2012) 123.
Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, ‘General Comment No. 1 (2011) on Migrant Domestic Workers’ (CtteeMW 2011) UN Doc. cmw/c/gc/1 para 58; Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, ‘General Comment No. 2 (2013) on the Rights of Migrant Workers in an Irregular Situation and Members of Their Families’ (CtteeMW 2013) UN Doc. cmw/c/gc/2 para 79.
See Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, ‘Concluding Observations on the Second Periodic Report of Mexico’ (CtteeMW 2011) UN Doc. cmw/c/mex/co/2 para 39. See also the first draft of the Convention which only stated that a child shall not be deprived of its right to a nationality due to “the irregularity of its own situation or that of its parents, […] with a view to reducing statelessness”, see UN General Assembly, Third Committee, ‘Text of the Preamble and Articles of the International Convention on the Protection of the Rights of All Migrant Workers and Their Families to Which the Working Group Provisionally Agreed During the First Reading’ (UN General Assembly 1983) a/c.3/38/wg.1/crp.2/Rev.1, Article 30.
See eg Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, ‘Concluding Observations on the Initial Report of Timor-Leste’ (CtteeMW 2015) UN Doc. cmw/c/tls/co/1 para 39; Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, ‘Concluding Observations on the Initial Report of Turkey’ (CtteeMW 2016) UN Doc. cmw/c/tur/co/1 para 65.
Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, ‘Concluding Observations on the Combined Second and Third Periodic Reports of Senegal’ (CtteeMW 2016) UN Doc. cmw/c/sen/co/2-3 para 22 f.
Committee on the Protection of the Rights of All Migrant Workers and their Families and Committee on the Rights of the Child (n 137) para 25. See also Committee on the Protection of the Rights of All Migrant Workers and Members of their Families, ‘Concluding Observations on the Initial Report of Nigeria’ (CtteeMW 2017) UN Doc. cmw/c/nga/co/1 para 28.
The cedaw, just as the cerd, is a discrimination treaty which does not directly enshrine new rights, but guarantees that persons affected by certain categories of discrimination, namely gender and race, can effectively exercise their general human rights without any discrimination.
Savitri WE Goonesekere, ‘Article 9’ in Marsha A Freeman, Christine Chinkin and Beate Rudolf (eds), The UN Convention on the Elimination of All Forms of Discrimination Against Women: A Commentary (Oxford University Press 2012) 238; Karen Knop and Christine Chinkin, ‘Remembering Chrystal MacMillan: Women’s Equality and Nationality in International Law’ (2001) 22 Michigan Journal of International Law 523, 573.
See also Committee on the Elimination of All Forms of Discrimination against Women, ‘General Recommendation No. 32 on the Gender-Related Dimensions of Refugee Status, Asylum, Nationality and Statelessness of Women’ (CtteeEDAW 2014) UN Doc. cedaw/c/gc/32 para 51.
Peter J Spiro, ‘A New International Law of Citizenship’ (2011) 105 The American Journal of International Law 694, 714.
Convention on the Nationality of Women, 26 December 1933, oas Treaty Series No. 4 (‘cnw’).
Convention on the Nationality of Married Women, 20 February 1957, 309 unts 65 (‘cnmw’).
Radha Govil and Alice Edwards, ‘Women, Nationality and Statelessness’ in Alice Edwards and Laura Van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014) 184; Vučković Šahović, Doek and Zermatten (n 160). See also Chapter 3, iii.3.
See Commission on the Status of Women, ‘Consideration of Proposals Concerning a New Instrument or Instruments of International Law to Eliminate Discrimination Against Women: Working Paper by the Secretary-General’ (csw 1973) UN Doc. e/cn.6/573 para 67 ff. See also Martina Caroni and Nicole Scheiber, ‘Art. 9 cedaw’ in Erika Schläppi, Silvia Ulrich and Judith Wyttenbach (eds), CEDAW: Kommentar zum UNO-Übereinkommen über die Beseitigung jeder Form der Diskriminierung der Frau: Allgemeine Kommentierung, Umsetzung in der Schweiz, Umsetzung in Österreich (Stämpfli, Manz 2015) para 16; Lars Adam Rehof, Guide to the Travaux Préparatoires of the United Nations Convention on the Elimination of All Forms of Discrimination against Women (Martinus Nijhoff 1993) 103.
Goonesekere (n 167) 236. See also Caroni and Scheiber (n 173) para 15.
Rehof (n 173) 108 f.
Caroni and Scheiber (n 173) para 18. A proposal for a right for both spouses to acquire each other’s nationality which was supposed to guarantee the unity of the nationality of the family was heavily criticized and rejected, see ibid 19.
Monaco, Korea and the United Arab Emirates have made a reservation concerning the entire Article 9. The Bahamas, Bahrain, Brunei Darussalam, Democratic People’s Republic of Korea, Jordan, Kuwait, Lebanon, Oman, Qatar, Saudi Arabia and Syria have made a reservation with regard to the obligation to grant women equal rights in the transmission of nationality according to Article 9(2) cedaw. In addition, France and UK made a declaration on the interpretation of Article 9 in consistence with their domestic law. See for the list of reservations,
CtteeEDAW, ‘General Recommendation No. 32’ (n 168) para 58; Committee on the Elimination of All Forms of Discrimination against Women, ‘Concluding Observations on the Combined Fourth and Fifth Periodic Reports of Lebanon’ (CtteeEDAW 2015) UN Doc. cedaw/c/lbn/co/4-5 para 16; Committee on the Elimination of All Forms of Discrimination against Women, ‘Concluding Observations on the Initial to Fourth Periodic Reports and the Fifth Periodic Report of the Bahamas’ (CtteeEDAW 2012) UN Doc. cedaw/c/bhs/co/1-5 para 30; Committee on the Elimination of All Forms of Discrimination against Women, ‘Concluding Observations on the Combined Second and Third Periodic Reports of the United Arab Emirates’ (CtteeEDAW 2015) UN Doc. cedaw/c/are/co/2-3 para 36.
CtteeEDAW, ‘General Recommendation No. 32’ (n 168) para 58.
Constance Ragan Salgado v The United Kingdom, Communication No 11/2006 [2007] CtteeEDAW UN Doc. cedaw/c/37/d/11/2006; G.M.N.F. v The Netherlands, Communication No. 117/2017 [2020] CtteeEDAW UN Doc. cedaw/c/75/d/117/2017; M.A.M.N. v The United Kingdom, Communication No. 141/2019 [2020] CtteeEDAW UN Doc. cedaw/c/76/d/151/2019.
Knop and Chinkin (n 167) 557; Spiro, ‘New Citizenship Law’ (n 169) 713.
Goonesekere (n 167) 237.
Knop and Chinkin (n 167) 583. See also Caroni and Scheiber (n 173) para 23.
This includes, eg, an obligation to secure unhindered access of women to identity documents irrespective of a possible consent of the husband as well as unrestricted access to justice, see Caroni and Scheiber (n 173) para 24 f.
ibid 26.
Goonesekere (n 167) 246.
CtteeEDAW, ‘General Recommendation No. 32’ (n 168) para 60.
See Goonesekere (n 167) 237.
Committee on the Elimination of All Forms of Discrimination against Women, ‘General Recommendation No. 21 on Equality in Marriage and Family Relations’ (CtteeEDAW 1994) UN Doc. A/49/38 para 6.
Knop and Chinkin (n 167) 583 f. It can also entail an obligation for states to grant resident permits to non-nationals for purposes of family reunification if the spouses or family members do not have the same nationality, see also Caroni and Scheiber (n 173) para 28; Goonesekere (n 167) 242.
Karen Knop, ‘Relational Nationality: On Gender and Nationality in International Law’ in T Alexander Aleinikoff and Douglas Klusmeyer (eds), Citizenship Today: Global Perspectives and Practices (Carnegie Endowment for International Peace 2001).
Human Rights Council, ‘Report 23/23 of the Secretary General on Discrimination Against Women on Nationality-Related Matters, Including the Impact on Children’ (hrc 2013) UN Doc. a/hrc/23/23 para 11.
Caroni and Scheiber (n 173) para 47; Goonesekere (n 167) 243; Govil and Edwards (n 172) 186. See also Alice Edwards, ‘Displacement, Statelessness and Questions of Gender Equality under the Convention on the Elimination of All Forms of Discrimination against Women’ (UN High Commissioner for Refugees (unhcr) 2009) pplas/2009/02 40 <
CtteeEDAW, ‘General Recommendation No. 32’ (n 168) para 61.
Goonesekere (n 167) 243. See also Knop and Chinkin (n 167) 557.
Committee on the Elimination of All Forms of Discrimination against Women, ‘Concluding Observations on the Fourth Periodic Report of Singapore’ (CtteeEDAW 2011) UN Doc. cedaw/c/sgp/co/4/Rev.1 para 75; Committee on the Elimination of All Forms of Discrimination against Women, ‘Concluding Observations on the Ninth Periodic Report of Norway’ (CtteeEDAW 2017) UN Doc. cedaw/c/nor/co/9 para 33. See also Goonesekere (n 167) 244.
Goonesekere (n 167) 238.
Caroni and Scheiber (n 173) para 29.
See also E Tendayi Achiume, ‘Governing Xenophobia’ (2018) 51 Vanderbilt Journal of Transnational Law 333, 356 f.
See also Roberta Clerici, ‘Freedom of States to Regulate Nationality: European Versus International Court of Justice?’ in Nerina Boschiero and others (eds), International Courts and the Development of International Law (t mc Asser Press 2013) 846; Goonesekere (n 167) 238.
See for a thorough discussion of Article 1(3) cerd Michelle Foster and Timnah Rachel Baker, ‘Racial Discrimination in Nationality Laws: A Doctrinal Blind Spot of International Law?’ (2021) 11 Columbia Journal of Race and Law 83; Drew Mahalic and Joan Gambee Mahalic, ‘The Limitation Provisions of the International Convention on the Elimination of All Forms of Racial Discrimination’ (1987) 9 Human Rights Quarterly 74, 79. See also Spiro, ‘New Citizenship Law’ (n 169) 716.
Foster and Baker (n 201) 103.
Mahalic and Mahalic (n 201) 79. See also Committee on the Elimination of Racial Discrimination, ‘Concluding Observations on the Seventeenth to Nineteenth Periodic Reports of France’ (CtteeERD 2016) UN Doc. cerd/c/fra/co/17-19 para 11.
Committee on the Elimination of Racial Discrimination, ‘General Recommendation No. xxx on Discrimination Against Non-Citizens’ (CtteeERD 2002) para 1.
Foster and Baker (n 201) 104 ff. See also Achiume (n 199) 357.
CtteeERD, ‘General Recommendation No. xxx’ (n 204) para 4.
Ion Diaconu, Racial Discrimination (Eleven International Publishing 2011) 166.
See for a thorough justification of that interpretation Foster and Baker (n 201) 83 ff.
Committee on the Elimination of Racial Discrimination, ‘Concluding Observations on the Eighteenth to Twentieth Periodic Reports of Rwanda’ (CtteeERD 2016) UN Doc. cerd/c/rwa/co/18-20 para 8; Committee on the Elimination of Racial Discrimination, ‘Concluding Observations on the Eighth to Eleventh Periodic Reports of Turkmenistan’ (CtteeERD 2017) UN Doc. cerd/c/tkm/co/8-11 para 16. See eg also Committee on the Elimination of Racial Discrimination, ‘Concluding Observations on the Combined Eighteenth and Nineteenth Periodic Reports of Togo’ (CtteeERD 2017) UN Doc. cerd/c/tgo/co/18-19 para 27.
As the CtteeERD noted in General recommendation xx that while the cerd does not of itself create that right, it assumes its existence and recognizes it, see Committee on the Elimination of Racial Discrimination, ‘General Recommendation No. 20 on Article 5 of the Convention’ (CtteeERD 1996) para 1.
CtteeERD, ‘General Recommendation No. xxx’ (n 204) para 13; Committee on the Elimination of Racial Discrimination, ‘General Recommendation No. 34 on Racial Discrimination Against People of African Descent’ (CtteeERD 2011) UN Doc. cerd/c/gc/34 para 47. See also Committee on the Elimination of Racial Discrimination, ‘Concluding Observations on the Seventeenth to Twenty-Second Periodic Reports of Cyprus’ (CtteeERD 2013) UN Doc. cerd/c/cyp/co/17-22 para 18.
