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Nationality and Statelessness (International Law)

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  1. Introduction
  2.  
  3. Nationality is the legal bond between a person and a state. It denotes membership and gives rise to both rights and duties on the part of the individual and the state concerned. This legal bond is also commonly referred to as “citizenship,” and in most writing on the subject, “nationality” and “citizenship” are used as interchangeable synonyms. However, it is important to note that at the domestic level, citizenship and nationality may constitute distinct legal statuses. In addition, the terms “national” and “nationality” are used in some international legal contexts and related writing to describe membership of a “nation” in the sense of a particular cultural, ethnic, or historic community. Each state’s municipal law dictates on whom nationality shall be conferred. The two principal doctrines for the attribution of nationality are jus soli (nationality based on birth on state soil) and jus sanguinis (nationality based on descent from a national). A third common ground for the attribution of nationality is long-term residence, which can open the door to naturalization. It is also possible for a person to renounce, lose, change, or be deprived of his or her nationality under certain circumstances. International law recognizes, in principle, the freedom of states to regulate access to nationality as an exercise of sovereignty. However, some limits to this freedom may be imposed under international customary and treaty law. A stateless person is someone who is not considered a national by any state under the operation of its law. Statelessness is an anomalous situation, in 2011 affecting an estimated 12 million people worldwide. There are numerous causes, including a conflict of nationality laws and arbitrary deprivation of nationality. Another common cause of statelessness is the inadequate or uncoordinated regulation of nationality in the context of state succession. Statelessness has a detrimental effect on individuals, families, and communities. The lack of a nationality can severely obstruct the enjoyment of a wide range of rights and services, contributing to poverty and marginalization, and even leading to forced displacement. Although human rights law provides for the right to a nationality, and two international treaties were adopted specifically with a view to addressing statelessness, over the years the issues of nationality and statelessness have received inconsistent attention from the international community and from scholars. Therefore, as compared to other areas of international law, there are large gaps in the literature on these subjects. However, in recent years the interest in statelessness and the problems associated with the regulation of nationality has been growing steadily, and this has heralded many new and insightful publications.
  4.  
  5. General Overviews
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  7. The following entries provide a broad introduction to the concept of nationality and/or statelessness under international law. Unlike closely related areas of international law, such as refugee law, this remains an underdeveloped area of legal literature. There are few comprehensive works dedicated to these subjects, and several of the more significant contributions are now to some extent dated, having been written prior to key developments in municipal and international law relating to nationality. Hudson 1952 was compiled before the adoption of the UN conventions relating to statelessness and at a time when international human rights law was also in its infancy. Nevertheless, this early report, as well as pieces by leading international law scholars (e.g., van Panhuys 1959, Brownlie 1963, Weis 1979), provide an excellent overview of the concepts of nationality and statelessness, as well as a presentation of the challenges of dealing with these issues through international law, many of which are still pertinent today. Reading one or more of these earlier pieces provides a helpful framework for understanding more recent writings, including Goodwin-Gill 1994, Zilbershats 2002, van Waas 2008, and Weissbrodt 2006, which reflect upon contemporary developments in international law, including the influence of human rights law on this field, but do not discuss the underlying concepts in any real depth. Other overviews, such as Achiron, et al. 2005 (cited under The 1961 Convention on the Reduction of Statelessness), and Forced Migration Review in 2009, provide an easy-to-read introduction that can be valuable, for instance, to undergraduate students seeking to gain a first insight into the core issues before embarking on a more in-depth exploration of underlying theory.
  8.  
  9. Brownlie, Ian. “The Relations of Nationality in Public International Law.” British Yearbook of International Law 39 (1963): 284–364.
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  11. Advanced theoretical treatise on the principles that underlie the regulation of nationality, including a presentation of trends in municipal law and discussion of the notion of “effective link.” Also deals with some questions relating to the function of nationality in international law, such as in the field of diplomatic protection.
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  13. Goodwin-Gill, Guy. “The Rights of Refugees and Stateless Persons: Problems of Stateless Persons and the Need for International Measures of Protection.” Paper presented at the Third World Congress on Human Rights, New Delhi, 10–15 December 1990. In Human Rights Perspective and Challenges: In 1990 and Beyond. Edited by K. P. Saksena, 378–401. New Delhi: Lancer, 1994.
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  15. Presentation of statelessness as a protection gap posing a challenge to international law. Concise and accessible chapter that contrasts traditional thinking on statelessness and related international standards with contemporary situations of statelessness in order to present a case for rethinking the approach to this protection problem.
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  17. Hudson, Manley. Report on Nationality, including Statelessness, A/CN.4/50, 21 February 1952. Geneva, Switzerland: International Law Commission.
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  19. The most comprehensive of the studies prepared in the lead-up to the adoption of the UN conventions on statelessness, describing the concepts of nationality and statelessness and assessing the relationship with international law. Useful as both a historical snapshot of the trends in domestic law and content of international standards at the time, and a broader introduction to the regulation of nationality and causes of statelessness.
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  21. Special Issue: Statelessness Forced Migration Review 32 (April 2009).
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  23. Presents concise and accessible articles by policymakers, practitioners, and researchers. The contributions to this edition provide insight into the concept of statelessness and the current contours of international law, as well as presenting a series of short exposés on specific sub-themes and country situations.
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  25. van Panhuys, Haro Frederik. The Role of Nationality in International Law. Leiden, The Netherlands: A. W. Sijthoff, 1959.
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  27. Advanced theoretical exploration of the relationship between nationality and international law: the function attributed to nationality under international customary and treaty law and the influence of international standards on the attribution of nationality.
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  29. van Waas, Laura. Nationality Matters: Statelessness under International Law. Antwerp: Intersentia, 2008.
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  31. Exhaustive technical exposition of the contemporary international legal framework relating to nationality and statelessness, in terms of both standards for the avoidance and resolution of cases of statelessness, and the protection of the rights of stateless people.
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  33. Weis, Paul. Nationality and Statelessness in International Law. Dordrecht, The Netherlands: Kluwer Academic, 1979.
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  35. Detailed discussion of how questions of nationality and statelessness are dealt with under international law. Still one of the most authoritative works on the subject. Comprises a comprehensive technical overview of relevant customary law, treaty standards, municipal and international jurisprudence, leading to broader conclusions on the state of international law at the time of writing.
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  37. Weissbrodt, David, and Clay Collins. “The Human Rights of Stateless Persons.” Human Rights Quarterly 28.1 (2006): 245–276.
  38. DOI: 10.1353/hrq.2006.0013Save Citation »Export Citation »E-mail Citation »
  39. Discussion of the problem of statelessness from a human rights perspective. Accessible text reviewing underlying concepts and illustrating the causes and consequences of statelessness through reference to practical examples, while presenting, in parallel, the relevant international standards.
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  41. Zilbershats, Yaffa. The Human Right to Citizenship. Ardsley, NY: Transnational, 2002.
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  43. This work discusses the principles underlying the enjoyment of nationality by individuals and investigates the conditions imposed by international law on the regulation of nationality by states. Of particular interest in this piece is the exploration of an alternative approach to the attribution of nationality with a view to promoting the enjoyment of a relevant and effective citizenship by all.
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  45. Organizational and Institutional Resources
  46.  
  47. Given the relative shortage of academic writing on nationality and statelessness, as compared to other areas of international law, organizational and institutional resources are an important supplementary source of information. Principal among these are the websites maintained by the Office of the United Nations High Commissioner for Refugees (UNHCR), the UN agency that has been mandated to assist states in addressing statelessness: the UNHCR Statelessness webpage and UNHCR’s Refworld resource. Each of these sites acts as a portal to a diverse selection of materials, ranging from related historical documents to detailed discussion papers on conceptual issues and from the UN statelessness conventions to the latest statistical data on statelessness. Further research reports and policy papers are issued on an ongoing basis by a variety of other organizations whose work encompasses the issues of nationality and statelessness. The US-based Open Society Justice Initiative and Refugees International both run programs studying access to nationality and statelessness worldwide. In Europe, the European Union Democracy Observatory on Citizenship is a good source of country-specific and regional reports on trends in nationality law. Moreover, in reflection of its longstanding interest in the issue of nationality, the Council of Europe maintains a dedicated web portal through which relevant regional standards and papers can be accessed. A very different but also highly valuable resource is the work of photographer Greg Constantine, who has documented the human dimension of statelessness as it affects different populations around the world.
  48.  
  49. European Union Democracy Observatory on Citizenship.
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  51. Webportal to nationality legislation, commentaries, and trends analyses largely focusing on countries of the European Union. Updated regularly with new case law, country studies, and working papers on a range of related themes. Includes a forum for interactive debate on emerging citizenship issues.
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  53. Greg Constantine: Multimedia.
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  55. Multimedia presentations based on powerful black-and-white photography featuring stateless populations from around the world. The photographs are accompanied by narrative providing background on why the group is stateless and how this affects them.
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  57. Nationality. Council on Europe.
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  59. Web portal to international instruments and background documentation relating to nationality and statelessness in the Council of Europe. Includes links to text and commentaries on Conventions and Recommendations, as well as access to background documentation connected to the Council of Europe conference series on nationality.
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  61. Open Society Justice Initiative.
