International standards

KEY MESSAGES

• Historically, regulating who has access to nationality was at the discretion of states. However, the development of international law during the 20th century placed limits on state sovereignty over nationality matters.
• States must ensure that they regulate nationality in a way that respects the right to nationality, the duty to avoid statelessness and the prohibition of discrimination. 
• The right to nationality is enshrined in a multitude of international and regional treaties and international law also protects the human rights of all people, regardless of nationality or statelessness.
• The 1954 and 1961 statelessness conventions complement human rights law with dedicated provisions on the identification and protection of stateless people, as well as the prevention and reduction of statelessness.
• UN human rights mechanisms such as Treaty Bodies and the Universal Periodic Review, and UN agencies such as UNHCR, play an important role in promoting adherence to international standards on nationality and statelessness. 

NATIONALITY AND STATELESSNESS AS A MATTER OF INTERNATIONAL LAW

Each state sets its own rules for the acquisition and loss of its nationality – an expression of self-determination and a legitimate exercise of sovereignty. In the 19th and early 20th century, regulating access to nationality fell entirely within the “reserved domain” of states and was not subject to any rules of international law. This was confirmed in 1923 by the Permanent Court of International Justice in the Tunis and Morocco Nationality Decrees case. However, subsequent developments in international law came to place limits on state discretion in determining who their citizens were. 

The first international convention aimed at abolishing statelessness was the 1930 Convention on Certain Questions Relating to the Conflict of Nationality Laws. Then, following WWII and the denationalisation, displacement, and disenfranchisement of millions of people, the right to a nationality was recognised as a human right in 1948, when it was codified in the Universal Declaration on Human Rights (Article 15). This was a milestone in the history of the international community’s engagement with the question of nationality. Statelessness evolved from being a problem for states and inter-state relations, to a matter of human rights. Soon thereafter, two dedicated international treaties on statelessness were also adopted – the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. 

During the second half of the 20th century, as international human rights law continued to evolve and crystalise, the right to nationality was embedded in an array of binding human rights treaties. This important evolution was consolidated as a series of cases decided by human rights courts and committees at the beginning of the 21st century which demonstrated that the right to a nationality is not just a human right, it is also a justiciable right, and states therefore can be held to account for their laws and decisions on nationality. Today, states must ensure that they regulate nationality in a way that respects the right to nationality, the duty to avoid statelessness and the prohibition of discrimination.

INTERNATIONAL HUMAN RIGHTS STANDARDS

Following the adoption of the Universal Declaration of Human Rights which set out the right to a nationality in its article 15, binding UN human rights treaties included the right to nationality, as well as other standards relevant to the avoidance and reduction of statelessness. The Convention on the Rights of the Child, which enjoys almost universal ratification, contains a safeguard against childhood statelessness, and the Convention on the Elimination of All Forms of Discrimination Against Women protects against gender discriminatory nationality laws – one of the causes of statelessness. Other conventions reaffirm the right to nationality and include the International Covenant on Civil and Political Rights (Article 24.3); the International Convention on the Elimination of all Forms of Racial Discrimination (Article 5(d)(iii); the Convention on the Rights of Persons with Disabilities (Article 18); the International Covenant on Economic, Social and Cultural Rights (Articles 2(2) and Article 3); and the International Convention for the Protection of All Persons from Enforced Disappearance (Article 25(4)).

Moreover, all people are protected by international human rights law, including people without a nationality. The very nature of human rights as rights that attach to human dignity, means that stateless people are also entitled to the enjoyment of other rights, as set out in human rights instruments. While some political rights may be restricted by a state to its own citizens, most other civil and political, as well as economic, social and cultural rights, are to be protected for everyone within a state’s jurisdiction, regardless of nationality or statelessness. However, in practice, nationality commonly still functions as a gateway to other rights and so stateless people struggle to enjoy basic human rights and services – including quality education and healthcare, safe, secure and dignified work, inheritance and ownership of property, and basic banking. There remains considerable work to be done to ensure full compliance of states with international norms relating to nationality and statelessness and to ensure that the rights of stateless people are protected. 

REGIONAL FRAMEWORKS AND TREATIES

Various regional conventions also address nationality and statelessness. In the Americas, the American Convention on Human Rights (Article 20) protects the right to nationality. This provision, together with the accompanying case law of the Inter-American Court and the work of the Inter-American Commission, provides a robust legal framework for the protection of the right to a nationality in the region. In Africa, although the African Charter on Human and Peoples’ Rights does not contain a right to a nationality, the African Commission on Human and Peoples Rights which oversees the implementation of the Charter has found that the right to dignity and legal status (Article 5) includes the right to a nationality. The African Charter on the Rights and Welfare of the Child also contains provisions relevant to nationality and childhood statelessness, and in 2014 the Committee of Experts that oversees the Charter issued a General Comment to provide guidance on how to interpret and ensure these rights. In Europe, while the European Convention on Human Rights does not provide for the right to a nationality, the European Court of Human Rights has recognised nationality to be a part of an individual’s “social identity” and therefore protected as part of the right to private life (Article 8). There are also two separate instruments, developed within the Council of Europe, that specifically address nationality and statelessness: the European Convention on Nationality and the Convention on the Avoidance of Statelessness in Relation to State Succession. In the Asia Pacific region, there is no regional human rights framework, meaning that the importance of the international framework is greater. The subregional ASEAN human rights declaration does provide for the right to nationality for South East Asian countries (Article 18), although this is not a binding treaty. In the Middle East and North Africa Region, the Arab Charter on Human Rights (Article 29) and the Charter on the Rights of the Child in Islam (Article 7) both contain the right to nationality – however, these too are not binding.