See for a historical perspective Schwelb who argued in 1966 that Article 5(d)(iii) cerd only covered deprivation of nationality on racial grounds and not acquisition or change of nationality, Egon Schwelb, ‘The International Convention on the Elimination of All Forms of Racial Discrimination’ (1966) 15 International and Comparative Law Quarterly 996, 1008.
CtteeERD, ‘General Recommendation No. xxx’ (n 204) para 14; Committee on the Elimination of Racial Discrimination, ‘General Recommendation No. 34’ (n 211) para 48. See also Committee on the Elimination of Racial Discrimination, ‘Concluding Observations on the Combined Twelfth to Sixteenth Periodic Reports of the Sudan’ (CtteeERD 2015) UN Doc. cerd/c/sdn/co/12-16 para 19; Committee on the Elimination of Racial Discrimination, ‘Concluding Observations on the Combined Second to Fifth Periodic Reports of Oman’ (CtteeERD 2016) UN Doc. cerd/c/omn/co/2-5 paras 25 and 26.
CtteeERD, ‘General Recommendation No. xxx’ (n 204) para 15; ‘General Recommendation No. 34’ (n 211) para 49. See also Committee on the Elimination of Racial Discrimination, ‘Concluding Observations on the Combined Eighteenth to Twenty-First Periodic Reports of the United Arab Emirates’ (CtteeERD 2017) UN Doc. cerd/c/are/co/18-21 para 27; Committee on the Elimination of Racial Discrimination, ‘CO Turkmenistan 2017’ (n 209) paras 16 and 18.
Committee on the Elimination of Racial Discrimination, ‘CO Sudan 2015’ (n 213) para 19; Committee on the Elimination of Racial Discrimination, ‘CO Turkmenistan 2017’ (n 209) para 18; Committee on the Elimination of Racial Discrimination, ‘Concluding Observations on the Combined Twenty-Second to Twenty-Fifth Periodic Reports of Iraq’ (CtteeERD 2019) UN Doc. cerd/c/irq/co/22-25 para 36. See also CtteeERD, ‘General Recommendation No. xxx’ (n 204) para 16.
Committee on the Elimination of Racial Discrimination, ‘Concluding Observations on the Ninth to Twelfth Periodic Reports of the Dominican Republic’ (CtteeERD 2008) UN Doc. cerd/c/dom/co/12 para 14; Committee on the Elimination of Racial Discrimination, ‘Concluding Observations on the Combined Ninth to Eleventh Periodic Reports of Tajikistan’ (CtteeERD 2017) UN Doc. cerd/c/tjk/co/9-11 para 17. The CtteeERD has been more reluctant to acknowledge racial discrimination in individual communications concerning Article 5(d)(iii) cerd, Foster and Baker (n 201) 115.
CtteeERD, ‘General Recommendation No. xxx’ (n 204) para 17. See also Committee on the Elimination of Racial Discrimination, ‘CO Sudan 2015’ (n 213) para 19.
Foster and Baker (n 201) 126.
ibid 144.
Anna Lawson, ‘The United Nations Convention on the Rights of Persons with Disabilities: New Era or False Dawn’ (2007) 34 Syracuse Journal of International Law and Commerce 563, 590.
See also Rachele Cera, ‘Article 18 [Liberty of Movement and Nationality]’ in Valentina Della Fina, Rachele Cera and Giuseppe Palmisano (eds), The United Nations Convention on the Rights of Persons with Disabilities: A Commentary (Springer International Publishing 2017) 344.
Lauri Philipp Rothfritz, Die Konvention der Vereinten Nationen zum Schutz der Rechte von Menschen mit Behinderungen: Eine Analyse unter Bezugnahme auf die deutsche und europäische Rechtsebene (Peter Lang 2010) 455. See also Draft Article 20 Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the, ‘Sixth Session, Revisions and Amendments, Contribution by Kenya’ (Ad Hoc Committee crpd 2005) <
Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, ‘Seventh Session, Daily Summary of Discussions, Afternoon Session’ (Ad Hoc Committee crpd 2006) <
Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the, ‘Report of the Ad Hoc Committee on a Comprehensive and Integral International Convention on the Protection and Promotion of the Rights and Dignity of Persons with Disabilities on Its Sixth Session’ (Ad Hoc Committee crpd 2005) UN Doc. A/60/266 para 76 <
Rothfritz (n 222) 456.
Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, ‘Seventh Session, Daily Summary’ (n 223).
Monaco has lodged a declaration that the Convention does not imply that persons with disabilities should be afforded rights superior to those afforded to persons without disabilities, especially in terms of nationality. Thailand withdrew its reservation in 2015. See the list of reservations <
Namely Austria, Belgium, Germany, Hungary, Ireland, the Netherlands, Portugal, the Slovak Republic, Sweden and Switzerland. See also Cera (n 221) 351.
ibid 344.
See Committee on the Rights of Persons with Disabilities, ‘General Comment No. 1 — Article 12: Equal Recognition Before the Law’ (CtteeRPD 2014) UN Doc. crpd/c/gc/1 para 43. See also Committee on the Rights of Persons with Disabilities, ‘Concluding Observations Gabon’ (CtteeRPD 2015) UN Doc. crpd/c/gab/co/1 para 42; Committee on the Rights of Persons with Disabilities, ‘Concluding Observations on the Initial Report of Bolivia’ (CtteeRPD 2016) UN Doc. crpd/c/bol/co/1 para 47; Committee on the Rights of Persons with Disabilities, ‘Concluding Observations on the Initial Report of the United Arab Emirates’ (CtteeRPD 2016) UN Doc. crpd/c/are/co/1 para 35; Committee on the Rights of Persons with Disabilities, ‘Concluding Observations on the Initial Report of Uganda’ (CtteeRPD 2016) UN Doc. crpd/c/uga/co/1 para 36; Committee on the Rights of Persons with Disabilities, ‘Concluding Observations on the Initial Report of Guatemala’ (CtteeRPD 2016) UN Doc. crpd/c/gtm/co/1 para 51; Committee on the Rights of Persons with Disabilities, ‘Concluding Observations on the Initial Report of Ethiopia’ (CtteeRPD 2016) UN Doc. crpd/c/eth/co/1 para 41. Similarly also Committee on the Rights of the Child, ‘General Comment No. 9 (2006) on the Rights of Children with Disabilities’ (CtteeRC 2007) UN Doc. crc/c/gc/9 para 35 f.
A provision like in the Ecuadorian Naturalization Act which excludes persons with chronic illnesses generally from naturalization overtly discriminates against persons with disabilities and is contrary to Article 18 crpd, see Committee on the Rights of Persons with Disabilities, ‘Concluding Observations on the Initial Report of Ecuador’ (CtteeRPD 2014) UN Doc. crpd/c/ecu/co/1 para 32. Similarly also Committee on the Rights of Persons with Disabilities, ‘Concluding Observations on the Initial Report of Peru’ (CtteeRPD 2012) UN Doc. crpd/c/per/co/1 para 6(c). See on the Ecuadorian Naturalization Act Gabriel Echeverría, ‘Report on Citizenship Law: Ecuador’ (globalcit 2017) globalcit Country Report 2017/5 <
See also Committee on the Rights of Persons with Disabilities, ‘CO UAE 2016’ (n 230) 35.
Cera (n 221) 347.
See also the respective case law of the Swiss Federal Court according to which the special circumstances of persons with disabilities have to be taken into account, bge 135 i 49; bge 139 i 169.
The CtteeRPD eg expressed concern that the practice in the Dominican Republic not to apply jus soli to children of Haitian descent might violate Article 18, see Committee on the Rights of Persons with Disabilities, ‘Concluding Observations on the Initial Report of the Dominican Republic’ (CtteeRPD 2015) UN Doc. crpd/c/dom/co/1 para 36.
For example, the CtteeRPD expressed concern about legislation in Uganda which denies persons with psychosocial or intellectual disabilities the possibility of dual citizenship, see Committee on the Rights of Persons with Disabilities, ‘CO Uganda 2016’ (n 230) para 36.
See eg Committee on the Rights of Persons with Disabilities, ‘Concluding Observations on the Initial Report of Armenia’ (CtteeRPD 2017) UN Doc. crpd/c/arm/co/1 29. See eg also Committee on the Rights of Persons with Disabilities, ‘Concluding Observations on the Initial Report of Thailand’ (CtteeRPD 2016) UN Doc. crpd/c/tha/co/1 para 37.
See also Cera (n 221) 346.
Rothfritz (n 222) 460.
The state representatives were referring to the qualifications for restrictions provided for in Article 12(3) iccpr. See Ad Hoc Committee on a Comprehensive and Integral International Convention on Protection and Promotion of the Rights and Dignity of Persons with Disabilities, ‘Seventh Session, Daily Summary’ (n 223).
Rothfritz (n 222) 460 f.
ibid 461.
ibid.
ibid 459.
See also Cera (n 221) 340; Rothfritz (n 222) 462.
See also Kraus (n 30) 215 f.
See eg CtteeEDAW, ‘General Recommendation No. 32’ (n 168) para 9, identifying the Refugee and Statelessness Conventions as additional protection regimes. See on the refugee (and stateless) rights regime as a distinct protection regime Vincent Chetail, ‘Are Refugee Rights Human Rights? An Unorthodox Questioning of the Relations between Refugee Law and Human Rights Law’ in Ruth Rubio-Marín (ed), Human Rights and Immigration (Oxford University Press 2014); Molnár (n 148) 72 f; Anne Peters, Beyond Human Rights: The Legal Status of the Individual in International Law (Cambridge University Press 2016) 454 ff.
See on the drafting history generally Katia Bianchini, Protecting Stateless Persons: The Implementation of the Convention Relating to the Status of Stateless Persons across EU States (Brill Nijhoff 2018) 75 ff; Guy Goodwin-Gill, Introduction to the 1954 Convention Relating to the Status of Stateless Persons, from the United Nations Audiovisual Library of International Law (2010) <
Robinson (n 248) 3 f; Weis, ‘Statelessness Convention’ (n 248) 256.
See Bianchini (n 248) 78; Laura van Waas, ‘The UN Statelessness Conventions’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014) 68; Weis, ‘Statelessness Convention’ (n 248) 256.
Goodwin-Gill (n 248) 4. See also Robinson (n 248) 1; Weis, ‘Statelessness Convention’ (n 248) 259.
Today, the csr has 146 state parties, the css 91. The crs has been ratified by 73 states. Van Waas interprets this as a consequence of the perception of nationality as a sovereign, internal and highly political matter, see van Waas, Nationality Matters (n 115) 17.
See the list of declarations and reservations, <
Roughly a third of the state parties to the css only ratified the Convention in the last decade.
See International Law Commission, ‘Commentary on the Draft Articles on Diplomatic Protection’ (ilc 2006) Yearbook of the International Law Commission, 2006, Vol. ii, Part Two 36 49. See also Bianchini (n 248) 74; van Waas, ‘Statelessness Conventions’ (n 250) 72.
Carol A Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons: Implementation Within the European Union Member States and Recommendations for Harmonization’ (2005) 22 Refuge 31, 31.
See also Adjami and Harrington (n 37) 97.
Bianchini (n 248) 106.
Article 32 css corresponds to Article 34 Refugee Convention. See on the discussion regarding the direct applicability of the parallel provision in the Refugee Convention below Chapter 4, ii.1.2.3.
Bianchini (n 248) 107; van Waas, Nationality Matters (n 115) 366.
In Germany, for example, the Federal Administrative Court has interpreted Article 32 css as merely a requirement of benevolence, a ‘Wohlwollensgebot’, see Hailbronner and others (n 69) 106.
Robinson (n 248) 64, referring to the first sentence of Article 32 as a recommendation or general moral obligation. See also Bianchini (n 248) 106; van Waas, ‘Statelessness Conventions’ (n 250) 73. ibid 73.
Adjami and Harrington (n 37) 97.
van Waas, Nationality Matters (n 115) 365.
Bianchini (n 248) 106.
Bianchini argues that not allowing the possibility of acquiring citizenship without a good faith explanation would breach Article 32, see ibid 107. Regulations such as one currently discussed in Germany according to which naturalization is excluded if the identity and nationality of a person is not established are highly problematic against that background since they risk disadvantaging stateless persons disproportionately, see Deutsche Welle, ‘Bundesregierung verschärft Einbürgerungsregeln’ dw.com (17 April 2020) <
van Waas, Nationality Matters (n 115) 364.
