Statelessness and the problem of resolving nationality status

International Journal of Refugee Law

Volumn 10, Issue 1-2, 1998, Pages 155-181

  Batchelor, Carol A ^a  

^a UNHCR ^*

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EID: 11544329107     PISSN: 09538186     EISSN: None     Source Type: Journal    
DOI: 10.1093/ijrl/10.1-2.156     Document Type: Article

References (55)

1. This article uses the concept of genuine and effective link more broadly than did the International Court of Justice in the Nottebohm Case. The premise is that nationality based upon birth, descent, and residence is presumed by States in their practice to be evidence of a link between the individual and the State and may be used as a minimum reference point for determining substantial connections. The genuine and effective link is a subtle and fluid concept which can be evidenced in many factors including social attachments, centre of interests, extended family ties, and so on; it is not limited to place of birth, descent, or residence. The latter, however, are matters of fact, which makes them far easier to identify and apply in an objective and non-discriminatory manner than some of the more subtle signs of attachment which can be used as supplementary means of determining ties. Moreover, jus soli, jus sanguinis, and long-term residence are each well-established and globally practised principles upon which nationality is granted ex lege or through naturalization. Problems arise because they are not applied in the same way by all States, and many not be applied equally to individuals within a State. Thus, while all the factors of the genuine and effective link are important, a good starting point for developing some uniformity in the laws and their application would be by reference to birth, descent, and residence as primary elements of the genuine and effective link between an individual and a State or States.
2. See Mikulka, Václav, 'Third Report on Nationality in Relation to the Succession of States': UN doc. A/CN.4/480, 27 Feb. 1997 and 'Report of the International Law Commission on the work of its Forty-ninth session', 12 May-18 Jul. 1997: UN doc. A/52/10, (1997).
3. See Mikulka, Václav, 'Third Report on Nationality in Relation to the Succession of States': UN doc. A/CN.4/480, 27 Feb. 1997 and 'Report of the International Law Commission on the work of its Forty-ninth session', 12 May-18 Jul. 1997: UN doc. A/52/10, (1997).
4. The European Convention on Nationality, adopted by the Committee of Ministers of the Council of Europe in May 1997, was opened for signature by member States of the Council of Europe and non-member States which participated in its elaboration on 6 Nov. 1997. Fifteen States signed the Convention at its opening, and several others are currently taking steps toward ratification. Three ratifications only are necessary for the Convention to come into force.
5. There are currently an unknown, but high, number of 'forgotten persons', including rejected asylum seekers, illegal migrants, convicted persons, overstayers, and others whose documentation has been lost or stolen. Many also are in detention, and may remain there for months or years, because their country of residence or nationality will not acknowledge them or accept them back and the country of detention will not release.
6. The terms citizenship and nationality are used as synonyms in this paper. According to art. 2(a), 1997 European Convention on Nationality, nationality means 'the legal bond between a person and a State and docs not indicate the person's ethnic origin' ('European Convention on Nationality and Explanatory Report', ETS No. 166, Council of Europe, Strasbourg, 1997). Some States use the word citizenship to connote this legal bond, nationality being used to refer to ethnic origin (eastern European concept). Other States use the word nationality to connote the legal bond, citizenship being a particular aspect of nationality which provides for rights, such as voting, once the bond is established (for example, in the Americas). At the international level, nationality is generally used to describe the recognition of an individual as legally attached to a particular State.
7. Chief Justice Earl Warren, Trop v. Dulles, 1958, quoted in Independent Commission on International Humanitarian Issues, Winning the Human Race? (1988), 107.
8. Chief Justice Earl Warren, Trop v. Dulles, 1958, quoted in Independent Commission on International Humanitarian Issues, Winning the Human Race? (1988), 107.
9. See art. 38, Statute of the International Court of Justice.
10. UNGA res. 50/152, 9 Feb. 1996.
11. Permanent Court of International Justice, Advisory Opinion on the Tunis and Morocco Nationality Decrees, Ser. B, No. 4, 1923, 23.
12. 10 179 LNTS 89, 99.
13. 11 ICJ Reports, 1955, 23.
14. Examples include the 1997 European Convention on Nationality and the 'Principles on Citizenship Legislation Concerning the Parties to the Peace Agreement on Bosnia and Herzegovina', adopted by the Expert Meeting on Citizenship Legislation held in co-operation with the United Nations High Commissioner for Refugees (UNHCR), the Council of Europe, Office of the High Representative, OSCE, and State party delegates from the five States on the territory of the former Yugoslavia (attached in Annex to Batchelor, Leclerc, Schack, 'Citizenship and Prevention of Statelessness Linked to the Disintegration of the Socialist Federal Republic of Yugoslavia', UNHCR European Series, Vol.3, No.1, June 1997). Both instruments refer explicitly to the genuine and effective link and request States to apply this doctrine in specific circumstances.
