All people are entitled to a nationality. The declaration in Article 15 of the Universal Declaration of Human Rights (UDHR)^[i] seems to make nationality a universal human right. However, citizenship is only a right, not a legal fact for millions around the globe. The United Nations High Commissioner for Refugees (UNHCR) estimates that millions remain stateless, invisible to the law and denied citizenship, education, healthcare, employment, political participation and freedom of movement. The paradox is that although international law grants nationality as one of the essential prerequisites for the enjoyment of human rights, the sovereign power to decide on nationality is virtually unlimited.

This paradox has been growing more and more apparent in the past decade. Governments across the jurisdictions have made citizenship more difficult to attain in these ways: making laws more strict on citizenship, increasing documentation requirements, increasing the power of governments to remove citizenship from people, and limiting birthright citizenship. The recent discussions about birthright citizenship in the United States, the National Register of Citizens (NRC) in India, Myanmar’s ban on Rohingyas, and the limitation on nationality laws in some European countries have a common denominator: citizenship is increasingly treated not as a legal entitlement because of birth or dignity, but as a temporary status that needs to be constantly proven, earned or maintained.

The Statelessness Paradox

The concept of nationality is a sui generis one in international law. It is not an international human right that can be bestowed directly by international institutions. On the contrary, each person becomes a citizen of a state only when the state recognizes him as a citizen. This is a fundamental reality that has historically made nationality considered to be in the “reserved domain” of state sovereignty.^[ii]

This principle was enunciated in a famous statement by the Permanent Court of International Justice in the Nationality Decrees in Tunis and Morocco Advisory Opinion (1923), which held that issues of nationality are, in general, matters for the internal competence of States. Later in the Nottebohm Case, 1955^[iii], the International Court of Justice again confirmed the states’ broad scope of power in determining their nationals, but with certain principles of “genuine connection” in mind in the context of diplomatic protection.^[iv]

The 1954 Statelessness Conventions: Promising Standards, Unrealized Benefits

The international community saw the need for a global solution to statelessness, and the Convention Relating to the Status of Stateless Persons^[v] and the Convention on the Reduction of Statelessness were both adopted. These conventions form the bedrock of international action to prevent and limit statelessness.

The main point of the 1954 Convention is for people who are already stateless. It establishes a definition of a stateless person as a person “who is not considered as a national by any State under the operation of its law. It should be noted that the Convention does not bestow nationality. It aims, rather, to guarantee the minimum treatment of stateless persons in relation to education, employment, identity documents, access to the courts, freedom of religion and administrative assistance. It seeks to give the individual a legal personality in order to bring him into the fold of any particular state for protection where he would have none.

The 1961 Convention^[vi] emphasises a preventive approach. It does not try to deal with statelessness once it has happened, but aims to minimize its occurrence by curtailing the situations where statelessness may be created, through withdrawal or denial of nationality. It compels contracting states to confer nationality on children who otherwise would be stateless, prohibits arbitrary deprivation^[vii] of nationality and attempts to prevent statelessness resulting from state succession and/or changes of personal status.

These conventions on paper, are a coherent legal structure. However, in reality, their value has been limited by three major drawbacks.

One hurdle that is yet to be overcome is the restricted ratification. In a number of states where there are major nationality issues, reservations have been entered that restrict the obligations of the state in the one or two conventions to which it is a party. The conventions do not, therefore, set universal standards.

Secondly, poor enforcement reduces compliance. Unlike some international human rights treaties, the Statelessness Conventions also have no strong supervisory bodies that can investigate complaints of violations, or take any legal action for failure to comply. They are implemented to a large extent as a result of political will.

Third, and most importantly, the domestic nationality laws will remain in force over international aspirations. Restrictive citizenship policies are often justified on national security, migration control, demographic, and constitutional identity reasons. International law provides guidance but not always enough power to overrule sovereign acts of the legislature.

Refugee Protection Without Citizenship: The Missing Link in International Law (RWWC) is a project that aims to close this gap.RWWC is a project that seeks to fill this gap.^[viii]

Whereas statelessness is the limitation of nationality law, refugee protection is the limitation of international humanitarian law. Refugees and stateless people are often referred to as the same category in public discussions; however, under international law they are treated as two separate categories. The term refugee, in the context of the 1951 Refugee Convention^[ix], refers to a person who has crossed an international border because of a well-founded fear of being persecuted for a particular social group, nationality, religion, political opinion, race. A stateless person, on the other hand, is the individual who is not recognized as a citizen by any State. The two identities are not mutually exclusive but do not necessarily imply each other.