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  63. International NGO whose body of work on nationality and statelessness, within the Equality and Citizenship Programme, includes a detailed study of citizenship law and practice in Africa. Through the website, there is also access to informative blog posts, legal briefs on state practice, case law relating to access to nationality, and background papers discussing core concepts.
  64. Find this resource:
  65. Refugees International: Statelessness.
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  67. International NGO that has done substantial public information and advocacy work on statelessness, including a global report entitled “Nationality Rights for All.” Through the website, there is access to this and other background documents, as well as reports on field visits and a blog on developments.
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  69. Statelessness. Refworld.
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  71. Refworld is the principal web portal to international instruments, UNHCR policy documents, and background reports relating to statelessness.It is regularly updated with the latest releases on statelessness doctrine and country- or region-specific studies. Also a portal to wide range of country-level information, including domestic legislation and extracts from human rights reports. Refworld is fully searchable, and information can also be accessed by country (rather than by theme).
  72. Find this resource:
  73. UNHCR: Stateless People.
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  75. User-friendly portal to basic information on statelessness, relevant aspects of international law, and UNHCR’s mandate. Includes an overview of the latest news items featured by UNHCR on statelessness and the most recently posted reports relating to statelessness on Refworld (the in-depth UNHCR web portal).
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  77. Regulation of Nationality
  78.  
  79. Access to nationality is regulated by each state’s municipal law, meaning that much of the literature on this subject is country-specific. Textbooks and other reference works describing the contours of domestic nationality legislation and practice are available in many countries. This bibliography is concerned instead with works that are broader in scope—those that discuss underlying doctrines and trends for the attribution of nationality, as well as those that are dedicated to exploring the influence of international law on the regulation of nationality by states.
  80.  
  81. Doctrines for the Attribution of Nationality
  82.  
  83. The following works discuss the underlying doctrines and trends for the attribution of nationality. They can be subdivided into two categories. Zagar 1999, Bauböck 2007, and Zilbershats 2002 fall into the first category, offering a general presentation of how the doctrines for the attribution of nationality have taken shape. The Nottebohm Case similarly falls within this general category, discussing the concept of the “genuine link” as the basis for the attribution of nationality. The second category, comprising the European Union Democracy Observatory on Citizenship website, Bauböck, et al. 2006, Manby 2009, and Parolin 2009, provides a concrete analysis of regional trends in the regulation of nationality, discussing how the underlying doctrines for the attribution of nationality are reflected in laws in Europe, Africa, and the Arab states, respectively.
  84.  
  85. Bauböck, Rainer. Transnational Citizenship: Membership and Rights in International Migration. 2d ed. Cheltenham, UK: Edward Elgar, 2007.
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  87. In Part 1 of this work, Bauböck explores the theoretical questions underlying doctrines for the attribution of nationality as membership of the political community that is the state. In chapter 2, he describes the principles of and justifications for jus soli and jus sanguinis attribution of nationality. In chapters 4 and 5 he investigates the theory underlying state policy on naturalization and denaturalization.
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  89. Bauböck, Rainer, Eva Ersbll, Kees Groenendijk, and Harald Waldrauch. Acquisition and Loss of Nationality: Policies and Trends in 15 European Countries. 2 vols. Amsterdam: IMISCOE Research and Amsterdam University Press, 2006.
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  91. Volume 1, Comparative Analyses; Volume 2, Country Analyses. This research analyzes overall trends and recent developments in the regulation of nationality in the (then) fifteen member states of the European Union. Helpful both as a country-specific resource for understanding the rules for acquisition and loss of nationality and for broader analysis of regional developments.
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  93. European Union Democracy Observatory on Citizenship.
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  95. The country profiles, comparative analyses, and working papers available through this website provide data on how nationality is regulated in European countries. Much of this information can be accessed both thematically (e.g., modes for loss of nationality) and by country, and the original nationality laws on which the analysis is based can also be found on the website, making this a multifunctional research tool.
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  97. Liechtenstein v. Guatemala (Nottebohm Case). International Court of Justice, 1953.
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  99. The Nottebohm Case is one of the most significant and widely cited cases in the field of nationality to be decided by an international court. Presents the notion of a “social fact of attachment” or “genuine link” as the basis for the attribution of nationality, which is explored at length in many of the subsequent scholarly works on the subject.
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  101. Manby, Bronwen. Citizenship Law in Africa. New York: Open Society Institute, 2009.
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  103. Comprehensive analysis of the nationality legislation of African states, including a presentation of pertinent case law emerging from the continent. A key tool for comparative research and for the analysis of trends in thinking on access to nationality, the work describes modes of both acquisition and loss of nationality in the aforementioned countries.
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  105. Parolin, Gianluca. Citizenship in the Arab World. Amsterdam: IMISCOE Research and Amsterdam University Press, 2009.
  106. DOI: 10.5117/9789089640451Save Citation »Export Citation »E-mail Citation »
  107. Chapter 3 of this monograph presents the approach of Arab states (Middle East and North Africa regions) to the regulation of nationality. A useful tool for comparative research and for the analysis of trends in thinking on access to nationality, the work describes modes of acquisition and of loss of nationality in the aforementioned countries.
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  109. Zagar, Mitja. “Citizenship–Nationality: A Proper Balance between the Interests of States and Those of Individuals.” In First European Conference on Nationality: “Trends and Developments in National and International Law on Nationality” (Strasbourg, 18 and 19 October 1999), 93–111. Strasbourg, France: Council of Europe, 1999,
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  111. Concise historical overview of the provenance of the concept of nationality, followed by a presentation of present doctrines for the regulation of nationality and of possibilities for rethinking these doctrines with a view to striking an appropriate balance between the interests of individuals and of states in attributing nationality. Available online.
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  113. Zilbershats, Yaffa. The Human Right to Citizenship. Ardsley, NY: Transnational, 2002.
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  115. Chapter 3 presents a detailed exploration of theory and state practice concerning what Zilbershats describes as the “horizontal aspect” of citizenship—the question of how and when a person becomes a national. Insightful piece for advanced studies of nationality doctrine.
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  117. Influence of International Law
  118.  
  119. The body of work devoted to an exploration of the influence of international law on the regulation of nationality can be subdivided according to era. The older writings, including the detailed contribution of Hudson 1952 and the highly advanced theoretical treatises van Panhuys 1959 and Brownlie 1963, discuss the traditional position of nationality law as a reserved domain of the state in accordance with the exercise of its sovereignty—a position established by the Permanent Court of International Law in 1923 (Tunis and Morocco Nationality Decrees Case) and of fundamental importance to understanding the interplay between national and international law. More recent literature shows the further development of this theory and of international law in the decades following the elaboration of the “right to a nationality” under the Universal Declaration of Human Rights. The ruling Proposed Amendments to the Naturalization Provision of the Political Constitution of Costa Rica and Batchelor 1998 and Human Rights and Arbitrary Deprivation of Nationality: Report of the Secretary-General present a nuanced picture of the influence of contemporary international law.
  120.  
  121. Batchelor, Carol. “Statelessness and the Problem of Resolving Nationality Status.” International Journal of Refuge Law 10.1–2 (1998): 156–183.
  122. DOI: 10.1093/ijrl/10.1.156Save Citation »Export Citation »E-mail Citation »
  123. One of several pieces by this author on the development of international standards relating to nationality and statelessness, including contemporary human rights law. This article offers a historical overview, followed by a commentary on ongoing challenges in terms of addressing statelessness through the application of international law.
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  125. Brownlie, Ian. “The Relations of Nationality in Public International Law.” British Yearbook of International Law 39 (1963): 284–364.
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  127. Advanced theoretical treatise on the principles that underlie the regulation of nationality, including a discussion of the notion of “genuine link,” which emerged from the 1953 Nottebohm Case (see Doctrines for the Attribution of Nationality) before the International Court of Justice.
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  129. Donner, Ruth. The Regulation of Nationality in International Law. New York: Transnational, 1994.
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  131. A detailed overview of the development and content of international standards influencing states’ freedom to regulate nationality. Includes an assessment of state practice and a discussion of the role of numerous human rights instruments, as well as an exploration of the “genuine link” theory following the 1953 Nottebohm Case (see Doctrines for the Attribution of Nationality) before the International Court of Justice.
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  133. Hudson, Manley. Report on Nationality, including Statelessness A/CN.4/50, 21 February 1952. Geneva, Switzerland: International Law Commission
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  135. Annex I traces the development of international standards relating to the regulation of nationality and the power of states to attribute nationality in accordance with their interests. Note that international law has undergone significant further development since the time this report was compiled. However, the analysis is important in terms of the basic principles which remain largely unchanged and as a historic snapshot of the immediate post–World War II period.
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  137. Human Rights and Arbitrary Deprivation of Nationality: Report of the Secretary-General, A/HRC/13/34, 14 December 2009, UN Human Rights Council.
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  139. A report summarizing the elements of the international legal framework that influence states’ freedom to regulate nationality, starting with the right to a nationality and discussing the content and scope of related norms such as the prohibition of arbitrary deprivation of nationality and the principle of non-discrimination. Concise technical overview of international law compiled in accessible language.
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  141. Proposed Amendments to the Naturalization Provision of the Political Constitution of Costa Rica, Inter-American Court of Human Rights, Advisory Opinion OC-4/84, Series A, No. 4, 19 January 1984.
