Statelessness

Statelessness and the Problem of
Resolving Nationality Status
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CAROL A. BATCHELOR*
Introduction: The Right to a Nationality: Theory and

Practice?
'Everyone has the right to a nationality. No one shall be arbitrarily
deprived of his nationality, nor denied die right to change his nationality.'
Such is the text of article 15 of die 1948 Universal Declaration of Human
Rights. This has not always been die case. The right to a nationality and
die notion of'effective nationality', of nationality as a basis for the exercise
of odier rights, have been developed through the course of this century.
Notable landmarks include die 1930 Hague Convention on Certain
Questions relating to die Conflict of Nationality Laws, die 1961
Convention on die Reduction of Statelessness, and die 1997 European
Convention on Nationality. The principles contained in diese conventions
have been elaborated upon and reinforced by other treaties, jurisprudence,
and State practice. The right to a nationality is a human right, in turn,
out to serve as a basis upon which to settie issues pertaining to the
acquisition, loss, or denial of nationality.
If everyone has die right to a nationality, how is tiiis right to be realized,
how is nationality to be ascribed? International law stipulates tiiat it is for
each State to determine, dirough die operation of national law, who are
its citizens. This determination will be recognized at the international level
so far as it accords widi general principles of international law. The State,
dierefore, should not apply measures which conflict witii international
principles relating to the acquisition, loss, or denial of citizenship. This
principle is enunciated in the 1930 Hague Convention, die 1997 European
Convention, and die case law of bodi die Permanent Court of International
Justice and International Court of Justice.
* B-A. UoW, J.D. Stanford, LL.M. Cambridge, Legal Adviser on Statelessness and Related
Nationality Issues, United Nations High Commissioner for Refugees. The views expressed are those
of the author and do not necessarily reflect those of the United Nations or of UNHCR.
International Journal of Refugee Law Vol. 10 No. 1/2 © Oxford University Press 1998
Statelessness and the Problem of Resolving Nationality Status 157
In the practice of States, nationality is not granted indiscriminately but
generally reflects factors which in turn indicate an established link between
the individual and the State. Evidence of this 'link' is found specifically,
for example, in place of birth, descent, or strong ties established tiirough

residence, among others. Now a term of art in die field of nationality,
the genuine and effective link, as evidenced in diese factors, is a valuable
tool in ascertaining which nationality is the most logical one to ascribe
to an individual.1 Many States tend to emphasize descent, while in die
Americas place of birth is important in determining nationality. While
the choice of emphasis varies from region to region, one or more of die
elements of the genuine and effective link, often in conjunction witii one
anodier, are utilized to some degree by all States in their nationality
legislation and practice.
International law, dierefore, establishes some parameters which provide
guidance on nationality legislation and practice. However, despite
developments and clarification in international law and practice relating
to nationality, die international community currendy faces numerous
situations of statelessness and inability to establish a nationality. The
problem has arisen most notably in connection with State succession and
the adoption of nationality legislation by new or restored States, but is
also seen in areas of die world which have had no recent change in
legislation and have undergone no transfer of territory. Those affected
include Life-long residents of a State, etiinic minorities, and significant
numbers of women and children who are unable to exercise their own
links but must, ratiier, follow tiiose of husband or fatiier.
The emergence of inter-edinic conflicts, numerous sudden cases of
State succession, and increased displacement have brought die nationality
issue to the foreground. Statelessness and the inability to acquire an
effective nationality have, in recent years, received greater attention from
the international community as their potential as a source of regional
tension and of involuntary displacement have come to be more widely
This article uses the concept of genuine and effective link more broadly than did the International
Court ofJustice in the Nottibohm Cast. The premise is that nationality based upon birth, descent, and
residence is presumed by States in their practice to be evidence of a link between the individual and
the State and may be used as a minimum reference point for determining substantial connections.
The genuine and effective link is a subtle and fluid concept which can be evidenced in many factors
including social attachments, centre of interests, extended family ties, and so on; it is not limited to
place of birth, descent, or residence. The latter, however, are matters of fact, which makes them far
easier to identify and apply in an objective and non-discriminatory manner dian some of the more
subtle signs of attachment which can be used as supplementary means of determining tics. Moreover,
jus soh,jus sanguinis, and long-term residence are each well-established and globally practised principles
upon which nationality is granted a Uge or through naturalization. Problems arise because they are
not applied in the same way by all States, and many not be applied equally to individuals within a
State. Thus, while all the factors of the genuine and effective link are important, a good starting
point for developing some uniformity in the laws and their application would be by reference to
birth, descent, and residence as primary elements of the genuine and effective link between an
individual and a State or States.
158 Carol A. Batchelor
recognized. The United Nations General Assembly and the UNHCR
Executive Committee have adopted resolutions and conclusions stressing
the importance of the principles embodied in international instruments,
and the need for States to adopt measures to avoid statelessness. The

