THE SCOPE AND CONTENT OF ARTICLE 15 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS

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1 THE SCOPE AND CONTENT OF ARTICLE 15 OF THE UNIVERSAL DECLARATION OF HUMAN RIGHTS Mirna Adjami and Julia Harrington* Article 15 of the Universal Declaration of Human Rights (UDHR) provides that [e]veryone has the right to a nationality and that [n]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. Enshrining citizenship and the right to be free from arbitrary deprivation of citizenship as human rights in and of themselves, article 15 of the UDHR establishes the bedrock legal relationship between individuals and states. While all states are bound to respect the human rights of all individuals without distinction, an individual s legal bond to a particular state through citizenship remains in practice an essential prerequisite to the enjoyment and protection of the full range of human rights. This article examines the scope and content of article 15 of the UDHR. The proliferation of human rights norms in international and regional instruments has developed substantive limitations on state sovereignty over citizenship regulation that gives meaning to that provision. In particular, the universal anti-discrimination norm and the principle that statelessness should be avoided have emerged to constrain state discretion on citizenship. But some important gaps in the international legal framework on nationality persist. For example, few normative principles prescribe conditions for granting citizenship and there is a lack of consensus on what constitutes statelessness arising from ineffective citizenship. While human rights developments over the past 60 years have made great strides in giving content and meaning to article 15 of the UDHR, further normative and practical developments are necessary to realize the effective promise of that provision. 1. Introduction: nationality as a protected right Although international human rights law affirms the premise of the Universal Declaration of Human Rights (UDHR) 1 that human rights apply to * Mirna Adjami is a legal officer, Open Society Justice Initiative, Equality & Citizenship Program. Julia Harrington is a senior legal officer, Open Society Justice Initiative, Equality & Citizenship Program. 1 Universal Declaration of Human Rights [adopted 10 Dec UNGA Res 217 A(III)]. Refugee Survey Quarterly, Vol. 27, No. 3 ß UNHCR [2008]. All rights reserved. For Permissions, please journals.permissions@oxfordjournals.org DOI: /rsq/hdn047

2 94 Mirna Adjami and Julia Harrington all individuals regardless of citizenship 2 or national origin, the legal relationship between an individual and a state remains an essential prerequisite to the effective enjoyment and protection of the full range of human rights. This is so as much for practical as for legal reasons: although states are in principle bound by international law to protect the rights of all individuals within their jurisdiction, 3 those who are not citizens of the state in which they live often face substantial obstacles in asserting and vindicating their rights. The simple fact of being a noncitizen means that one s right to residence within the state is not absolutely guaranteed, and the possibility of expulsion is sufficient to induce many to accept limitations on, and violations of, their rights without protest. Additionally, there are legally justified limitations on non-citizens: political participation through voting and serving as a public official are reserved for citizens of the state concerned. 4 Article 15 of the UDHR provides that [e]veryone has the right to a nationality and that [n]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. While all states are bound to respect the human rights of all individuals without distinction, an individual s legal bond to a particular state through citizenship remains in practice an essential prerequisite to the enjoyment and protection of the full range of human rights. The recognition that every human being should have at least one citizenship has as its corollary that the lack of any citizenship statelessness is itself a human rights violation, and results in acute vulnerability to additional rights violations. In the 60 years since the adoption of the UDHR, international and regional human rights instruments and principles have emerged to protect the rights enshrined in article 15. But normative gaps in the framework on nationality persist. The effective realization of the right to nationality remains elusive. Many of the rights both civil and political, economic, and social contained in the UDHR have been elaborated into binding international human rights instruments, some with United Nations (UN) treaty body mechanisms to guarantee the universal interpretation of the scope of their norms. However, the nationality rights enshrined in article 15 have garnered less international attention and have developed substance more slowly. International law has traditionally afforded states a broad discretion to define See, for example, General Recommendation 30 of the Committee on the Elimination of Racial Discrimination on the rights of non-citizens. The Committee affirms that, although art. 1, para. 2 of the Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 Dec. 1965, entered into force 4 Jan. 1969), 660 UNTS 195, (CERD) provides for the possibility of differentiating between citizens and non-citizens, this article should not be interpreted to detract in any way from the rights and freedoms recognized and enunciated in particular in the Universal Declaration of Human Rights... CERD/C/64/ Misc.11/rev.3. Throughout this article, the terms nationality and citizenship are used interchangeably. Under general principles of treaty interpretation, and in the words of the Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 Jan. 1980) 1155 UNTS 331, art. 29, a treaty is binding upon each party in respect of its entire territory. Thus, human rights treaties should be applied to every individual in a State s territory without any distinction based upon the individual s nationality. See International Covenant on Civil and Political Rights (adopted 16 Dec. 1966, entered into force 23 Mar. 1976) 999 UNTS 171 (ICCPR), art. 25.

