1 Vyernadette Kwakkel
Student # 10734643
European and International Law Public International Law
12 ECTS
2 Table of Contents Introduction ... 3 Chapter 1 Statelessness ... 6 1.1 Definition ... 6 1.2 Causes ... 11 1.3 Protection ... 12 Chapter 2 Nationality ... 13
2.2 International law and nationality ... 16
Chapter 3 Protection of the stateless by UN Conventions ... 17
3.1 Introductory note ... 17
3.2 The 1954 Convention relating to the Status of Stateless Persons ... 19
3.3 The 1961 Convention on the reduction of statelessness ... 21
Chapter 4 Causes ... 23
4.1 Acquisition at birth ... 23
4.2 Loss of nationality ... 24
4.3 Succession of a new state ... 25
4.4 Domestic laws concerning nationality ... 25
Chapter 5 Analysis ... 26
Chapter 6 The right to nationality ... 31
Conclusion ... 33
3 Introduction
Imagine being born in a country. Your parents each have a different nationality. You as a child have strong claims for both nationalities and are therefore eligible for dual nationality. Due to circumstances beyond your power you are forced to flee the country of your nationality. However during this migration you have lost both your nationalities, meaning that you are rendered stateless. Due to national law and your dual nationality one country does not recognize you as its national. The other country refuses to recognize you on the basis that you were not born there. Neither country can provide you with identification documents meaning you cannot start a new life in another country nor can you go back, you are stuck with no way to go or ability to change your situation, unable to get married, get a job or an education. This is what it means to be stateless.1
Although statelessness does not seem as current as other human rights issues like disability rights, the rights of the child and women rights, it does affect millions of people around the world.2 It creates difficult circumstances and hurdles that make leading a ‘normal’ life an uphill battle. The international organization that has the mandate to identify, protect, help and facilitate the lives of those who are stateless is the United Nations High Commissioner for Refugees.3 The United Nations High Commissioner for Refugees is the follow-up organization of the former IRO (International Refugee Organization) that was created with a temporary mandate to deal with the refugee problem in that era.
Having a nationality is something many people take for granted. It seems like a natural part of someone’s identity that one does not think about how it is acquired and neither does one live in fear of losing it. Even so it has been estimated by the
1 https://www.youtube.com/watch?t=25&v=o1qGwoN61mw (film including story of stateless person) 2 UNHCR Global Trends 2014, http://unhcr.org/556725e69.html
3
Note on the mandate of the high commissioner for refugees and his office (specifically paragraph D), http://www.unhcr.org/526a22cb6.html
4 United Nations that there are at least ten million stateless people worldwide.4 These people do not have a nationality and therefore are not linked to any one country in the world. It means that the diplomatic protection most of the individuals in the world enjoy because they are nationals of a certain state is missing in the lives of the stateless.5 Most concerning is that most of these people are stateless because of situations beyond their control.6 Statelessness is therefore often referred to as a man-made problem.
Stateless people may be prevented from owning property, renting an apartment but also education and employment may be dreams but never a reality.7 Registering the birth of a child may also be prevented.8 Stateless therefore means not having any identification, insurance and many more commodities that most individuals enjoy.9 Although there are systems in place to protect stateless people this does not solve the actual problem and in practice these protections come up short. It is also not enough to create systems to protect stateless persons but also to prevent and reduce statelessness as a whole. Statelessness can both be involuntary and voluntary.10 The situations described in this thesis will mostly be from the perspective of people who have become stateless involuntarily.
As human rights are founded on the principle of universality the lack of nationality should in principle not create an obstacle for the enjoyment of these rights.11 However in practice this is not always the case. Although human rights were founded on this principle their application is dependent on being subject to the jurisdiction of a state, evidenced by the fact that one cannot invoke a certain human
4
Ruma Mandal and Amanda Gray; Out of the shadows: The treatment of statelessness under international law, page 2
5 Paul Weis; Nationality and Statelessness in International World page 32
6 Manley O. Hudson; Report on Nationality, including statelessness, yearbook of International Law
Commission Vol.II page18 (http://legal.un.org/ilc/documentation/english/a_cn4_50.pdf)
7
Ruma Mandal and Amanda Gray; Out of the shadows: the treatment of statelessness under international law, page 2
8 David Weissbrodt and Clay Collins; The human rights of stateless persons, page 266 9 http://www.unhcr.org/pages/547740c86.html
10
Manley O. Hudson; Report on Nationality, including statelessness, yearbook of International Law Commission Vol.II page18 (http://legal.un.org/ilc/documentation/english/a_cn4_50.pdf)
11 Preamble Universal Declaration of Human rights states ‘as a common standard of achievement for
all peoples and all nations’, Eva Brems; Human Rights: Universality and Diversity page 4 & Jack Donnely; Universal Human Rights in Theory and Practice page1
5 right in front of a national or international court if a state has not ratified a certain human rights convention, or in the case of a national court if the human right concerned is not in national law through direct effect or for example in the constitution.12 Stateless persons are therefore unable to enjoy their basic human rights because they do not fall within the jurisdiction of any state, as a citizen would.
As will be illustrated throughout this essay statelessness is very much so connected to and associated with refugees. It is therefore inevitable that this essay will sometimes infer upon situations that will also reflect the one of refugees. Unlike a refugee a person can be stateless without ever having to cross an international border. An example on how this is possible will be presented later in this essay.
The aim of this essay is to research whether or not there is a possibility in international law to effectively reduce and prevent statelessness. The UNHCR has proposed a ten year plan that would eventually lead to the end of statelessness in ten years.13 This thesis will look at the propositions in this report and the existing legislation that aims at the reduction and prevention of statelessness and analyse whether or not these would be sufficient to effectively reach this goal. It will also propose that nationality shift from the national sphere to the international sphere.
The research question chosen; ‘How effective is international law in preventing and reducing statelessness?’
This essay will start with the definition of statelessness and other terms related to the subject such as the causes of statelessness and the protection provided for those who are stateless. Secondly, it will examine nationality, what it is and by whom it is regulated and on the basis of which principles. Thirdly it will provide information of the two United Nations Conventions that are of importance for this essay, including their history and the important contribution of these two UN Stateless Conventions. The next section will take a deeper look into the causes of statelessness. The fifth section will analyse the UN Convention on the Reduction of Statelessness and how
12 Example of this in Article 1 ECHR ‘The High Contracting Parties shall secure to everyone within
their jurisdiction the rights and freedoms defined in Section 1of this Convention’
13
6 this Convention tackles each of the causes discussed in the previous section. Lastly this essay examines the possibility of the existence of a right to nationality in international law. I believe that in my conclusion I would be able to show that the current legislation on the international level created to reduce and prevent statelessness is not enough to solve the problem of statelessness.