Carol A Batchelor, ‘The International Legal Framework Concerning Statelessness and Access for Stateless Persons, Contribution to the European Union Seminar on the Content and Scope of International Protection’ (unhcr 2002) para 16.
See also Robinson (n 248) 64.
See on the drafting history generally Guy Goodwin-Gill, Introduction to the 1961 Convention on the Reduction of Statelessness, from the United Nations Audiovisual Library of International Law (2011) <
Today the 1961 Convention has 73 state parties, see
unhcr, ‘Introductory Note to the Convention on the Reduction of Statelessness’ (unhcr 2014) <
Donner (n 14) 194.
Ibid. See also Chan (n 52) 4; Goodwin-Gill (n 270) 6; Smith (n 8). Molnár argues that the avoidance of statelessness has acquired the status of a general principle of international law, Molnár (n 148) 80.
The notion of statelessness in the 1961 Convention is based on the definition in Article 1 css.
See van Waas, ‘Statelessness Conventions’ (n 250) 74 f. Bloom, by contrast, identifies four contexts, namely not obtaining citizenship, voluntarily renouncing one’s citizenship, having one’s citizenship removed and extinction of a state, see Tendayi Bloom, ‘Problematizing the Conventions on Statelessness’ (United Nations University Institute on Globalization, Culture and Mobility (unu — gcm) 2013) Policy Report No. 02/01 <
Adjami and Harrington (n 37) 96 f.
See also Weis, ‘Convention on the Reduction of Statelessness’ (n 53) 1080.
Article 1(1)(a) and (b) crs.
Article 1(1)(b) in conjunction with 1(2) 1961 Convention.
Carol A Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’ (1998) 10 International Journal of Refugee Law 161.
de Groot, ‘Children’s Right to Nationality’ (n 108) 149.
Weis, ‘Convention on the Reduction of Statelessness’ (n 53) 1079.
See van Waas, ‘Statelessness Conventions’ (n 250) 84. Less critical Goodwin-Gill (n 270) 6.
Weis, ‘Convention on the Reduction of Statelessness’ (n 53) 1082.
Articles 2 ff. See also van Waas, ‘Statelessness Conventions’ (n 250) 75.
Schram finds it to be the key article of the Convention, Schram (n 10) 234.
Article 8(2) and (3) crs.
See van Waas, ‘Statelessness Conventions’ (n 250) 75. See also Donner (n 14) 195.
van Waas, ‘Statelessness Conventions’ (n 250) 83.
See also Goodwin-Gill (n 270) 4.
Chan (n 52) 4. See also Carol A Batchelor, ‘Transforming International Legal Principles into National Law: The Right to a Nationality and the Avoidance of Statelessness’ (2006) 25 Refugee Survey Quarterly 8, 11.
Batchelor, ‘Resolving Nationality Status’ (n 281) 161.
van Waas, ‘Statelessness Conventions’ (n 250) 75. See also van Waas, Nationality Matters (n 115) 44.
Protocol relating to the Status of Refugees, 31 January 1967, 606 unts 267 (‘1967 Protocol’).
Ruvi Ziegler, Voting Rights of Refugees (Cambridge University Press 2017) 37.
See above Chapter 4, ii.1.2.1.
Even though one could thus just refer to the interpretation of Article 32 css, a short discussion of Article 34 csr seems opportune as there is much more literature as well as case law on the provision for refugees than for the provision for stateless persons.
The term ‘assimilation’ in Article 34 csr is to be understood in the sense of integration in the host soceity, see Reinhard Marx, ‘Article 34, Naturalization’ in Andreas Zimmermann (ed), The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol: A Commentary (Oxford University Press 2011) 1447 ff.
Article 1(C)(3) 1951 csr which maintains that the Convention ceases to apply to persons who have acquired a new nationality and enjoy the protection of the country of that nationality. See also Atle Grahl-Madsen, Commentary of the Refugee Convention 1951 (unhcr 1997), Article 34 N 1; James C Hathaway, The Rights of Refugees Under International Law (2nd ed, Cambridge University Press 2021) 1210. One example where refugees were actually granted the option of naturalization as a form of durable solution is Tanzania, which granted citizenship to more than 150’000 Burundian refugees as part of a strategy to find durable solutions for the refugee community present in the country since the 1970s, see Amelia Kuch, ‘Naturalization of Burundian Refugees in Tanzania: The Debates on Local Integration and the Meaning of Citizenship Revisited’ (2017) 30 Journal of Refugee Studies 468.
Hathaway (n 301) 1209.
See Marx (n 300) 1451, para 43.
Hathaway (n 301) 1218.
Ziegler (n 297) 205. The Swiss Federal Court, for example, has found Article 34 to be legally binding. Nevertheless, it argued that the provision does not grant individual refugees an entitlement to acquire the nationality of the state of protection. The wording of the provision, so the Court, clearly demonstrates states’ wide discretion how to facilitate naturalization, see 1D_3/2014, Urteil vom 11 März 2015 [2015] BGer 1D_3/2014 para 4.2.
Marx (n 300) 1443.
ibid 1451.
Grahl-Madsen (n 301), Article 34 N 2.
ibid, Article 34 N 2.
ibid N 2; Marx (n 300) 1451; Ziegler (n 297) 205.
Hathaway (n 301) 1219. See also Grahl-Madsen (n 301), Article 34 N 2.
Hathaway (n 301) 1219 f.
See similarly also Grahl-Madsen (n 301), Article 34 N 4.
Soft law instruments are legally non-binding instruments, principles, rules or standards such as resolutions, recommendations, declarations or decisions created by subjects of international law, mostly international organizations, see Daniel Thürer, ‘Soft Law’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press 2009) para 8 <
Lagoutte et al distinguish a norm-filling and a norm-creating function of soft law, Lagoutte, Gammeltoft-Hansen and Cerone (n 314) 6 ff. See also Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] icj Reports 1996, p. 226 para 70.
See also Thomas Gammeltoft-Hansen, ‘The Normative Impact of the Global Compact on Refugees’ (2019) 30 International Journal of Refugee Law 605, 607; Hobe (n 62) 231; Thürer (n 314) para 6. For the role of soft law in the development of international migration law see David A Martin, ‘Effects of International Law on Migration Policy and Practice: The Uses of Hypocrisy’ (1989) 23 The International Migration Review 547.
Namely UN General Assembly, ‘Resolution 3274 (xxiv)’ (UN General Assembly 1974); UN General Assembly, ‘Resolution 31/36’ (UN General Assembly 1976) UN Doc. a/res/31/36; UN General Assembly, ‘Resolution 49/169’ (UN General Assembly 1995) UN Doc. a/res/49/169; UN General Assembly, ‘Resolution 50/152 on the Office of the United Nations High Commissioner for Refugees’ (UN General Assembly 1996) UN Doc. a/res/50/152; UN General Assembly, ‘Resolution 61/137 on the Office of the United Nations High Commissioner for Refugees’ (UN General Assembly 2007) UN Doc. a/res/61/137; UN General Assembly, ‘Resolution 66/133’ (UN General Assembly 2012) UN Doc. a/res/66/133; UN General Assembly, ‘Resolution 67/149’ (UN General Assembly 2013) UN Doc. a/res/67/149; UN General Assembly, ‘Resolution 69/152’ (UN General Assembly 2015) UN Doc. a/res/69/152; UN General Assembly, ‘Resolution 70/135’ (UN General Assembly 2016) UN Doc. a/res/70/135; UN General Assembly, ‘Resolution 72/150’ (UN General Assembly 2018) UN Doc. a/res/72/150; UN General Assembly, ‘Resolution 73/151’ (UN General Assembly 2019) UN Doc. a/res/73/151.
See also Worster who observes that “specifically, the unga has on multiple occasions observed that there is a right to nationality”, William Worster, ‘The Presumption of Customary International Law: A Case Study of Child Statelessness’ (2017) 10 <
General Assembly, ‘Resolution 50/152’ (n 317) para 16.
UN General Assembly, ‘Resolution 54/112’ (UN General Assembly 1999) UN Doc. a/res/54/112; UN General Assembly, ‘Resolution 59/34’ (UN General Assembly 2004) UN Doc. a/res/59/34. On the work of the ilc see below Chapter 4, i.1.3.1.3.
The Sustainable Development Goals (sdg) do not explicitly refer to statelessness or the right to nationality. However, considerations relating to statelessness and access to a nationality are raised under sdg Target 5.1 which relates to the elimination of gender discrimination and sdg Target 16.9 which calls for legal identity for all, including birth registration, see UN General Assembly, ‘Transforming Our World: The 2030 Agenda for Sustainable Development, Resolution 70/1’ (UN General Assembly 2015) UN Doc. a/res/70/1.
See below Chapter 4, ii.1.3.1.3.
See eg Human Rights Council, ‘Resolution 12/6 on Human Rights of Migrants: Migration and Human Rights of the Child’ (hrc 2009) UN Doc. a/hrc/res/12/6; Human Rights Council, ‘Resolution 28/13 on Birth Registration and the Right of Everyone to Recognition Everywhere as a Person Before the Law’ (hrc 2015) UN Doc. a/hrc/res/28/13; Human Rights Council, ‘Resolution 34/15 on Birth Registration and the Right of Everyone to Recognition Everywhere as a Person Before the Law’ (hrc 2017) UN Doc. a/hrc/res/34/15. Other resolutions relating to nationality concern the human rights situation for particular minority groups in certain countries, eg Human Rights Council, ‘Resolution S-27/1 on the Situation of Human Rights of Rohingya Muslims and Other Minorities in Myanmar’ (hrc 2017) UN Doc. a/hrc/res/s-27/1 para 17, calling upon the government of Myanmar to address the issue of the statelessness of the Rohingya population by ensuring their equal access to full citizenship.
In particular Human Rights Council, ‘Resolution 7/10 on Human Rights and Arbitrary Deprivation of Nationality’ (hrc 2008) UN Doc. a/hrc/res/7/10; Human Rights Council, ‘Resolution 10/13 on Human Rights and Arbitrary Deprivation of Nationality’ (hrc 2009) UN Doc. a/hrc/res/10/13; Human Rights Council, ‘Resolution 20/4 on the Right to a Nationality: Women and Children’ (hrc 2012) UN Doc. a/hrc/res/20/4; Human Rights Council, ‘Resolution 20/5 on Human Rights and Arbitrary Deprivation of Nationality’ (hrc 2012) UN Doc. a/hrc/res/20/5; Human Rights Council, ‘Resolution 26/14 on Human Rights and Arbitrary Deprivation of Nationality’ (hrc 2014) UN Doc. a/hrc/res/26/14; Human Rights Council, ‘Resolution 32/5 on Human Rights and Arbitrary Deprivation of Nationality’ (hrc 2016) UN Doc. a/hrc/res/32/5. The former Human Rights Commission issued on the topic of human rights and arbitrary deprivation of nationality UN Commission on Human Rights, ‘Resolution 1997/36 on Human Rights and Arbitrary Deprivation of Nationality’ (UN Commission on Human Rights 1997); UN Commission on Human Rights, ‘Resolution 1998/48 on Human Rights and Arbitrary Deprivation of Nationality’ (UN Commission on Human Rights 1998); UN Commission on Human Rights, ‘Resolution 1999/28 on Human Rights and Arbitrary Deprivation of Nationality’ (UN Human Rights Commission 1999) UN Doc. e/cn.4/res/1999/28 U; UN Commission on Human Rights, ‘Resolution 2005/45 on Human Rights and Arbitrary Deprivation of Nationality’ (UN Human Rights Commission 2005) UN Doc. e/cn.4/res/2005/45.
Human Rights Council, ‘Resolution 7/10’ (n 324) para 1.
ibid 2.
See Human Rights Council, ‘Resolution 10/13’ (n 324) para 7.
Human Rights Council, ‘Resolution 13/2 on Human Rights and Arbitrary Deprivation of Nationality’ (hrc 2010) UN Doc. a/hrc/res/13/2 para 8. See also Chapter 5, III.6.2.
Human Rights Council, ‘Resolution 20/4’ (n 324).
ibid 1.
ibid 2.
ibid 4 ff.
UN General Assembly, ‘New York Declaration for Refugees and Migrants, Adopted by General Assembly Resolution 71/1’ (UN General Assembly 2016) UN Doc. a/res/71/1.