15. For example, European States tend to grant nationality on the basis of descent, place of birth being used as a 'stop-gap' in many States to avoid Statelessness for foundlings or stateless children born on the State's territory.
16. An important reference tool for contemporary law and practice relating to nationality, this Convention is relevant not only within the Council of Europe member and observer States participating in its formulation, but also for analysis of problems relating to nationality for individuals appearing elsewhere who originate from these States. The International Law Commission's (ILC) Special Rapporteur utilizes the concept of the genuine and effective link as the basis for the ILC's work on nationality in the context of State succession, (see Mikulka, Václav, Special Rapporteur, International Law Commission, 'First Report on State Succession and its Impact on the Nationality of Natural and Legal Persons': UN doc. A/CN.4/467, 17 Apr 1995; 'Second Report on State Succession and Its Impact on the Nationality of Natural and Legal Persons': UN doc. A/CN.4/ 474, 17 Apr. 1996, and 'Third Report on Nationality in Relation to the Succession of States': UN doc. A/CN.4/480, 27 Feb. 1997). The genuine and effective link, dropped by the ILC during its 1997 session in favour of an 'appropriate connection' between an individual and a State, is, in fact, one of the pivotal reference points underlying the 'Draft Articles on Nationality of Natural Persons in Relation to the Succession of States'. See 'Report of the International Law Commission on the work of its forty-ninth session', 12 May-18 July 1997: UN doc. A/52/10, (1997), 14, hereinafter, ILC 'Draft Articles'). The revised 'Draft Articles' were adopted by the ILC in July 1997 and discussed in the UNGA Sixth Committee in October 1997. States have been requested to submit comments on the draft for further discussion. A final version in the form of a Declaration on the Nationality of Natural Persons in relation to the Succession of States is currently anticipated for 1999.
17. While children born abroad may be subject to variations on this acquisition (art. 6(1)(a)), any initial differences in treatment (failure to acquire the nationality ex lege, for example) could later be done away with through facilitated acquisition of nationality by descent (art. 6(4)(b)): above, note 5. Guidelines currently being drafted on the implementation of the 1997 Convention emphasize that statelessness should not occur for children of nationals born abroad, with some indication of the means of avoiding this also elaborated upon.
18. See arts. 6(1)(b) and 6(2), above note 5.
19. See also art. 12, ILC 'Draft Articles', which provides that a child born after the date of succession, who has not acquired any nationality, 'has the right to acquire the nationality of the State concerned on whose territory that child was born', resolving cases in which nationality by descent has not been acquired. Prior habitual residence, tempered by principles of, for example, family unity, will resolve the nationality of children born prior to the date of succession: above, note 13.
20. Art. 6(3), above note 5.
21. Also to be taken into account is the territorial origin of the person concerned. 'Territorial origin' does not refer to either ethnic or social origin but, rather, to where the person was born, where the parents or grandparents were born or, perhaps, to an internal nationality designation. It is therefore intended to be similar in application to the principles of jus soli and jus sanguinis in determining nationality. Each element which the State must take into account under art. 18 is to be weighed in the balance in a non-discriminatory manner, in particular, so as to avoid statclessness.
22. Art. 7, ILC 'Draft Articles', provides that, subject to consideration of the will of persons concerned as stipulated in art. 10, 'a successor State does not have the obligation to attribute its nationality to persons concerned if they have their habitual residence in another State and also have the nationality of that or any other State' (emphasis added). Art. 4 indicates a presumption of nationality for persons who have their habitual residence in the territory affected by the succession, the presumption being that they acquire the nationality of the successor State. Part II of the ILC 'Draft Articles' contains further provisions stipulating the grant of nationality to habitual residents: see art. 19 and following. Art. 10(2) requires States concluding treaties to provide for a right of option ïpersons concerned who have appropriate connection with that State if those persons would otherwise become stateless as a result of the succession of States'. Art. 10(1) requires States, in general, to 'give consideration to the will of persons concerned whenever those persons are qualified to acquire the nationality of two or more States concerned'. Presumably what qualifies someone to acquire nationality is the 'appropriate connection' with a State. According to the ILC commentary, the concept of an appropriate connection 'should be interpreted in a broader sense than the notion of "genuine link". In debate in the ILC, some members expressed the view that the genuine and effective link was limited, in that its legal context derived from the questions of diplomatic protection at issue in the Nottebohm Case. However, this does not take into account the many later applications of the notion, or the fact that the components of the genuine and effective link derived from State practice and were not enunciated by the Court as new concepts. Cf. 1997 European Convention on Nationality as a good example of the application of genuine and effective link quite outside the context of diplomatic protection. From a practical perspective, it would be helpful in resolving nationality conflicts if legal terminology was harmonised.