The method used in this thesis is descriptive. Although the thesis might propose in the end an amendment to the current legislation on the protection of stateless people it will primarily be focused on exposing the situation as it is now and also analysing the situation. My suggestion in the end will possibly be that nationality should no longer be left completely to the sphere of national law but it should become regulated by the international community as it would help reduce and prevent statelessness on a larger scale. Nationality law should therefore be in as far as possible uniform to be able to achieve the desired result.
Chapter 1 Statelessness
Before beginning any research it is important to know what the terms discussed mean. It is therefore logical that the first chapter define and explain the relevant terminology that will be used throughout this thesis.
1.1 Definition
An official definition of a stateless person is found in Article 1(1) of the 1954 Convention relating to the status of stateless persons;
‘For the purpose of this Convention, the term stateless person means a person who is not considered as a national by any State under the operation of its law.’14
This definition, according to the International Law Commission, is also part of customary international law.15 This means that even states that have not signed or
14 The 1954 Convention relating to the status of stateless persons,
http://www.unhcr.org/3bbb25729.html
15
International Law Commission, Articles on Diplomatic Protection with Commentaries (2009), page 49
7 ratified the 1954 Convention relating to the status of stateless persons are bound by the customary international law definition of stateless persons.16 Further elaboration on the definition can be found in the 2014 handbook on protection of stateless persons created by the UNHCR at the 60th year anniversary of the 1954 Convention.17 This handbook has superseded three guidelines on stateless persons; guideline no.1: the definition of stateless person in Article 1(1) of the 1954 Convention relating to the status of stateless persons, guideline no.2: procedures for determining whether an individual is a stateless person and lastly guideline no.3: the status of stateless persons at the national level.18 In laymen’s terms a stateless person is defined as ‘a person who does not have nationality under the national law of any State.’19 This person does therefore not qualify for diplomatic protection by any State. They can also not enjoy many of the human rights that exist because you are the national of a particular state. There are different moments at which someone can become stateless; at birth in accordance with the law of any State or subsequent to birth by losing his nationality without acquiring another.20 These moments connect back to the causes of statelessness. This will be examined in further chapters and paragraphs as it is very important to understand these causes and how to prevent them to achieve the ultimate goal; the reduction and prevention of statelessness.
The second paragraph of Article 1 of the 1954 Stateless Convention gives exceptions as to when a person who does satisfy the elements in the definition in the first paragraph falls out of the realm of protection provided to the individual by the Convention.21
16
Article 38(1) Statute of the International Court of Justice &
https://www.icrc.org/eng/resources/documents/misc/customary-law-q-and-a-150805.htm#a5
17Handbook on protection of stateless persons under the 1954 Convention relating to the status of
stateless persons, Geneva 2014, http://www.unhcr.org/53b698ab9.html, foreword
18 Ibid. 19
Paul Weis; nationality and statelessness in international law page 161
20 David Weissbrodt and Clady Collins; the human rights of stateless persons, page257
21 (i) To persons who are at present receiving from organs or agencies of the United Nations other
than the United Nations High Commissioner for Refugees protection or assistance so long as they are receiving such protection or assistance;
(ii) To persons who are recognized by the competent authorities of the country in which they have taken residence as having the rights and obligations which are attached to the possession of the nationality of that country;
8 When it comes to interpreting treaty articles one automatically reads Article 31(1) of the 1969 Vienna Convention on the law of treaties. This article sets out the primary rule on how to interpret treaty articles. It focuses on the ordinary meaning of the next, while bearing in mind the object and purpose of the treaty. The object and purpose of the 1954 Stateless Convention is without doubt to ensure that stateless persons can enjoy to the widest extent their human rights and the exercise of these rights.22 The definition provided for in the first article of the 1954 Stateless Convention does not require persons to have crossed an international border, it applies both to people who have crossed a border and those who are still in their ‘own country’.23 Any individual that meets the elements found in this first article is therefore stateless. The determination of a person as stateless done by a State at a later stage is declaratory and not constitutive for the protection provided for in the 1954 Stateless Convention. Meaning you are stateless because you meet the conditions and not because a State has determined that you are stateless. This is an important distinction as the 1954 Stateless Convention starts applying as soon as a person falls within the definition provided in the first article. According to the handbook on protection of stateless persons the definition has two elements; ‘not considered as national … under the operation of its law’ and ‘by any state’. As the 1954 Stateless Convention does not define these elements the handbook on the protection of stateless persons forms a proper guideline for how to interpret these elements and give a perspective on how states are to interpret these elements as well. The last element ‘by any state’ requires for the person to have a relevant link to the states.24 This link can be either by birth on the territory or descent, marriage, adoption and habitual residence.25 This can lead to multiple states but also simply to
(a) They have committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provisions in respect of such crimes;
(b) They have committed a serious non-political crime outside the country of their residence prior to their admission to that country;
(c) They have been guilty of acts contrary to the purposes and principles of the United Nations.
22 Introductory Note by the office of the UNHCR in the 1954 Convention relating to the status of
stateless persons
23 http://www.institutesi.org/world/
24 Handbook on protection of stateless persons under the 1954 Convention relating to the status of
stateless persons, Geneva 2014, page 11
25
9 one state. This notion of a link is also used when dealing with laws on the acquisition of a nationality.
Although it might seem logical it is important to establish what constitutes a state. In international law a state is defined in the 1933 Montevideo Convention on the Rights and Duties of States.26 According to the 1933 Montevideo Convention a state has certain elements such as; a permanent population, a government, a defined territory and the capacity to enter into relations with other states.27 These are the so-called conditions for statehood. There is also one additional condition for statehood; recognition by other states. Although recognition by other states is not a condition to be a state is does have great effect on statehood, as it may impede international relations.
The other element ‘not considered as a national … under the operation of its law’ is next to be interpreted. Again the handbook on protection of stateless persons will serve as a guideline for this interpretation. The meaning of ‘law’ not only includes legislation but also case law, customary practices, ministerial grace and so on.28 Lastly when is a person not considered a national? This is decided by applying the domestic laws on the granting of nationality of the State to the individual facts of the case in question.29 If an individual satisfies the rules and principles on acquisition of nationality they acquire the nationality of that state.
Due to further research on statelessness the term stateless person has been widened to include de facto stateless persons. These are in example persons who ‘without having being deprived of their nationality no longer enjoy the protection and assistance of their nationality authorities’.30 What this means is that these people no longer have a so called effective nationality. Many authors have argued that
26
Montevideo Convention on the Rights and Duties of States, Uruguay December 26, 1933
27 Article 1 Montevideo Convention; The state as a person of international law should possess the
following qualifications: a ) a permanent population; b ) a defined territory; c ) government; and d) capacity to enter into relations with the other states.