3 The Scope and Content of Article 15 of the UDHR 95 the content of, and delimit access to, nationality, which may explain why political will to develop international norms on citizenship has been lacking. But just as state discretion has been circumscribed by human rights norms in other areas, laws and practices on citizenship must be consistent with the principles of international law. That state sovereignty to regulate citizenship is not absolute, but rather subject to developments in international law, was made clear in 1923 by the Permanent Court of International Justice. In a decision regarding the power of states to determine nationality, the Court acknowledged: The question of whether a certain matter is or is not solely within the domestic jurisdiction of a state is an essentially relevant question; it depends on the development of international relations. 5 Article 1 of the 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws affirmed this principle: It is for each State to determine under its own laws who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality. 6 Furthermore, the Preamble to this Convention foreshadowed article 15 of the UDHR in pronouncing for the first time that it is in the general interest of the international community to secure that all its members should recognise that every person should have a nationality. 7 This article examines the scope and content of article 15 of the UDHR, which encompasses the individual right to a nationality and the prohibition on arbitrary deprivation of nationality. Since most of this special issue of the Refugee Survey Quarterly focuses on developments in the right to seek asylum from persecution enshrined in article 14 of the UDHR, this article begins with a brief account of how international legal protection for refugees and stateless persons diverged in the historical and legal context of the aftermath of the Second World War. It then explores the international human rights principles and regional instruments that have emerged to constrain states regulation of citizenship matters. It turns next to the content of the obligation of states not to arbitrarily deprive individuals of their nationality. Finally, this article outlines two important gaps in the legal framework concerning nationality and statelessness, which demonstrate that normative and practical developments are still required to ensure that the guarantees of article 15 of the UDHR are fully respected Advisory Opinion on the Tunis and Morocco Nationality Decrees [1922] PCIJ 3, para. 38 (4 Oct. 1922). In that decision, the Court acknowledged that at the time of contemporary consideration of the case in the context of the 1920s, international relations and international law did not impose particular constraints on State sovereignty with respect to determining nationality. Rather, at that time, the right of a State to use its discretion is nevertheless restricted by obligations which it may have undertaken towards other States : para. 39. As this article will demonstrate, developments in international human rights law since this decision, beginning with art. 15 of the UDHR, have significantly narrowed State discretion over nationality matters, so that States must comply with international human rights obligations in their laws and practices related to citizenship Convention on Certain Questions relating to the Conflict of Nationality Laws, 179 LNTS 80, art. 1. Ibid.

4 96 Mirna Adjami and Julia Harrington 2. The international legal framework constraining state discretion in nationality matters The inclusion of the right to nationality in article 15 of the UDHR, like the UDHR as a whole, was motivated by the impulse to respond to the atrocities of the Second World War, among them mass denationalizations and huge population movements, the largest in European history. Hundreds of thousands of Jews who survived the Nazi-perpetrated genocide fled their home countries for other countries, while millions of ethnic Germans were expelled from Eastern European states, and millions of Poles, Ukrainians, Byelorussians, and other minority populations of the Soviet Union were either forcibly expelled or fled for their safety. 8 To address the uncertain nationality and legal status of displaced populations in Europe at the time, the Economic and Social Council (ECOSOC) of the UN mandated the Secretary-General to undertake a study of statelessness in The ECOSOC then appointed an ad hoc Committee on Refugees and Stateless Persons to draft a convention that would address the plight and legal status of refugees and stateless persons, though the former group remained the priority. The Committee prepared a treaty on refugees, with a draft protocol addressing the status of stateless persons. With the impending dissolution of UNHCR s predecessor institution, the 1951 Convention relating to the Status of Refugees was adopted without inclusion of the protocol addressing statelessness. Action pertaining to the stateless was thus delayed. Legal elaboration of the right to asylum enshrined in article 14 of the UDHR and the right to nationality in article 15 of the UDHR diverged still further as separate legal regimes developed concerning refugees on the one hand and stateless persons on the other. The Convention relating to the Status of Stateless Persons and the Convention on the Reduction of Statelessness were adopted in 1954 and 1961, respectively. 10 The first, the 1954 Stateless Persons Convention, affirmed that the fundamental rights of stateless persons must be protected. The second, the 1961 Statelessness Reduction Convention, created a framework through which future statelessness could be avoided. To this end, it A historical account of ethnic persecution and mass denationalizations from the First World War, the interwar period, and the Second World War in Europe and in the Middle East and their impact in developing international legal frameworks to address refugee and statelessness issues is provided by Manley O. Hudson, the International Law Commission s Special Rapporteur appointed in 1951, in his Report on Nationality, Including Statelessness, UN Doc. A/CN.4/50 (21 Feb. 1952); see also B. Wasserstein, European Refugee Movements after World War Two, available at: wwtwo/refugees_01.shtml (last visited 11 May 2008). The summary of this historical account has been drawn from J. M. M. Chan, The right to a nationality as a human right: the current trend towards recognition, Human Rights Law Journal, Vol. 12, No. 1, 1991, 3 4 and UNHCR and Inter-Parliamentary Union, Nationality and Statelessness: A Handbook for Parliamentarians, 2005, 9 12, available at: (last visited 11 May 2008). Convention relating to the Status of Stateless Persons (adopted 28 Sept. 1954, entered into force 6 Jun. 1960) 360 UNTS 117; Convention on the Reduction of Statelessness (adopted 30 Aug. 1961, entered into force 13 Dec. 1975) 989 UNTS 175 (together, Statelessness Conventions).