23. Arts. 4(b), 6(2), 7(3), 8, and 18, 1997 European Convention on Nationality indicate the importance placed on avoidance of statelessness. Art. 3, ILC 'Draft Articles', provides that States concerned should take all appropriate measures to prevent persons who had the nationality of the predecessor State on the date of succession, from becoming stateless as a result of the succession. However, those stateless before the succession will not acquire a right to a nationality by virtue of the succession, and the avoidance of statelessness here is more a question of the 'transfer' of rights and identity parallel to the transfer of territory, than recognition of a new right, even though the stateless person may in fact have had an appropriate connection with the former State but never have been granted its nationality.
24. Art. 13 of the 1961 Convention does stipulate that the provisions of the instrument shall not be construed as affecting any provisions more conducive to the reduction of statelessness as developed in later legislation. Given the years which have passed since the drafting of the 1961 Convention, the developments in human rights law and the presumption against the creation of statelessness, it may be argued that the removal of nationality resulting in statelessness must now be limited strictly to cases of fraudulent conduct, directly attributable to the applicant, which if known would have disqualified the person concerned from the grant of nationality.
25. Art. 16, ILC Draft Articles provides for full procedural guarantees, indicating that relevant decisions 'shall be issued in writing and shall be open to effective administrative or judicial review'. Art. 17 obliges upon States to consult and negotiate in order to identify problems regarding nationality arising from the succession and to seek solutions.
26. Art. 23, 1997 European Convention on Nationality, calls upon States Parties to 'co-operate amongst themselves and with other member States' but there is little opportunity for the individual to participate, for actual cases to be brought to a forum designed for resolving them, or for any means of guaranteeing the 'progressive development of legal principles and practice concerning nationality and related matters' as called for in art. 23. A review body, particularly in the case of a treaty which is intended to address differences between national systems, would have been helpful not only for the individual, but also for the State, and might well have contributed to consistency, clarity, and close cooperation, while facilitating the resolution of conflicts in the attribution of nationality. However, many member States did not wish to submit their nationality laws and practices to external review. The Working Group on Nationality which drafted the Convention has received a provisionally extended mandate for purposes of drawing up guidelines on implementation; the first set, focusing on statelessness, is expected to be concluded in June 1998.
27. UNGA res. 217 A(III), 10 Dec. 1948; text in Human Rights: A Compilation, 1.
28. UNGA res. 2106 A(XX), 21 Dec. 1965; text in Collection of International Instruments and Other Legal Texts Concerning Refugees and Displaced Persons, vol. I, 205.
29. The Preamble to the 1957 Convention on the Nationality of Married Women recalls art. 15, UDHR48, stipulating the right to a nationality and the right not to be arbitrarily deprived of nationality, and seeks to promote 'universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to sex'. Arts. 1-3 of the Convention contain specific provisions on how the wife's nationality is to be addressed.
30. Art. 21, ICCPR66 provides: '1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society, and State. 2. Every child shall be registered immediately after birth and shall have a name, 3. Every child has the right to acquire a nationality.'
31. Art. 9, CEDW79 provides: '1. States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband. 2. States Parties shall grant women equal rights with men with respect to the nationality of their children.'
32. The following articles of CRC89 are also relevant: art. 2: '1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.' Art. 7: '1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. 2. 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.'
33. Art. 20, ACHR69; text in Collection of International Instruments and Other Legal Texts, Vol.II, 140. See also art. 6, 1990 African Charter on the Rights and Welfare of the Child, not yet in force, which requires States Parties to extend nationality to children born on the State's territory who receive no other nationality at birth.
34. Inter-American Court on Human Rights, Advisory Opinion, 'Amendments to the Naturalisation Provision of the Constitution of Costa Rica', paras. 32-5; text in 5 HRLJ 1984. These human rights issues included, in the opinion of the Court, limitations incumbent upon the State through the principle of non-discrimination, as balanced by reasonableness, objectivity, and proportionality. Such balancing factors apply to both the law on its face and to the effects of the implementation of the law pertaining to nationality.