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  143. Ruling by a regional court on the influence of international law on states’ freedom to regulate nationality. Forms an interesting comparison to the ruling of the Permanent Court of International Justice in 1923 (Tunis and Morocco Nationality Decrees Case since it reflects more contemporary developments in human rights law, asserting that the regulation of nationality is no longer solely within the domestic jurisdiction of states.
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  145. Tunis and Morocco Nationality Decrees Case. Permanent Court of International Justice, 7 February 1923.
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  147. Highly significant early ruling by an international court on the influence of international law on the regulation of nationality. The court examines the extent of domestic jurisdiction (“reserved domain”) on questions of nationality, thereby setting a test that is still relevant to determining the influence of international law in this field to this day. As such, the ruling provides valuable insight into basic principles.
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  149. van Panhuys, Haro Frederik. The Role of Nationality in International Law. Leiden, The Netherlands: A. W. Sijthoff, 1959.
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  151. Advanced theoretical exploration of the influence of international standards on the attribution of nationality. As with other works of this age, the assessment does not factor in more recent developments in international law, but the legal theory presented remains relevant.
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  153. Weis, Paul. Nationality and Statelessness in International Law. Dordrecht, The Netherlands: Kluwer Academic, 1979.
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  155. A comprehensive technical overview of customary law, treaty standards, and municipal and international jurisprudence on the influence of international law on states’ freedom to regulate nationality. Chapter 4 on “Exclusive Domestic Jurisdiction” is of particular interest in this regard.
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  157. Function of Nationality
  158.  
  159. As illustrated by this selection of works, there is a dichotomy, perhaps even a tension, between nationality as the “right to have rights” and the advent of human rights as a development that has eroded the content of nationality. This is the principal debate in terms of the function of nationality under contemporary international law. This dichotomy is epitomized by the observations of Dickson Car Wheel (USA) v. United Mexican States 1931, Arendt 1948, Trop v. Dulles 1958, and Weis 1979 on the one hand, and the findings of Tiburcio 2001, UN High Commissioner for Human Rights 2006, and Weissbrodt 2007 on the other. These more recent pieces nevertheless admit that human rights law maintains its own distinctions based on nationality with regard to certain rights, thereby potentially excluding non-nationals. As such, this writing presents the reader with a carefully balanced assessment of the modern function of nationality. Blitz and Lynch 2011 meanwhile offers an exploration of the enduring function of nationality in practice—rather than according to legal theory—by discussing the situation of various groups of stateless persons that have (re)acquired a nationality.
  160.  
  161. Arendt, Hannah. The Origins of Totalitarianism. New York: Harcourt Brace Jovanovich, 1948.
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  163. The section “The Decline of the Nation-State and the End of the Rights of Man” presents a stark picture of the position of a person who has lost his or her nationality, suggesting that nationality is all-important for enjoyment of rights. An indispensible introduction to nationality and rights as an area of legal philosophy and an interesting point of departure from which to analyze subsequent developments in human rights law.
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  165. Blitz, Brad, and Maureen Lynch. Statelessness and Citizenship: A Comparative Study on the Benefits of Nationality. Cheltenham, UK: Edward Elgar, 2011.
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  167. Chapter 2 discusses the content of nationality and the position of stateless persons according to contemporary human rights norms. Following this presentation of the legal theory, the further chapters deal with a number of different situations of statelessness that have been (partially) resolved as a means to investigate the impact of acquisition of nationality and thereby the enduring function of nationality in practice.
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  169. Dickson Car Wheel Co. (USA) v. United Mexican States. Special Claims Commission between the United States and Mexico, UNRIAA, Vol. IV, July 1931.
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  171. Of interest to tracing the content accorded to nationality by international law in the early 20th century: nationality being a necessary foundation for diplomatic protection and an injury committed against a person who holds no nationality not considered an international wrong. The contrast between this ruling and recent works cited here illustrates how international law has developed over the course of the century.
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  173. Tiburcio, Carmen. The Human Rights of Aliens under International and Comparative Law. The Hague: Kluwer Law International, 2001.
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  175. This publication discusses the concept of nationality and its primary functions according to traditional legal theory, before focusing on the position of non-nationals in terms of rights— historically and under contemporary international law. The introductory chapters (1–3) and the conclusion provide useful summaries that can be read independently of the analysis, while this (chapters 4–10) is helpfully subdivided thematically according to different categories of rights.
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  177. Trop v. Dulles, Secretary of State et al. 356 US 86, 1958.
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  179. Noteworthy ruling identified as the source of the oft-repeated saying that nationality is the “right to have rights,” which has stood at the crux of the debate on the function of nationality since the advent of contemporary human rights law. As with the earlier Dickson Car Wheel Case, this ruling is of historical and theoretical interest, particularly when contrasted with recent work.
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  181. UN High Commissioner for Human Rights. The Rights of Non-citizens. New York and Geneva, Switzerland: United Nations, 2006.
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  183. Technical overview of the rights of non-nationals according to the principal human rights instruments. This report indirectly discusses the function of nationality by identifying areas in which citizens are favored over non-citizens in terms of their position within the human rights framework, as well as discussing how the principle of nondiscrimination applies to distinctions between nationals and non-nationals.
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  185. Weis, Paul. Nationality and Statelessness in International Law. Dordrecht, The Netherlands: Kluwer Academic, 1979.
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  187. Chapter 3 of this authoritative monograph discusses nationality as a concept in international law and the international functions traditionally attributed to nationality (including as a basis for diplomatic protection and a duty of admission). Suitable for advanced readers seeking to trace the history of the relationship between international law and the content of nationality.
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  189. Weissbrodt, David. “The Protection of Non-Citizens in International Human Rights Law.” In International Migration Law. Edited by Ryszard I. Cholewinski, 221–236.The Hague: T. M. C. Asser, 2007.
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  191. Drawing upon his work as UN Special Rapporteur on the Rights of Non-Citizens, Weissbrodt provides an overview of the position of non-nationals under international human rights law, thereby illustrating how human rights laws have helped to shape and indeed diminish the function of nationality today.
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  193. Definition of Statelessness
  194.  
  195. International law provides a definition of a “stateless person” (commonly referred to as de jure statelessness). However, throughout the literature on statelessness, a debate can be traced as to the interpretation of this definition, the exact scope of the term “statelessness,” and whether it is an appropriate label for situations that share many characteristics with the “stateless person” as defined by international law. At the center of this debate is the phenomenon of de facto statelessness. In much non-legal literature, as well as in the writings of some nongovernmental organizations, a broader approach to statelessness—and in particular to de facto statelessness—is employed. Scholars seeking to work on statelessness should be aware of the divergent use of this terminology and will find resources that deal explicitly with this definitional question helpful. The most comprehensive presentation of the development of a definition of a “stateless person” under international law and the use of the term “de facto statelessness” within international law is provided by Massey 2010, which reflects and builds upon the traditional position set out in Weis 1962. A summarized presentation of the same discussion, including comments on the current state of international law, is provided by van Waas 2008 and UN High Commissioner for Refugees 2010. The application of the latter conclusions is subsequently discussed and tested through the use of case studies in Bingham, et al. 2011. Batchelor 1998, Weissbrodt 2006, and Equal Rights Trust 2010 discuss the definitional question from a broader perspective, presenting alternative theories that go beyond the international legal framework as it stands and considering the practical application of a concept of de facto statelessness alongside the formal definition of a “stateless person.”
  196.  
  197. Batchelor, Carol. “Statelessness and the Problem of Resolving Nationality Status.” International Journal of Refuge Law 10.1–2 (1998): 156–183.
  198. DOI: 10.1093/ijrl/10.1.156Save Citation »Export Citation »E-mail Citation »
  199. This article describes the development of the international conventions relating to statelessness and the inception of statelessness as a concept under international law. Reflecting on some of the practical implications of a narrower or wider concept of (de facto) statelessness and on the challenge of identifying statelessness in practice, Batchelor provides an accessible introduction to the difficulties of this area of international legal theory.
  200. Find this resource:
  201. Bingham, Laura, Julia Harrington Reddy, and Sebastian Kohn. De Jure Statelessness in the Real World: Applying the Prato Summary Conclusions.New York: Open Society Institute, 2011.
  202. Save Citation »Export Citation »E-mail Citation »
  203. Report drafted in response to the UNHCR Summary Conclusions of 2010 (UN High Commissioner for Refugees 2010) using a selection of case studies to test the application of the conclusions relating to the definition of a “stateless person” under international law.
  204. Find this resource:
  205. Equal Rights Trust. Unravelling Anomaly. Detention, Discrimination and the Protection Needs of Stateless Persons. London: Equal Rights Trust, 2010.
  206. Save Citation »Export Citation »E-mail Citation »
  207. Chapter 2 investigates the concepts of de jure and de facto statelessness, using a series of practical scenarios. Similarly to Weissbrodt and Collins 2006 and contrasting with UN High Commissioner for Refugees 2010, this piece takes a broad human-rights approach to statelessness and centers on the aim of ensuring an “effective” nationality. Of interest is the five-pronged legal test posited as a means of measuring the effectiveness of nationality.
  208. Find this resource:
  209. Massey, Hugh. UNHCR and De Facto Statelessness. UNHCR Legal and Protection Policy Research Series, LPPR/2010/01. Geneva, Switzerland: UN High Commissioner for Refugees, 2010.
