Right to Nationality

Right to Nationality is the right of every person to possess a legal nationality and to enjoy the legal relationship that connects them with a State. International Law recognises nationality as an important aspect of legal identity and seeks to protect individuals against arbitrary deprivation of nationality and unnecessary statelessness.

Meaning

Nationality establishes the legal bond between an individual and a State.

The right to nationality therefore means that a person should have access to a nationality and should not be arbitrarily deprived of it.

The basic principle is:

Individual → Right to a nationality → Legal relationship with a State

Nationality may provide access to:

• legal identity;
• residence and entry rights;
• political participation;
• consular protection;
• diplomatic protection;
• other rights under domestic law.

International Legal Basis

The right to nationality is recognised in several international instruments.

The most important provisions include:

• Article 15 of the Universal Declaration of Human Rights, 1948
• Article 24(3) of the International Covenant on Civil and Political Rights, 1966
• Article 7 of the Convention on the Rights of the Child, 1989
• Article 9 of CEDAW, 1979
• 1954 Convention relating to the Status of Stateless Persons
• 1961 Convention on the Reduction of Statelessness

Article 15 of the UDHR

Article 15 of the Universal Declaration of Human Rights, 1948 establishes two central principles:

1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of nationality or denied the right to change nationality.

Thus:

Right to acquire/possess nationality

Protection against arbitrary deprivation

=

Right to nationality

Article 24(3) of the ICCPR

Article 24(3) of the International Covenant on Civil and Political Rights, 1966 provides that every child has the right to acquire a nationality.

This provision is particularly important in preventing childhood statelessness.

Article 7 of the Convention on the Rights of the Child

Article 7 of the Convention on the Rights of the Child, 1989 recognises that a child should be:

• registered immediately after birth;
• given a name;
• entitled to acquire a nationality.

States are expected to implement these rights, particularly where a child would otherwise become stateless.

Article 9 of CEDAW

Article 9 of the Convention on the Elimination of All Forms of Discrimination Against Women, 1979 is important because it establishes equality between women and men concerning nationality.

Women should have equal rights to:

• acquire nationality;
• change nationality;
• retain nationality;
• transmit nationality to their children.

Right to Acquire Nationality

The right to nationality includes protection against situations in which a person is left without any nationality.

States have significant discretion in establishing their nationality laws, including rules concerning:

• birth;
• descent;
• naturalisation;
• registration;
• adoption.

However, these rules must operate consistently with applicable international obligations.

Right to Retain Nationality

The right to nationality also involves protection against arbitrary loss of nationality.

A State should not arbitrarily remove a person’s nationality, particularly where the removal would leave the individual stateless.

Arbitrary Deprivation

A central element of the right to nationality is protection against arbitrary deprivation.

A State may have legitimate grounds for withdrawing nationality under its domestic law, but the measure must comply with applicable International Law.

Relevant considerations may include:

• legitimate purpose;
• non-discrimination;
• proportionality;
• procedural safeguards;
• prevention of statelessness.

Statelessness

Statelessness occurs when a person is not considered a national by any State under the operation of its law.

The right to nationality is closely connected with the international effort to prevent statelessness.

For example:

Nationality withdrawn

↓

No alternative nationality

↓

Statelessness

↓

Serious impact on legal status and rights

1954 Convention

The 1954 Convention relating to the Status of Stateless Persons establishes a legal framework for the protection and treatment of stateless persons.

It addresses matters including:

• identity documents;
• travel documents;
• employment;
• education;
• access to courts;
• public relief.

1961 Convention

The 1961 Convention on the Reduction of Statelessness focuses on preventing and reducing statelessness.

It establishes safeguards concerning:

• nationality at birth;
• deprivation of nationality;
• renunciation;
• State succession;
• children.

Right to Nationality of Children

Children receive special protection under International Law.

A child may be at risk of statelessness where:

• parents are stateless;
• parents possess different nationalities;
• nationality laws conflict;
• birth occurs outside the parents’ State;
• the child’s birth is not properly registered.

International Law therefore places particular emphasis on birth registration and access to nationality.

Birth Registration

Birth registration is an important practical mechanism for protecting the right to nationality.