28
Hugh Massey; UNHCR and de facto statelessness, page 26 (http://www.refworld.org/pdfid/4bbf387d2.pdf)
29 Handbook on protection of stateless persons under the 1954 Convention relating to the status of
stateless persons, Geneva 2014, page 12
30
10 excluding this group from the protection of the Statelessness Conventions will lead to a great amount of individuals that lack protection as they do not qualify as stateless persons or as refugees.31 This essay however will not focus on this last element of the definition, as it would widen the scope of the research too much.
Persons falling under the definition in the 1954 Stateless Convention are often referred to as de jure stateless, this is to create a contrast with the above mentioned group de facto stateless.32 The 1954 Stateless Convention puts the emphasis on the law and whether or not a person can be considered a national by any State in accordance with the national law. It is important to realise that the 1954 Stateless Convention does not contain terms such as de jure stateless and de facto stateless. This however is not to say that the United Nations High Commissioner for Refugees has not taken note of these terms and done research and had discussion on the topic and how this connects back to the definition in the 1954 Stateless Convention.33 Other international instruments have been created that illustrate that the UNHCR does find the de facto stateless persons to be of importance and recognizes that there is an issue here as these people are not properly protected.
Some distinction is also made between original and subsequent statelessness to differentiate between people who have lost their nationality at a later stage or never acquired one at birth.34 Another term for original statelessness is ‘absolute’ statelessness. Subsequent statelessness is also termed as ‘relative’ statelessness.35 Original statelessness refers to those who never acquired nationality at birth. While subsequent statelessness refers to people who lost their nationality at a later stage in life. These two terms refer back to the two moments in life at which a person can lose their nationality that was discussed above.
31 Ibid.
32 Hugh Massey; UNHCR and de facto statelessness, introduction
(http://www.refworld.org/pdfid/4bbf387d2.pdf)
33 Hugh Massey; UNHCR and de facto statelessness, introduction
(http://www.refworld.org/pdfid/4bbf387d2.pdf)
34
Paul Weis; Nationality and statelessness in international law, page 162
35
11 1.2 Causes
There are different causes for statelessness. Some examples are the dissolution of the Soviet Union, Czechoslovakia and Yugoslavia which led to some nationalities no longer existing but also the possibility that one can be stripped of one’s nationality even with the risk of becoming stateless.36 Children born in refugee camps are often also born without a nationality as they in principle do not have any entitlement to the nationality of the country they were born in. These children might also never be able to return to the country of their parents to claim nationality there.37 This is often the case with protracted refugee situations. One cause that is very important and hard to tackle by the international community is national law and the different rules each country has on granting nationality.38 Every country has its own principles on determining nationality. Countries that adopt the principle of jus sanguinis only allow for nationality to be passed by descent, meaning through blood. Even so there are other obstacles that could restrict this; for instance countries that limit women from being able to pass their nationality on to their children. Countries using the principle of jus soli require that someone is born in a country for them to be entitled to the nationality of that state.
Another cause would be the loss of one’s nationality. This can happen due to national law that can sometimes be changed to discriminate against certain parts of the population making them stateless. An example would be the situation in the Dominican Republic where many Dominicans of Haitian descent were rendered stateless due to a decision taken by the constitutional court.39 It can also happen that a country has rules on how long a person is allowed to live outside of their country of nationality before their considered to have lost it.40 Other options that fall within the same category of causes are deprivation and renunciation of one’s nationality.41 In each of these situations a person who had a nationality no longer has one due to
36 http://www.unhcr.org/pages/49c3646c15b.html
37 UNHCR seeks to end statelessness in 10 years, 4 November 2014
,http://www.bbc.com/news/world-29891562
38 http://www.unhcr.org/pages/49c3646c15b.html
39 UNHCR Global report 2014, cover page (http://www.unhcr.org/5575a7894.html) 40
Alice Edwards and Laura van Waas; Nationality and Statelessness under international law, page 23
41
12 the circumstances, most of the times discriminatory domestic policies or other administrative actions.
1.3 Protection
Historically there have been many international instruments created that in some way or another address the issue of statelessness. These instruments date back to the 19th and 20th century and range from regional instruments to international agreements. Although these multilateral and bilateral instruments exist in principle issues of nationality are left to the discretion of states.
The 1930 Convention on Certain Questions relating to the Conflict of Nationality Laws can be an example.42 It contains provisions aimed at reducing statelessness.43 However it does not relate to one of the ‘main’ causes of relative statelessness, the loss of nationality after birth. These are causes for example as a result of changes in territory or deprivation of nationality. There is also the protocol relating to a certain case of statelessness of 1930 is meant to supplement the gaps left by this Convention.44 The 1930 Convention on Certain Questions relating to the Conflict of Nationality also states in its first article ‘each state to determine under its own law who are its nationals’ meaning that it recognizes the principle of sovereignty as an important principle in international law.
Many authors have argued that not enough has been done in the international sphere to abolish statelessness, this thesis supports this position. Even though these efforts were not enough there have been many efforts to help and mitigate the situation that stateless persons are in when living in any State. Examples of such an effort are two UN treaties concerning statelessness: the 1954 Convention relating to the Status of Stateless persons hereinafter referred to as the 1954 Stateless Convention but also
42 Convention on Certain Questions relating to the Conflict of Nationality Laws, The Hague 1930,
League of Nations, Treaty Series, vol. 179, p. 89, No. 4137
43
‘Recognising accordingly that the ideal towards which the efforts of humanity should be directed in this domain is the abolition of all cases both of statelessness and of double nationality;’
(http://www.refworld.org/docid/3ae6b3b00.html)
44
Protocol relating to a certain case of statelessness, The Hague 1930, No. 4138. 179 LNTS 115 (http://www.refworld.org/docid/3ae6b39520.html)
13 the 1961 Convention on the Reduction of Statelessness hereinafter referred to as the 1961 Convention.
The 1954 Stateless Convention does not oblige states to provide residence or nationality.45 The 1961 Convention seems to be the only global instrument that is aimed at the reduction of statelessness. It tackles a few of the causes of statelessness that were discussed above in an effort to reduce and prevent this. Articles 1 through 4 of the 1961 Convention therefore establish rules to enable the possibility for nationality to be granted at birth. This is a step in the right direction as it has already been made clear that being born without a nationality is a reason for generations of stateless people. Articles 5 through 7 restrict loss or renunciation of nationality. It requires that there are assurances of acquiring another nationality. This is connected back to the fact that States are able to strip someone of their nationality and therefore leave them stateless. International law therefore created a safety net for such unfortunate situations. Article 8 goes a step further and prohibits states from depriving an individual of their nationality if this would result in statelessness. These articles will be analysed more in depth in Chapter 5.