This is not a mere difference in words, it is a real difference in international protection. The main purpose of refugee law is to ensure that people are safe from persecution, according to the principle of non-refoulement, which prevents the return of people to a place where they risk their lives or their freedom. But it does not guarantee what displaced persons actually desire: a permanent legal status – nationality. A refugee can be granted asylum, temporary protection or humanitarian support for years and have no avenue for obtaining citizenship. On the other hand, a stateless person can never cross an international border, which means he or she is never included in the refugee protection regime.

Sovereignty and International Obligation: Can International Law Decide Citizenship?

The central issue of the citizenship discourse is a constitutional question which international law has been unable to settle: can sovereign states be forced to admit people as citizens or is nationality an exclusive prerogative of the state?

One of the features of sovereign power has traditionally been its nationality. State authority over who can be a member of the political community allows them to control immigration, voting rights, access to welfare, national security and demographic policy. Because of this, restrictions on nationality claims are often justified on the ground of sovereign rights, which are grounded on the concept that a person’s nationality is not an international duty, but rather is a reflection of his or her constitutional identity.

This argument is supported by international jurisprudence. The International Court of Justice has repeatedly affirmed states have wide discretion in matters of citizenship. However, international law is increasingly requiring that this discretion cannot be unlimited. The development of universal human rights norms has created a new legal environment in which nationality is no longer a domestic matter alone but of international consequences, especially with regard to the deprivation of nationality without justification (arbitrarily) which leads to statelessness (exclusion) or discrimination.

This evolving relationship is reflected in the Vienna Convention on Consular Relations, 1963.^[x] The Convention does not directly address the issue of nationality, but it serves as an example of why citizenship should not be limited to the boundaries of the country. Diplomatic and consular protection are based on the recognition of a nationality. A state may exercise diplomatic protection, offer consular assistance and make an intervention abroad on behalf of the individual only if he is recognized as a national of that state. Stateless people do not have such a state-law connection to any state and in many cases are not covered by these forms of international protection.

The Right to Belong – Beyond Borders & Bureaucracy

This is because, as the international legal obligations have become increasingly distant from domestic citizenship regimes, the existing system of nationality no longer appears adequate for the modern world. It’s not that the law is not there, it is that it is not applied. The right to a nationality is guaranteed by the Universal Declaration of Human Rights under Article 15 and strengthened by the Statelessness Conventions, but largely these norms rely on political will within the State. Thus, statelessness cannot be prevented simply by signing international treaties; it calls for a change in the concept of citizenship.

The first step of a meaningful reform agenda should be to acknowledge that statelessness is not just a humanitarian problem but a problem with the rule of law. A person without any nationality is also denied access to courts, education, health care, job and political participation. In fact, they are denied access to the laws that are supposed to safeguard their rights. So nationality must not be regarded merely as a sovereign privilege but as a fundamental legal condition which facilitates the exercise of all other rights.

More attention needs to be given to preventing statelessness in children. All children must be born with a nationality or, as a minimum, children should not be stateless due to the lack of coordination between the nationality laws in their countries.^[xi] States which only base nationality on jus sanguinis should include provisions to make children stateless, as per the Convention of 1961. Such reform is not a diminishment of sovereignty, but rather a means of ensuring that sovereignty is exercised in a manner in keeping with fundamental human dignity.

Second, birth registration and civil documentation system needs are extensive. In many countries, including for people in displacement, indigenous peoples and those in lower economic brackets, people continue to lack legal identity, as births are not officially recorded. Lacking documentation, establishing nationality is close to impossible, which results in a vicious cycle of administrative shortcomings leading to legal exclusion. International organisations and national governments should thus consider universal birth registration not only an administrative process but also a key component of citizenship governance.^[xii]

Thirdly, international law needs to go beyond calling for good practices to developing more robust accountability devices. The Statelessness Conventions offer less monitoring for implementation than many other human rights conventions. State sovereignty can be respected without compromising compliance by enhancing the periodic reporting obligations, introducing independent monitoring bodies or improving the roles of institutions like the UNHCR.^[xiii] The aim is not to hand over the power of nationality to international organisations, rather to make sure that domestic laws comply with internationally recognised minimum standards.

Above all, courts, domestic and international, need to increasingly identify arbitrary deprivation of nationality as a human rights violation that is justiciable. Judicial review can help guarantee that citizenship decisions are made in accordance with the principles of legality, proportionality, non-discrimination and due process. Citizenship cannot be left as an unchecked exercise of executive judgment without safeguards of procedure. If citizenship is the key to all legal rights, then fairness in nationality determination is an essential part of constitutional governance.

