A Human Rights Approach to Statelessness in the Middle East

Leiden Journal of International Law

Volumn 15, Issue 3, 2002, Pages 527-552

  Doebbler, Curtis F ^a  

^a AMERICAN UNIVERSITY IN CAIRO   (Egypt)

Author keywords

Middle East; nationality; statelessness

Indexed keywords

EID: 85011457773     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156502000250     Document Type: Article

References (46)

1. See R. Plender, International Migration Law, 2nd Ed., 39-43 (1988).
2. See, e.g., S. von Pufendorf, De Jure Nature et Gentium Libri Octo, Chapter 11, Book 8 (1672), translation of 1688 Edition by C.H. Oldfather & W.A. Oldfather, in J.B. Scott (Ed.), The Classics of International Law, No. 17 (Washington, D.C., 1934) (describing nationality as the most important attribute an individual can acquire under international law).
3. Treaties of Peace between Spain and the Dutch and the Holy Roman Empire and between France and the Holy Roman Empire (Peace of Westphalia, 14 October 1648), 1 CTS 119-356.
4. See, e.g., R. Donner, The Regulation of Nationality in International Law, 2nd Ed., 71-74 (1994).
5. M. Bennouna, Preliminary Report on Diplomatic Protection, UN International Law Commission Doc. A/CN.4/484 (4 February 1998), at para. 54.
6. M. Reiterer, Book Review of The Regulation of Nationality in International Law by Ruth Donner, 81 AJIL 970, 973 (1987).
7. R. Donner, The Regulation of Nationality in International Law 185 (1983).
8. See Reiterer, The Regulation of Nationality in International Law note 8, at 973.
9. See M. Hudson, International Legislation, Vol. 5, 381 (1936).
10. See J.B. Scott, Nationality: Jus Soli or Jus Sanguinis, 24(1) AJIL 58 (1930) (describing the confusion on the issue of nationality prior to the Hague Conference).
11. The text of the Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws and its three Protocols can be found, respectively, at 179 LNTS, at
12. Arts. 1 and 2, Convention on Certain Questions Relating to the Conflict of Nationality Laws, id., at 89.
13. Most notably the Universal Declaration of Human Rights that provides for a right to nationality in Art. 15.
14. Report of the International Law Commission on the Work of Its First Session, 12 April to 9 June 1949, UN GAOR, 4th Sess., Supp. (No. 10), UN Doc. A/925 (12 April-9 June 1949), at paras. 16 and 20.
15. See Report of the International Law Commission on the Work of Its First Session note 30, at Arts. 3 and 4, 12-24 and 26. The rights include the right to nondiscriminatory treatment (Art. 3); religion (Art. 4); personal status (Art. 12); movable and immovable property (Art. 13); artistic and industrial property (Art. 14); association (Art. 15); access to justice (Art. 16); employment (Art. 17); self-employment (Art. 18); practice of the liberal professions (Art. 19); rationing (Art. 20); housing (Art. 21); public education (Art. 22); public relief (Art. 23); labor rights (Art. 24); social security rights (Art. 24); freedom of movement (Art. 26).
16. See C.A. Bachelor, Stateless Persons: Some Gaps in International Protection, 7 Int'l J. Refugee L. 232, 244 (1995) (describing how the 1954 Convention was initially intended it to be a protocol to the Refugee Convention).
17. Id., at Art. 3(3) (if at the time of becoming party to the Treaty the state concerned specifies that it retains the right in its national law to remove nationality in certain other circumstances related to the individual entering into the service of a foreign state, swearing allegiance to a foreign state, or when the person concerned has acted in a manner seriously prejudicial to the vital interests of the state).
18. Id., at Art. 10. The rule provides for the parties to agree to which nationality the affected person will take or for the state in whose territory the affected person has his or her habitual residence to become the state of nationality. Also see Draft Articles on Nationality in Relation to the Succession of States, Report of the International Law Commission on the Work of Its Fifty-first Session, 3 May to 23 July 1999, UN GAOR, 54th Sess., Supp. (No. 10), UN Doc. A/54/10 (1999). These draft articles, which are currently under consideration by the United Nations Law Commission, reiterate the basic right to nationality and the duty incumbent upon states to prevent statelessness. The primary means of preventing statelessness is by the assumption that an individual is the national of the country in which he or she is habitually resident; and through a right to opt for the nationality of one of the states involved in a situation of succession as enumerated in Part II of the draft when a close connection to such a state is present. For more information about the work of the International Law Commission see the website of the International Law Commission at http://www.un.org/law.ilc/index.htm; and V. Morris & A. Pronto, The Work of the Sixth Committee at the Fifty-Fourth Session of the UN General Assembly, 94(3) AJIL 582, at 583 and n. 4 (2000).
19. C.A. Batchelor, UNHCR and Issues Related to Nationality, 14 Refugee Survey Quarterly 91, 94 (1995). Also see Conclusion on the Prevention and Reduction of Statelessness and the Protection of Stateless Persons No. 78 (XLVI) (1995).
20. See infra Section 5 entitled “Statelessness in the Middle East and North Africa.”
21. Id., at Art. 7(1)(f). This might be because, for example, the child acquires or possesses the foreign nationality of its adoptive parents.
22. Id., at Art. 5. States are also to be guided by the principle of non-discrimination between citizens by birth and naturalized citizens.
