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In This Article Nationality and Statelessness

  • Introduction
  • General Overviews
  • Organizational and Institutional Resources
  • Function of Nationality
  • Definition of Statelessness
  • Situations of Statelessness
  • Protection of Stateless Persons
  • UNHCR and Statelessness

International Law Nationality and Statelessness
by
Laura van Waas

Introduction

Nationality is the legal bond between a person and a state. It denotes membership and gives rise to both rights and duties on the part of the individual and the state concerned. This legal bond is also commonly referred to as “citizenship,” and in most writing on the subject, “nationality” and “citizenship” are used as interchangeable synonyms. However, it is important to note that at the domestic level, citizenship and nationality may constitute distinct legal statuses. In addition, the terms “national” and “nationality” are used in some international legal contexts and related writing to describe membership of a “nation” in the sense of a particular cultural, ethnic, or historic community. Each state’s municipal law dictates on whom nationality shall be conferred. The two principal doctrines for the attribution of nationality are jus soli (nationality based on birth on state soil) and jus sanguinis (nationality based on descent from a national). A third common ground for the attribution of nationality is long-term residence, which can open the door to naturalization. It is also possible for a person to renounce, lose, change, or be deprived of his or her nationality under certain circumstances. International law recognizes, in principle, the freedom of states to regulate access to nationality as an exercise of sovereignty. However, some limits to this freedom may be imposed under international customary and treaty law. A stateless person is someone who is not considered a national by any state under the operation of its law. Statelessness is an anomalous situation, in 2011 affecting an estimated 12 million people worldwide. There are numerous causes, including a conflict of nationality laws and arbitrary deprivation of nationality. Another common cause of statelessness is the inadequate or uncoordinated regulation of nationality in the context of state succession. Statelessness has a detrimental effect on individuals, families, and communities. The lack of a nationality can severely obstruct the enjoyment of a wide range of rights and services, contributing to poverty and marginalization, and even leading to forced displacement. Although human rights law provides for the right to a nationality, and two international treaties were adopted specifically with a view to addressing statelessness, over the years the issues of nationality and statelessness have received inconsistent attention from the international community and from scholars. Therefore, as compared to other areas of international law, there are large gaps in the literature on these subjects. However, in recent years the interest in statelessness and the problems associated with the regulation of nationality has been growing steadily, and this has heralded many new and insightful publications.

General Overviews

The following entries provide a broad introduction to the concept of nationality and/or statelessness under international law. Unlike closely related areas of international law, such as refugee law, this remains an underdeveloped area of legal literature. There are few comprehensive works dedicated to these subjects, and several of the more significant contributions are now to some extent dated, having been written prior to key developments in municipal and international law relating to nationality. Hudson 1952 was compiled before the adoption of the UN conventions relating to statelessness and at a time when international human rights law was also in its infancy. Nevertheless, this early report, as well as pieces by leading international law scholars (e.g., van Panhuys 1959, Brownlie 1963, Weis 1979), provide an excellent overview of the concepts of nationality and statelessness, as well as a presentation of the challenges of dealing with these issues through international law, many of which are still pertinent today. Reading one or more of these earlier pieces provides a helpful framework for understanding more recent writings, including Goodwin-Gill 1994, Zilbershats 2002, van Waas 2008, and Weissbrodt 2006, which reflect upon contemporary developments in international law, including the influence of human rights law on this field, but do not discuss the underlying concepts in any real depth. Other overviews, such as Achiron, et al. 2005 (cited under The 1961 Convention on the Reduction of Statelessness), and Forced Migration Review in 2009, provide an easy-to-read introduction that can be valuable, for instance, to undergraduate students seeking to gain a first insight into the core issues before embarking on a more in-depth exploration of underlying theory.

  • Brownlie, Ian. “The Relations of Nationality in Public International Law.” British Yearbook of International Law 39 (1963): 284–364.

    E-mail Citation »

    Advanced theoretical treatise on the principles that underlie the regulation of nationality, including a presentation of trends in municipal law and discussion of the notion of “effective link.” Also deals with some questions relating to the function of nationality in international law, such as in the field of diplomatic protection.

  • Goodwin-Gill, Guy. “The Rights of Refugees and Stateless Persons: Problems of Stateless Persons and the Need for International Measures of Protection.” Paper presented at the Third World Congress on Human Rights, New Delhi, 10–15 December 1990. In Human Rights Perspective and Challenges: In 1990 and Beyond. Edited by K. P. Saksena, 378–401. New Delhi: Lancer, 1994.

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    Presentation of statelessness as a protection gap posing a challenge to international law. Concise and accessible chapter that contrasts traditional thinking on statelessness and related international standards with contemporary situations of statelessness in order to present a case for rethinking the approach to this protection problem.

  • Hudson, Manley. Report on Nationality, including Statelessness, A/CN.4/50, 21 February 1952. Geneva, Switzerland: International Law Commission.

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    The most comprehensive of the studies prepared in the lead-up to the adoption of the UN conventions on statelessness, describing the concepts of nationality and statelessness and assessing the relationship with international law. Useful as both a historical snapshot of the trends in domestic law and content of international standards at the time, and a broader introduction to the regulation of nationality and causes of statelessness.

  • Special Issue: Statelessness Forced Migration Review 32 (April 2009).

    E-mail Citation »

    Presents concise and accessible articles by policymakers, practitioners, and researchers. The contributions to this edition provide insight into the concept of statelessness and the current contours of international law, as well as presenting a series of short exposés on specific sub-themes and country situations.

  • van Panhuys, Haro Frederik. The Role of Nationality in International Law. Leiden, The Netherlands: A. W. Sijthoff, 1959.

    E-mail Citation »

    Advanced theoretical exploration of the relationship between nationality and international law: the function attributed to nationality under international customary and treaty law and the influence of international standards on the attribution of nationality.

  • van Waas, Laura. Nationality Matters: Statelessness under International Law. Antwerp: Intersentia, 2008.

    E-mail Citation »

    Exhaustive technical exposition of the contemporary international legal framework relating to nationality and statelessness, in terms of both standards for the avoidance and resolution of cases of statelessness, and the protection of the rights of stateless people.

  • Weis, Paul. Nationality and Statelessness in International Law. Dordrecht, The Netherlands: Kluwer Academic, 1979.

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    Detailed discussion of how questions of nationality and statelessness are dealt with under international law. Still one of the most authoritative works on the subject. Comprises a comprehensive technical overview of relevant customary law, treaty standards, municipal and international jurisprudence, leading to broader conclusions on the state of international law at the time of writing.

  • Weissbrodt, David, and Clay Collins. “The Human Rights of Stateless Persons.” Human Rights Quarterly 28.1 (2006): 245–276.

    DOI: 10.1353/hrq.2006.0013E-mail Citation »

    Discussion of the problem of statelessness from a human rights perspective. Accessible text reviewing underlying concepts and illustrating the causes and consequences of statelessness through reference to practical examples, while presenting, in parallel, the relevant international standards.

  • Zilbershats, Yaffa. The Human Right to Citizenship. Ardsley, NY: Transnational, 2002.

    E-mail Citation »

    This work discusses the principles underlying the enjoyment of nationality by individuals and investigates the conditions imposed by international law on the regulation of nationality by states. Of particular interest in this piece is the exploration of an alternative approach to the attribution of nationality with a view to promoting the enjoyment of a relevant and effective citizenship by all.

LAST MODIFIED: 03/23/2012

DOI: 10.1093/OBO/9780199796953-0013

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