UN General Assembly, ‘Global Compact for Safe, Orderly and Regular Migration,General Assembly Resolution 73/195’ (UN General Assembly 2018) UN Doc. a/res/73/195.
Global Compact on Refugees, adopted on 10 December 2018, see unhcr, ‘Official Record of the 73rd Session: Global Compact on Refugees’ (unhcr 2018) UN Doc. A/73/12 (Part ii).
For an analysis of the legal status of the Compacts, see Gammeltoft-Hansen (n 316).
UN General Assembly, ‘New York Declaration’ (n 333) para 72.
See on statelessness in the Global Compacts Tendayi Bloom, ‘Are the Global Compacts on Refugees and for Migration Addressing Statelessness Appropriately?’ (European Network on Statelessness Blog, 7 February 2018) <
UN General Assembly, ‘Global Compact on Migration’ (n 334), Objective 4, para 20.
ibid, Objective 4, para 20, let. e and f.
ibid, Objective 4, para 20.
See also Amal de Chickera, ‘GCM Commentary: Objective 4: Ensure That All Migrants Have Proof of Legal Identity and Adequate Documentation’ (Refugee Law Initiative Blog, 8 November 2018) <
See UN General Assembly, ‘Global Compact on Migration’ (n 334), Objective 4, para 20.
unhcr, ‘Official Record of the 73rd Session’ (n 335) para 83.
ibid.
ibid.
ibid 82.
ibid 60. Critically, especially when compared to the wording of the Zero Draft of the gcm, also de Chickera (n 342).
See also BS Chimni, ‘Global Compact on Refugees: One Step Forward, Two Steps Back’ (2018) 30 International Journal of Refugee Law 630, 631.
See also Bloom, ‘Global Compacts’ (n 338).
This is probably not surprising as the Compacts avoid adopting a clear human rights perspective and instead primarily focus on migration and refugee flow management, see Chimni (n 349); Elspeth Guild, ‘The UN Global Compact for Safe, Orderly and Regular Migration: What Place for Human Rights?’ (2018) 30 International Journal of Refugee Law.
Paul Weis, Nationality and Statelessness in International Law (2nd ed, Sijthoff & Noordhoff 1979) 29.
See above Chapter 4, ii.1.2.2.
Nationality matters are also addressed in the International Law Commission Draft Articles on Diplomatic Protection, 2006, Supplement No. 10, UN Doc. A/61/10 (‘ILC Draft Articles on Diplomatic Protection’) and the International Law Commission Draft Articles on the Expulsion of Aliens, UN Doc. A/69/10 (‘Draft Articles on Expulsion’).
See Analytical Guide to the Work of the International Law Commission on Nationality in relation to the succession of States, Summaries of the Work of the International Law Commission, <
See International Law Commission, ‘Commentary on the Draft Articles on Nationality of Natural Persons in Relation to the Succession of States’ (ilc 1999) Yearbook of the International Law Commission, 1999, Vol. ii, Part Two 23 <
See Mikulka, ‘First Report’ (n 355) para 57 ff.
Even though the Commission recognized the reluctance of states to recognize the right to nationality as a general rule, see Vaclav Mikulka, ‘Second Report on State Succession and Its Impact on the Nationality of Natural and Legal Persons’ (International Law Commission 1996) UN Doc. a/cn.4/474 para 17 <
Mikulka, ‘Second Report’ (n 358) para 19; see also Jeffrey Blackman, ‘State Successions and Statelessness: The Emerging Right to an Effective Nationality Under International Law’ (1998) 19 Michigan Journal of International Law 1141, 1144.
Mikulka, ‘Second Report’ (n 358) para 19.
See also van Waas, Nationality Matters (n 115) 136; Blackman (n 359) 1144.
Ziemele, ‘State Succession’ (n 356) 245. See also Preamble to the International Law Commission, Draft Articles on Nationality of Natural Persons in Relation to the Succession of States, 3 April 1999, Supplement No. 10, UN Doc. A/54/10 (‘ILC Draft Articles on Nationality’), Recitals 3, 4 and 5.
Bronwen Manby, Citizenship in Africa: The Law of Belonging (Hart Publishing 2018) 19.
International Law Commission, ‘Commentary Draft Articles on Nationality’ (n 356) 25, para 1.
ibid, para 1.
Blackman (n 359) 1173.
International Law Commission, ‘Commentary Draft Articles on Nationality’ (n 356) 25, para 1. See also van Waas, Nationality Matters (n 115) 137.
See also van Waas, Nationality Matters (n 115) 137.
Vaclav Mikulka, ‘Third Report on Nationality in the Relation to the Succession of States’ (International Law Commission 1997) UN Doc. a/cn.4/480 38 <
See Matias (n 39) 63.
Mikulka, ‘Second Report’ (n 358) para 21.
International Law Commission, ‘Commentary Draft Articles on Nationality’ (n 356) 25, para 2; Mikulka, ‘Third Report’ (n 369) 36.
International Law Commission, ‘Commentary Draft Articles on Nationality’ (n 356) 25, para 4. See also Blackman (n 359) 1174. See on this idea of nationality reflecting the actual ties Chapter 6, ii.1. See also International Law Commission, ‘Commentary Draft Articles on Nationality’ (n 356) 29, para 4.
International Law Commission, ‘Commentary Draft Articles on Nationality’ (n 356) 27, para 1.
ibid 28, para 3.
ibid 28, para 6.
The Commentary notes that the consideration for the will of individuals in matters of acquisition and loss of nationality in cases of succession of states is an issue of debate among scholars, see ibid 33, para 5.
ibid 34, para 9. The notion of ‘appropriate connection’ in that context is to be understood broader than the term ‘genuine link’ covering different nexi, such as habitual residence, birth in the territory, but also being descendant of a national or former residence, see also ibid, para 10.
International Law Commission, ‘Commentary Draft Articles on Nationality’ (n 356) 34, para 7.
ibid, para 6. See also Ziemele, ‘State Succession’ (n 356) 230.
Blackman argued in 1998 that the Draft Articles illustrate the rapid development of international law in the area of nationality, Blackman (n 359) 1170.
ibid 1191 f.
See Matias (n 39) 63. See also Bialosky (n 4) 154.
See generally Bialosky (n 4).
See Amaya Ubeda de Torres, ‘The Right to Nationality’ in Laurence Burgorgue-Larsen and Amaya Ubeda de Torres (eds), The Inter-American Court of Human Rights: Case Law and Commentary (Oxford University Press 2011) para 22.23. See on the rights of migrants in South America extensively Diego Acosta, The National versus the Foreigner in South America: 200 Years of Migration and Citizenship Law (Cambridge University Press 2018) 19 in particular.
American Declaration on the Rights and Duties of Man, 2 May 1948, oas Res. xxx (‘American Declaration’).
See also Dembour, When Humans Become Migrants (n 43) 56. Even though the achr largely supersedes the American Declaration, the Declaration remains in force and is applied by the iachr and the IACtHR with regard to those states who have not ratified the achr, namely Cuba, the US and Canada.
See Chan (n 52) 5.
van Waas, Nationality Matters (n 115) 60. It is noteworthy that none of the member states of the achr has lodged a reservation against Article 20 achr.
As Chan points out, Article 20(2) fails to protect stateless persons of unknown place of birth as the state bearing the duty to fulfill under Article 20(2) cannot be identified in such a situation, Chan (n 52) 5.
Torres (n 385) para 22.17.
See also ibid 22.05.
Advisory Opinion OC-4/84 (n 1) para 34.
Bialosky (n 4) 166.
Case of the Girls Yean and Bosico v Dominican Republic [2005] IACtHR Series C No. 130 (2005) para 173.
See also Bialosky (n 4) 160; See Matias (n 39) 64.
Dembour, When Humans Become Migrants (n 43) 136.
Stephen Hall, ‘The European Convention on Nationality and the Right to Have Rights’ (1999) 24 European Law Review 586, 602.
de Groot and Vonk (n 74) 237. See already Chan (n 52) n 44.
Bialosky (n 4) 160; Torres (n 385) 570 f. Within the Inter-American system individuals can only lodge a petition with the Commission (Article 44 achr). If the settlement procedure before the Commission fails, it can refer the case to the Court. States can refer cases directly to the Court (Article 61 achr). Moreover, the Court has jurisdiction to deliver advisory opinions (Article 64 achr). The IACmHR has mainly focused on cases concerning arbitrary deprivation of nationality, see Bialosky (n 4) 167.
Advisory Opinion OC-4/84 (n 1). See also Bialosky (n 4) 168. See on the IACtHR’s pro homine approach André de Carvalho Ramos, ‘Immigration and Human Rights: The Impact of the Inter-American Court of Human Rights Precedents (Towards a “Latin American Migration Policy”?)’ (2018) 56 Archiv des Völkerrechts 155, 165; Dembour, When Humans Become Migrants (n 43) 7 f. See also Advisory Opinion on Rights and Guarantees of Children in the Context of Migration and/or in Need of International Protection [2014] IACtHR oc-21/14 para 53 f.
See Matias (n 39) 64. More critical, however, is Dembour who fears that the IACtHR’s affirmation of nationality as a human right is far from uncontroversial and criticizes that “declaring the right to nationality to be ‘generally accepted today’ as a human right is simply unconvincing”, Dembour, When Humans Become Migrants (n 43) 136.
Advisory Opinion OC-4/84 (n 1) para 32.
Yean and Bosico (n 395).
Both girls had a mother of Dominican nationality and a father of Haitian nationality, ibid 109(6) and (7).
This is a widespread practice as the Court notes in its judgment, ibid 109(11).
ibid.
ibid 136.
ibid 140.
ibid 141 and 142.
On the policy to declare persons of Haitian origin as ‘foreigners in transit’ to exclude them from jus soli see in more detail Inter-American Commission of Human Rights, ‘Report on the Situation of Human Rights in the Dominican Republic’ <
Yean and Bosico (n 395) para 156.
ibid 156 and 157.
ibid 166.
ibid 171.
ibid 173.
ibid 174. The Court also found a violation of Article 24 in relation to Article 19 and 1(1), Articles 3 and 18, in relation to Article 19 and 1(1) with regard to the children, and with regard to the mothers a violation of Article 5 in relation to Article 1(1).
Bialosky (n 4) 170.
Girls Yean and Bosico v Dominican Republic, Separate Opinion Judge Cançado Trinidade [2005] IACtHR Series C No. 130 (2005) para 13.
Yean and Bosico (n 395) para 156. See also Dembour, When Humans Become Migrants (n 43) 327.
See also Carvalho Ramos (n 401) 167; Dembour, When Humans Become Migrants (n 43) 327.
See also Jorunn Brandvoll, ‘Deprivation of Nationality’ in Alice Edwards and Laura Van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014) 203. Similarly also the case law of the ECtHR, see below Chapter 4, ii.2.2.1.2
See also Yean and Bosico, Separate Opinion (n 419) para 14.
Case of Expelled Dominicans and Haitians v Dominican Republic [2014] IACtHR Series C No. 282.
ibid 255. The Courts presents this as a citation of para 32 of Advisory Opinion OC-4/84, even though the wording of that passage is slightly different.
ibid 258.
ibid 259.
ibid 261.
Baruch Ivcher Bronstein v Peru [2001] IACtHR Series C No. 74.
ibid 3. See also Bialosky (n 4) 168 f.
Dembour, When Humans Become Migrants (n 43) 148.
Torres (n 385) para 22.16.
Ivcher Bronstein (n 429) para 90.
ibid 95 and 96.
ibid 97. The Court, however, primarily reasoned the violation of Article 20(3) achr and did not motivate further why it concluded that Paragraph 1 was also violated.
The Court, however, did not assess if it was relevant for the case whether Bronstein was rendered stateless and whether deprivation of nationality as retaliation for political activities is as such arbitrary, see also Bialosky (n 4) 169.
Interesting is also the case of Gelman v Uruguay which concerned an enforced disappearance of a pregnant woman. The IACtHR found that the abduction and transfer of the mother to another state inter alia violated the child’s right to nationality because it prevented the birth of the child in the mother’s country of origin and, thereby — as it is a jus soli country — the acquisition of the nationality of that country. This arbitrary obstruction of the acquisition of nationality amounted to an arbitrary deprivation of nationality as guaranteed by Article 20(3) achr, Gelman v Uruguay [2011] IACtHR Series C No. 221 para 128. See also Bialosky (n 4) 174 f.