5 The Scope and Content of Article 15 of the UDHR 97 constrained unfettered state regulation of citizenship by creating a positive obligation of states to eliminate and prevent statelessness in nationality laws and practices. Article 1 of the 1961 Convention instructs that a Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless (emphasis added). Additional provisions specify protections to ensure that states grant citizenship or are constrained not to deprive citizenship to those who would otherwise be stateless. Building on article 15 of the UDHR s assurance of the right to be free from arbitrary deprivation of nationality, article 8(1) of the 1961 Statelessness Reduction Convention articulates a duty of states not to create statelessness through the deprivation of nationality, stating that a Contracting State shall not deprive a person of his nationality if such deprivation would render him stateless (emphasis added). Though article 8 allows limited legitimate grounds for the deprivation of nationality, even if such deprivation would result in statelessness, 11 it provides an important safeguard in specifying that deprivation of citizenship can occur only after providing individuals concerned with due process protections. However, just as the Refugee Convention 12 does not incorporate article 14 of the UDHR s pronunciation of asylum as a human right, the 1954 and 1961 Statelessness Conventions fail to acknowledge the right to nationality as enshrined in article 15 of the UDHR as the foundational basis for addressing and reducing statelessness. The two Statelessness Conventions do confirm that stateless persons, despite being non-citizens everywhere, are nevertheless entitled to the panoply of human rights protections, and they underscore the principle that statelessness should be avoided. Furthermore, the UN High Commissioner for Refugees (UNHCR) was given the mandate to address statelessness when the 1961 Statelessness Reduction Convention came into force. UNHCR s mandate on statelessness has slowly grown in recent years through additional directives from the UN General Assembly and the UNHCR Executive Committee. Whereas the Refugee Convention has been widely ratified, relatively few countries have ratified the 1954 and 1961 Statelessness Conventions. As in November 2007, there were 141 States Parties to the Refugee Convention, 13 yet at the same time there were less than half that number of States Parties to the 1954 Stateless Persons Convention (62 States Parties) 14 and less than onequarter that number of States Parties to the 1961 Statelessness Reduction Convention (34 States Parties) For example, art. 8 of the 1961 Statelessness Reduction Convention allows for the deprivation of citizenship to result in statelessness in cases where, inter alia, nationality is obtained through misrepresentation or fraud; a citizen extends residence abroad from the country of his or her citizenship; or an individual commits acts inconsistent with a duty of loyalty to his or her country of citizenship. Convention relating to the Status of Refugees (adopted 28 Jul. 1951, entered into force 22 Apr. 1954)189 UNTS 137, read in conjunction with the Protocol relating to the Status of Refugees (adopted 31 Jan. 1967, entered into force 4 Oct. 1967) 606 UNTS 267 (together, Refugee Convention). (last visited 11 May 2008). (last visited 11 May 2008). (last visited 11 May 2008).

6 98 Mirna Adjami and Julia Harrington In addition to the two treaties dealing specifically with statelessness, other international human rights instruments that have emerged since the adoption of the UDHR articulate principles that constrain states discretion over nationality matters. These treaties have progressively given meaning to the scope and content of the right to nationality and the right to be free from arbitrary deprivation of nationality, as enshrined in article 15 of the UDHR. Among global treaties, two protect against discrimination based on sex in matters of nationality, 16 one protects against discrimination based on race, 17 and two create special rights pertaining to children and nationality. 18 The 1957 Convention on the Nationality of Married Women reaffirms the right to a nationality (enshrined in article 15 of the UDHR) and the right to be free from arbitrary deprivation of nationality, and it underscores that all human rights and fundamental freedoms must be respected without discrimination on the basis of sex. Article 9 of CEDAW directs States Parties to grant women rights equal to men concerning the acquisition or retention of their nationality and the ability to confer nationality on their children. Furthermore, article 9 of CEDAW instructs that a woman s nationality should not be affected by a change in the nationality of her husband, and in particular that a woman should not be rendered stateless as a result of changes in her husband s nationality. As to matters of racial discrimination, article 5 of CERD directs States Parties to prohibit racial discrimination and guarantee racial equality in the enjoyment of the right to nationality, among other fundamental human rights. Two international treaties assert human rights protections concerning children and nationality. The ICCPR failed to incorporate the broad nationality guarantees in article 15 of the UDHR. Nevertheless, article 24 of the ICCPR ensures that [e]very child has the right to acquire a nationality, and creates a child s right to registration immediately after birth and the right to a name. Article 7 of the CRC, which enjoys near universal ratification, upholds the same three elements as article 24 of the ICCPR as regards rights at birth: namely the right to immediate birth registration, the right to a name, and the right to acquire a nationality. Article 7(2) of the CRC goes even further than article 24 of the ICCPR by stating: States parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless. Of the five international treaties mentioned here, CERD, ICCPR, CEDAW, and the CRC are overseen by UN treaty bodies mandated to issue opinions on violations of rights in these conventions Convention on the Nationality of Married Women (adopted 29 Jan. 1957, entered into force 11 Aug. 1958) 309 UNTS 65; Convention on the Elimination of All Forms of Discrimination against Women (adopted 18 Dec. 1979, entered into force 3 Sep. 1981) 1249 UNTS 13 (CEDAW). CERD. Convention on the Rights of the Child (adopted 20 Nov. 1989, entered into force 2 Sep. 1990) 1577 UNTS 3 (CRC); ICCPR, op. cit.