  210. Save Citation »Export Citation »E-mail Citation »
  211. Massey provides the most detailed description of how the notion of de facto statelessness has changed over time in this comprehensive technical analysis of the historical development of statelessness and de facto statelessness as concepts of international law. Includes a discussion of the drafting history of the UN statelessness conventions and concludes by positing a relatively narrow definition of de facto statelessness.
  212. Find this resource:
  213. UN High Commissioner for Refugees. Expert Meeting: The Concept of Stateless Persons under International Law (Summary Conclusions). Geneva, Switzerland: UN High Commissioner for Refugees, 2010.
  214. Save Citation »Export Citation »E-mail Citation »
  215. Summary of conclusions reached by a meeting of experts regarding the definition of a stateless person and notion of de facto statelessness. Unique to this meeting and the conclusions reflected, as compared to previous literature on the subject, is the breakdown of the definition into constituent parts for separate analysis. This provides a helpful conceptual framework and guide from the point of view of both legal theory and practice.
  216. Find this resource:
  217. van Waas, Laura. Nationality Matters: Statelessness under International Law. Antwerp, Belgium: Intersentia, 2008.
  218. Save Citation »Export Citation »E-mail Citation »
  219. Chapter II.4 of this work presents the debate surrounding the definition of statelessness and traces the development of an expanded use for the term “de facto statelessness” in human rights literature. This piece suggests that the question of definition is closely linked to—and sometimes confused with—issues surrounding evidence of nationality or statelessness, and it urges caution in the use of the label “de facto statelessness.”
  220. Find this resource:
  221. Weis, Paul. “The United Nations Convention on the Reduction of Statelessness, 1961.” International and Comparative Law Quarterly 11.4 (1962): 1073–1096.
  222. DOI: 10.1093/iclqaj/11.4.1073Save Citation »Export Citation »E-mail Citation »
  223. In the context of the application of the 1961 Convention on the Reduction of Statelessness, this article briefly addresses the definition of statelessness. Weis posits the alternative terminology of de jure and de facto “unprotected persons” as a way to settle any ambiguity in the use of the concept of statelessness, an approach that is revisited in later works.
  224. Find this resource:
  225. Weissbrodt, David, and Clay Collins. “The Human Rights of Stateless Persons.” Human Rights Quarterly 28.1 (2006): 245-276.
  226. DOI: 10.1353/hrq.2006.0013Save Citation »Export Citation »E-mail Citation »
  227. This article discusses the concepts of statelessness and de facto statelessness from a broader human rights perspective, focusing on the problem of the absence of an “effective” nationality in terms of the enjoyment of related rights. As such, it takes a broader approach than is seen in more traditional international legal theory.
  228. Find this resource:
  229. Situations of Statelessness
  230.  
  231. A significant portion of the writing on statelessness concentrates on exploring the situation of a particular population, country, or region. These pieces are diverse and may offer any or all of the following: detailed and comparative legal analysis (Manby 2009, UN High Commissioner for Refugees 2010), discussion of the underlying history, exploration of the current challenges faced by individuals and states (Sokoloff 2005,, Blitz and Sawyer 2011), presentation of the efforts taken to address statelessness (UN High Commissioner for Refugees 2011, Forced Migration Review 2009), or quantitative data about the scale and impact of statelessness (UN High Commissioner for Refugees 2003,Southwick and Lynch 2009). The selection of works presented here provides global (UN High Commissioner for Refugees 2003, Lynch 2009) or regional overviews (Manby 2009; UN High Commissioner for Refugees 2010; UN High Commissioner for Refugees 2011; Blitz and Sawyer 2011) and therefore helpful tools for comparative analysis. There is a growing body of additional reading available in addition to what is featured here, including a significant number of country- and population-specific works which offer the reader a greater wealth of information on the particular situation discussed. Many of these supplementary writings can be accessed through the websites listed under Organizational and Institutional Resources.
  232.  
  233. Blitz, Brad, and Caroline Sawyer. Statelessness in the European Union: Displaced, Undocumented, Unwanted. Cambridge, UK: Cambridge University Press, 2011.
  234. Save Citation »Export Citation »E-mail Citation »
  235. The chapters in this volume deal with a number of different situations of statelessness in the European Union. Note that several of these contributions take a broad approach to the concept of statelessness and, in particular, de facto statelessness. The analysis illustrates the problems associated with statelessness and the inability to establish nationality, including through the presentation of findings from qualitative field research in four countries.
  236. Find this resource:
  237. Manby, Bronwen. Struggles for Citizenship in Africa. London: Zed, 2009.
  238. Save Citation »Export Citation »E-mail Citation »
  239. This book documents the history and modern contours of discriminatory access to citizenship in various countries in Africa, touching on several situations of statelessness in the continent. In particular, chapter 4 describes the origins of statelessness of “Black Mauritanians” expelled in the 1990s and the efforts to address their situation. This work is especially of interest to those studying the effects of (de)colonization on access to nationality and related rights.
  240. Find this resource:
  241. Sokoloff, Constantin. Denial of Citizenship: A Challenge to Human Security. Prepared for the Advisory Board on Human Security, February 2005.
  242. Save Citation »Export Citation »E-mail Citation »
  243. Focusing on the link between nationality and human security, this report investigates the wider effects of the denial of citizenship and statelessness. By looking at several case studies from different regions of the world through the lens of human security, the report provides an original perspective on the importance of addressing statelessness.
  244. Find this resource:
  245. Southwick, Katherine, and Maureen Lynch. Nationality Rights for All: A Progress Report and Global Survey on Statelessness.Washington, DC: Refugees International, 2009.
  246. Save Citation »Export Citation »E-mail Citation »
  247. Offers a broad overview of situations of statelessness around the world, including a concise description of significant stateless populations by country. Written in simple language and suitable for a wide audience, quickly providing the reader with a basic understanding of the origins, scale, and reach of statelessness in different regions. Several country situations summarized in this report are the subject of more detailed field reports.
  248. Find this resource:
  249. Special Issue: Statelessness. Forced Migration Review 32 (April 2009).
  250. Save Citation »Export Citation »E-mail Citation »
  251. Presents concise and accessible articles by policy makers, practitioners and researchers. The magazine includes a number of reports on specific statelessness situations, such as in Bangladesh, Ethiopia-Eritrea, Japan, the Arabian Peninsula, and the Roma in Europe. These are introductory pieces written in simple language and suitable for a wide audience.
  252. Find this resource:
  253. UN High Commissioner for Refugees. Final Report Concerning the Questionnaire on Statelessness Pursuant to the Agenda for Protection.Geneva, Switzerland: UN High Commissioner for Refugees, 2003.
  254. Save Citation »Export Citation »E-mail Citation »
  255. This report offers some quantitative information about states’ experiences with statelessness and the measures adopted in national legislation to address statelessness.Because the data relate to seventy-four respondent countries and each region of the world is represented, the report provides an impression of the overall state of play worldwide, although there are still significant gaps in the information.
  256. Find this resource:
  257. UN High Commissioner for Refugees. Regional Expert Roundtable on Good Practices for the Identification, Prevention and Reduction of Statelessness in South East Asia. Geneva, Switzerland: UN High Commissioner for Refugees, 2011.
  258. Save Citation »Export Citation »E-mail Citation »
  259. A presentation of efforts made by countries in Southeast Asia to address statelessness within their borders, including techniques for the avoidance of statelessness and for promoting the rights of stateless persons. This report shows that the issue is not impenetrable and, through concrete examples, provides the reader with an insight into the type of measure that could be considered a good practice in this field.
  260. Find this resource:
  261. van Waas, Laura. The Situation of Stateless Persons in the Middle East and North Africa. Geneva, Switzerland: UN High Commissioner for Refugees, 2010.
  262. Save Citation »Export Citation »E-mail Citation »
  263. This report describes the experience of statelessness of countries of the Middle East and North Africa. The comparative analysis presents examples of specific situations and draws conclusions as to overall trends in the region on a number of subthemes, including the position of women, the role of migration, and efforts taken to protect stateless persons.
  264. Find this resource:
  265. International Conventions on Statelessness
  266.  
  267. Central to the international legal framework relating to nationality and statelessness are two instruments dedicated explicitly to the problem of statelessness: the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. Literature relating to these instruments not only provides insight into the standards that are housed in each but also offers broader reflection on the challenges faced by states seeking to protect stateless persons and prevent statelessness. Relevant works can be divided into three categories: those providing a general commentary on the origin and importance of both conventions as the core of the international legal framework dealing with statelessness, and those that focus on either one or the other convention, often providing a higher level of detail in terms of both commentary and analysis of underlying theory. Among the contributions that provide a broad background to both instruments, UN Department of Social Affairs 1949 offers the most comprehensive insight into the motivation for and drafting history of the two statelessness conventions, while Massey 2010 complements this with a retroactive, in-depth discussion of the travaux préparatoires. Goodwin-Gill 1994 and Batchelor 1995 place this historical analysis into its contemporary setting by introducing the background and purpose of the conventions and briefly contemplating their place within the overall international legal framework today. Van Waas 2008 elaborates on this approach by considering in detail each of the issues dealt with by the statelessness conventions and comparing their content and scope to other international standards, while also making observations on the gaps apparent within the statelessness instruments.
  268.  
  269. Batchelor, Carol. “Stateless Persons: Some Gaps in International Protection.” International Journal of Refugee Law 7.2 (1995): 232–259.