Chapter 2 Nationality
The most important question for this section is; ‘what is nationality?’ but also how does one acquire a nationality. Nationality is different from other terms like citizenship and citizen.46 In its most simple definition nationality is the legal relationship between a person and a state.47 It is what a state uses to differentiate between who belongs to its jurisdiction and needs its protection and who does not. According to Article 2 of the European Convention on Nationality; ‘‘nationality’ means the legal bond between a person and a state and does not indicate the person’s ethnic origin.48 According to the ICJ in the Nottebohm case; ‘Nationality is a legal
45 Alice Edwards and Laura van Waas; Statelessness, page 292
46 Alice Edwards and Laura van Waas; Nationality and Statelessness under international law, page12 47
Ibid.
48
14 bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments’49
This description has become known in the international law sphere as the genuine link.50 There are many different factors that can proof this genuine link. Examples are place of residence, family ties, place of birth and ethnicity.51 These factors are used by states to show that there is a link between person and the state and therefore a ground to grant nationality.
Also important is who governs the rules of nationality. As already mentioned in principle nationality is left to the national law of the states this is due to the principle of sovereignty. Nationality therefore falls within the domestic jurisdiction of each state.52 This means that rules on how to acquire nationality and loss nationality is left to the national legal systems. International law does not prohibit states from taking back the nationality that they have granted to their nationals. An example of this can be found in Article 3(1) of the European Convention on Nationality this article states; ‘each State shall determine under its own law who are its nationals’.53 However this is not unlimited. The Convention and many other international instruments do contain safeguards to ensure that people can get a nationality and enjoy the rights connected to that nationality. Other examples of the restriction to this rule shall be given at a further point in this essay.
As already mentioned in the previous chapter nationality law is based on a few principles. For the purpose of this chapter we distinguish three; ius soli, ius sanguinis and ius domicilli.54
The first two principles normally become applicable when a child is born. The first ius soli or ‘law of the soil’ means that nationality is acquired by way of being born
49
Nottebohm Case (Liechtenstein v. Guatemala) ,1955, while inferring on Article 5 of the Convention on Certain Questions relating to the Conflict of Nationality Laws
50 Laura van Waas; Nationality matters statelessness under international law, page 32 51 Ibid.,Nottebohm case (Liechtenstein v. Guatemala),1955
52
Manly O. Hudson; Nationality including statelessness, Yearbook of the International law commission, 1952,vol II
53 European Convention on Nationality, http://conventions.coe.int/Treaty/EN/Treaties/Html/166.htm 54
Laura van Waas; Nationality matters statelessness under international law, page 32 &Paul Weis; Nationality and statelessness in international law, page 95
15 in that particular territory.55 The second principle ius sanguinis or ‘law of the blood’ means that nationality is passed down from one generation to another through the bloodline.56 This means that a child born acquires the nationality of this state if one or both of his parents are nationals of the state themselves. Most states have opted for a mixed form of the two principles mentioned above. The Netherlands for instance uses the ius sanguinis principle to establish nationality of people at the moment of birth. A child acquires Dutch nationality if one of his/her parents has Dutch nationality.57
The last principle mentioned above ius domicilli or ‘law of residence’ refers to a situation where someone acquires another nationality at a later point in life.58 Nationality is therefore based on the place of residence of the individual. This is the basis for many laws on naturalisation.59 Ius domicilli recognizes that an individual can develop a certain bond with a state after having lived there for a significant period of time. This state has been the habitual residence of the individual for a very long time, usually states require ten to fifteen years of permanent residence,although more requirements do exist dependent on the national rules in each system.60
These principles however do not cover every single situation that can arise in an individual’s life. It therefore leaves cracks in the law and people that are stateless fall within these cracks and are left in this legal limbo. An example can be created; imagine a refugee residing in the Netherlands who gives birth to a child. According to the domestic laws on nationality in the Netherlands this child cannot have Dutch nationality unless one of the parents also has this nationality. The other option would be the state of nationality of the parents. However if this state has domestic laws on nationality that follow the ius soli principle it means that a child not born there cannot acquire the nationality of that country. This new-born is therefore left with no nationality and therefore stateless.
55 Laura van Waas; Nationality matters statelessness under international law, page 32 56
Paul Weis; Nationality and statelessness in international law, page 4
57 http://www.government.nl/issues/dutch-nationality/dutch-nationality-by-birth-or-family-ties 58 Laura van Waas; Nationality matters statelessness under international law, p.33
59
Ibid.
60
16 After having discussed the many principles dealing with acquiring nationality it is important to realise that there are also ways in which an individual can be deprived from his or her nationality. An individual can lose, be deprived of or renounce an existing nationality.61 Nationality therefore is not something that is guaranteed forever, this legal bond can seize to exist.62
2.2 International law and nationality
Although the Universal Declaration of Human Rights mentions the right to nationality in Article 15 this right is not binding due to the non-binding nature of this declaration. It is a right not to be arbitrarily deprived of one’s nationality.63 The existence of such a right in the Universal Declaration of Human Rights however does show that the international community believed that there would be room for international law to interfere in the national law of states when it came to nationality for the purpose of protecting people.
However it is extremely hard for international law to simply interfere in the domestic jurisdiction of states. A topic such as nationality laws is strongly connected to the principle of self-determination and the principle of sovereignty.64
One might think that nationality is something every person has and enjoys. This thesis clearly shows that this is not the case. Just in the Netherlands only there are around eighty thousand persons that are registered having an unknown nationality.65 Many of these people are also registered as being stateless. This number only includes those who have been registered.
To conclude although in principle states have been able to argue that their sovereignty is an important factor to be able to be the sole regulator of their nationality laws. However many things have changed. As the years have gone by
61 Laura van Waas; Nationality matters statelessness under international law, page 34 62 Ibid.
63
(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.
64 Manly O. Hudson; Nationality including statelessness, Yearbook of the International law
commission, 1952,vol II
65
17 international law has started to favour human rights over claims of state sovereignty.66 A great example is the creation of human rights conventions. It proves that there is a shift in international law towards protection of individuals over the interest of states. Evidence of this can be found in the different regional and international instruments that deal with nationality in one way or another. These are the instruments that will serve as the basis for the discussion in this thesis. Are they truly tackling the problem that exists for people that are stateless or are they simply a consensus to keep states happy?