7 The Scope and Content of Article 15 of the UDHR 99 In addition to these international treaties, several regional human rights instruments have elaborated on the right to nationality. The 1969 American Convention on Human Rights enunciates broad protections on citizenship. 19 Article 20 of that Convention states: Every person has the right to a nationality. Every person has the right to the nationality of the State in whose territory he was born if he does not have the right to any other nationality. No one shall be arbitrarily deprived of his nationality or of the right to change it. This article not only encompasses the two foundational rights enshrined in article 15 of the UDHR, but it goes further in articulating that individuals who would otherwise be stateless at birth have the right to a nationality in the state in whose territory the baby is born. The Inter-American Court of Human Rights has supervisory authority over the American Convention and has issued several opinions in cases concerning the scope and content of the protections enshrined in that Convention s article In Africa, the 1981 African [Banjul] Charter on Human and Peoples Rights does not contain any provisions on nationality, 21 but the 1999 African Charter on the Rights and Welfare of the Child adopted the nationality principles as they pertain to children (from the CRC) in the African context. 22 Article 6 of this Charter asserts the right to acquire a nationality, the right to a name at birth, and the right to be registered immediately after birth. European countries are subject to a unique regional legal framework on nationality matters. The 1950 European Convention on Human Rights, 23 which is binding on 47 Council of Europe states, does not espouse nationality as a human right. But recent developments by the European Court of Human Rights have interpreted the European Convention s article 8 protection of the rights to private and family life as constraining state discretion on immigration matters, which can ultimately impact on legal residence and affect citizenship. 24 Although the European human rights framework does not address nationality, the dissolution of the Soviet Union and the former Soviet bloc countries of Yugoslavia and Czechoslovakia in the 1990s spurred further legal developments regarding nationality and the duty of states to prevent statelessness at both the European and global levels. In 1997, the Council of Europe adopted the American Convention on Human Rights (adopted 22 Nov. 1969, entered into force 18 Jul. 1978) 1144 UNTS 123 (American Convention on Human Rights). For example, the Inter-American Court on Human Rights Advisory Opinion on Amendments to the Naturalization Provisions of the Constitution of Costa Rica confirms that State discretion over nationality matters is constrained by principles of international law. See Inter-American Court of Human Rights, No. OC-4/84 (29 Jan. 1984), reprinted in Human Rights Law Journal, Vol. 5, 1984, 161, 167. African [Banjul] Charter on Human and Peoples Rights (adopted 27 Jun. 1981, entered into force 21 Oct. 1986) OAU Doc. CAB/LEG/67/3 rev. 5, 21 ILM 58 (1982). African Charter on the Rights and Welfare of the Child (adopted 11 Jul. 1990, entered into force 29 Nov. 1999) OAU Doc. CAB/LEG/24.9/49 (1990) (African Charter on the Child). Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (adopted 4 Nov. 1950, entered into force 3 Sep. 1953). See for example, Kafkasli v. Turkey, App. No /92 (1 Jul. 1992); Karassev v. Finland, App. No / 96 (12 Jan. 1999); Kuzovi v. Slovenia, App. No /00 (17 Mar. 2005); Slivenko v. Latvia, App. No /99 (Grand Chamber, 9 Oct. 2003); Sisojeva v. Latvia, App. No /00 (Grand Chamber, 16 Jun. 2005).

8 100 Mirna Adjami and Julia Harrington European Convention on Nationality 25 and has further developed the Convention on the Avoidance of Statelessness in relation to State Succession, which was adopted in For its part, article 3 of the European Convention on Nationality articulates that rules on nationality of each State Party shall be based on the following principles, including the right to nationality, the avoidance of statelessness, and the prohibition on arbitrary deprivation of nationality. Whereas the European Convention on Nationality does not articulate the principles of article 15 of the UDHR as rights in the European legal context, it at least acknowledges them as rights as such. As to the Convention on the Avoidance of Statelessness in relation to State Succession, its article 2 articulates that individuals have a right to the nationality of a successor state if they had the nationality of the predecessor state in accordance with principles set forth in that Convention. The phenomenon of state succession in central and eastern Europe in the 1990s also led the UN General Assembly to commission the International Law Commission (ILC) to study and propose Draft Articles on Nationality of Natural Persons in relation to the Succession of states (ILC Draft Articles), which were adopted in The preamble to the ILC Draft Articles recalls the rights regarding nationality in the UDHR, ICCPR, and CRC. Article 1 of those Draft Articles establishes the right to a nationality and article 16 prohibits arbitrary decisions, both in the context of determining nationality in the wake of state succession. This section has shown how international and regional human rights law and other legal instruments since the adoption of the UDHR 60 years ago have grown to give content to the fundamental right to a nationality enshrined in article 15 of the UDHR. The next section will explore similar developments in human rights law that provide substance to the right under article 15 to be free from arbitrary deprivation of nationality. 3. Defining the prohibition on arbitrary deprivation of nationality enshrined in article 15(2) of the UDHR Article 15 of the UDHR sets forth the right to be free from arbitrary deprivation of nationality as concomitant with the right to a nationality, reflecting the international community s condemnation of the mass expulsions and manipulative denationalization of Russians, Jews, and other racial and ethnic minorities in Europe that had occurred in the 1920s, 1930s, and 1940s. As for regional human rights instruments, article 20(3) of the American Convention on Human Rights prohibits the arbitrary deprivation of nationality, whereas article 3 of the European Convention on Nationality only recognizes the avoidance of arbitrary European Convention on Nationality (adopted 6 Nov. 1997, entered into force 1 Mar. 2000) CETS No Council of Europe Convention on the Avoidance of Statelessness in relation to State Succession (adopted 9 May 2006, not yet in force) CETS No. 200.

