Nationality and Statelessness

by

Laura van Waas, María José Recalde Vela

• LAST REVIEWED: 12 January 2023
• LAST MODIFIED: 12 January 2023
• DOI: 10.1093/obo/9780199796953-0013

Introduction

Nationality is the legal bond between a person and a state, denotes membership to said state, and gives rise to reciprocal rights and duties between individual and state. This legal bond is also commonly referred to as “citizenship” and the terms “nationality” and “citizenship” are widely used interchangeably, particularly in the field of international law. 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” have been used in some international legal contexts to describe membership of a “nation” in the sense of a particular cultural, ethnic, or historic community. Each state’s municipal law dictates who can and who cannot be recognized as a state’s national, with the two principal doctrines for the attribution of nationality (at birth) being jus soli (based on birth in a state’s territory) and jus sanguinis (based on descent). 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 persons to renounce, lose, change, or be deprived of their nationality under certain circumstances. While international law recognizes the freedom of states to regulate access to nationality as an exercise of their sovereignty, certain limitations to this freedom exist 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, as defined under Article 1 of the 1954 Convention on the Status of Stateless Persons. There are at least 15 million stateless persons worldwide, according to estimates from 2020 (World’s Stateless Report 2020). Statelessness has numerous causes, including the conflict of nationality laws, arbitrary deprivation or denial of nationality, discriminatory practices in attribution of nationality, and inadequate regulation of nationality in the context of state succession, to name a few. Statelessness has a detrimental effect on individuals, families, and communities. The lack of nationality can severely obstruct the enjoyment and access to 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 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 still gaps in the literature on these subjects. However, interest in statelessness and the problems associated with the regulation of nationality has been growing steadily in recent years, 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. Few comprehensive works are 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, 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, van Waas 2008, and Weissbrodt and Collins 2006, which reflect upon contemporary developments in international law, including the influence of human rights law on this field, but they do not discuss the underlying concepts. Edwards and van Waas 2014, an edited collection, provides a recent exploration of theory surrounding nationality and statelessness. Conklin 2014 provides a theoretical exploration of the subject and challenges the idea that nationality is a matter of the state’s domain reservé. Two edited collections published in 2017 are valuable contributions to the body of literature on the topic: van Waas and Khanna 2017, which explores solutions to statelessness, and Bloom, et al. 2017 which examines the theoretical, legal, and political concept of statelessness. The Statelessness & Citizenship Review, established in 2018, publishes academic articles, commentaries, case notes, and book reviews on statelessness. The Journal is of an interdisciplinary nature and the pieces published focus on various aspects of the issue.

• Bloom, Tendayi, Katherine Tonkiss, and Phillip Cole, eds. Understanding Statelessness. Abingdon, UK: Routledge, 2017.

  In-depth examination of statelessness by presenting the theoretical, legal, and political concept of statelessness through the works of various experts in the field. The volume is divided into three parts: “Defining Statelessness,” “Living Statelessness,” and “Theorizing Statelessness.” The various works in this volume encourage readers to rethink how to approach the issue of statelessness.

• Conklin, William, Statelessness: The Enigma of the International Community. Oxford: Hart, 2014.

  Conklin questions the idea that nationality is a matter within the exclusive reserved domain of the state, arguing for the right to a nationality as an obligation of the international community.

• Edwards, Alice, and Laura van Waas, eds. Nationality and Statelessness under International Law. Cambridge, UK: Cambridge University Press, 2014.

  This edited collection includes contributions that explain the relationship between international standards on the regulation of nationality law and the phenomenon of statelessness. The various essays also outline the rights of stateless persons and challenges for the eradication of statelessness.

• 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.

  Presentation of statelessness as a protection gap, which poses 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 O. Report on Nationality, including Statelessness. A/CN.4/50, 21 February 1952. Geneva, Switzerland: International Law Commission, 1952.

  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.

• Musa, Shavana, ed. Special Issue: Statelessness. Tilburg Law Review 19.1–2 (2014).

  Contains various articles written by experts on nationality and statelessness. The articles in this issue focus on various issues related to nationality and statelessness, including explorations of stateless populations, causes of statelessness, the impact of statelessness, and theoretical explorations of the issue. Furthermore, the first article in the issue maps the “state of statelessness research” at the time of writing (2014).

• Statelessness & Citizenship Review. 2018–.

  The Statelessness & Citizenship Review (SCR) was established in 2018 as a collaboration between the Peter McMullin Center on Statelessness at Melbourne Law School and the Institute on Statelessness and Inclusion. The SCR published its first issue in 2019. The SCR is the first journal dedicated to advancing the understanding of statelessness serving as a platform for the exchange of ideas and knowledge among scholars and practitioners in the field. The journal is of an interdisciplinary nature and publishes articles, commentary pieces, case notes, and book reviews. Special issues have been hosted on topics like the situation in Assam (2021), and childhood statelessness (2022). Editors-in-chief are Michelle Foster and Laura van Waas.

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

  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, Belgium: Intersentia, 2008.

  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.

• van Waas, Laura, and Melanie Khanna, eds. Solving Statelessness. Oisterwijk, The Netherlands: Wolf Legal, 2017.

  Contains various contributions that approach the issue of statelessness from a “solutions” perspective. The authors explore what is being done to address the issue and what challenges lie ahead. Includes contributions on tools and techniques to solve statelessness, addressing region-specific issues and challenges, developments, innovations, and future possibilities, all in the context of the global campaign to end statelessness.

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

  Detailed discussion of how questions of nationality and statelessness are addressed under international law. Still one of the most authoritative early works on the subject. Comprises a comprehensive technical overview of relevant customary law, treaty standards, and municipal and international jurisprudence leading to broader conclusions on the state of international law at the time of writing (1979).

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

  DOI: 10.1353/hrq.2006.0013

  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.