It establishes evidence concerning:

• identity;
• date of birth;
• place of birth;
• parentage.

Lack of birth registration does not necessarily mean that a person is stateless, but it can significantly increase the risk of statelessness.

Right to Change Nationality

Article 15 of the UDHR recognises that a person should not be arbitrarily denied the right to change nationality.

However, this does not mean that every person has an unrestricted right to obtain the nationality of any State they choose.

The acquisition of a new nationality remains subject to the laws and requirements of the State concerned.

Nationality and Marriage

Modern International Law rejects the automatic loss or acquisition of nationality merely because of marriage.

A married person should generally be able to:

• retain their nationality;
• acquire another nationality voluntarily;
• change nationality in accordance with applicable law.

The Convention on the Nationality of Married Women, 1957 is particularly relevant.

Nationality and Gender Equality

Historically, nationality laws sometimes treated women differently from men.

For example, women could automatically:

• lose nationality upon marriage;
• acquire their husband’s nationality;
• lose the ability to transmit nationality to their children.

Modern International Law increasingly rejects such discriminatory rules.

CEDAW Article 9 is particularly important in this regard.

Nationality of Children of Mixed-Nationality Parents

Children whose parents have different nationalities may face conflicting nationality rules.

International Law encourages States to establish mechanisms ensuring that children are not unnecessarily left without nationality.

Depending upon domestic law, a child may acquire:

• the father’s nationality;
• the mother’s nationality;
• both;
• nationality based on place of birth.

Dual Nationality

The right to nationality does not require every State to recognise dual nationality.

A person may possess two nationalities where the laws of the relevant States permit it.

Dual nationality can sometimes protect an individual from statelessness.

Nationality and State Succession

State succession can create serious nationality problems.

When States:

• dissolve;
• merge;
• separate;
• transfer territory;

individuals may face uncertainty concerning their nationality.

International Law seeks to ensure that changes in State sovereignty do not unnecessarily leave individuals stateless.

Nationality and Minorities

Nationality laws should not be used arbitrarily to exclude particular ethnic, racial, religious or other groups from nationality.

Discriminatory nationality laws can contribute to mass statelessness and raise serious human rights concerns.

Right to Nationality and Indigenous Peoples

Nationality issues may also arise in relation to indigenous populations where questions exist concerning:

• citizenship;
• historical territorial status;
• documentation;
• recognition by the State.

The right to nationality must operate consistently with applicable human rights standards.

Right to Nationality and Migrants

Migrants do not automatically acquire the nationality of the State in which they reside.

However, they remain entitled to the rights guaranteed to them under applicable human rights law.

Naturalisation procedures may provide a route to nationality where domestic law permits.

Right to Nationality and Refugees

A refugee may retain the nationality of their State of origin.

Refugee status and nationality are therefore distinct.

However, international standards encourage States to facilitate naturalisation and integration of refugees in appropriate circumstances.

Right to Nationality and Diplomatic Protection

Nationality provides the principal basis for diplomatic protection.

For example:

Person → National of State A

↓

State B commits internationally wrongful act

↓

State A → may potentially exercise diplomatic protection

A stateless person ordinarily lacks a State of nationality capable of exercising traditional diplomatic protection.

Right to Nationality and Consular Protection

Nationality also provides the basis for ordinary consular protection.

A State generally provides consular assistance to its nationals abroad.

Therefore, loss of nationality can affect access to:

• passports;
• consular assistance;
• diplomatic protection.

Nottebohm Case

In Nottebohm (Liechtenstein v. Guatemala), 1955, the ICJ examined the international effect of nationality acquired through naturalisation.

The case is important for the concept of a genuine or effective connection in the context of diplomatic protection.

It demonstrates that the existence of nationality under domestic law and its international effectiveness can raise distinct questions.

Ahmadou Sadio Diallo

In Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), 2010, the ICJ dealt with diplomatic protection and the treatment of an individual.

The case illustrates the practical connection between:

• nationality;
• protection of individuals;
• State responsibility.

Nationality and Human Dignity

Nationality can have profound consequences for an individual’s ability to participate fully in social, political and legal life.