9 The Scope and Content of Article 15 of the UDHR 101 deprivation of nationality as a principle. For its part, article 16 of the 1999 ILC Draft Articles states a prohibition on arbitrary decisions in nationality conferral in the context of state succession. Article 15(2) of the UDHR does not expound upon what constitutes the arbitrary deprivation of nationality. Implicit in article 15(2), however, is a distinction between the deprivation of nationality which is the withdrawal of nationality already conferred, protected by human rights standards and the denial of access to nationality. Various human rights norms have developed to give content to the right to be free from arbitrary deprivation of nationality. International law recognizes some permissible grounds for the deprivation of citizenship. 27 But deprivation of nationality even on permitted grounds must be accompanied by important procedural and substantive safeguards. Since the concept of arbitrariness is a standard of reference in international law, it usefully provides guiding principles to interpret the prohibition on arbitrary deprivation of nationality enshrined in article 15 of the UDHR. As set forth below, arbitrariness encompasses both procedural and substantive prohibitions. First and foremost, the prohibition against arbitrariness mandates procedural fairness and due process to constrain states from taking unilateral action in denationalizing individuals or groups in such a way as to violate the right to due process. This procedural due process requirement is clear in the context of nationality and statelessness, as provided by article 8(4) of the 1961 Statelessness Reduction Convention, which states that a Contracting State shall not exercise a power of deprivation...except in accordance with law, which shall provide for the person concerned the right to a fair hearing by a court or other independent body. Two key components of procedural due process are therefore set out: an objective standard in law for the deprivation of nationality, and the individual application of this standard by an independent body. The notion of arbitrariness, however, comprises more than procedural fairness. International jurisprudence interpreting what constitutes arbitrary action in various contexts instructs that standards of necessity, proportionality, and reasonableness are relevant to the inquiry. 28 As the Human Rights Committee has observed: [T]he introduction of the concept of arbitrariness is intended to guarantee that even interference provided for by law should be in accordance with the provisions, aims and objectives of the [ICCPR] and should be, in any event, reasonable in the particular circumstances. 29 The Committee has found that the notion of arbitrariness must not be equated with against the law but be interpreted more broadly to include such elements as inappropriateness and injustice See for example, 1961 Statelessness Reduction Convention, art. 8, discussed above. A. v. Australia, Communication No. 560/1993, UN Doc. CCPR/C/59/D/560/1993 (30 Apr. 1997), paras 9.2, 9.4. UN Human Rights Committee, General Comment No. 16, The Right to Respect of Privacy, Family, Home and Correspondence, and Protection of Honour and Reputation (Art. 17), para. 4 (1988). A. v. Australia, op. cit., para. 9.2.