  270. DOI: 10.1093/ijrl/7.2.232Save Citation »Export Citation »E-mail Citation »
  271. Concise yet comprehensive overview of the drafting history and purpose of the statelessness conventions and the ongoing conceptual and practical challenges relating to the implementation of these two instruments.
  272. Find this resource:
  273. Goodwin-Gill, Guy. “The Rights of Refugees and Stateless Persons: Problems of Stateless Persons and the Need for International Measures of Protection.” Paper presented at the Third World Congress on Human Rights, New Delhi, 10–15 December 1990. In Human Rights Perspective and Challenges: In 1990 and Beyond. Edited by K. P. Saksena, 378–401. New Delhi: Lancer, 1994.
  274. Save Citation »Export Citation »E-mail Citation »
  275. This article provides a brief overview of the impetus for and drafting history of both statelessness conventions, before examining on a more conceptual level whether the approach taken to the problem of statelessness in these instruments is appropriate and effective.
  276. Find this resource:
  277. Massey, Hugh. UNHCR and De Facto Statelessness. UNHCR Legal and Protection Policy Research Series, LPPR/2010/01. Geneva, Switzerland: UN High Commissioner for Refugees,2010.
  278. Save Citation »Export Citation »E-mail Citation »
  279. While focusing principally on the question of definition of statelessness, the technical account of the drafting history of the statelessness conventions in this report provides a good insight into the aims and scope of these instruments by summarizing the most important elements of the travaux préparatoires.
  280. Find this resource:
  281. UN Department of Social Affairs. A Study of Statelessness. UN Doc. E/1112. New York: United Nations, 1949.
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  283. Report commissioned by the UN Economic and Social Council (ECOSOC) with a view to establishing the need for an international instrument to address the problem of statelessness. Note that the term “statelessness” is interpreted expansively, such that the report also investigates refugeehood. This report helps readers to understand the motivation for and history of the international statelessness conventions.
  284. Find this resource:
  285. van Waas, Laura. Nationality Matters: Statelessness under International Law. Antwerp, Belgium: Intersentia, 2008.
  286. Save Citation »Export Citation »E-mail Citation »
  287. Detailed discussion of the contemporary international legal framework relating to nationality. The UN statelessness conventions are compared and contrasted throughout with other relevant sources of international law. The conclusions point to strengths, weaknesses, and gaps in the applicable international standards.
  288. Find this resource:
  289. The 1954 Convention Relating to the Status of Stateless Persons
  290.  
  291. The 1954 Convention provides a definition of a stateless person and establishes a set of minimum rights to be enjoyed by individuals who meet this definition (see also Protection of Stateless Persons). Its overall scope and approach are discussed in Robinson 1955, which goes on to offer an article-by-article commentary. Readers seeking a broad and accessible introduction to the convention will, however, find UN High Commissioner for Refugees 2010b (“Protecting the Rights of Stateless Persons”) more accessible since it was designed as public information material and also reflects on the convention’s position within today’s broader international legal framework. UN High Commissioner for Refugees 2003 and Gyulai 2007 both offer a discussion of the modes of implementation of the convention, with a particular focus on practices within European states where ratification rates are highest. The expert meeting conclusions (UN High Commissioner for Refugees 2010a and UN High Commissioner for Refugees 2011) consolidate current thinking on the content of the convention standards and provide the reader with a sense of some of the pertinent questions in terms of its interpretation and application, including the definition of a stateless person and how determination of status is to be achieved.
  292.  
  293. Gyulai, Gábor. Forgotten without Reason: Protection of Non-Refugee Stateless Persons in Central Europe. Budapest: Hungarian Helsinki Committee, 2007.
  294. Save Citation »Export Citation »E-mail Citation »
  295. Although focused on central Europe, this report is of broader interest to readers seeking to understand the mechanics of protection for stateless persons under the 1954 Convention. It discusses definition and status determination as well as the content of the standards set in the convention through examination of three central European state case studies.
  296. Find this resource:
  297. Robinson, Nehemiah. Convention Relating to the Status of Stateless Persons: Its Origin, Significance, Application and Interpretation. New York: Institute of Jewish Affairs, 1955.
  298. Save Citation »Export Citation »E-mail Citation »
  299. This early text relating to the 1954 Convention is effectively a commentary on the instrument, providing details of the drafting history and notes on the interpretation of each article. Useful as a historical reference and with a view to assessing the protection offered under the 1954 Convention on each substantive issue covered.
  300. Find this resource:
  301. UN High Commissioner for Refugees. The 1954 Convention relating to the Status of Stateless Persons: Implementation within the European Union Member States and Recommendations for Harmonisation. Geneva, Switzerland: UN High Commissioner for Refugees, 2003.
  302. Save Citation »Export Citation »E-mail Citation »
  303. Policy-focused report discussing trends relating to the implementation of the 1954 Convention in EU states, looking in particular at status determination issues and the effects of recognition as a stateless person. Given the relative concentration of state parties to this instrument in Europe, this report provides a helpful introduction to broader questions of interpretation and application of the 1954 Convention standards.
  304. Find this resource:
  305. UN High Commissioner for Refugees. Expert Meeting: The Concept of Statelessness in International Law, Summary Conclusions. Geneva, Switzerland: UN High Commissioner for Refugees, 2010a.
  306. Save Citation »Export Citation »E-mail Citation »
  307. Summary of conclusions reached by a meeting of experts regarding the definition of a stateless person and therefore the interpretation of Article 1 of the 1954 Convention. The conclusions present a breakdown of the definition into its constituent parts for separate analysis, providing a helpful conceptual framework for exploring the personal scope of the 1954 Convention.
  308. Find this resource:
  309. UN High Commissioner for Refugees. Protecting the Rights of Stateless Persons: The 1954 Convention relating to the Status of Stateless PersonsGeneva, Switzerland: UN High Commissioner for Refugees, 2010b.
  310. Save Citation »Export Citation »E-mail Citation »
  311. Basic public information brochure on the history, content, and importance of the 1954 Convention, including the enduring relevance of the convention’s standards in light of contemporary human rights law. A helpful resource for readers seeking an introduction to the most pertinent questions surrounding this legal instrument.
  312. Find this resource:
  313. UN High Commissioner for Refugees. Expert Meeting: Statelessness Determination Procedures and the Status of Stateless Persons, Summary Conclusions. Geneva, Switzerland: UN High Commissioner for Refugees, 2011.
  314. Save Citation »Export Citation »E-mail Citation »
  315. Summary of conclusions reached by a meeting of experts regarding the appropriate procedural apparatus for determination of “stateless person” status in accordance with the 1954 Convention. The piece also discusses questions of access to the determination mechanism, rules of evidence, and procedural guarantees, and considers the form of the legal status to be attributed to persons recognized as stateless.
  316. Find this resource:
  317. The 1961 Convention on the Reduction of Statelessness
  318.  
  319. The 1961 Convention enunciates rules for states to adopt in their nationality laws with a view to avoiding statelessness (see also Prevention of Statelessness). Readings relating to the convention fall into two broad categories. The first comprises historical and theoretical analyses of the causes of statelessness, the role of a convention, and the content of the convention standards. This includes Hudson 1952 and Córdova 1954 (both preparatory reports for the elaboration of the convention itself), as well as Weis 1962, which was the first commentary to be written following the adoption of the instrument and comments on both its approach and its limitations. Achiron, et al. 2005 and UN High Commissioner for Refugees 2010 meanwhile offer a discussion of the convention, placed in its contemporary context. Both of these works are readily accessible, use simple language, and set out core information about the convention’s history, approach, and potential contribution to the prevention of statelessness.
  320.  
  321. Marilyn Achiron, Batchelor Carol, and Lecler Phillipe.Nationality and Statelessness: A Handbook for Parliamentarians. Geneva, Switzerland: UN High Commissioner for Refugees and Inter-Parliamentary Union, 2005.
  322. Save Citation »Export Citation »E-mail Citation »
  323. Basic commentary on the content and main principles housed in the statelessness conventions and how these standards relate to other areas of international law, presented largely in a highly accessible question-and-answer format. Chapter 3 offers a good introduction to the 1961 Convention.
  324. Find this resource:
  325. Córdova, Roberto. Nationality, including Statelessness: Third Report on the Elimination or Reduction of Statelessness, A/CN.4/81, 11 March 1954. Geneva, Switzerland: International Law Commission.
  326. Save Citation »Export Citation »E-mail Citation »
  327. This report offers text and commentary on several different draft conventions that were considered in the process of adopting the 1961 convention. Of interest is the content and discussion of the alternative convention on the “elimination” of statelessness, which is presented here but was later dropped in favor of a less radical instrument on the “reduction” of statelessness.
  328. Find this resource:
  329. Hudson, Manley.Report on Nationality, including Statelessness, A/CN.4/50, 21 February 1952. Geneva, Switzerland: International Law Commission.
  330. Save Citation »Export Citation »E-mail Citation »
  331. Comprehensive study prepared in the lead-up to the adoption of the conventions on statelessness. Useful as both a historical snapshot of the trends in domestic law and content of international standards at the time and a broader introduction to the underlying principles for the avoidance of statelessness, which were subsequently reflected in the 1961 Convention.
  332. Find this resource:
  333. UN High Commissioner for Refugees. Preventing and Reducing Statelessness: The 1961 Convention on the Reduction of Statelessness. Geneva, Switzerland: UN High Commissioner for Refugees, 2010.