In the case of Castillo Petruzzi et al v Peru, for example, the Court denied a violation of Article 20 achr considering that the right was never questioned or impugned, see Castillo Petruzzi et al v Peru [1999] IACtHR Series C No. 52.
Bialosky (n 4) 161. See also Torres (n 385) 578 f.
The achr is not ratified by the US, Canada, Guyana, Cuba and a few smaller Carribean states.
Instruments within the framework of the Commonwealth of Independent States, namely Article 24 of the cis Convention on Human Rights and Fundamental Freedoms, are not discussed due to their limited impact. See de Groot and Vonk (n 74) 261.
European Convention on Nationality, 6 November 1997, ets No. 166 (‘ecn’).
Council of Europe, ‘Explanatory Report to the European Convention on Nationality’ (Council of Europe 1997) paras 4 and 11. See also Adjami and Harrington (n 37) 99; Gerard-René de Groot, ‘The European Convention on Nationality: A Step towards a Ius Commune in the Field of Nationality Law’ (2000) 7 Maastricht Journal of European and Comparative Law 117, 199; Brigitte Knocke, Das europäische Übereinkommen über die Staatsangehörigkeit als Schranke für die Regelung des nationalen Staatsangehörigkeitsrechts: Stand der Vereinbarkeit des Staatsangehörigkeitsrechts der Schweiz, der Bundesrepublik Deutschland, des Vereinigten Königreichs und Frankreichs mit den Vorgaben des Übereinkommens (gca-Verlag 2005) 56 f; Vlieks, Hirsch Ballin and Recalde-Vela (n 41) 163.
Ramadan v Malta [2016] ECtHR Application No. 76136/12 para 41.
The ecn is currently ratified by 21 states. The number of ratifications has increased in the last few years. While the ecn would be open for signature by non-member states it has not been ratified by any so far, see <
Overall, there are 10 reservations and 17 declarations limiting the scope of the ecn. Reservations must be compatible with the object and purpose of the Convention and may not concern the provisions contained in Chapters i, ii and vi of the Convention, ie also not Article 4 (Article 29(1) ecn). Critical with regard to the lawfulness of the reservations deposited de Groot, ‘The European Convention on Nationality’ (n 443) 121; Lisa Pilgram, ‘International Law and European Nationality Laws’ [2011] eudo Citizenship Observatory 11 <
See eg Riener v Bulgaria [2006] ECtHR Application No. 46343/99 para 89; Tănase v Moldova [2010] ECtHR Application No. 7/08 para 47; Kurić and Others v Slovenia (Chamber) [2010] ECtHR Application No. 26828/06 para 260; Fehér and Dolnik v Slovakia [2013] ECtHR Application No. 14927/12 para 36; Petropavlovskis v Latvia [2015] ECtHR Application No. 44230/06 para 39 ff and 80; Ramadan v Malta (n 444) para 41; Biao v Denmark (Grand Chamber) [2016] ECtHR Application No. 38590/10 para 47 f.
de Groot and Vonk (n 74) 262 referring to the AU Draft Protocol, see below Chapter 4, ii.2.3.1.3.
Hall (n 398) 600.
Kay Hailbronner, ‘Rights and Duties of Dual Nationals: Changing Concepts and Attitudes’ in David A Martin and Kay Hailbronner (eds), Rights and Duties of Dual Nationals: Evolution and Prospects (Kluwer Law International 2003) 21; Hall (n 398) 586; Pilgram (n 446) 6.
Knocke (n 443) 40.
Hans Christian Krüger, ‘Opening Speech’ in Council of Europe (ed), Trends and Developments in National and International Law on Nationality, Proceedings of the 1st European Conference on Nationality (Council of Europe 1999) 10.
See Council of Europe, ‘Explanatory Report ECN’ (n 443) para 20. Critical Michael Autem, ‘The European Convention on Nationality: Is a European Code of Nationality Possible?’ in Council of Europe (ed), Trends and Developments in National and International Law on Nationality, Proceedings of the 1st European Conference on Nationality (Council of Europe 1999) 29.
van Waas, Nationality Matters (n 115) 61.
Preamble to the ecn, Recital 4. See also van Waas, Nationality Matters (n 115) 61; Autem (n 453) 23 ff; Knocke (n 443) 62 ff.
Horst Schade, ‘The Draft European Convention on Nationality’ (1995) 49 Austrian Journal of Public and International Law 99, 100.
See Council of Europe, ‘Explanatory Report ECN’ (n 443) para 30 ff.
European Court of Human Rights, ‘Dissenting Opinion of Judge Pinto de Albuquerque in Ramadan v Malta’ (European Court of Human Rights 2016) Application No. 76136/12 para 7.
Council of Europe, ‘Explanatory Report ECN’ (n 443) para 32.
Autem (n 453) 24. See also Adjami and Harrington (n 37) 100.
Batchelor, ‘Resolving Nationality Status’ (n 281) 164.
Kristin Henrard, ‘The Shifting Parameters of Nationality’ (2018) 65 Netherlands International Law Review 289.
See also Hall (n 398) 595.
See also Carol A Batchelor, ‘Developments in International Law: The Avoidance of Statelessness Through Positive Application of the Right to a Nationality’ in Council of Europe (ed), Trends and Developments in National and International Law on Nationality, Proceedings of the 1st European Conference on Nationality (Council of Europe 1999) 56 f. Ten years is the common standard in Europe where most states require between five and ten years of residence, see Council of Europe, ‘Explanatory Report ECN’ (n 443) para 51. See also Global Citizenship Observatory (globalcit), ‘Global Database on Modes of Acquisition of Citizenship, Version 1.0’ (globalcit 2017) <
The Convention remains silent on these other conditions due to the complexity of possible combinations, see Autem (n 453) 28; Knocke (n 443) 289.
See Pilgram (n 446) 7.
Autem (n 453) 32. See also Batchelor, ‘Developments in International Law’ (n 464) 56; Knocke (n 443) 289; van Waas, Nationality Matters (n 115) 367.
Batchelor, ‘Developments in International Law’ (n 464) 56.
Spiro, ‘Citizenship’ (n 56) 288.
See also Knocke (n 443) 291.
Council of Europe, ‘Explanatory Report ECN’ (n 443) para 52. The ecn itself does, however, not define the notion of ‘facilitated naturalization’.
Legitimate grounds for withdrawal of nationality are, amongst others, the voluntary acquisition of another nationality, fraudulent acquisition, violation of vital state interests, the lack of a genuine link due to habitual residence abroad, see Article 7(1) ecn. See also ibid 58.
de Groot, ‘The European Convention on Nationality’ (n 443) 126.
See Autem (n 453) 26; Knocke (n 443) 453. See also van Waas, Nationality Matters (n 115) 117. See in more detail Chapter 5, iii.7.
Articles 10, 11, 12 ecn.
Article 13 ecn.
See, however, the Draft Protocol on Nationality of the AU, Chapter 4, ii.2.3.2.
Article 15 ecn. See also de Groot and Vonk (n 74) 262.
Knocke (n 443) 551. See also Pilgram (n 446) 6.
Eva Ersbøll, ‘The Right to a Nationality and the European Convention on Human Rights’ in Stéphanie Lagoutte, Hans-Otto Sano and Scharff Smith (eds), Human Rights in Turmoil: Facing Threats, Consolidating Achievements (Martinus Nijhoff 2007) 253. See also Hall (n 398) 601.
See Autem (n 453) 33.
See Hall (n 398) 601.
ibid 600.
See also Pilgram (n 446) 7.
Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, ets No. 5 (‘European Convention on Human Rights’, ‘echr’).
See eg X v Austria (Decision) [1972] ECtHR Application No. 5212/71; Kafkasli v Turkey [1997] ECtHR Application No. 21106/92 para 33; Karassev v Finland (Decision) [1999] ECtHR Application No. 31414/96; Slivenko v Latvia [2003] ECtHR Application No. 48321/99 para 77; Savoia and Bounegru v Italy [2006] ECtHR Application No. 8407/05. See also Ersbøll, ‘The Right to a Nationality’ (n 480) 249; William Schabas, The European Convention on Human Rights: A Commentary (Oxford University Press 2015) 378.
Even though according to Recital 5 of the preamble of the echr the udhr served as a model for the new European Convention. During the negotiations for Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, 16 September 1963, ets No. 046 (‘Protocol No. 4’) there were discussions whether Article 3 on the prohibition of expulsion of nationals should include a prohibition of deprivation of nationality for the purpose of expulsion. However, the experts in the drafting committee decided against it, arguing that the question of deprivation of nationality was too delicate and that such a right was difficult to implement in practice, see Council of Europe, Explanatory Report to Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto, Strasbourg 1963, para 23.
Ersbøll, ‘The Right to a Nationality’ (n 480) 252.
ibid; Andreas Zimmermann and Sarina Landefeld, ‘Europäische Menschenrechtskonvention und Staatsangehörigkeitsrecht der Konventionsstaaten’ [2014] Zeitschrift für Ausländerrecht und Ausländerpolitik 97, 98.
See Knocke (n 443) 538.
Council of Europe, ‘Explanatory Report ECN’ (n 443) para 16.
Karassev v Finland (n 486); Slivenko v Latvia (n 486); Ahmadov v Azerbaijan [2020] ECtHR Application No. 32538/10.
Ramadan v Malta (n 444); K2 v The United Kingdom (Decision) [2017] ECtHR Application No. 42387/13; Said Abdul Salam Mubarak v Denmark (Decision) [2019] ECtHR Application No. 74411/16.
Smirnova v Russia [2003] ECtHR Application No. 46133/99, 48183/99; M v Switzerland [2011] ECtHR Application No. 41199/06; Alpeyeva and Dzhalagoniya v Russia [2018] ECtHR Application Nos. 7549/09 and 33330/11.
Slivenko v Latvia (n 486); Kurić and Others v Slovenia (Grand Chamber) [2012] ECtHR Application No. 26828/06.
Sisojeva and others v Latvia (Chamber) [2005] ECtHR Application No. 60654/00; Kurić and Others v Slovenia (gc) (n 495); Hoti v Croatia [2018] ECtHR Application No. 63311/14; Sudita Keita v Hungary [2020] ECtHR Application No. 42321/15.
See also Fripp (n 45) 276.
Eg the Supreme Court of the United Kingdom in R (on the application of Johnson) (Appellant) v Secretary of State for the Home Department (Respondent) [2016] UK Supreme Court [2016] uksc 56; the Council of State of the Netherlands (Raad van State), Judgment of 2 November 2016, ecli:nl:rvs:2016:2912 [2016]; the Swiss Federal Administrative Court in F-7013/2017, Urteil vom 6. Februar 2020 [2020].
It did, however, not find a violation, see Kafkasli v Turkey (n 486) para 33.
Karassev v Finland (n 486).
See eg Savoia and Bounegru v Italy (n 486); Petropavlovskis v Latvia (n 447) para 83 ff. However, it so far never found specific naturalization criteria to violate Article 8 echr.
Riener v Bulgaria (n 447) para 154.
European Court of Human Rights, ‘Dissenting Opinion Judge Maruste in Riener v Bulgaria’ (2006) Application No. 46343/99.
Genovese v Malta [2011] ECtHR Application No. 53124/09.
ibid 48. The Court did not consider it necessary to examine whether there has also been a discrimination on the basis of the parent’s sex, ibid 50.
Genovese v Malta (n 504) para 33.
ibid.
ibid 49.
See also Gerard-René de Groot and Olivier Vonk, ‘Nationality, Statelessness and ECHR’s Article 8: Comments on Genovese v Malta’ (2012) 14 European Journal of Migration and Law 317, 317; Zimmermann and Landefeld (n 489) 99.
Ramadan v Malta (n 444).
ibid 85.
ibid 86. The outcome of the ruling has, however, been criticized. See Marie-Bénédicte Dembour, ‘Ramadan v Malta: When Will the Strasbourg Court Understand That Nationality Is a Core Human Rights Issue?’ (Strasbourg Observers, 22 July 2016) <
Ramadan v Malta (n 444) para 92.
Fehér and Dolnik v Slovakia (n 447) para 36.
Usmanov v Russia [2020] ECtHR Application No. 43936/18.
ibid 43.
ibid 53.
ibid 54.
ibid 59 ff.
ibid 71.