Chapter 3 Protection of the stateless by UN Conventions
3.1 Introductory note
As already stated statelessness is strongly connected to refugee law, it is therefore inevitable for this thesis not to discuss certain Conventions or international instruments dealing with refugees as well. Historically it all began with refugees who became stateless and needed protection.67 However now not all refugees are stateless and not all stateless persons are refugees.68
The first relevant Convention to look at would be the aforementioned 1930 Convention on certain questions relating the conflict of nationality laws. This Convention was previously discussed in Chapter 1 of this essay. As stated it has many shortcomings and recognized that the principle sovereignty was more dominant.
The 1951 Convention relating to the Status of refugees, hereinafter referred to as the 1951 Refugee Convention, is the most important legal instrument created to provide protection to refugees all around the world. It gives certain rights to refugees and
66 Alison Kesby; The right to have rights: citizenship, humanity and international law, page 49 67
Alice Edwards and Laura van Waas; Statelessness, Introduction
68
18 obligations to contracting parties.69 It also has an additional protocol created to strengthen the application of refugee law across the globe. The 1967 additional protocol removed both the geographical and temporal limitations that the previously adopted Convention had.70
The 1954 Convention relating to the Status of Stateless Persons, hereinafter referred to as the 1954 Stateless Convention, was originally designed to be a protocol to the 1951 Refugee Convention.71 However in the end it became a stand-alone instrument as it deals with two issues that can exist together but also separately.72 It can be said that this was one of the first efforts of the international community to direct some attention to the issue of statelessness. However this Convention is far from enough. As of June 2014 the Convention counts 86 Contracting States.73 Subsequent efforts were made by introducing the 1961 Convention on the Reduction of Statelessness, hereinafter referred to as the 1961 Convention.74 The 1961 Convention counts 63 Contracting States, an extremely low amount of ratifications if compared to other human rights conventions. Not only did these specific instruments deal with statelessness but there are also some international and regional instruments that have several provisions on statelessness. Some of them will be examined in this chapter.
Even though these two Conventions exist, the 1954 Stateless Convention and the 1961 Convention, this thesis as already stated that there are over ten million stateless people around the world.75 This is clear evidence that shows that the Conventions are clearly lacking in effectiveness. There are still many people who are stateless due to different causes such as exclusionary and discriminatory national policies but also domestic nationality laws.76 More than ten million people whose lives and rights have been affected by this status.
69
Alice Edwards and Laura van Waas; Statelessness, page 291
70 http://www.unhcr.org/pages/49da0e466.html
71 Alice Edwards and Laura van Waas; Statelessness, page 291 72 Ibid.
73
https://treaties.un.org/pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-3&chapter=5&Temp=mtdsg2&lang=en
74 Convention on the Reduction of Statelessness, New York, 30August 1961 75
UNHCR Global Trends 2014, http://unhcr.org/556725e69.html
76
19 3.2 The 1954 Convention relating to the Status of Stateless Persons
It all begun with the Ad Hoc Committee on Statelessness and related problems appointed by the United Nations Economic and Social Council (ECOSOC) in 1949.77 This Committee was tasked with issues surrounding both refugees and stateless persons. However during debates it became clear that the issues needed to be separated as refugees were considered to be a more ‘acute’ issue while statelessness would be a long-term problem.78 The Ad Hoc Committee therefore proposed a Convention on the status of refugees and a protocol dealing with stateless persons that would expand the application of the Refugee Convention.79 In 1950 the General Assembly convened to discuss the two instruments. The instrument on stateless persons was however postponed and set to be dealt with on a later date. Almost four year later the Conference of Plenipotentiaries convened again and adopted the 1954 Stateless Convention.80 It was adopted on 28 September 1954 and came into force on the 6th of June 1960.81
The Stateless Convention’s most important contribution was the definition of stateless persons; ‘a “stateless person” as someone ‘who is not considered as a national by any State under operation of its law.’82 Persons who qualify under this definition enjoy a minimum standard of treatment in accordance with the rules in the Convention.83
The Convention just like all other international and regional instruments dealing with this subject does not impose an obligation upon states to grant nationality to stateless persons.84 In Article 32 of the Convention they do urge state parties to
77 Alice Edwards and Laura van Waas; Statelessness, page 291 78
Ibid.
79 Ibid. 80 Ibid.
81 United Nations Treaty Database
https://treaties.un.org/pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-3&chapter=5&Temp=mtdsg2&lang=en
82 Article 1 of the 1954 Stateless Convention 83
Alice Edwards and Laura van Waas; Statelessness, page 292
84
20 consider granting nationality to stateless persons.85 The 1954 Stateless Convention is divided in three categories. The first section deal with the definition of stateless persons, the next deals with the rights and obligations and the last section is more procedural and governs aspects such as accession and cooperation between contracting states and the United Nations High Commissioner for Refugees.
Unlike the Refugee Convention the Stateless Convention does not have a protection from refoulement.86 Reasons for this could be because the drafters believed that the two conventions would supplement each other meaning that someone who is stateless and also a refugee would enjoy the protection from refoulement in the Refugee Convention although it was lacking in the Stateless Convention. There is also another distinction between the Refugee Convention and the Stateless Convention. The Stateless Convention does not offer any protection against penalization for illegal entry or stay.87
Just like the Refugee Convention the Stateless Convention requires in Article 7 that ‘Contracting States shall accord to stateless persons the same treatment as is accorded to aliens generally’. Some rights such as education require a higher standard of protection as prescribed by the Convention however the basic rule is equal treatment as is accorded to aliens. However this would mean that a person who is deprived of his nationality by his country of origin or habitual residence receives the same treatment as aliens whether they stay in the country or move abroad. As an example one can imagine new governmental policy that discriminates against a certain part of the population and renders them stateless. These people although living in their country of origin are protected by the Stateless Convention and cannot get a higher level of protection or rights than what is awarded to aliens.
85
Article 32; ‘The Contracting 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.’
86
Alice Edwards and Laura van Waas; Statelessness, page 292
87
21 The supervisory mechanism in place when it comes to stateless persons is the United Nations High Commissioner for Refugees.88 Not only is the organization responsible for stateless persons around the world it is the role of the organization to also be responsible to identify and protect stateless persons and to make efforts to create plans to help states to reduce and prevent statelessness in its entirety.
Another similarity the Stateless Convention has to the Refugee Convention is that neither explicitly mentions that states should create a so called status determination procedure. However this is implied as it would be impossible to define who is stateless without a procedure to determine this and therefore give these persons the protection they need and deserve.89
3.3 The 1961 Convention on the reduction of statelessness
After the 1961 Convention the UNHCR was assigned supervisory responsibility over stateless persons. The 1961 Convention was created with the idea that it should ensure that no new cases of statelessness would arise. It had as its basis Article 15 of the Universal Declaration of Human Rights which is the article on the right to nationality.90 This Convention was therefore aimed at the national laws of the different states in the world, in contrast to the previous United Nations Convention that was mostly focused on protection. As already explained many people are stateless due to cracks in the domestic legal systems or due to discriminatory national policies. There were already two previous international instruments that tried to address national laws in domestic legal systems.91 Examples of these are the Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws and Protocol relating to a certain case of statelessness adopted in 1930 and the Convention on the Nationality of Married Women adopted in 1957.