  334. Save Citation »Export Citation »E-mail Citation »
  335. Basic public information brochure on the history, content and importance of the 1961 Convention, including the enduring relevance of the convention’s standards as providing a harmonized framework for tackling the causes of statelessness. A helpful resource for readers seeking an introduction to the most pertinent questions surrounding this legal instrument.
  336. Find this resource:
  337. Weis, Paul. “The United Nations Convention on the Reduction of Statelessness, 1961.” International and Comparative Law Quarterly 11.4 (1962): 1073–1096.
  338. DOI: 10.1093/iclqaj/11.4.1073Save Citation »Export Citation »E-mail Citation »
  339. This article appeared as the first commentary on the 1961 convention, a year following its adoption. It describes the drafting history and considers certain core questions relating to implementation, including the significance of the absence of a definition of statelessness and the failure to establish a tribunal to decide on claims relating to nationality brought by individuals under the terms of the convention.
  340. Find this resource:
  341. Prevention of Statelessness
  342.  
  343. A sizeable segment of statelessness literature is dedicated to identifying ways in which states can act to prevent statelessness from occurring. Here the literature also meets more general commentaries on trends in nationality law. At least three distinct areas of literature can be identified: studies of conflicts of nationality laws, and in particular how these affect children’s enjoyment of nationality; explorations of different forms of discrimination in access to nationality; and works exploring the specific context of state succession and its effect on nationality and statelessness.
  344.  
  345. Conflict of Nationality Laws and Statelessness among Children
  346.  
  347. The richest literature in terms of the prevention of statelessness relates to tackling conflicts of nationality laws, in particular with a view to the avoidance of statelessness among children. There has long been interest in this subject. Early publications, such as International Union 1947 and Hudson 1952, continue to offer a solid introduction to the problems at hand, including an exploration of the types of safeguards that could be included within nationality legislation to ensure that all children acquire a nationality at birth. Hudson 1952 also offers insight into the drafting process of the 1961 Convention on the Reduction of Statelessness, which is specifically designed to address conflict of laws, including those to prevent childhood statelessness. More recently, continuing efforts to address these issues, this time within the setting of the Council of Europe, have led to supplementary literature on the causes of statelessness among children and the development of related international standards. Council of Europe 2004 provides a broad overview of the problems at hand with a set of thematic and country-specific works, while Council of Europe 2009 sets out the principles of international law that should guide a response. The literature on prevention of conflicts of laws and avoidance of statelessness among children also offers a snapshot of a number of other noteworthy contemporary debates, including the role of the Convention on the Rights of the Child in addressing the problem of childhood statelessness (Doek 2006, Köhn 2011), the importance of birth registration for the avoidance of statelessness (Heap and Cody 2009), and an expansive exploration of how statelessness and statelessness-like situations affect children in the modern era (Bhabha 2011).
  348.  
  349. Bhabha, Jacqueline, ed. Children without a State: A Global Human Rights Challenge. Cambridge, MA: MIT Press, 2011.
  350. Save Citation »Export Citation »E-mail Citation »
  351. Collective volume approaching the issue of childhood statelessness through the wider lens of human rights protection, exploring the concept of statelessness from a broader definitional standpoint than much of the related literature. Presenting three notions of statelessness as it affects children, the chapters in this book assess the underlying reasons that children are left without the protection of a state, illustrated through case studies.
  352. Find this resource:
  353. Council of Europe. 3rd European Conference on Nationality: “Nationality and the Child,” Strasbourg, 11–12 October 2004.
  354. Save Citation »Export Citation »E-mail Citation »
  355. The third in a series of Council of Europe thematic conferences on nationality concentrated on the position of children. The presentations, accessible through the Council of Europe website, deal with conceptual and practical issues relating to a number of concrete challenges, including intercountry adoption, birth registration, the best interests of the child, and acquisition of nationality by children of immigrants.
  356. Find this resource:
  357. Council of Europe. The Nationality of Children: Recommendation CM/Rec (2009) 13 and Explanatory Memorandum. Strasbourg, France: Council of Europe, 2010.
  358. Save Citation »Export Citation »E-mail Citation »
  359. In December 2009, the Committee of Ministers of the Council of Europe adopted a detailed recommendation to provide guidance to states on attribution of nationality to children, in particular with a view to avoiding statelessness. This report provides text and commentary on this recommendation, which is of broader interest in identifying areas of current debate and development in international law relating to nationality.
  360. Find this resource:
  361. Doek, Jaap. “The CRC and the Right to Acquire and to Preserve a Nationality.” Refugee Survey Quarterly 25.3 (2006): 26–32.
  362. DOI: 10.1093/rsq/hdi0143Save Citation »Export Citation »E-mail Citation »
  363. This short article discusses the avoidance of statelessness among children from the point of view of the implementation of obligations housed within the Convention on the Rights of the Child. Noteworthy for its discussion of both the right to acquire a nationality (Article 7) and the right to preserve or reestablish nationality (Article 8).
  364. Find this resource:
  365. Heap, Simon, and Claire Cody. “The Universal Birth Registration Campaign.” Forced Migration Review 32 (April 2009): 20–22.
  366. Save Citation »Export Citation »E-mail Citation »
  367. A concise and accessible article that summarizes a wider discussion linking lack of birth registration to statelessness. This piece discusses how various concrete efforts to promote access to birth registration are helping to tackle this root cause of statelessness and offering good practice examples for other states to take up.
  368. Find this resource:
  369. Hudson, Manley.Report on Nationality, including Statelessness, A/CN.4/50, 21 February 1952. Geneva, Switzerland: International Law Commission.
  370. Save Citation »Export Citation »E-mail Citation »
  371. Annexes III and IV of this report offer a technical analysis of the elements of nationality laws that can create statelessness and a discussion of the standards required to avoid statelessness through a conflict of laws. The examples are outdated owing to subsequent amendments to domestic legislation in most states, yet the analysis and overall conclusions remain insightful in assessing the potential for statelessness.
  372. Find this resource:
  373. International Union for Child Welfare. Stateless Children: A Comparative Study of National Legislations and Suggested Solutions to the Problem of Statelessness of Children. Geneva, Switzerland: International Unionl for Child Welfare, 1947.
  374. Save Citation »Export Citation »E-mail Citation »
  375. Predating the studies prepared for the International Law Commission, this early report identifies the causes of statelessness among children in the nationality laws of the time. The same challenges are pertinent today, making this text a helpful introduction to the rules needed to avoid childhood statelessness, as well as a piece of historical value for research into the progression in the development of domestic and international law.
  376. Find this resource:
  377. Köhn, Sebastian. Children’s Right to a Nationality. New York: Open Society Justice Initiative, 2011.
  378. Save Citation »Export Citation »E-mail Citation »
  379. Policy brief calling on the Committee on the Rights of the Child to adopt a General Comment on the child’s right to a nationality. Of interest for the concise summary of principles relevant to the avoidance of statelessness among children.
  380. Find this resource:
  381. Discriminatory Access to Nationality
  382.  
  383. Discrimination is now understood to be a common underlying cause of statelessness, and discriminatory access to nationality is an area of literature that has recently blossomed. The progressive interpretation of the principle of non-discrimination with regard to the right to a nationality can be traced through a number of direct sources of international law that center on this question Yean and Bosico Children v. Dominican Republic 2005, Resolutions on Human Rights and Arbitrary Deprivation of Nationality 1997–2010). As a stepping stone into the subject, however, the concise yet comprehensive overview of relevant international standards provided by UN Human Rights Council 2009 is highly recommended. A number of works provide commentaries on these international standards, each focusing on a particular element or theme. Women’s nationality rights and gender discrimination, including as a risk factor for statelessness, are dealt with in International Law Association 2000 and Edwards 2009. Contributions by Goldston 2006 and McDougall 2008 concentrate on racial discrimination in the nationality context, discussing the vulnerability of ethnic minorities to statelessness while commenting on the progressive development of related international standards. Adjami and Harrington 2008 draws together some of the underlying legal theory by approaching discriminatory access to nationality from the perspective of Article 15 of the Universal Declaration of Human Rights, addressing the content of the prohibition of arbitrary deprivation of nationality.
  384.  
  385. Adjami, Mirna, and Julia Harrington. “The Scope and Content of Article 15 of the Universal Declaration of Human Rights.” Refugee Survey Quarterly 27.3 (2008): 93–109.
  386. DOI: 10.1093/rsq/hdn047Save Citation »Export Citation »E-mail Citation »
  387. This article offers a detailed commentary on Article 15 of the UDHR establishing the right to a nationality. Of particular interest is section 2, which investigates the scope of the “arbitrary deprivation of nationality” by introducing and discussing two related elements, the prohibition against ethnic discrimination and the prohibition against statelessness.
  388. Find this resource:
  389. Edwards, Alice. Displacement, Statelessness and Questions of Gender Equality under the Convention on the Elimination of All Forms of Discrimination against Women. UNHCR Legal and Protection Policy Research Series, PPLAS/2009/02. Geneva, Switzerland: UN High Commissioner for Refugees, 2009.
  390. Save Citation »Export Citation »E-mail Citation »
  391. As part of a broader study of trends in discrimination against women, section 4 of this report homes in on the problem of gender discrimination in the regulation of access to nationality. The text discusses both how gender inequality in nationality law can lead to statelessness and which international laws are applicable with a view to tackling this problem.
