The scope and content of article 15 of the universal declaration of human rights

Refugee Survey Quarterly

Volumn 27, Issue 3, 2008, Pages 93-109

  Adjami, Mirna ^a   Harrington, Julia ^a  

^a Open Society Justice Initiative   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

CITIZENSHIP; HUMAN RIGHTS; LEGISLATION;

EID: 54949154980     PISSN: 10204067     EISSN: 1471695X     Source Type: Journal    
DOI: 10.1093/rsq/hdn047     Document Type: Article

References (68)

1. Universal Declaration of Human Rights [adopted 10 Dec. 1948 UNGA Res 217 A(III)].
2. 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.
3. 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.
4. See International Covenant on Civil and Political Rights (adopted 16 Dec. 1966, entered into force 23 Mar. 1976) 999 UNTS 171 (ICCPR), art. 25.
5. 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.
6. 1930 Convention on Certain Questions relating to the Conflict of Nationality Laws, 179 LNTS 80, art. 1.
7. Ibid.
8. 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);
9. see also B. Wasserstein, European Refugee Movements after World War Two, available at: http://www.bbc.co.uk/history/worldwars/wwtwo/ refugees_01.shtml (last visited 11 May 2008).
10. 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
11. and UNHCR and Inter-Parliamentary Union, Nationality and Statelessness: A Handbook for Parliamentarians, 2005, 9-12, available at: http://www.unhcr.org/protect/PROTECTION/436774c62.pdf (last visited 11 May 2008).
12. Convention relating to the Status of Stateless Persons (adopted 28 Sept. 1954, entered into force 6 Jun. 1960) 360 UNTS 117;
13. Convention on the Reduction of Statelessness (adopted 30 Aug. 1961, entered into force 13 Dec. 1975) 989 UNTS 175 (together, Statelessness Conventions).
14. 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.
15. 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).
16. http://www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf (last visited 11 May 2008).
17. http://www.unhcr.org/protect/PROTECTION/3bbb0abc7.pdf (last visited 11 May 2008).
18. http://www.unhcr.org/protect/PROTECTION/3bbb24d54.pdf (last visited 11 May 2008).
19. Convention on the Nationality of Married Women (adopted 29 Jan. 1957, entered into force 11 Aug. 1958) 309 UNTS 65;
20. 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).
21. CERD.
22. Convention on the Rights of the Child (adopted 20 Nov. 1989, entered into force 2 Sep. 1990) 1577 UNTS 3 (CRC);
23. ICCPR, op. cit.
24. American Convention on Human Rights (adopted 22 Nov. 1969, entered into force 18 Jul. 1978) 1144 UNTS 123 (American Convention on Human Rights).
25. 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.
26. 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).
27. 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).
28. 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).
29. See for example, Kafkasli v. Turkey, App. No. 21106/92 (1 Jul. 1992);
30. Karassev v. Finland, App. No. 31414/96 (12 Jan. 1999);
31. Kuzovi v. Slovenia, App. No. 60723/00 (17 Mar. 2005);
32. Slivenko v. Latvia, App. No. 48321/99 (Grand Chamber, 9 Oct. 2003)
33. Sisojeva v. Latvia, App. No. 60654/00 (Grand Chamber, 16 Jun. 2005).
34. European Convention on Nationality (adopted 6 Nov. 1997, entered into force 1 Mar. 2000) CETS No. 166.
35. 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.
36. See for example, 1961 Statelessness Reduction Convention, art. 8, discussed above.
37. A. v. Australia, Communication No. 560/1993, UN Doc. CCPR/C/59/D/ 560/1993 (30 Apr. 1997), paras 9.2, 9.4.
38. 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).
39. A. v. Australia, op. cit., para. 9.2.
40. 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.
41. 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 1970.
42. 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;
43. UN Human Rights Committee, "Concluding Observations of the Human Rights Committee: Ireland 03/08/93",
44. UN Doc. CCPR/C/79/Add.21, para. 17;
45. 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;
46. 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.
47. Committee on the Elimination of Racial Discrimination, General Recommendation No. XXX, Discrimination against Non-Citizens (2004), para. 14.
48. UN Human Rights Commission Resolution 2005/45 (19 April 2005), para. 2.
49. UN Human Rights Council Resolution 7/20 (27 Mar. 2008), para. 3.
50. 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".
51. 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. 174.
52. Ibid., paras 140-41.
53. 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. 142.
54. European Convention on Nationality, art. 7(3).
55. Ibid., art. 6.
56. ICJ, Nottebohm case (Liechtenstein P. Guatemala), ICJ Reports 1955. 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.
57. Ibid., 22.
58. 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."
59. 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."
60. UNHCR and Inter-Parliamentary Union, Nationality and Statelessness, op. cit. 8, 25,
61. C. A. Batchelor, "Statelessness and the problem of resolving nationality status", International Journal of Refugee Law, Vol. 10, No. 145, 1998, 172.
62. UNHCR, Refugees by Numbers (2005), 13, available at: http://www.unhcr.org/cgi-bin/texis/vtx/basics/ opendoc.pdf?id=416e3eb24&tb1=BASICS&page=basics (last visited 11 May 2008).
63. UNHCR, Refugees by Numbers (2004), 13, available at: http://www.unhcr.org/cgi-bin/texis/vtx/basics/ opendoc.pdf?tbl=BASICS&id=435f891f2 (last visited 11 May 2008).
64. UNHCR and Inter-Parliamentary Union, Nationality and Statelessness, op. cit. 8. The non-governmental organization Refugees International has also estimated the number of stateless persons to be eleven million.
65. See Refugees International, Lives on Hold (Feb. 2005), available at: http://www.refugeesinternational.org/files/ 5051_file_stateless_paper.pdf (last visited 11 May 2008).
66. UNHCR, The State of the World's Refugees: Human Displacement in the New Millennium, Oxford, OUP, 2006, 4.
67. UNHCR, 2007 Global Trends: Refugees, Asylum Seekers, Returnees, Internally Displaced and Stateless Persons, 2008, 2.
68. See UNHCR and UN Population Fund Strengthen Ties (30 Apr. 2008), available at: http://www.unhcr.org/news/NEWS/481880224.html (last visited 1 July 2008).