The 1961 Convention focuses on three causes and also solutions to statelessness. Acquisition of nationality at birth is dealt with in the first four articles of the
88 UNHCR Mandate http://www.unhcr.org/526a22cb6.html 89 Alice Edwards and Laura van Waas; Statelessness, page 292 90
Alice Edwards and Laura van Waas; Statelessness, page 293
91
22 Convention. As already explained in previous sections it is one of the most important moments at which a person can acquire a nationality. The next five articles deal with the loss, deprivation or renunciation of nationality at a later stage in life. This therefore tries to close the gap between birth and later in life. At both stages in life a person is therefore protected. Article 10 regulates nationality following a state succession. The Convention does not impose obligations on states to change their nationality laws or to create uniform nationality laws.92 It is more aimed at the reduction of statelessness itself.93 For instance Article 1 does not require states to use the ius soli nationality principle but it does require for states to grant nationality to children born in their territory if the not doing so would lead to these children being stateless. Therefore the Convention creates obligations only where statelessness would be the result if certain actions were not taken.94
This means that the 1961 Convention does not comment on the legality of nationality laws. The Convention only ensures as a basic principle that change in the personal status of people that would lead to loss of nationality due to the domestic nationality laws can only happen if it is conditional to getting another nationality through either already possessing one or acquiring one. This principle is the same for children born that would otherwise be stateless due to domestic nationality laws. This shows that the Convention is based on the result and not on the circumstances and laws that create the legal problem.
92 Alice Edwards and Laura van Waas; Statelessness, page 293 93
Ibid.
94
23 Chapter 4 Causes
4.1 Acquisition at birth
As already stated above nationality that is acquired at birth is based on one of two principles; ius soli or ius sanguinis principle. The former is based on the territory in which someone is born and the latter based on descent. As already stated modern States have a mix of these two principles.95 If a country choses to only apply the ius soli principle a child born in that territory gets the nationality of that state. This creates no problems and this child is not stateless. However it becomes more difficult when a child is born in a country that strictly applies the ius sanguinis principle and the state of his parent’s nationality strictly applies the ius soli principle. A state that applies the ius sanguinis will look at the parents descent and if they have a link to that state.96 In the example above there is no link between the parents and the state where the child was born. The state can therefore not confer the nationality to this child. This child cannot acquire the nationality of his parents either as their country of nationality applies the ius soli principle. As the child was not born on the territory of this state, the state cannot confer nationality to this child either. Another example would be the child of stateless parents who is born in a state that uses ius sanguinis as the principle for the application of its nationality laws. This child is therefore also stateless. This however does not mean that some states have not recognized this problem and created a way for this child to have a nationality anyway.97 It can be conditional upon either prolonged residence in the state or some other conditions.98 Such laws on the conferral of nationality can also create problems for foundlings or people born on board of ships or airplanes.99
95 Dorothy Jean Walker; Statelessness: Violation or Conduit for violation of Human Rights, page 110 96
Ibid.
97 Dorothy Jean Walker; Statelessness: Violation or Conduit for violation of Human Rights, page 111 98 Ibid.
99
Dorothy Jean Walker; Statelessness: Violation or Conduit for violation of Human Rights page 111 & 112
24 4.2 Loss of nationality
Statelessness can arise here when nationality is lost under the laws of one state and no new or other nationality is acquired through the laws of another state.100 This happens at a later stage in life and not at birth. A very complicated example would be a foundling whom nationality had been conferred upon by a state that follows the ius soli principle. However it is later shown that this foundling was born in a state with the ius sanguinis principle. However his parents are not nationals of that state but another state following the ius soli principle. This person therefore loses his previously acquired nationality.101 The same can happen when someone gets married or when there is dissolution of a marriage. Marriage is therefore one of the main sources of loss of nationality when it comes to woman.102 It is possible for a woman to lose her nationality when she marries an alien, depending on the nationality rules of her country of nationality. If the law of her country of nationality includes that the nationality of a woman follows that of her husband this becomes a possibility.103 Such situations can also arise if a woman marries a stateless person. The inevitable loss of a married woman’s nationality is also possible when her husband changes nationality during the marriage. Other possibilities are deprivation and renunciation of one’s nationality. Renunciation is when an individual voluntarily gives up their nationality for the purpose of acquiring another nationality.104 As it is a voluntary act this thesis does not go into detail with this particular situation. Deprivation on the other hand can happen in different forms and for different reasons. States can for instance deprive someone of their nationality is they acquired it by fraud or misrepresentation.105
100
Dorothy Jean Walker; Statelessness: Violation or Conduit for violation of Human Rights, page 112
101 Ibid.
102 Dorothy Jean Walker; Statelessness: Violation or Conduit for violation of Human Rights, page
113
103 Ibid.
104 Dorothy Jean Walker; Statelessness: Violation or Conduit for violation of Human Rights, page
114
105
25 4.3 Succession of a new state
A clear example of succession of a new state would be the dissolution of the Soviet Union, Czechoslovakia and Yugoslavia. Due to the creation of new territories it is possible for people to lose their nationality without acquiring another nationality.106 If there are no safeguards created by states when they transfer territory to each other this also becomes a possibility. If there is dissolution of a certain state it means that the inhabitants will no longer have a nationality as there is no more state. However if another state takes over this particular territory it can happen that the subsequent state does not give the original inhabitants of the area its nationality. During these periods of state succession or transfer of territory national laws and rules on who is a citizen are changed. It is the change in these rules that causes a situation in which individual are rendered stateless.107
4.4 Domestic laws concerning nationality
As the example given previously of the many individuals of Haitian descent living in the Dominican Republic that were rendered stateless due to a constitutional court decision it is possible for national legal systems to create situations in which statelessness becomes a possibility.108 Countries can therefore create laws that would discriminate people on the basis of their race or descent. Not only is this possible it is also simply possible for different states to have different domestic laws on acquiring a nationality that when put together create gaps for certain individuals to fall in and therefore become stateless. As has been mentioned previously in this thesis the rules on who is a national of a state are left to the states themselves. However this is not without limitations. An example that is used allot in other academic papers to show evidence of these limitations is the advisory opinion found in the case concerning Nationality Decrees Issued in Tunis and Morocco.109 In this
106 Dorothy Jean Walker; Statelessness: Violation or Conduit for violation of Human Rights, page
114 & Claude Cahn; Minorities, Citizenship and Statelessness in Europe, page 297
107
David Weissbrodt and Clay Collins; the human rights of stateless persons, page 261
108
http://www.statelessness.eu/blog/inter-american-court-condemns-unprecedented-situation-statelessness-dominican-republic
109
Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion, 1923, P.C.I.J., Series B, No. 4, p. 24.