10 102 Mirna Adjami and Julia Harrington In the context of nationality, the substantive scope of prohibited arbitrariness includes at least two elements: the prohibition against ethnic discrimination and the prohibition against statelessness. The prohibition of racial and ethnic discrimination is found in article 2 of the UDHR and every major international and regional human rights instrument, 31 and also represents a rule of customary international law. 32 It therefore limits state discretion in deprivation of nationality: any deprivation of nationality based on racial or ethnic discrimination will be judged arbitrary. Discrimination on the grounds of national origin has been found to be a form of racial discrimination prohibited by international and comparative law, reflected in decisions of UN treaty bodies, including the Human Rights Committee, the Committee on the Elimination of Racial Discrimination, and the Committee on the Rights of the Child. 33 Both the 1954 and 1961 Statelessness Conventions affirm the importance of the prohibition against discrimination. Article 3 of the 1954 Convention confirms: The Contracting States shall apply the provisions of this Convention to stateless persons without discrimination as to race, religion or country of origin. Article 9 of the 1961 Convention goes even further: A Contracting State may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds. Just as article 5 of CERD underscores that the prohibition of racial and ethnic discrimination applies to the right to nationality, this prohibition also prevails with respect to deprivation of citizenship. Indeed, the Committee on the The prohibition on racial and ethnic discrimination is enshrined in the following provisions of international and regional human rights instruments: UN Charter, art. 1(3) (the purpose of the Charter is to promote and encourage respect for human rights and for fundamental freedoms for all without distinction to race, sex, language or religion ); UN Charter, art. 55(c) (committing the UN to the promotion of non-discrimination); UDHR, arts 2, 7; ICCPR, arts 2, 26; International Covenant on Economic, Social and Cultural Rights (adopted 16 Dec. 1966, entered into force 3 Jan. 1976) 993 UNTS 3, art. 2(2); ECHR, art. 14; Protocol No. 12 to the ECHR, arts 1, 2; Charter of Fundamental Rights of the European Union [2000] OJ C364/1, art. 21; African Charter on Human and Peoples Rights, ch. 1, art. 2; and American Convention on Human Rights, arts 1(1), 24. See for example, Restatement (Third) The Foreign Relations Law of the United States, para. 702 (1987): Customary International Law of Human Rights: A state violates international law if, as a matter of state policy, it practices, encourages, or condones...systematic racial discrimination ; R. (European Roma Rights Centre) v. Immigration Officer at Prague Airport, (UNHCR Intervening) [2005] 2 AC 1, [2004] UKHL 55, para. 46: The great theme which runs through subsequent human rights instruments, national, regional and international, is the legal right of equality with the correlative right of non-discrimination on the grounds of race... It is true that in the world, as we know it, departures from this norm are only too many. But the international community has signed up to it. The moral norm has ripened into a rule of customary international law. It is binding on all states. The International Court of Justice has described the prohibition on racial and ethnic discrimination as an obligation erga omnes: ICJ,Barcelona Traction, Light and Power Co case, ICJ Reports See for example, UN Human Rights Committee, Concluding Observations of the Human Rights Committee: Sweden 24/4/2002, UN Doc. CCPR/CP/74/SWE, para. 12; UN Human Rights Committee, Concluding Observations of the Human Rights Committee: Ireland 03/08/93, UN Doc. CCPR/C/79/Add.21, para. 17; UN Committee on the Elimination of Racial Discrimination, Concluding Observations on the Elimination of Racial Discrimination: Dominican Republic 26/08/99, UN Doc. CERD/304Add.74, para. 11; UN Committee on the Rights of the Child, Concluding Observations of the Committee on the Rights of the Child: Iceland 31/01/2003, UN Doc. CRC/C/15/Add.203, para. 22.

11 The Scope and Content of Article 15 of the UDHR 103 Elimination of Racial Discrimination has recommended to this end that states [r]ecognize that deprivation of citizenship on the basis of race, colour, descent, or national or ethnic origin is a breach of States parties obligations to ensure non-discriminatory enjoyment of the right to nationality. 34 Other UN human rights organs have upheld the principle that the prohibition of racial and ethnic discrimination constrains the deprivation of citizenship. The former UN Commission on Human Rights has stated that arbitrary deprivation of nationality on racial, national, ethnic, religious, political or gender grounds is a violation of human rights and fundamental freedoms. 35 This principle was recently reaffirmed by the new UN Human Rights Council in its resolution 7/10 entitled Human rights and arbitrary deprivation of nationality. This goes even further than the Human Rights Commission s by [calling] upon all States to refrain from taking discriminatory measures and from enacting or maintaining legislation that would arbitrarily deprive persons of their nationality on grounds of race, colour, gender, religion, political opinion or national or ethnic origin, especially if such measures and legislation render a person stateless. 36 The second substantive element of arbitrariness in relation to the right to be free from arbitrary deprivation of citizenship is the emerging norm of the state s duty to reduce and avoid statelessness. In addition to the 1954 and 1961 Statelessness Conventions, international legal instruments confirm this principle: article 9 of CEDAW and article 7 of the CRC, cited above, affirm the principle that statelessness should be avoided in matters related to citizenship of married women and children, respectively. We also see this prohibition in regional human rights treaties: article 20 of the 1969 American Convention on Human Rights asserts that states should grant citizenship to children who would otherwise be stateless at birth, and the 1990 African Charter on the Rights and Welfare of the Child confirms as much in its article 6. Article 3 of the 1997 European Convention on Nationality provides that states shall consider the principle of avoiding statelessness in drawing up rules on nationality. Finally, two instruments underscore the importance of avoiding statelessness in the context of state succession, namely the 2006 European Convention on State Succession and the 1999 ILC Draft Articles. The progressive and cumulative effect of these instruments establishes the avoidance of statelessness as a substantive constraint on states so that any deprivation of nationality that would result in statelessness should be considered arbitrary and thus a human rights violation. As this section has shown, article 15(2) of the UDHR s prohibition on arbitrary deprivation of nationality has developed perhaps more robust content than the broad aspiration that every individual has a right to nationality under Committee on the Elimination of Racial Discrimination, General Recommendation No. XXX, Discrimination against Non-Citizens (2004), para. 14. UN Human Rights Commission Resolution 2005/45 (19 April 2005), para. 2. UN Human Rights Council Resolution 7/20 (27 Mar. 2008), para. 3.