Finally, international law should not just tackle statelessness as an issue of management, but one of prevention of statelessness as a political construct. Legal recourse is only initiated after people have lost their citizenship, which is too often the case. A truly rights-based approach, on the other hand, would look at nationality legislation that systematically excludes, such as discriminatory laws, over-documentation or arbitrary denationalisation.

Conclusion

The question that is asked at the beginning Who decides the right to belong? does not have a simple answer. According to the international law prevailing in the present the answer is the sovereign state. The governments remain in charge of deciding who is a citizen, who is eligible to gain or forfeit citizenship and what legal implications there are in being excluded from citizenship. However, the old idea of sovereignty now conflicts with the emerging international human rights law which establishes nationality as essential to human rights.

What comes out is not a defect in legal imagination, it’s a failure of legal commitment. International law has evolved rich principles of prohibition on arbitrary exclusion, whilst states are increasingly asserting sovereignty to justify restrictive citizenship policies, selective naturalisation and documentation regimes which leave vulnerable communities in prolonged uncertainty. In this way, millions are increasingly living without a recognised legal identity, entitling them to the rights that seem universally guaranteed.

Nationality is not just a domestic administration affair anymore in a time where mass migration, climate displacement, longstanding conflicts and more and more restrictive citizenship regimes are becoming the rule. The impacts of statelessness go beyond borders, to the stability of the region, protection of refugees, respect of human rights and international peace. Citizenship is not a legal category given to a citizen by the state, it is the means by which all other rights are achieved.

The principle of respect for sovereignty continues to be an integral part of International law. States clearly have a legitimate interest in nationality and in safeguarding the constitutional identity. However, the concept of sovereignty is not to be used as an excuse for policies that result in systematic exclusion or for people to be permanently excluded from any legal order. International commitments do not aim to take the place of sovereign authority, but to set minimum standards that no State should violate.

The future of citizenship does not lie in opposition between sovereignty and international law; it lies in their working together. The right of a State to establish its political community should be balanced with its obligations to respect the fundamental right to membership of every person. The aspiration to Article 15 of the Universal Declaration of Human Rights,^[xiv] that states should not be stateless, will not be fulfilled until there are better tools under international law to hold states accountable for preventing statelessness.

A good law is one that does not exclude well, but that includes well. Ultimately the right to belong should never be made contingent on the accident of birthplace, on having documents, on the priorities of governments. It needs to be based on a very long-held tenet of international law that has not been completely followed through: everyone has a right to be covered by the law.

^[i] Universal Declaration of Human Rights art. 15, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948).

^[ii] Nationality Decrees Issued in Tunis and Morocco, Advisory Opinion, 1923 P.C.I.J. (ser. B) No. 4, at 24 (Feb. 7).

^[iii] Nottebohm (Liech. v. Guat.), Second Phase, Judgment, 1955 I.C.J. 4 (Apr. 6).

^[iv] Nottebohm (Liech. v. Guat.), Second Phase, Judgment, 1955 I.C.J. 4 (Apr. 6).

^[v] Convention Relating to the Status of Stateless Persons, Sept. 28, 1954, 360 U.N.T.S. 117.

^[vi] Convention on the Reduction of Statelessness, Aug. 30, 1961, 989 U.N.T.S. 175.

^[vii] Convention on the Reduction of Statelessness art. 8, Aug. 30, 1961, 989 U.N.T.S. 175.

^[viii] Sarah Meyer, The ‘Refugee Aid and Development’ Approach in Uganda: Empowerment and Self-Reliance of Refugees in Practice, U.N. High Comm’r for Refugees, New Issues in Refugee Research, Research Paper No. 131 (Oct. 2006),

^[ix] Convention Relating to the Status of Refugees art. 1(A)(2), July 28, 1951, 189 U.N.T.S. 137.

^[x] Vienna Convention on Consular Relations, Apr. 24, 1963, 596 U.N.T.S. 261.

^[xi] Convention on the Reduction of Statelessness art. 1, Aug. 30, 1961, 989 U.N.T.S. 175.

^[xii] Convention on the Rights of the Child arts. 7–8, Nov. 20, 1989, 1577 U.N.T.S. 3.

^[xiii] U.N. High Comm’r for Refugees, Handbook on Protection of Stateless Persons (2014).

^[xiv] Universal Declaration of Human Rights art. 15, G.A. Res. 217 (III) A, U.N. Doc. A/810 (Dec. 10, 1948).