The international recognition of the right to nationality therefore reflects its importance to:

• identity;
• legal personality;
• security;
• belonging;
• protection.

Is the Right to Nationality Absolute?

The right to nationality is important, but it does not mean that an individual has an unrestricted right to demand the nationality of a particular State.

States retain substantial authority over:

• naturalisation;
• citizenship requirements;
• nationality procedures.

International Law principally requires that nationality rules respect applicable standards concerning:

• non-discrimination;
• arbitrary deprivation;
• statelessness;
• children’s rights.

Common Confusions

Does everyone have a right to the nationality of a State of their choice?

No. The right to nationality does not create an unrestricted right to obtain any particular nationality.

Can a State deprive someone of nationality?

In certain circumstances, yes, but deprivation must comply with International Law and must not be arbitrary.

Does deprivation always make a person stateless?

No. A person may possess another nationality.

Is statelessness the same as being a foreign national?

No.

Foreign national → possesses another nationality

Stateless person → possesses no nationality

Do children have a right to nationality?

Yes. This is recognised particularly in Article 24(3) ICCPR and Article 7 CRC.

Can marriage automatically change nationality?

Modern International Law generally rejects automatic nationality changes merely because of marriage.

Does the right to nationality prohibit dual nationality?

No.

What is the most important international provision?

Article 15 of the UDHR.

Which treaty specifically addresses statelessness?

The 1954 Convention protects stateless persons, while the 1961 Convention seeks to reduce and prevent statelessness.

Topic at a Glance

Point Position Meaning Right to possess a nationality Main provision Article 15 UDHR Children Article 24(3) ICCPR; Article 7 CRC Women Article 9 CEDAW Core protection Protection against arbitrary deprivation Major concern Statelessness 1954 Convention Status and protection of stateless persons 1961 Convention Reduction and prevention of statelessness Birth registration Important safeguard Marriage Should not automatically alter nationality Gender equality Equal nationality rights State succession Safeguards against statelessness Dual nationality Not generally prohibited Diplomatic protection Nationality is central Leading case Nottebohm, 1955

Quick Revision

• Right to Nationality means the right of a person to possess a nationality and not be arbitrarily deprived of it.
• Article 15 UDHR is the principal international provision.
• It protects:
  • the right to nationality;
  • protection against arbitrary deprivation;
  • the right to change nationality.
• Article 24(3) ICCPR → every child has the right to acquire a nationality.
• Article 7 CRC → child’s right to acquire nationality.
• Article 9 CEDAW → equality of women and men in nationality matters.
• International Law seeks to prevent statelessness.
• The 1954 Convention protects stateless persons.
• The 1961 Convention seeks to reduce and prevent statelessness.
• Birth registration is an important safeguard.
• Marriage should not automatically determine nationality.
• Arbitrary and discriminatory deprivation of nationality is prohibited.
• The right to nationality does not give an unrestricted right to demand a particular State’s nationality.
• Nottebohm (1955) is important concerning nationality and diplomatic protection.
• The essential principle is:

Every person should have a nationality and should not be arbitrarily deprived of it, while States retain the authority to regulate nationality subject to International Law.

Conclusion

The Right to Nationality is a fundamental principle of International Law because nationality provides an important legal connection between an individual and a State. Article 15 of the Universal Declaration of Human Rights, 1948 establishes the central international standard by recognising the right to nationality and prohibiting arbitrary deprivation. The protection is reinforced by Article 24(3) of the ICCPR, Article 7 of the Convention on the Rights of the Child, and Article 9 of CEDAW, particularly in relation to children and equality between women and men. International Law does not give every individual an unrestricted right to obtain the nationality of a State of their choice, because States retain significant authority over nationality and naturalisation. However, that authority is subject to international limitations concerning arbitrariness, discrimination and statelessness. The international legal framework also seeks to protect individuals affected by State succession, conflicting nationality laws and discriminatory nationality rules. Nationality is especially important because it provides access to diplomatic and consular protection and can determine the individual’s legal relationship with a State. Ultimately, the right to nationality represents a balance between State sovereignty over nationality and the individual’s fundamental interest in possessing a secure legal nationality.