26 case the PCIJ emphasized that the question whether a matter was solely within the jurisdiction of a State was essentially a relative question, depending upon the development of international relations, and it held that even in respect of matters which in principle were not regulated by international law, the right of a State to use its discretion might be restricted by obligations which it might have undertaken towards other States, so that its jurisdiction became limited by rules of international law.110
Chapter 5 Analysis
This chapter is dedicated to analysing the 1961 Convention on the Reduction of statelessness. This chapter will analyse the current efforts in the 1961 Convention aimed at the reduction of statelessness and whether or not these are sufficient to address the problem. In contrast to the previously mentioned Convention on Certain Questions relating to the Conflict of Nationality laws the 1961 Convention mostly has positive obligations that it imposed upon contracting states.
The most important articles that are related to the first cause discussed in the chapter above, acquisition of nationality at birth are articles 1 and 4. 111112
110 http://www.unhcr.org/5465e1ca9.html,p.24 111 Article 1
1. A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless. Such nationality shall be granted:
(a) at birth, by operation of law, or (b) upon an application being lodged with the appropriate authority, by or on behalf of the person concerned, in the manner prescribed by the national law. Subject to the provisions of paragraph 2 of this Article, no such application may be rejected. A Contracting State which provides for the grant of its nationality in accordance with sub-paragraph (b) of this paragraph may also provide for the grant of its nationality by operation of law at such age and subject to such conditions as may be prescribed by the national law
112 Article 4
1. A Contracting State shall grant its nationality to a person, not born in the territory of a Contracting State, who would otherwise be stateless, if the nationality of one of his parents at the time of the person’s birth was that of that State. If his parents did not possess the same nationality at the time of his birth, the question whether the nationality of the person concerned should follow that of the father or that of the mother shall be determined by the national law of such Contracting State. Nationality granted in accordance with the provisions of this paragraph shall be granted:
(a) at birth, by operation of law, or (b) upon an application being lodged with the appropriate authority, by or on behalf of the person concerned, in the manner prescribed by the national law. Subject to the provisions of paragraph 2 of this Article, no such application may be rejected.
27 These two articles are related to the elimination of future statelessness as related to the acquisition of a nationality at birth. As one can see from these two articles they offer a dual solution in which it creates a compromise between the ius sanguinis and ius soli states. It gives both solutions for people born on the territory of a certain country and people not born on the territory. The two articles make sure not to stick to one approach on the acquisition of nationality at birth. Article 1 includes in its second paragraph an exhaustive list of conditions that states can use to make the grant of nationality dependent upon if the Contracting state has not conferred nationality on a person born in their territory at birth by operation of its laws. Paragraph 3 of Article 1 of the Convention focuses on the ability of a child to get the nationality of its mother if the child is also born in the country of nationality of the mother. This paragraph therefore deals with the ability of women being able to give their nationality to their children. Important to notice is that the child needs to be born in wedlock. This paragraph is very important for if the father of the child is stateless as it ensures that there is a way to combat generations of stateless persons.
To summarize and emphasize the solution taken by these two articles; original statelessness, a term used at the beginning of this thesis, can be remedied by the use of ius soli principles in ius sanguinis countries and if this does not lead to the acquisition of a nationality it can be done by the application of ius sanguinis principles by ius soli countries.
Article 2 of the 1961 Convention focuses on foundlings as it is also possible for them to become stateless as it is unclear who their parents are etc. and this is of course of importance if they are found in a country that adhere to the ius sanguinis principle. The article simply states that foundlings acquire the nationality of the country in which they were found unless it can be shown that he is entitled to
2. A Contracting State may make the grant of its nationality in accordance with the provisions of paragraph 1 of this Article subject to one or more of the following conditions:
(a) that the application is lodged before the applicant reaches an age, being not less than twenty-three years, fixed by the Contracting State;
(b) that the person concerned has habitually resided in the territory of the Contracting State for such period immediately preceding the lodging of the application, not exceeding three years, as may be fixed by that State;
(c) that the person concerned has not been convicted of an offence against national security; (d) that the person concerned has always been stateless.
28 another nationality. This article follows the same rules as already established in the 1930 Convention on Certain Questions relating to the Conflict of Nationality laws. Article 3 deals with another incident that might not be so common; those born on board of ships or aircrafts.113
These solutions are pre-emptive when it comes to preventing statelessness.114 All of these solutions are aimed at registering birth and acquiring a nationality at birth. If these provisions are applied correctly it would prevent statelessness before it even occurs. The articles aimed at the prevention of statelessness would lead in the future to the reduction of statelessness as well. These articles could therefore be seen as tackling the phenomenon of generation of stateless persons. This means that children with parents who are stateless can still acquire a nationality despite their parents not having one.
The next cause of statelessness is the loss of nationality. As already previously stated the deprivation of nationality is in principle prohibited. However there are certain situations under which it is permitted. This is stated in Article 8 and the exceptions for the principle are in paragraph 2 and 3 but also Article 7 of the 1961 Convention. The next article, Article 9, focuses on national laws that are discriminatory and therefore prohibits the deprivation of nationality on racial, political, ethnical and religious grounds. This prohibition is absolute and therefore does not contain any exceptions to this principle.115 The reason for this article relates back to the Nazi regime under which many German Jews were denationalized, it tries to avoid such a discriminatory regime from existing again. In this same category a cause of statelessness could arise from a change in civil status such as marriage and divorce or termination of a marriage. These possible causes are dealt with in articles 5 and 6. Other causes also include adoption and legitimation. Two other causes also discussed were the deprivation and renunciation of nationality.116 As already stated
113 http://legal.un.org/avl/pdf/ha/crs/crs_e.pdf
114 David Weissbrodt and Clay Collins; the human rights of stateless persons, page 271 115
http://legal.un.org/avl/pdf/ha/crs/crs_e.pdf
116
29 previously the 1961 Convention only allows the loss of a nationality only in a situation where the individual acquisition of another nationality would be the case.