See on the reception of this practice in the Member States eg Swiss Federal Administrative Court, F-7013/2017, (n 498); Swiss Federal Court, 1C_457/2021, Urteil vom 25. März 2022 [2022]; Council of State of the Netherlands (Raad van State), Judgment of 30 December 2020, ecli:nl:rvs:2020:3045 [2022]; Supreme Court of the United Kingdom, R (on the application of Begum) (Appellant) v Special Immigration Appeals Commission (Respondent), R (on the application of Begum) (Respondent) v Secretary of State for the Home Department (Appellant), Begum (Respondent) v Secretary of State for the Home Departement (Appellant), [2021] UK Supreme Court [2021] uksc 7 para 64. See also Louise Reyntjens, ‘Citizenship Deprivation under the European Convention-System: A Case Study of Belgium’ (2019) 1 Statelessness and Citizenship Review 263.
In all cases that concerned individuals suspected or convicted of terrorism in Western European states the Court has so far found the complaints to be inadmissible or not violating the Convention, K2 v UK (n 493); AS v France [2020] Application No. 46240/15; Said Abdul Salam Mubarak v Denmark (n 493); Ghoumid and others v France [2020] ECtHR Application Nos. 52273/16, 52285/16, 52290/16, 52294/16 and 52303/16; Adam Johansen v Denmark [2022] ECtHR Application No. 27801/19. By contrast, violations have been found where the annulment of naturalization or identity documents or the refusal to issue identity documents was concerned, Usmanov v Russia (n 515); Alpeyeva v Russia (n 494); Ahmadov v Azerbaijan (n 492). Still pending El Aroud v Belgium [pending] ECtHR Application No. 25491/18; Soughir v Belgium [pending] ECtHR Application No. 27629/18.
Ghoumid v France (n 522) para 50. See also Johansen v Denmark (n 522) para 70.
See the criticism by Judge Paul Lemmens and Judge Georges Ravarani in a Joint Concurring Opinion to the judgment in Usmanov v Russia, European Court of Human Rights, ‘Joint Concurring Opinion Judges Lemmens and Ravarani in Usmanov v Russia’ (2020) Application No. 43936/18.
Dembour, When Humans Become Migrants (n 43) 145 f. See also Dembour, ‘Ramadan v Malta’ (n 512).
European Court of Human Rights, ‘Dissenting Opinion Ramadan v Malta’ (n 458) para 1.
ibid.
See eg also Mennesson v France [2014] ECtHR Application No. 65192/11 para 97. See further Barbara von Rütte, ‘Social Identity and the Right to Belong — The ECtHR’s Judgment in Hoti v Croatia’ (2019) 24 Tilburg Law Review 147.
Convention on the Reduction of Cases of Multiple Nationality and on Military Obligations in Cases of Multiple Nationality, 6 May 1963, ETS No. 43 (‘Convention on the Reduction of Multiple Nationality’, ‘1963 Convention’).
Council of Europe, ‘Explanatory Report ECN’ (n 443) para 6.
Article 1(1).
Article 2.
Council of Europe, ‘Explanatory Report to the Second Protocol Amending the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality’ (Council of Europe 1993) 1.
The provisions only apply to situations where the nationalities of two or more contracting states are at stake.
de Groot and Vonk (n 74) 220.
Moreover, the Protocol was only ratified by three states, one of which denounced its membership later on, see the list of signatures and ratifications, <
The Convention has so far only been ratified by seven states, see the list of signatures and ratifications, <
Preamble to the Convention on the Avoidance of Statelessness, Recital 3. See also Council of Europe, ‘Explanatory Report to the Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession’ (Council of Europe 2006) para 4; Roland Schärer, ‘The Council of Europe and the Reduction of Statelessness’ (2006) 25 Refugee Survey Quarterly 33.
See also de Groot and Vonk (n 74) 333.
Schärer (n 538) 34.
Article 5. Other appropriate connections include nationality of a predecessor state, birth on the territory or last habitual residence.
Council of Europe, ‘Explanatory Report Convention on the Avoidance of Statelessness’ (n 538) para 20.
Article 6.
See for a more thorough discussion Schärer (n 538) 35 f.
See on the ilc Draft Articles on Nationality (n 362) Chapter 4, ii.1.3.2.
Parliamentary Assembly of the Council of Europe, ‘Recommendation 87 (1955) on Statelessness’, 25 October 1955; Parliamentary Assembly of the Council of Europe, ‘Recommendation 194 (1959) on the Nationality of Children of Stateless Persons’, 23 April 1959; Parliamentary Assembly of the Council of Europe, ‘Recommendation 519 (1968) on the Nationality of Married Women’, 2 February 1968; Parliamentary Assembly of the Council of Europe, ‘Recommendation 696 (1973) on Certain Aspects of the Acquisition of Nationality’ (pace 1973); Parliamentary Assembly of the Council of Europe, ‘Recommendation 1654 (2004) on Nationality Rights and Equal Opportunities’, 2 March 2004.
pace, ‘Recommendation 696 (1973)’ (n 546).
Parliamentary Assembly of the Council of Europe, ‘Recommendation 1081 (1988) on Problems of Nationality of Mixed Marriages’, 30 June 1988, para 3.
Parliamentary Assembly of the Council of Europe, ‘Recommendation 564 (1969) on the Acquisition by Refugees of the Nationality of their Country of Residence’, 30 September 1969. The Recommendation was adopted by the Committee of Ministers and transmitted to governments, Committee of Ministers, Resolution (70) 2, Acquisition by Refugees of the Nationality of their Country of Residence, 26 January 1970. See subsequently also Parliamentary Assembly of the Council of Europe, ‘Recommendation 984 (1984) on the Acquisition by Refugees of the Nationality of the Receiving Country’, 11 May 1984, and Committee of Ministers, Recommendation No. R (84) 21 on the Acquisition by Refugees of the Nationality of the Host Country, 14 November 1984.
pace, ‘Recommendation 564 (1969)’ (n 549) para 9(i).
Ibid., para 9(iii).
See also pace Recommendation 841 (1978), which calls upon states to facilitate the acquisition of nationality of second-generation migrants born or schooled in the country Parliamentary Assembly of the Council of Europe, ‘Recommendation 841 (1978) on Second Generation Migrants’, 30 September 1978. Adopted by the Committee of Ministers in Recommendation No. R (84) 9 on Second-Generation Migrants, 20 March 1984.
Parliamentary Assembly of the Council of Europe, ‘Resolution 1989 (2014) on Access to Nationality and the Effective Implementation of the European Convention on Nationality’, 9 April 2014. See also Parliamentary Assembly of the Council of Europe, ‘Recommendation 2042 (2014) on Access to Nationality and the Effective Implementation of the European Convention on Nationality’, 9 April 2014, calling upon the Committee of Ministers to promote accession to the ecn.
pace, ‘Resolution 1989 (2014)’ (n 553) para 1.
Ibid., para 5.2. The eradication of childhood statelessness is also the subject of Resolution 2099 (2016) which calls upon states to ensure that children born on the territory who would otherwise be stateless are granted nationality and that stateless persons have the possibility of facilitated naturalization, see Parliamentary Assembly of the Council of Europe, ‘Resolution 2099 (2016) on the Need to Eradicate Statelessness of Children’ (pace 2016) para 12.2.2. and 12.2.3.
Ibid., para 8.2. See on access to nationality for long-term residents also Parliamentary Assembly of the Council of Europe, ‘Resolution 2083 (2015) on Chinese Migration to Europe: Challenges and Opportunities’, 27 November 2015, para 6.4.
Parliamentary Assembly of the Council of Europe, ‘Resolution 1617 (2008) and Recommendation 1839 (2008) on The State of Democracy in Europe, Specific Challenges Facing European Democracies: The Case of Diversity and Migration’, 25 June 2008.
Parliamentary Assembly of the Council of Europe, ‘Resolution 2006 (2014) on Integration of Migrants in Europe: The Need for a Proactive, Long-Term and Global Policy’, 25 June 2014.
Parliamentary Assembly of the Council of Europe, ‘Resolution 2043 (2015) on Democratic Participation for Migrant Diasporas’, 6 March 2015.
Parliamentary Assembly of the Council of Europe, ‘Resolution 2263 (2019) on Withdrawing Nationality as a Measure to Combat Terrorism: A Human Rights-Compatible Approach?’ (pace 2019). The Resolution is complemented by Recommendation 2145 (2019) which recommends the Committee of Ministers to prepare a study on national legislation allowing for the deprivation of nationality and to set up draft guidelines on the criteria for the deprivation of nationality and other counter-terrorism measures, see Parliamentary Assembly of the Council of Europe, ‘Recommendation 2145 (2019) Withdrawing Nationality as a Measure to Combat Terrorism: A Human Rights-Compatible Approach?’, 25 January 2019. Furthermore, the Resolution is accompanied by a report on the same subject drafted by Tineke Strik, see Parliamentary Assembly of the Council of Europe, ‘Withdrawing Nationality as a Measure to Combat Terrorism: A Human Rights-Compatible Approach?’ (pace 2019) Report Doc. 14790 (2019). See moreover already pace, Resolution 2091 (2016) on Foreign Fighters in Syria and Iraq, 27 January 2016, para 19.
pace, ‘Resolution 2263 (2019)’ (n 560), para 5.
Ibid., para 9.
Ibid., para 7.
Council of Europe, Committee of Ministers, ‘Resolution (77) 12 on the Nationality of Spouses of Different Nationalities’ (Committee of Ministers 1977); Committee of Ministers, ‘Resolution (77) 13 on the Nationality of Children Born in Wedlock’ (Committee of Ministers 1977).
Council of Europe, Committee of Ministers, ‘Resolution (70) 2’ (n 549); Committee of Ministers, ‘Recommendation No. R (84) 9’ (n 552); Committee of Ministers, ‘Recommendation No. R (84) 21’ (n 549).
Council of Europe, Committee of Ministers, ‘Recommendation No. R (99) 18 on the Avoidance and the Reduction of Statelessness’ (Committee of Ministers 1999).
Council of Europe, Committee of Ministers, ‘Recommendation No. R (83) 1 on Stateless Nomads and Nomads of Undetermined Nationality’, 22 February 1983.
Ibid., preamble.
Ibid., para 2. See also Article 8 of the AU Draft Protocol on Nationality, below Chapter 4, ii.2.3.2.
Council of Europe, Committee of Ministers, ‘Recommendation No. R (99) 18’ (n 566).
Ibid., para 1.4, i., b., c. and d.
Ibid., para 1.4, ii., c.
Council of Europe, Committee of Ministers, ‘Recommendation cm/Rec(2009)13 of the Committee of Ministers of the Council of Europe on the Nationality of Children’ (Committee of Ministers 2009) cm/Rec(2009)13. See on the Recommendation also de Groot, ‘Children’s Right to Nationality’ (n 108) 156 ff.
Council of Europe, Committee of Ministers, ‘Recommendation (2009)13’ (n 573) para 3.
Ibid., Appendix, para 1 and 2.
Ibid., Appendix, para 5.
Ibid., Appendix, para 17.
Ibid.
See for an overview on the work of osce on statelessness and nationality unhcr and osce, ‘Handbook on Statelessness in the OSCE Area: International Standards and Good Practices’ (unhcr 2017) <
Organization for Security and Co-operation in Europe, ‘Helsinki Summit’ (osce 1992) <
Organization for Security and Co-operation in Europe, ‘Charter for European Security’ (osce 1999) <
Organization for Security and Co-operation in Europe, ‘The Ljubljana Guidelines on Integration of Diverse Societies’ (osce 2012) <
Organization for Security and Co-operation in Europe, ‘Ljubljana Guidelines’ (n 582) para 34.
ibid 35.
ibid.
ibid 36. This point was already raised in the Bolzano/Bozen Recommendations on National Minorities in Inter-State Relations of 2008, which call upon states to ensure that the conferral of citizenship respects the principles of friendly, including good neighbourly, relations and territorial sovereignty, and to refrain from conferring citizenship en masse. See Organization for Security and Co-operation in Europe, ‘The Bolzano/Bozen Recommendations on National Minorities in Inter-State Relations’ (osce 2008) 7 <
Organization for Security and Co-operation in Europe, ‘Ljubljana Guidelines’ (n 582) para 37.
It is telling that the EU Charter of Fundamental Rights does not address citizenship, see Charter of Fundamental Rights of the European Union, 26 October 2012, oj c 326/391 (‘eucfr’).