12 104 Mirna Adjami and Julia Harrington UDHR 15(1). This is so because article 15(2) of the UDHR begins from the premise that an individual already has a nationality recognized by a state; states are simply prohibited from taking citizenship away, once it is given and acknowledged, without respecting procedural and substantive constraints. As such, the promise of the right to nationality appears the weaker of the two promises contained in article 15 of the UDHR. The next section will explore further normative and definitional ambiguities pertaining to nationality that hamper progress in guaranteeing the enjoyment of article Normative gaps concerning nationality Despite the proliferation of international legal instruments and human rights norms that have elaborated principles governing state regulation of citizenship, some gaps in the legal framework exist, hindering effective respect for, and enjoyment of, the promises in article 15 of the UDHR. Two of these gaps will be explored here. First, while procedural and substantive safeguards have developed to give content to the notion of what constitutes arbitrary deprivation of nationality, there are fewer and weaker norms constraining the criteria that states may employ to grant citizenship. In other words, the generally stated right to citizenship in international law is complemented by few principles for assigning responsibility to a particular state to grant its citizenship to specific individuals. Second, to the extent that the enjoyment of the right to citizenship entails avoiding statelessness, the international legal definition of statelessness is too narrow to comprehend the practical extent of the crisis of statelessness that endangers the aspirations enshrined in article As to the first gap in the international legal framework on citizenship, while various international instruments recognize the right of every person to a nationality, with few exceptions (except for those enunciated with respect to married women or children, for example), they do not require a particular state to confer its nationality under defined circumstances. In practice, most individuals receive their citizenship at birth. Some states grant citizenship based principally on the basis of birth in their territory, applying the principle known as jus soli. Other states grant citizenship based on descent: an individual inherits the citizenship of his or her parents, applying the principle known as jus sanguinis. Many states apply a combination of these two approaches. Naturalization procedures are even more diverse for acquiring citizenship after birth. International law has not historically expressed a preference for one principle for granting citizenship over another, although it is clear that the universal prohibition on racial and ethnic discrimination constrains states from both depriving individuals of nationality and denying access to nationality on such discriminatory grounds. The Inter-American Court of Human Rights recently issued a landmark ruling affirming the prohibitions on racial discrimination as 37 Art. 1 of the 1954 Stateless Persons Convention defines a stateless person as one who is not considered as a national by any State under the operation of its law.

13 The Scope and Content of Article 15 of the UDHR 105 well as statelessness in access to nationality in Dilcia Yean and Violeta Bosico v. Dominican Republic. 38 The Inter-American Court elaborated this point in that decision as follows: The determination of who has a right to be a national continues to fall within a State s domestic jurisdiction. However, its discretional authority in this regard is gradually being restricted with the evolution of international law, in order to ensure a better protection of the individual in the face of arbtitrary acts of States. Thus, at the current stage of the development of international human rights law, this authority of the states is limited, on the one hand, by their obligation to provide individuals with the equal and effective protection of the law and, on the other hand, by their obligation to prevent, avoid and reduce statelessness. The Court considers that the peremptory legal principle of the equal and effective protection of the law and non-discrimination determines that, when regulating mechanisms for granting nationality, States must abstain from producing regulations that are discriminatory or have discriminatory effects on certain groups of population when exercising their rights. Moreover, States must combat discriminatory practices at all levels, particularly in public bodies and, finally, must adopt the affirmative measures needed to ensure the effective right to equal protection for all individuals. 39 The general neutrality with regard to citizenship acquisition regimes has started to change with the proliferation of citizenship norms in international human rights law and legal instruments on nationality. For example, article 7 of the CRC and article 20 of the American Convention on Human Rights require states to confer their citizenship on children born in their territory who would otherwise be stateless an approach based on the jus soli principle. 40 The European Convention on Nationality goes further, requiring States parties to provide for naturalization of persons lawfully and habitually resident on [their] territor[ies]. 41 The residence requirement for seeking naturalization may not exceed 10 years The Inter-American Court of Human Rights found that for discriminatory reasons... the State failed to grant nationality to... children [on racial grounds], which constituted an arbitrary deprivation of their nationality, and left them stateless, and as such found a breach of the American Convention: see Dilcia Yean and Violeta Bosico v. Dominican Republic (Series C, No. 130, 7 Oct. 2005), para Ibid., paras The Inter-American Court elaborates on the relationship between the granting of nationality and avoiding statelessness in the Dilcia Yean and Violeta Bosico case as follows: States have the obligation not to adopt practices or laws concerning the granting of nationality, the application of which fosters an increase in the number of stateless persons. The condition arises from the lack of nationality, when an individual does not qualify to receive this under the State s laws, owing to arbitrary deprivation or the granting of a nationality that, in actual fact, is not effective. Statelessness deprives an individual of the possibility of enjoying civil and political rights and places him in a condition of extreme vulnerability, ibid., para European Convention on Nationality, art. 7(3). Ibid., art. 6.