35. See, for example, the 1957 Convention on the Nationality of Married Women, CRS61, and UDHR48.
36. Art. 14 of the ILC Draft Articles provides: 'States concerned shall not deny persons concerned the right to retain or acquire a nationality or the right of option upon the succession of States by discriminating on any ground'. Art. 15 prohibits arbitrary deprivation of the nationality of the predecessor State or arbitrary deprivation of the right to acquire the nationality of the successor State, which is a step forward in promoting the positive right to a nationality for the individual as against the less specific obligation upon States to avoid statelessness. Art. 15 also stipulates against arbitrary deprivation of the right of option.
37. Many States provide in their legislation for the automatic acquisition of the State's nationality for foundlings discovered on their territory, the presumption being that unless there is evidence to the contrary, the genuine and effective link is with the State in which the child is found. Thus, nationality can be resolved even when place of birth and descent are not clear, and residency is not relevant.
38. See above, note 33 with reference to notes 19 and 20.
39. The fact that there may be regional variations concerning nationality or citizenship does not alter the meaning ascribed to nationality or the definition of statelessness incorporated into international instruments, nor does it alter their meaning under international law in general. Thus, a State adopting alternative definitions will run the risk of criticism and lack of recognition for national law at the international level, and of conflicts and problems with other States concerning the nationality status of persons at issue.
40. Residents who are treated as though they were citizens and who enjoy many of the rights generally associated with citizenship are sometimes described as having 'de facto citizenship'. The phrase has no legal status, however, and is potentially misleading, for example, so far as it may imply security within a State where the persons concerned are, in reality, de jure stateless, often despite having genuine, strong, and effective links.
41. Generally, States presume that an individual has a nationality unless there is some evidence to the contrary, although there may be no agreement on which nationality it is.
42. The law of some countries allows an individual to renounce nationality without first acquiring or being assured of another nationality, thereby leading to statelessness. Although States should avoid such legislation in principle, the practice is not uniform. Formally 'correct' systems may also clash by reason of the underlying philosophy for granting nationality. For example, State A, in which the individual is born, grants nationality by descent only (jus sanguinis) and State B, in which the parents hold nationality, grants nationality by place of birth only (Jus soli). There are many variations in law and practice which create gaps leading to statelessness, and one perennial problem is the inability under the laws of many countries for a mother to pass nationality to her child even if the father is stateless.
43. Nationality Acts lay down categories of persons entitled to nationality, and the State must confirm that a given person has acquired its nationality. Its interpretation may, of course, reflect a practice not apparent from the law itself, while the law also may not necessarily indicate all categories of persons who receive nationality.
44. It is to be expected, however, that the principles of the 1997 European Convention on Nationality will influence cases relating, for example, to family unity or minorities, which are subject to the Court or Commission.
45. Chan, J., 'The Right to a Nationality as a Human Right', 12 HRIJ 13 (1991).
46. See also arts. 5-8, 1997 European Convention on Nationality.
47. A/RES/50/152, 9 Feb. 1996.
48. Hudson, Manley O., 'Report on Nationality, Including Statclcssncss', International Law Commission, 4th session: UN doc. A/CN.4/50, 21 Feb. 1952, 49.
49. Ibid.
50. See Batchelor, C.A., 'Citizenship and Voting Issues in Bosnia-Herzegovina Following the Dayton Peace Agreement', International Foundation for Election Systems (IFES), Electoral Code Working Group (ECWG), OSCE/Office of Democratic Institutions and Human Rights/IFES, Legal and Technical Analysis Compendium, Jan.-Mar. 1996, for analysis of issues relating to citizenship in the context of State succession.
51. Ibid., 49.
52. Ibid.
53. This may also be said of the ILG's Draft Articles which seek to base the grant of nationality on habitual residence and the appropriate connection, a broadened concept of the genuine and effective link, and stipulate that States should ensure statelessness is not created for persons under their jurisdiction as a result of the succession. Moreover, the arbitrary deprivation of the right of option and of the right to acquire the nationality of the successor State for persons with an entitlement in relation to the succession arc also prohibited. This goes beyond the obligation to avoid statelessness and creates, in conjunction with the other draft articles concerning habitual residence, family unity, and appropriate connections, an obligation for the State toward persons with the specified links.
54. See Batchelor, C.A., 'UNHCR and Issues Related To Nationality', 14 RSQ 91 (1995), for an overview of the underlying causes of statelessness.
55. Weis, P., 'The United Nations Convention on the Reduction of Statelessness, 1961', 11 ICLQ 1073 (1962).