See on EU Citizenship and its relationship to national citizenship eg Rainer Bauböck, ‘Why European Citizenship? Normative Approaches to Supranational Union’ (2007) 8 Theoretical Inquiries in Law 453; Rainer Bauböck, ‘The Three Levels of Citizenship within the European Union’ (2014) Vol. 15 German Law Journal 751; Samantha Besson and André Utzinger, ‘Toward European Citizenship’ (2008) 39 Journal of Social Philosophy 185; Martijn van den Brink, ‘A Qualified Defence of the Primacy of Nationality over EU Citizenship’ (2020) 69 International and Comparative Law Quarterly 177; Elspeth Guild, The Legal Elements of European Identity: EU Citizenship and Migration Law (Kluwer Law International 2004); Elspeth Guild (ed), The Reconceptualization of European Union Citizenship (Martinus Nijhoff 2014); Dimitry Kochenov, EU Citizenship and Federalism: The Role of Rights (2017); Dora Kostakopoulou, The Future Governance of Citizenship (Cambridge University Press 2008); Kristine Kruma, EU Citizenship, Nationality and Migrant Status: An Ongoing Challenge (Martinus Nijhoff 2014); Willem Maas, ‘European Governance of Citizenship and Nationality’ (2016) 12 Journal of Contemporary European Research 532; Daniel Thym, ‘Towards “Real” Citizenship? The Judicial Construction of Union Citizenship and Its Limits’ in Maurice Adams and others (eds), Judging Europe’s Judges. The Legitimacy of the Case Law of the European Court of Justice Examined (Hart Publishing 2013). See for an interesting discussion on the state of EU citizenship also, Jo Shaw, ‘Citizenship: Contrasting Dynamics at the Interface of Integration and Constitutionalism’ (European University Institute 2020) Working Paper <
Rudy Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] cjeu c-184/99 para 31. Further landmark cases on EU citizenship are Micheletti and Others v Delegación del Gobierno en Cantabria [1992] cjeu c-369/90; The Queen v Secretary of State for the Home Department, ex parte: Manjit Kaur [2001] cjeu c-192/99; Kunqian Catherine Zhu and Man Lavette Chen v Secretary of State for the Home Department [2004] cjeu c-200/02; Janko Rottman v Freistaat Bayern [2010] cjeu c-135/08; Toufik Lounes v Secretary of State for the Home Department [2017] cjeu c-165/16; Tjebbes and Others v Minister van Buitenlandse Zaken [2019] cjeu c-221/17; JY v Wiener Landesregierung [2021] cjeu c-118/20.
Treaty on the Functioning of the European Union, 26 October 2012, oj c 326/47, ‘tfeu’.
Opinion of Advocate General Maduro in Case C-135/08 (Rottman) [2009] cjeu c-135/08 para 15.
A decoupling of EU citizenship from national citizenship is currently being discussed in the context of Brexit and the loss of EU citizenship by UK nationals, see Oliver Garner, ‘The Existential Crisis of Citizenship of the European Union: The Argument for an Autonomous Status’ (2018) 20 Cambridge Yearbook of European Legal Studies 116; Liav Orgad and Jules Lepoutre, ‘Should EU Citizenship Be Disentangled from Member State Nationality?’ (European University Institute 2019) Working Paper eui rscas 2019/24 <
Declaration No. 2 on the Nationality of Member States attached to the Maastricht Treaty, 29 July 1992, oj c 191/98.
AG Opinion Rottman (n 592) para 17; JY v Wiener Landesregierung (n 590) para 54. See also Kruma (n 589) 133. EU member states’ competence in citizenship matters is well illustrated by the controversy around the investment citizenship regimes in Bulgaria, Cyprus and Malta under which foreign investors can acquire national citizenship upon a certain investment while regular naturalization requirements are waived or softened. With national citizenship the investor automatically acquires EU citizenship. This practice ultimately results in EU citizenship being for sale for foreign investors. The EU Commission has reacted critically, arguing that these schemes undermine the very concept of EU citizenship and raising specific concerns relating to security, money laundering, tax evasion and transparency, see European Commission, ‘Report from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on Investor Citizenship and Residence Schemes in the European Union’ (European Commission 2019) com(2019) 12 final <
See Rottman (n 590) para 53. See on the limitations on EU member states’ sovereignty in nationality matters derived from the ecn also Hall (n 398) 598.
Tjebbes (n 590). See also Caia Vlieks, ‘Tjebbes and Others v Minister van Buitenlandse Zaken: A Next Step in European Union Case Law on Nationality Matters?’ (2019) 24 Tilburg Law Review 142.
Tjebbes (n 590) para 35.
ibid 39.
ibid 40.
ibid 41.
Vlieks (n 597) 146.
See also Chapter 5, iii.7.
JY v Wiener Landesregierung (n 590).
ibid 14 f.
ibid 73.
Treaty on European Union, consolidated version, 26 October 2012, oj c 326/13.
de Groot and Vonk (n 74) 353 f.
Bronwen Manby, ‘Citizenship Law in Africa: A Comparative Study’ (Open Society Foundations 2010) 10. See generally on citizenship on the African continent also Manby, Citizenship in Africa (n 363).
African Union, Draft Protocol to the African Charter on Human and Peoples’ Rights on the Specific Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa, Draft May 2017 (‘Draft Protocol on Nationality’ or ‘AU Draft Protocol’), Preamble Recital 12. See also African Union, ‘Explanatory Memorandum to the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Specific Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa’ (AU 2017) para 7 <
The section will not discuss the sub-regional level, namely the initiatives within the Economic Community of West African States (ecowas) and the Abidjan Declaration and the Banjul Plan of Action, which both address statelessness. See also ecowas, ‘Nationality and Statelessness in West Africa — Background Note’ (ecowas 2017) 5 <
The ACmHPR and the ACtHPR form the institutional framework for individual complaints under the ACtHPR. While the ACmHPR can only make recommendations, the Court has the competence to adopt binding judgments. Before the Court not only the rights enshrined in the African Charter on Human and Peoples’ Rights can be invoked, but all human rights treaties ratified by a state party. See Walter Kälin and Jörg Künzli, The Law of International Human Rights Protection (2n ed, Oxford University Press 2019) 207.
African Charter on Human and Peoples’ Rights, 26 June 1981, 1520 unts 217 (‘African Charter’, ‘achpr’).
Fatsah Ouguergouz, ‘African Charter on Human and Peoples’ Rights (1981)’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press 2010) para 2 <
Article 12 achpr enshrines different rights relating to migration, namely the right to leave any country and to return, the right to seek asylum and limitations upon expulsion measures as well as a prohibition of mass expulsions, but does not explicitly refer to nationality. See also Darren Ekema Ewumbue Monono, ‘People’s Right to a Nationality and the Eradication of Statelessness in Africa’ (2021) 3 Statelessness and Citizenship Review 33; Manby, ‘Citizenship Law in Africa’ (n 609) 10.
Article 6 of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa of 7 November 2003 calls upon states to guarantee women the right to retain their nationality or to acquire the nationality of their husbands (let. g). Let. h grants women equal rights to transmit their nationality to their children, “except where this is contrary to a provision in national legislation or is contrary to national security interests”. Hence, the Protocol effectively fails to grant women equal rights in nationality matters, especially regading the transmission of nationality to their children, see Manby, Citizenship in Africa (n 363) 21.
African Commission on Human and Peoples’ Rights, Resolution No. 234 on the right to nationality, Banjul, 23 April 2013, oau Doc achpr/Res. 234 (liii) 13 (‘Resolution No. 234’). See also Horace S Adjolohoun, ‘African Commission on Human and Peoples’ Rights Resolution 234 on the Right to Nationality’ (2014) 53 International Legal Materials 413.
Resolution No. 234 (n 617), Recital 10.
Ibid., Recital 11 ff.
Ibid., Recital 13.
Adjolohoun (n 617) 414.
Resolution No. 234 (n 617), Recital 17.
African Commission on Human and Peoples’ Rights, ‘Special Rapporteur on Refugees, Asylum Seekers, Migrants and Internally Displaced Persons, Study on the Right to Nationality in Africa’ (2015) 50 ff <
Bialosky (n 4) 163.
African Commission on Human and Peoples’ Rights, ‘Study on the Right to Nationality in Africa’ (n 623) 6.
John K Modise v Botswana [2000] ACmHPR Communication No. 97/93.
Bialosky (n 4) 185.
Modise v Botswana (n 626) para 1.
ibid 5. In fact, he was only refused recognition as a citizen after he founded an opposition political party in 1978, see for more details Manby, Citizenship in Africa (n 363) 121.
Modise v Botswana (n 626) para 9.
Articles 3(2) and 5 achpr, see ibid 89.
ibid 91 ff.
Bialosky (n 4) 186. See also Good v Botswana where the Commission found a violation inter alia of Article 12.4 of the achpr and recalled the obligations derived from international law limiting state sovereignty in nationality matters, Kenneth Good v Republic of Botswana [2010] ACmHPR Communication No. 313/05, 26 May 2010.
Malawi Africa Association and others v Mauritania [2000] ACmHPR Communications No. 54/91, 61/91, 96/93, 98/93, 164/97, 196/97, 210/98, 11 May 2000.
Amnesty International v Zambia, Communication No. 212/98, 5 May 1999.
Malawi Africa Association v Mauritania (n 634) para 13.
ibid 126.
ibid 145.
AI v Zambia (n 635) para 44.
ibid 52.
ibid 58.
Legal Resources Foundation v Zambia [2001] ACmHPR Communication No. 211/98, 7 May 2001 para 3.
ibid 71.
The Commission confirmed this approach in the case of Mouvement ivoirien des droits humains (MIDH) v Côte d’Ivoire [2008] ACmHPR Communication No. 246/02, 29 July 2008.
The Nubian Community in Kenya v The Republic of Kenya [2015] ACmHPR Communication No. 317/06, 28 February 2015.
ibid 5 f.
Yean and Bosico (n 395).
The Nubian Community v Kenya (n 645) para 140.
ibid 145.
ibid 146.
ibid 151.
ibid 167 f.
Open Society Justice Initiative v Côte d’Ivoire [2015] ACmHPR Communication No. 318/06, 28 February 2015.
See ibid 4.
ibid 91.
ibid 95 ff.
See for a discussion of the concept of nationality and citizenship in Africa in detail among many Mamdani (n 610); Said Adejumobi, ‘Citizenship, Rights, and the Problem of Conflicts and Civil Wars in Africa’ (2001) 23 Human Rights Quarterly 148; Samantha Balaton-Chrimes, Ethnicity, Democracy and Citizenship in Africa: Political Marginalisation of Kenya’s Nubians (Routledge 2016); Bronwen Manby, Citizenship and Statelessness in Africa: The Law and Politics of Belonging (Wolf Legal Publishers 2015); Manby, Citizenship in Africa (n 363).
OSI v Côte d’Ivoire (n 653) para 97.
ibid.
ibid 109.
ibid 138.
The case of Youssef Ababou v Morocco in which the applicant also raised complaints relating to nationality issues, including the failure to be issues identity documents, was struck out for lack of jurisdiction as Morocco is not a member state to African Union and has not signed or ratified the ACtHPR Protocol, Youssef Ababou v Kingdom of Morocco [2011] ACtHPR Application No. 007/2011 para 11 ff.
Anudo v Tanzania (n 71). See in more detail Bronwen Manby, ‘Anudo Ochieng Anudo v Tanzania (African Court on Human and Peoples’ Rights, App No 012/2015, 22 March 2018)’ (2019) 1 The Statelessness and Citizenship Review 170.
Anudo v Tanzania (n 71) para 4.
ibid 74.
ibid 77.
ibid 76.
ibid 78.
ibid 79.
ibid 88.
ibid 99 ff.
Anudo v Tanzania (n 71).
ibid 132.
Bronwen Manby, ‘“Restore the Factory Settings”: Efforts to Control Executive Discretion in Nationality Administration in Africa’ (Citizenship Rights in Africa Initiative Blog, 16 April 2018) <
The process was initiated based on the 2013 Resolution No. 234 (n 617) and the 2015 study on the right to nationality by the Special Rapporteur and, at the time of writing was still ongoing. See also Chapter 4, ii.3.2.1.
See Manby, Citizenship in Africa (n 363) 22; Ewumbue (n 615) 50.
Article 2 Draft Protocol on the Right to Nationality. See also African Union, ‘Explanatory memorandum’ (n 610) para 1.
ibid.