14 106 Mirna Adjami and Julia Harrington In the absence of a widely ratified international treaty defining or constraining criteria for granting citizenship, the principle of a genuine, effective link is slowly emerging as a principle to guide State practice in granting citizenship. Articulated in the International Court of Justice s 1955 Nottebohm case, 43 the genuine, effective link test focuses on factual ties as a basis for nationality rights, which are to be determined by the habitual residence of the individual concerned...the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated into his children, etc Arguably, jus soli and jus sanguinis are also based on the genuine and effective link principles, since they are imperfect, but generally accurate, predictors of the country to which an individual will have close ties. But this fails to take account of the increasing mobility of people. Any criterion for granting citizenship at birth at best approximates where an adult s most meaningful ties will be. A genuine and effective link suggests that citizenship should correlate with where individuals need citizenship in order to exercise the qualities of citizens and enjoy the state protection provided by citizenship. Recently, the concept of genuine and effective link has been incorporated into the European Convention on Nationality, 45 although it has been developed as something distinct from habitual residence and territorial origin. 46 As to the second gap in the international legal framework governing citizenship matters, the accepted legal definition of statelessness is too narrow to fully grasp the extent of the crisis of statelessness that should in turn prompt further development of norms on nationality. Article 1 of the 1954 Stateless Persons Convention defines a stateless person as one who is not considered ICJ, Nottebohm case (Liechtenstein v. Guatemala), ICJ Reports This case concerned the rights of States vis-à-vis one another, rather than individual human rights. Although Mr Nottebohm had been resident for over 20 years in Guatemala, Liechtenstein (which had granted him its citizenship) sought to assert against Guatemala the right of diplomatic protection on Mr Nottebohm s behalf. The ICJ ruled that although Liechtenstein was entitled to confer its citizenship on Mr Nottebohm as a matter of its internal law, Mr Nottebohm did not have sufficient genuine and effective links with Liechtenstein for the latter to be entitled to exercise diplomatic protection on his behalf vis-à-vis another State. Thus, while the court used the genuine and effective link test to resolve the case before it, it did not mandate that States must use that test to confer citizenship on individuals who meet it. Ibid., 22. Art. 18(2) of the European Convention on Nationality states: In deciding on the granting or the retention of nationality in cases of State succession, each State Party concerned shall take account in particular of a. the genuine and effective link of the person concerned with the State; b. the habitual residence of the person concerned at the time of State succession; c. the will of the person concerned; d. the territorial origin of the person concerned. The 2006 Council of Europe Convention on the Avoidance of Statelessness in relation to State Succession speaks of an appropriate connection, which does not seem to be the same as a genuine and effective link. Art. 5(1) provides that successor States shall grant nationality to persons who would otherwise become stateless if, at the time of the State succession, [they] had the nationality of the predecessor State but were not habitually resident in the territory that now belongs to the successor State or in any State concerned but had an appropriate connection with the successor State. Art. 5(2) provides that an appropriate connection includes inter alia a legal bond to a territorial unit of a predecessor State, birth on the territory, or last habitual residence on the territory of the predecessor State which has become the territory of the successor State.

15 The Scope and Content of Article 15 of the UDHR 107 as a national by any State under the operation of its law. This is a purely technical definition that ignores the power of states to politically manipulate citizenship in both law and practice. As state practice reveals, the goalposts for citizenship are not always visible and governments can move them at their will. The preamble to the 1954 Convention clarifies that stateless persons are to be distinct from refugees, who merit protection under the 1951 Convention relating to the Status of Refugees. While the 1954 Convention makes clear that its provisions only apply to de jure stateless persons, its Final Act nevertheless recommends that contracting states provide rights safeguards for de facto stateless individuals as well. As UNHCR has explained, the 1954 Convention s Final Act recommends that protections of that treaty extend to both de jure and de facto stateless persons who, technically, still hold a nationality but do not receive any of the benefits generally associated with nationality, notably national protection. 47 To be sure, at the time of the drafting of the Refugee Convention and the Statelessness Conventions, it was presumed that de facto stateless persons, namely those without an effective nationality, were indeed refugees who fell under the protection of the Refugee Convention. But the practical reality of displacement over the last half century has revealed that not all de facto stateless persons have crossed borders and qualify for refugee status. Today s landscape suggests that de jure statelessness is overshadowed by an even greater crisis of de facto statelessness. Yet, the circumstances that fall within the grey zone of de facto statelessness 48 remain largely unexplored. Despite the lack of consensus and definitional ambiguity behind who constitute stateless persons deserving protection, UNHCR and the international community are slowly reacting in seeking practical solutions to resolve obstacles to the effective enjoyment of the right to nationality. Improved documentation of the number of stateless persons is crucial to assess how best to target international efforts in responding to crises of systematic human rights violations of populations marginalized by the arbitrary denial or deprivation of citizenship. The exact number of stateless persons is unknown, and the task of quantifying the stateless population is complicated by definitional ambiguities of whether to include de facto stateless persons and of who qualifies as such, as described earlier. Official statistics of stateless persons have always been low. A 2004 questionnaire distributed by UNHCR to UN Member States requesting information on statelessness yielded a worldwide count of just over two million stateless persons. But only 74 states (38 per cent of 191 states contacted) responded to UNHCR and Inter-Parliamentary Union, Nationality and Statelessness, op. cit. 8, 25, C. A. Batchelor, Statelessness and the problem of resolving nationality status, International Journal of Refugee Law, Vol. 10, No. 145, 1998, 172.