  392. Find this resource:
  393. Goldston, James. “Holes in the Rights Framework: Racial Discrimination, Citizenship and the Rights of Non-citizens.” Ethics and International Affairs 20.3 (2006): 321–347.
  394. DOI: 10.1111/j.1747-7093.2006.00029.xSave Citation »Export Citation »E-mail Citation »
  395. This article presents the problem of racial discrimination as the major cause of denationalization and restrictive policies for access to citizenship. As later elaborated upon in Adjami and Harrington 2008, Goldston discusses the contours of international law on this point, including the emerging principle of the avoidance of statelessness.
  396. Find this resource:
  397. International Law Association, Committee on Feminism and International Law. Final Report on Women’s Equality and Nationality in International Law. London: International Law Association, 2000.
  398. Save Citation »Export Citation »E-mail Citation »
  399. Paper outlining the problems associated with gender discrimination in the regulation of nationality and the international non-discrimination standards that apply. A good entry-level piece on this subject.
  400. Find this resource:
  401. McDougall, Gay. Promotion and Protection of All Human Rights, Civil Political, Economic, Social and Cultural Rights, Including the Right to Development: Report of the Independent Expert on Minority Issues. A/HRC/7/23, 28 February 2008. Geneva, Switzerland: UN Human Rights Council.
  402. Save Citation »Export Citation »E-mail Citation »
  403. Report assessing the link between minorities, discrimination and access to nationality, establishing that minorities are disproportionately affected by statelessness. Following a presentation of relevant international norms, the piece discusses pertinent cases and trends in different regions.
  404. Find this resource:
  405. Resolutions on Human Rights and Arbitrary Deprivation of Nationality. UN Human Rights Council and former Commission on Human Rights, 1997–2010.
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  407. These annually recurring resolutions allow the reader to trace developments in the international community’s interpretation of the arbitrary deprivation of nationality over recent years, including evidence of the increasing interest in securing the avoidance of statelessness.
  408. Find this resource:
  409. UN Human Rights Council. Human Rights and Arbitrary Deprivation of Nationality: Report of the Secretary-General. UN Doc. A/HRC/13/34. 14 December 2009.
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  411. A report summarizing the elements of the international legal framework that influence states’ freedom to regulate nationality, with a particular focus on the prohibition of arbitrary deprivation of nationality and the principle of non-discrimination. Concise technical overview of international law presented in accessible language.
  412. Find this resource:
  413. Yean and Bosico Children v. Dominican Republic. Inter-American Court of Human Rights, Series C, Case 130, 8 September 2005.
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  415. Landmark ruling concerning the interpretation of the principle of non-discrimination in relation to access to nationality in the context of inter-American human rights regime. The court also deals with the relationship between birth registration and nationality and discusses the vulnerable position of stateless children.
  416. Find this resource:
  417. State Succession and Nationality
  418.  
  419. As with the other literature on prevention of statelessness, a number of works that discuss state succession and nationality are directly linked to particular developments in international law. This category includes International Law Commission 1996 and International Law Commission 1999, which deal with the development of draft articles to guide states in regulating nationality following state succession, and Council of Europe 2006, which specifically addresses the avoidance of statelessness in state succession. Schärer 2006 provides a commentary on the latter, with useful background on the context in which the Council of Europe standards were elaborated. In other works, the legal theory and international norms relating to state succession and nationality are set against real examples of recent and imminent situations of state succession that pose a challenge to preventing statelessness. In Ziemele 2005, the backdrop is the breakup of the Soviet Union and in particular the emergence of the Baltic states, a situation in which statelessness emerged as a significant problem. Southwick 2009 and Manby 2011 discuss two cases of state succession in Africa (Ethiopia/Eritrea and Sudan, respectively), exploring the utility of international standards in these contexts. McAdam 2010 provides discussion of the emerging issue of climate change–induced statelessness as a unique category of statelessness resulting from state succession, and offers both a fresh perspective on the types of challenge faced in seeking to avoid statelessness when states shift and new insights into the underlying legal theory.
  420.  
  421. Council of Europe.Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession, Explanatory Report. Strasbourg, France: Council of Europe, 2006.
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  423. Commentary on a regional instrument similar in scope to the ILC Draft Articles of 1999 (International Law Commission 1999), elaborating standards to be applied in the specific context of state succession in order to avoid statelessness. The explanatory report includes an article-by-article discussion of terminology and principles.
  424. Find this resource:
  425. International Law Commission. Second Report on State Succession and Its Impact on the Nationality of Natural and Legal Persons, by Mr. Václav Mikulka, Special Rapporteur. UN Doc. A/CN.4/474. 17 April 1996.
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  427. Technical report prepared in the lead-up to the elaboration of the International Law Commission Draft Articles, in which the principles underlying the regulation of nationality following state succession are discussed in detail. Provides important background on the content of the Draft Articles themselves.
  428. Find this resource:
  429. International Law Commission. “Draft Articles on Nationality of Natural Persons in Relation to the Succession of States—With Commentaries.” In Yearbook of the International Law Commission, 23–47. New York and Geneva: International Law Commission, 1999.
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  431. Standards elaborated to guide states on how to regulate nationality following state succession, dealing with the relative positions of predecessor and successor states. Includes basic principles that may be of broader use beyond the context of state succession, such as “appropriate connection” and the right of option. The article-by-article commentary is a helpful tool for understanding the individual principles involved and their practical application.
  432. Find this resource:
  433. Manby, Bronwen. International Law and the Right to a Nationality in Sudan. New York: Open Society Foundation, 2011.
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  435. Looking ahead to the formation of the independent state of South Sudan, this piece explores the factors that may influence the regulation of nationality following state succession. Manby also examines how international standards relating to nationality and the prevention of statelessness could be applied in this concrete example of state succession, to shape the new nationality law(s).
  436. Find this resource:
  437. McAdam, Jane. “Disappearing States, Statelessness and the Boundaries of International Law.” In Climate Change and Displacement: Multidisciplinary Perspectives. Edited by Jane McAdam, 105–130. Oxford: Hart, 2010.
  438. Save Citation »Export Citation »E-mail Citation »
  439. One of a number of pieces by McAdam illustrating the link between climate change and statelessness. Discusses the legal position of the inhabitants of small island states, should these become uninhabitable. Provides valuable insights into the link between state, territory, population, nationality, and statelessness, through the study of this unique form of state succession, whereby the territory of the state ceases to exist.
  440. Find this resource:
  441. Schärer, Roland. “The Council of Europe and the Reduction of Statelessness.” Refugee Survey Quarterly 25 (2006): 33–39.
  442. DOI: 10.1093/rsq/hdi0144Save Citation »Export Citation »E-mail Citation »
  443. This article supplements the presentation in Council of Europe 2006 of the Convention on the avoidance of statelessness in relation to state succession. In straightforward language, Schärer explains the background to the adoption of this instrument and discusses the central principles that have been elaborated with a view to preventing statelessness.
  444. Find this resource:
  445. Southwick, Katherine. “Ethiopia-Eritrea: Statelessness and State Succession.” Forced Migration Review 32 (April 2009): 15–17.
  446. Save Citation »Export Citation »E-mail Citation »
  447. This article presents the problems of statelessness that arose in the context of conflict and state succession in Ethiopia and Eritrea. Although concise in format, this piece has a high information density and includes a discussion of how international standards could be employed to strengthen the avoidance of statelessness in the two countries.
  448. Find this resource:
  449. Ziemele, Ineta. State Continuity and Nationality: The Baltic States and Russia. Leiden, The Netherlands: Martinus Nijhoff, 2005.
  450. Save Citation »Export Citation »E-mail Citation »
  451. Elaborate analysis of the problem of regulating access to nationality following state succession, through a comparative case study of Estonia, Latvia, Lithuania, and Russia. Chapter 10 on “The Regulation of Nationality in Situations of Territorial Change: Selected State Practices” supplements this assessment with a discussion of previous examples of nationality policy in the context of state succession and the basic principles that can be distilled from such practices.
  452. Find this resource:
  453. Protection of Stateless Persons
  454.  
  455. Given the function of nationality, if individuals are compelled to live without a nationality, this can have a significant impact on their enjoyment of rights. Another preoccupation of the literature relating to statelessness is therefore the question of how to guarantee the protection of stateless persons. Goodwin-Gill 1994 focuses on the role of human rights law in the protection of non-nationals, with the stateless as a pertinent case study to test the boundaries of international law. More recent jurisprudence (Andrejeva v. Latvia 2009, Kuric and Others v. Slovenia 2010) illustrates how this line of argument can be taken forward and a case made in the context of interpreting human rights law for special consideration of the vulnerable position of stateless people. Other pieces, such as Achiron, et al. 2005, Gyulai 2007, and Molnár 2010, discuss stateless-specific protection possibilities, including application of the standards in the 1954 Convention Relating to the Status of Stateless Persons. A key element of the application of this Convention is statelessness status determination and concomitant access to the status of a stateless person, which is discussed in further detail in UN High Commissioner for Refugees 2011. Equal Rights Trust 2010 takes yet a different approach to discussing the problem of protection for stateless persons, centering on an individual issue, detention, and exploring how international law and state practice operate in this specific context.
  456.  