23. See P. Weiss, Nationality and Statelessness in International Law 230-251 (1979).
24. See M.S. McDougal & L.-C. Chen, Human Rights and World Public Order 949-951 (1980) (while the cases cited herein concern questions of dual nationality they nevertheless illustrate the point that states have considered questions of nationality as relevant to their relations).
25. In 1961, the effective links principle was supported by the Harvard Draft Convention on State Responsibility that acknowledged that a state was not entitled to bring a claim on behalf of a national who lacks a genuine connection to that state. Harvard Law School, Research in International Law, Responsibility of States, 23 AJIL 131-239 (Special Supplement, 1929). It should be noted, however, that whatever the value of the Harvard Drafts, they are almost exclusively based on the thinking of US academics and therefore do not reflect the opinion of the wider world community. Furthermore, although viewed as an important source of references in the United States, the draft is not legally binding and reflects merely the proposal of a non-governmental organization that has never been accepted outside of the United States.
26. Bidoon is an abbreviation of an Arab phrase that literally means “without nationality” or stateless. The Arabic word can be transliterated phonetically as “bidun a-jensia.”
27. A. Hassan, The Plight of the Kuwaiti Bidoons People, a Paper presented at the SHAML Regional Workshop on Statelessness in the Arab world held in Ayia Napa, Cyprus, 2-3 November 2001 (not yet published).
28. A.N. Longva, Walls Built on Sand: Migration, Exclusion and Society in Kuwait 188 (1997).
29. See Kuwaiti Nationality Law No. 15/1959 from 1959. The 1948 Citizenship Decree had included the classical principles of jus soli and jus sanguinis as the basis for the acquisition of Kuwaiti nationality. See M.A. Tetreault, Stories of Democracy 43-44 (2000). The 1959 law eliminated the jus sanguinis category of children of Arab or Muslim fathers who had been born in Kuwait. The seven amendments between 1960 and 1987 each time provided for greater restrictions. For example, the number of annual nationalizations were limited, the required uninterrupted residency periods were increased, and naturalization was eventually limited to Muslims.
30. See U.S. Committee for Refugees web site claiming that [o]f the Bidoon whom USCR interviewed during its October 1999 site visit, all maintained that they and their families had lived their entire lives in Kuwait and therefore would refuse any status short of citizenship. Available at http://www.refugees.org/world/countryrpt/mideast/2000/kuwait.htm, accessed on 23 November 2001.
31. Human Rights Watch, Id. note 95, at Sec. IV, “Discrimination Based on Origins and Status: The Bidun.”
32. Israel allowed some Palestinians to acquire Israeli nationality, but only if they registered by 1 March 1952, which was impossible for many who had been displaced by war. See Israeli Nationality Law, 1952, 6 Laws of the State of Israel 50 (1951-1952).
33. L. Takkenberg, The Status of Palestinian Refugees 80 (1998).
34. Palestinians who lived permanently in Jordan were allowed to retain their Jordanian passports, although they continued to assert their Palestinian identity.
35. See Report of the Committee on the Rights of the Child, Concluding Observations, UN Doc. A/53/41 (7 July 1998), at para. 34 (where the Committee “notes the need for special efforts to protect the rights of children in especially difficult circumstances, including abandoned and stateless children” id.).
36. F. Kutty, Canadian Chronicle: Stateless Palestinians Ordered Deported From Canada, Washington Report on Middle East Affairs 56 (May/June 1998).
37. G. Sheffer, Middle East Diasporas: Introduction and Readings, 1(2) Middle East Review of International Affairs (1997), accessed at http://www.biu.ac.il/SOC/besa/meria/journal/ 1997/issue2/jv1n2a4.html (10 December 2001).
38. See Report of the Committee on the Rights of the Child note 13 and the accompanying text.
39. Amendments to the Naturalization Provisions of the Constitution of Costa Rica, Advisory Opinion, No. OC-4/84 (1984), at para. 32.
40. Statement by Human Rights Watch to the First Preparatory Committee for the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, accessed at http://www.hrw.org/campaigns/race/hrw-statement1.htm on 1 November 2001.
41. L. Takenberg, The Status of Palestinian Refugees in International Law 184-185 (1998).
42. M.S. McDougal, Nationality and Human Rights: The Protection of the Individual in External Areas, 83 Yale L. J. 900, at 949-950 (1974).
43. See R. Higgins, Problems and Process 95-96 (1994).
44. D. Cassel, Does International Human Rights Law Make a Difference?, 2 Chi. J. Int'l L. 121, at 122 (2001).
45. Although the African Charter on Human and Peoples’ Rights does not contain an express right to a nationality it does include the analogous rights to protection against discrimination (Art. 2) and the right to recognition of one's legal status (Art. 5).
46. Under ECOSOC Res. 1235 and Res. 1503, the Commission on Human Rights and its subsidiary bodies such as the Sub-Commission, may debate the human rights situation in states about which they have received allegations of widespread and serious violations of human rights. The 1235 procedure is private, but the 1503 procedure can lead to a public debate and condemnation of a state that is found to have committed widespread and serious violations of human rights.