African Union, ‘Explanatory memorandum’ (n 610) para 9 ff.
ibid para 19 f.
The Explanatory Memorandum points out that the concept is derived from the ilc Draft Articles on Nationality which applies it in the context of state succession, see ibid 25.
ibid 36.
Article 6(1) Draft Protocol.
According to the Explanatory Memorandum most African states require five years of residence, see African Union, ‘Explanatory memorandum’ (n 610) para 49.
Article 6(2) Draft Protocol. Article 19 specifies that states should facilitate the recognition or acquisition of nationality for stateless persons and persons whose nationality is in doubt to offer them effective protection.
Ie persons who follow a pastoralist or nomadic lifestyle and whose migratory routes cross borders or who life in border regions and whose place of habitual residence cannot be defined clearly, see African Union, ‘Explanatory memorandum’ (n 610) para 77.
ibid 63.
ibid 77.
For example, Article 5 ecn.
African Union, ‘Explanatory memorandum’ (n 610) para 113.
The plan to adopt it in 2019 was not realized, see
Manby indicated that the state representatives tried to water down the legal effect of the Protocol, see Manby, Citizenship in Africa (n 363) 22 n 69. See also Manby, ‘Restore the Factory Settings’ (n 674).
de Groot and Vonk (n 74) 262.
See also Manby, ‘Restore the Factory Settings’ (n 674).
Manby, Citizenship in Africa (n 363) 317.
African Charter on the Rights and Welfare of the Child, 11 July 1990, oau Doc. cab/leg/24.9/49 (1990) (‘African Children’s Charter’, ‘acc’).
Manby, Citizenship in Africa (n 363) 21.
Manby, ‘Citizenship Law in Africa’ (n 609) 10. See also Adjami and Harrington (n 37) 99.
See de Groot and Vonk (n 74) 253; Manby, Citizenship in Africa (n 363) 21.
Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice Initiative (on behalf of Children of Nubian Descent in Kenya) v the Government of Kenya [2011] acerwc Decision No 002/Com/002/2009 para 52.
African Committee of Experts on the Rights and Welfare of the Child, ‘General Comment on Article 6 of the African Charter on the Rights and Welfare of the Child: “Birth Registration, Name and Nationality”’ (acerwc 2014) acerwc/gc/02 <
ibid 3 and 9.
ibid 23.
ibid 83 f.
ibid 84.
ibid 23.
ibid 87.
ibid 88.
ibid 89.
ibid 92.
Children of Nubian Descent v Kenya (n 700).
See also Bialosky (n 4) 163.
See also the case on The Nubian Community in Kenya of the ACmHPR (n 644), Chapter 4, ii.2.3.1. See on the citizenship status of Nubian Kenyans generally Balaton-Chrimes (n 657).
The situation is comparable to that of persons of Haitian descent in the Dominican Republic as Bialosky and de Groot and Vonk point out. The Committee itself refers to the judgment of the IACtHR in the case of Yean and Bosico v Dominican Republic in its decision, see Children of Nubian Descent v Kenya (n 700) para 56. See also Bialosky (n 4) 187; de Groot and Vonk (n 74) 727.
Children of Nubian Descent v Kenya (n 700) para 69.
ibid 40.
ibid 42.
ibid.
ibid 46.
ibid 48.
ibid 50.
ibid 51.
Bialosky (n 4) 189.
Zahra Albarazi, ‘Regional Report on Citizenship: The Middle East and North Africa (MENA)’ (Global Citizenship Observatory (globalcit) 2017) globalcit Comparative Report 2017/3 <
Arab Charter on Human Rights, 23 May 2004, reprinted in 12 International Human Rights Reports 893 (2005) (‘Arab Charter’, ‘ArCHR’).
The Arab Charter on Human Rights of 23 May 2004 replaced the Arab Charter on Human Rights of 1994 which never entered intro force.
The notion of ‘legally valid reason’ has never been defined, due to the lack of a monitoring body or enforcement mechanism to the Charter.
Bialosky (n 4) 165.
Wael Allam, ‘The Arab Charter on Human Rights: Main Features’ (2014) 28 Arab Law Quarterly 40, 54 n. 67.
Bialosky (n 4) 165.
See also de Groot and Vonk (n 74) 331.
Albarazi (n 724) 16 f.
Bialosky (n 4) 165.
Covenant on the Rights of the Child in Islam, June 2005, oic Doc oic/9-igge/hri/2004/Rep.Final (‘crci’).
de Groot and Vonk (n 74) 332.
van Waas, Nationality Matters (n 115) 62 n 58.
de Groot and Vonk (n 74) 332.
Bialosky (n 4) 165.
Arab Declaration on Belonging and Identity, 28 February 2018, <
See also Catherine Harrington, ‘Groundbreaking Arab League Declaration Heightens Global Momentum to End Gender Discrimination in Nationality Laws’ (European Network on Statelessness Blog, 8 March 2018) <
Kälin and Künzli, Menschenrechtsschutz (n 88) 61. Moreover, Asian states have generally been reluctant to ratify international instruments dealing with nationality or citizenship, see Olivier Vonk, ‘Comparative Report: Citizenship in Asia’ (Global Citizenship Observatory (globalcit) 2017) <
asean Declaration of Human Rights, 18 November 2012 (‘asean Declaration’).
Article 10 of the Declaration explicitly refers to the udhr and the rights set out therein. See also Bialosky (n 4) 164.
Generally, the asean Human Rights Declaration has been criticized as falling below international standards, see Kälin and Künzli, Menschenrechtsschutz (n 88) 61. See also the statement of the UN High Commissioner for Human Rights, Navi Pillay, 19 November 2012, <
African Commission on Human and Peoples’ Rights, ‘Study on the Right to Nationality in Africa’ (n 623) 20.
See also Hall (n 398) 600.
See Anuscheh Farahat, Progressive Inklusion: Zugehörigkeit und Teilhabe im Migrationsrecht (Springer 2014) 267.
The starting point for any discussion about reservations is Article 19 of the Vienna Convention on the Law of Treaties, 23 May 1969, 1155 unts 331 (‘vclt’), according to which reservations are permissible unless the treaty itself prohibits reservations per se or only allows for specific reservations or if the reservation is incompatible with the object and purpose of the treaty.
International Law Commission, ‘Memorandum Prepared by the Secretariat on the Formation and Evidence of Customary International Law’ (ilc 2013) UN Doc. a/cn.4/659 28, Observation 19.
ibid 17, Observation 8. See also the leading cases of the International Court of Justice, Lotus Case (n 59) 18; North Sea Continental Shelf (n 59) para 60 ff; Colombian-Peruvian Asylum Case (n 59) 276 f.
See also Conklin (n 56) 163; Mantu (n 38) 7.
Alexandra Huneeus and René Urueña, ‘Treaty Exit and Latin America’s Constitutional Courts’ (2017) 111 American Journal of International Law Unbound 456, 458. Interestingly, however, the Dominican Constitutional Court has not primarily challenged the recognition of the right to nationality as a human right but argued that the accession of the Dominican Republic to the IACtHR’s jurisdiction was constitutionally invalid and hence the state was not bound by its judgments.
Conklin (n 56) 163.
Weis, Nationality in International Law (n 352) 248.
Convention on Certain Questions Relating to the Conflict of Nationality Laws, 12 April 1930, lnts Vol. 179, p. 89 (‘1930 Convention’).
Fripp (n 45) 17; de Groot and Vonk (n 74) 87; Schram (n 10) 231. See on the 1930 Convention chapter 3, III.3.
This position is supported by Knop and Chinkin who argue that there is “some sort of customary consensus regarding the right to change one’s nationality”, Knop and Chinkin (n 167) 562. See also Chan (n 52) 11. More critical Anne Peters, ‘Extraterritorial Naturalizations: Between the Human Right to Nationality, State Sovereignty and Fair Principles of Jurisdiction’ (2010) 53 German Yearbook of International Law 662.
See above Chapter 4, i.3. See Hailbronner and others (n 69) 37; Kraus (n 30) 205; Schram (n 10) 241; see also Anudo v Tanzania (n 71) para 76.
Batchelor, ‘Transforming International Legal Principles’ (n 292) 10; Hailbronner and others (n 69) 37; Advisory Opinion OC-4/84 (n 1) para 34.
See eg Serena Forlati, ‘Nationality as a Human Right’ in Alessandra Annoni and Serena Forlati (eds), The Changing Role of Nationality in International Law (Routledge 2013) 27; Hannum (n 9) 346; Kraus (n 30) 260.
Chan (n 52) 10. See also Oliver Dörr, ‘Nationality’ in Rüdiger Wolfrum (ed), The Max Planck Encyclopedia of Public International Law (Oxford University Press 2006) para 7.
Global Citizenship Observatory (globalcit), ‘Database Acquisition of Citizenship’ (n 464).
The globalcit database lists 18 states that grant an entitlement to naturalization for certain non-citizen residents. Many of them at the same time have a discretionary ordinary naturalization procedure that applies to those non-citizens that do not qualify for the acquisition based on entitlement, ibid.
Under the German Nationality Act persons with more than eight years of residence and a permanent residence permit are entitled to be naturalized if they respect constitutional values, have sufficient financial resources, language skills, civil knowledge, no criminal record and renounce their former nationality, see §10 Deutsches Staatsangehörigkeitsgesetz vom 22. Juli 1913. See also Farahat (n 747) 154 ff.
Similarly already International Law Commission, ‘Hudson Report’ (n 6) 8. See also Chapter 5, iii.3.6.
Hobe (n 62) 91. See also Donner (n 14) 148 f; Peters, ‘Extraterritorial Naturalizations’ (n 757) 678.
Worster, ‘The Obligation to Grant Nationality under Treaty Law’ (n 102). See also Worster, ‘Customary International Law’ (n 318).
Chan (n 52) 11; Ziemele, ‘State Succession’ (n 356) 243. See also Forlati (n 760) 27.
Chan (n 52) 11; Clerici (n 200) 845; Council of Europe, ‘Explanatory Report ECN’ (n 443) para 33; Alice Edwards, ‘The Meaning of Nationality in International Law in an Era of Human Rights, Procedural and Substantive Aspects’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014) 29; Kay Hailbronner, ‘Nationality in Public International Law and European Law’ in Rainer Bauböck and others (eds), Acquisition and Loss of Nationality: Policies and Trends in 15 European Countries, Volume 1: Comparative Analyses (Amsterdam University Press 2006) 65; Knop and Chinkin (n 167) 562; Molnár (n 148) 80; Pilgram (n 446) 2. See also the judgment by the Yean and Bosico (n 395) para 140. Weis in 1979 was more reluctant to accept such obligation, see Weis, Nationality in International Law (n 352) 198; similarly Ziemele, ‘State Succession’ (n 356) 243. See further Chapter 5, iii.2.3.
See for an in-depth discussion Foster and Baker (n 201) 83 ff; Clerici (n 200) 845; Forlati (n 760) 27; Pilgram (n 446); CtteeEDAW, ‘General Recommendation No. 32’ (n 168) para 59. See also Chapter 5, iii.2.1.
See eg de Groot and Vonk (n 74) 46; Molnár (n 148) 74; Pilgram (n 446) 2. See also Human Rights Council, ‘Report 13/34 of the Secretary General on Human Rights and Arbitrary Deprivation of Nationality’ (hrc 2009) UN Doc. a/hrc/13/34 para 21; unhcr, ‘Expert Meeting — Interpreting the 1961 Statelessness Convention and Avoiding Statelessness Resulting from Loss and Deprivation of Nationality (“Tunis Conclusions”)’ (unhcr 2013) para 2 <
Rottman (n 590) para 53.
See James Crawford, Brownlie’s Principles of Public International Law (9th ed, Oxford University Press 2019) 508.
See namely unhcr, ‘Tunis Conclusions’ (n 771) para 2.
See also Blackman (n 359) 1191; Spiro, ‘New Citizenship Law’ (n 169) 745.
Batchelor, ‘Developments in International Law’ (n 464) 59.
European Court of Human Rights, ‘Dissenting Opinion Ramadan v Malta’ (n 458) para 6; Human Rights Council, ‘Report 25/28 of the Secretary General on Human Rights and Arbitrary Deprivation of Nationality’ (hrc 2013) UN Doc. a/hrc/25/28.
See Chapter 2, iii.3.