  457. Achiron, Marilyn, Batchelor Carol, and Leclerc Phillipe.Nationality and Statelessness: A Handbook for Parliamentarians. Geneva, Switzerland: UN High Commissioner for Refugees and Inter-Parliamentary Union, 2005.
  458. Save Citation »Export Citation »E-mail Citation »
  459. Chapter 2 of this simple handbook describes the measures that states can adopt to ensure the protection of the minimum rights of stateless persons. This is a good introduction to the implementation of the 1954 Convention Relating to the Status of Stateless Persons and relevant provisions of human rights law.
  460. Find this resource:
  461. Andrejeva v. Latvia. European Court of Human Rights, Application No. 55707/00, 18 February 2009.
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  463. This ruling relates to the application of the principle of nondiscrimination to distinctions between nationals and non-nationals in the enjoyment of human rights. The court offers valuable insight into how such distinctions should be evaluated—prescribing a particular test—and points to the need to factor in the particular vulnerability of stateless persons when determining the adequacy of protection offered (see in particular paragraphs 81–92).
  464. Find this resource:
  465. Equal Rights Trust. Unravelling Anomaly. Detention, Discrimination and the Protection Needs of Stateless Persons. London: Equal Rights Trust, 2010.
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  467. Extensive report documenting the challenge of protecting stateless persons through a focus on a single issue, namely the problem of prolonged or indefinite detention. The report assesses international standards relating to detention and their application to the situation of stateless persons and discusses the difficulties faced in practice by way of a series of country case studies.
  468. Find this resource:
  469. Goodwin-Gill, Guy. “The Rights of Refugees and Stateless Persons: Problems of Stateless Persons and the Need for International Measures of Protection.” Paper presented at the Third World Congress on Human Rights, New Delhi, 10–15 December 1990. In Human Rights Perspective and Challenges: In 1990 and Beyond. Edited by K. P. Saksena, 378–401. New Delhi: Lancer, 1994.
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  471. Presentation of statelessness as a protection gap posing a challenge to international law. Concise and accessible chapter that contrasts traditional thinking on statelessness and related international standards with contemporary situations of statelessness in order to present a case for rethinking the approach to this protection problem.
  472. Find this resource:
  473. Gyulai, Gábor. Forgotten without Reason: Protection of Non-Refugee Stateless Persons in Central Europe. Budapest: Hungarian Helsinki Committee, 2007.
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  475. Focused on central Europe, but of broader interest to understanding the mechanics of protection for stateless persons. Following a presentation of relevant international standards, and the identification of strengths and weaknesses in existing state practices through the selected case studies, Gyulai addresses underlying questions on the content and effectiveness of domestic protection regimes. Chapter 5 and the final summary of good practices in part 7 are of particular interest.
  476. Find this resource:
  477. Kuric and Others v. Slovenia, European Court of Human Rights, Application No. 26828/06, 13 July 2010.
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  479. Ruling on the violation of the right to private life and to an effective remedy in a case involving stateless applicants in Slovenia whose situation had not been regularized despite a substantial period of residence (see in particular paragraphs 348–376). Similar to Andrejeva v. Latvia 2009, the decision is significant for its argumentation relating to the specific vulnerability of stateless persons in assessing a claim under human rights law.
  480. Find this resource:
  481. Molnár, Tamás. “Stateless Persons under International Law and EU Law: A Comparative Analysis Concerning Their Legal Status, with Particular Attention to the Added Value of the EU Legal Order.” Acta Juridica Hungarica 51.4 (2010): 293–304.
  482. DOI: 10.1556/AJur.51.2010.4.4Save Citation »Export Citation »E-mail Citation »
  483. Examines the challenge of protecting stateless persons by asking whether the European Union legal system provides an appropriate protection framework, in line with and beyond the standards laid down in the 1954 Convention relating to the Status of Stateless Persons. By exploring the role of EU law, this piece touches upon an area that has received relatively little attention in the literature.
  484. Find this resource:
  485. UN High Commissioner for Refugees. Statelessness Determination Procedures and the Status of Stateless Persons, Summary Conclusions. Geneva, Switzerland: UN High Commissioner for Refugees, 2011.
  486. Save Citation »Export Citation »E-mail Citation »
  487. Summary of conclusions reached by a meeting of experts regarding the appropriate procedural apparatus for determination of “stateless person” status in accordance with the 1954 Convention. Of particular interest to protection is the discussion of the form of the legal status to be attributed to persons recognized as stateless.
  488. Find this resource:
  489. UNHCR and Statelessness
  490.  
  491. Although the UN High Commissioner for Refugees (UNHCR) was already mandated by the General Assembly to provide assistance to stateless persons in the mid-1970s, the full development and operationalization of this mandate is more recent, as traced in Resolutions of Particular Relevance to Statelessness and Nationality, UN High Commissioner for Refugees 1995and UN High Commissioner for Refugees 2006. An accessible introduction to UNHCR’s contemporary statelessness mandate and activities can be found in Manly and Persaud 2009. In the context of the exercise of this mandate, UNHCR has produced a series of resources, many of which are of use to a broad audience. The Analytical Framework UN High Commissioner for Refugees 2008is an indispensible research tool for any analysis of situation or country and can also help to guide broader theoretical work by identifying key areas of study in relation to the problem of statelessness. Other publications, such as the Progress Reports and Strategy Note provide a detailed description of the types of activity undertaken by UNHCR and its partners to address statelessness. The latter is structured in accordance with the four-pillar approach to statelessness activities (identification, prevention, reduction, protection), which in itself is another helpful framework for structuring statelessness research. Ready access to all of these resources as well as additional background information, news items, commentaries, and writings can be achieved through the UNHCR Stateless People web page.
  492.  
  493. Manly, Mark, and Santhosh Persaud. “UNHCR and Responses to Statelessness.” Forced Migration Review 32 (2009): 7–10.
  494. Save Citation »Export Citation »E-mail Citation »
  495. Concise presentation of UNHCR’s statelessness mandate, which offers examples of the types of activity undertaken by the agency in the context of this role. Entry-level introduction to UNHCR’s functions in the field of statelessness.
  496. Find this resource:
  497. United Nations General Assembly Resolutions of Particular Relevance to Statelessness and Nationality.
  498. Save Citation »Export Citation »E-mail Citation »
  499. These are the resolutions mandating UNHCR as the UN agency to assist states with addressing statelessness. They serve as direct source material for tracing the development and scope of UNHCR’s statelessness mandate.
  500. Find this resource:
  501. UNHCR: Stateless People.
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  503. User-friendly portal to basic information on statelessness, relevant aspects of international law, and UNHCR’s mandate. Includes an overview of the latest news items featured by UNHCR on statelessness and the most recently posted reports relating to statelessness on Refworld(see Organizational and Institutional Resources).
  504. Find this resource:
  505. UN High Commissioner for Refugees. Progress Reports on UNHCR’s Statelessness Activities.
  506. Save Citation »Export Citation »E-mail Citation »
  507. These successive reports describe the activities undertaken by UNHCR in the context of its statelessness mandate as well as the achievements reached more generally in terms of appeasing statelessness worldwide. These reports allow readers to trace the development of UNHCR’s competencies and some of the major mileposts relating to statelessness from the mid-1990s to today.
  508. Find this resource:
  509. UN High Commissioner for Refugees. Prevention and Reduction of Statelessness and the Protection of Stateless Persons. UN Doc. A/50/12/Add.1. 20 October 1995.
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  511. This is the first significant policy document to be produced by UNHCR’s guiding body, the Executive Committee, on the agency’s statelessness mandate. It is of particular interest when compared and contrasted against later Conclusion 106, adopted in 2006, (UN High Commissioner for Refugees 2006), through which the rapid development of a detailed statelessness mandate for UNHCR can be identified.
  512. Find this resource:
  513. UN High Commissioner for Refugees. Conclusion on Identification, Prevention and Reduction of Statelessness and Protection of Stateless Persons. No. 106 (LVII) – 2006. 6 October 2006.
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  515. Most comprehensive policy statement on UNHCR’s statelessness mandate to be issued by the agency’s guiding body, the Executive Committee. Details four “pillars” for action to address statelessness (identification, prevention, reduction, protection), which provide a useful conceptual framework for describing the problem of statelessness.
  516. Find this resource:
  517. UN High Commissioner for Refugees. Statelessness: An Analytical Framework for Prevention, Reduction and Protection. Geneva, Switzerland: UN High Commissioner for Refugees, 2008.
  518. Save Citation »Export Citation »E-mail Citation »
  519. This research tool was developed with a view to assisting UNHCR offices with the assessment of situations of statelessness in their country of operation. Of great value to a wider audience, this reference guide identifies the different aspects of statelessness that may be of concern and can be useful for undergraduate or graduate research on specific situations or broader conceptual issues.
  520. Find this resource:
  521. UN High Commissioner for Refugees. UNHCR Action to Address Statelessness: A Strategy Note. Geneva, Switzerland: UN High Commissioner for Refugees, 2010.
  522. Save Citation »Export Citation »E-mail Citation »
  523. This strategy note details how policy guidance such as ExCom conclusion 106 (2006) (UN High Commissioner for Refugees 2006) is to be implemented by UNHCR and its partners. Uses the helpful four-pillar approach (identification, prevention, reduction, protection) to describe different fields of activity within the overall statelessness mandate in readily accessible language and with reference to relevant international standards.
  524. Find this resource:
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