Another cause would be succession of a new state or changes in borders or territories of states. The article concerned with this is Article 10. The article focuses on future actions and ensures that people living in the territories that undergo a change do not become stateless as a result of this transfer of territory between states.117
As already stated in the previous chapters most of the provision in the 1961 Convention are based on the condition that the individual ‘would otherwise be stateless’ or be rendered stateless. This means that the 1961 Convention only applies where the person in question would be left stateless. The 1961 Convention does not apply retroactively, meaning it does not require states to provide citizenship or nationality to people who were already stateless.118
It is important to understand that although the 1961 Conventions includes all of these provisions they are interpreted by the Contracting States and the provisions only apply to states that have signed the 1961 Convention.
Many efforts that can be taken to reduce and prevent statelessness are in the hands of states and how much they are willing to change their national laws to avoid these situations. This opinion is also supported by the UNHCR as evidenced in their 10-year-campaign to End Stateless where they state ‘the key factor to a solution is political will’.119 If the ratification of this Convention is compared to for instance the Convention on the Rights of the Child which is ratified by almost all the states in the world it clearly shows a different level of political acceptance and support.120
Although this Convention is the only universal instrument that includes a model of all the rules needed to regulate statelessness is greatly benefits from the provisions in other Convention such as the Convention on the Rights of Children that due include some provisions dealing with children acquiring nationality at birth etc. Other
117 http://legal.un.org/avl/pdf/ha/crs/crs_e.pdf 118 http://www.ipu.org/pdf/publications/nationality_en.pdf,p.12 119 http://www.unhcr.org/546217229.html,p.20 120
30 examples of such Conventions that form a supporting basis for the 1961 Convention are mentioned in the next chapter. Lastly although the Convention focuses on all these different causes and solutions to each it cannot foresee every possible situation that could render a person stateless. This means that even with these uniform rules, statelessness cannot be completely eradicated if the efforts to do so only come from the international sphere. Even with the creation of this Convention the number of people who are stateless does not seem to diminish. This clearly shows that the Convention does not achieve the aim needed which is the reduction of the amount of individuals who are stateless.121
The final comment on this analysis is a comparison between the draft articles on the reduction and elimination of statelessness and the 1961 Convention on the reduction of statelessness. If one looks at the first article of the draft articles they simply state that nationality shall be granted to an individual born in that particular state. If this is compared to the 1961 Convention one sees that many limitations and rules have been added to the original statement that was straightforward. 122 States are allowed to add conditions upon which they grant nationality as has been shown above. The only exception is a child born in wedlock on the territory of the state.123
If one puts aside these theoretical problems and also application of the 1961 Convention it is also important to look at the practical limitations of the Convention. Such limitation arise if there are no proper systems set in place to for instance identify who would ‘otherwise be stateless’ as the 1961 Convention mentions. If there is no identification mechanism it means that the people that would otherwise be stateless do not get to benefit from the provisions in the 1961 Convention. Also unlike many other human rights conventions there is no mechanism created to enforce the provisions of these Conventions.124 The reason why such a mechanism does not exist dates back to the creation of the 1961 Convention and the decision during this time was to make the UNHCR the international organization tasked with
121 Laura van Waas; Statelessness; A 21st century challenge for Europe, page 138 122 Manley O. Hudson; Nationality including statelessness, page
123
http://legal.un.org/avl/pdf/ha/crs/crs_e.pdf
124
31 assisting those who are stateless. Another possible problem with the regime of statelessness is that it is not only regulated internationally but also regionally meaning that each instrument has its own mechanism, rules and interpretation. This works against the creation of a uniform set of rules throughout the world.125 However the opposite can be argued that with the creation of these rules both regionally and internationally creates a specific regime for each area and that it can therefore target the situations specific to that region much better.
Chapter 6 The right to nationality
Why is the right to nationality so important in this thesis? The right to nationality although a right in theory is a right to enables an individual to enjoy their other rights. This means that the right to nationality acts as a doorway for the enjoyment of other human rights.126 Some authors go even further and argue that statelessness, not having a nationality, is in itself a violation of human rights.127
Nationality is the legal bond between the individual and a state and this forms the basis for the enjoyment of many rights.128 The most important document discussing the right to nationality is the Universal Declaration of Human rights in Article 15. This article states that every person has the right to nationality and that no one shall be arbitrarily deprived of their nationality. Similar provisions can be found in the American Convention on Human Rights Article 20, the Convention on the Rights of the Child Article 7 (every child has the right to acquire a nationality, the right to immediate registration of birth and the right to a name) and lastly the Convention on the Elimination of all Forms of Racial Discrimination Article 5 which prohibits racial discrimination when it comes to the right to nationality. The American Convention on Human Rights is considered to be the clearest example of the right to nationality by a regional instrument. The Convention simply states that children born on the territory of a state have the right to the nationality of that state unless they
125
Laura van Waas; Statelessness: A 21st century challenge for Europe, page 141
126 http://www.unhcr.org/3c750b9e2.html,p.159
127 Mirna Adjami and Julia Harrington; the scope and content of Article 15 of the Universal
Declaration of Human Rights, page 94
128
32 have the right to another nationality. This means that people who would otherwise be stateless that are born in the territory of a Contracting State of the American Convention on Human Rights have a right to the nationality of that state. A right that can be upheld and claimed.129
For instance in Kuric and Others v Slovenia the citizens were erased from Slovenian registry of permanent residents and rendered stateless.130 According to the European Court of Human Rights Article 8 was violated. A similar decision was taken in the Dominican Republic case by the Inter-American Court of Human Rights.131 Although it does not state that there is a de facto right to nationality it does emphasize that racial discrimination is prohibited when it comes to nationality and who acquires it.132 In its judgement the Court recognized that nationality is an issue left to the domestic jurisdiction of states however it states that this has been restricted by international law. According to the Court the restrictions were two fold; equal and effective protection of individuals on one side and the reduction and prevention of statelessness on the other.133
As stated above it is possible for women to lose their nationality when there is dissolution of marriage. It is also possible those women are unable to pass their nationality to their children. There is a specific convention dealing with this particular subject that tries to achieve equality for women. The 1957 Convention on the Nationality of Married Women tries to achieve that women can enjoy their universal rights without discrimination as to sex. Regionally there are also many instruments created that address nationality such as the aforementioned 1997 European Convention on Nationality. Another UN Convention that also requires states to grant women equal rights as men when it comes to matters dealing with nationality is the Convention on the Elimination of Discrimination against Women
129 Mirna Adjami and Julia Harrington; the scope and content of article 15 of the Universal
Declaration of Human Rights, page 99
130 http://hudoc.echr.coe.int/eng?i=001-111634#{"itemid":["001-111634"]} 131
Inter-American Court of Human Rights case; Dilcia Yean and Violeta Bosico v. Dominican Republic (Series C, No. 130, 7 Oct. 2005)
132 Mirna Adjami and Julia Harrington; the scope and content of article 15 of the Universal
Declaration of Human Rights, page 105
133