International Law Commission, at the request of the General Assembly,
has undertaken work on nationality following a succession of States.2
Efforts have also been undertaken at the regional level by the Organization
of American States, the Organization for Security and Cooperation in
Europe, and the Council of Europe, the latter having opened the European
Convention on Nationality for signature in November 1997.3
The 1930 Hague Convention, the 1954 Convention relating to the
Status of Stateless Persons, and 1961 Convention on the Reduction of
Statelessness, are the primary international instruments which serve as
reference points for the principles relating to the right to a nationality
and the problem of statelessness. The principles underlying these
instruments are supported, in turn, by provisions in, for example, the
1957 Convention on the Nationality of Married Women, the 1979
Convention on the Elimination of All Forms of Discrimination Against
Women, and the 1989 Convention on the Rights of the Child. In the
view of the author, who participated in the drafting, the text of the 1997
European Convention on Nationality reflects a largely successful effort
to incorporate and build upon the principles contained in the 1961
Convention on the Reduction of Statelessness.
An essential step in strengthening efforts to reduce statelessness and the
inability to establish nationality, is promotion of the principles contained in
these instruments which seek to ensure, at a minimum: that persons will
be granted a nationality under certain circumstances in which they might
otherwise be stateless; that deprivation of nationality will not result in
statelessness and in no case will be arbitrary; that adequate protection
will be available to those who, nonetheless, remain or become stateless;
and that State practice will reflect contemporary developments in
international law and practice.
International instruments, of course, cannot actually grant the
nationality to which a given individual may have a claim, or make
nationality effective. As noted, it is the State which bestows nationality
by operation of internal law. It is, further, the State which ultimately
determines the content of its nationality. The State's determination of
2
See Mikulka, Vaclav, Third Report on Nationality in Relation to the Succession of States':
UN doc. A/CN.4/4B0, 27 Feb. 1997 and 'Report of the International Law Commission on the
work of its Forty-ninth session1, 12 May-18Jul. 1997: UN doc. A/52/10, (1997).
The European Convention on Nationality, adopted by the Committee of Ministers of the
Council of Europe in May 1997, was opened for signature by member States of the Council of
Europe and non-member States which participated in its elaboration on 6 Nov. 1997. Fifteen States
signed the Convention at its opening, and several others are currently taking steps toward ratification.
Three ratifications only are neccuary for the Convention to come into force.
nationality ought to reflect principles of international law, but does
international law provide appropriate guidance for the issues pertaining
to statelessness today? Which stateless persons are more likely to benefit
from the right to a nationality? Are active steps taken by States to

effectively resolve long-standing cases of unresolved nationality?
Statelessness is not merely a legal problem, it is a human problem.
Failure to acquire status under the law can have a negative impact on
many important elements of life, including the right to vote, to own
property, to have health care, to send one's children to school, to work,
and to travel to and from one's country of residence. Many complications
arise for those who have no nationality or whose nationality status is
unclear, including indefinite detention in a foreign State when that State
cannot determine the individual's citizenship for purposes of expulsion
and release on the territory is not authorized.4 These human issues and
realities are the background to this article, which begins with a review of
the right to a nationality and presumption against statelessness. It then
discusses those who are considered stateless and in need of a nationality,
as well as those who cannot establish their nationality status. In conclusion,
the effective application of existing legislation and possible directions for
further development of the law are considered.
1. International Law: The Right to a Nationality and

Statelessness
Citizenship, or nationality,5 has been described as the individual's basic
right — the right, in fact, to have rights.6 When cast in this light, two
aspects of nationality become apparent, the first being that having a
nationality is a right, and the second that the realization of this right is
a necessary precursor to the exercise of other rights. Nationality provides
the legal connection between an individual and a State which serves as
a basis for certain rights, including the State's right to grant diplomatic
There are currently an unknown, but high, number of 'forgotten persons', including rejected
asylum seekers, illegal migrants, convicted persons, overstayerj, and others whose documentation
has been lost or stolen. Many also are in detention, and may remain there for months or years,
because their country of residence or nationality will not acknowledge diem or accept them back
and die country of detention will not release.
The terms citizenship and nationality are used as synonyms in diis paper. According to art
2(a), 1997 European Convention on Nationality, nationality means 'the legal bond between a person
and a State and does not indicate die person's ethnic origin' ('European Convention on Nationality
and Explanatory Report', £ 7 5 No. 166, Council of Europe, Strasbourg, 1997). Some States use the
word citizenship to connote diis legal bond, nationality being used to refer to ethnic origin (eastern
European concept). Other States use die word nationality to connote die legal bond, citizenship
being a particular aspect of nationality which provides for rights, such as voting, once the bond is
established (for example, in die Americas). At the international level, nationality is generally used to
describe die recognition of an individua] as legally attached to a particular State.
6
Chief Justice Earl Warren, Trop u Dulles, 1958, quoted in Independent Commission on
International Humanitarian Issues, Winning the Human Race? (1988), 107.
160 Carol A. Balchtlor
protection and representation of the individual on the international level.
The sources of international law7 have, as regards nationality, developed
over time as new conventions, custom, case law and principles have
emerged. The General Assembly has called upon States to adopt

nationality legislation with a view to reducing statelessness, consistent with
the fundamental principles of international law pertaining to nationality.8
Nationality of a State is a primary link between the individual and
international law. It is, further, representative of a type of identity,
supportable by diplomatic protection, for the individual and for States in
responding to individuals. Thus, while the extension of rights generally
associated with citizenship, such as voting, employment, or ownership of
property, may be one means of normalizing the status of non-citizens on
a State's territory, under international law there is no replacement for
citizenship itself.
As early as 1923, the Permanent Court of International Justice (PCIJ)
stated in its Advisory Opinion on the Tunis and Morocco Nationality Decrees that,
'The question whether a certain matter is or is not solely within the
domestic jurisdiction of a State is an essentially relative question; it
depends on the development of international relations.'9 Nationality, in
principle a matter within domestic jurisdiction, was thus governed by
rules of international law, so far as State discretion might be limited by
obligations undertaken towards other States.
This theme was woven into the 1930 Hague Convention on Certain
Questions Relating to the Conflict of Nationality Laws. Held under the
auspices of the Assembly of the League of Nations and the first international
attempt to ensure that all persons have a nationality, the Hague Convention
picked up this theme and went further. Article 1 provided that,
It is for each State to determine under its own law who are its nationals. This
law shall be recognized by other States in so far as it is consistent widi international
conventions, international custom, and the principles of law generally recognized
with regard to nationality.10
This reference to the three primary sources of international law, restated
in article 3 of the 1997 European Convention on Nationality, indicates
that the State's exercise of its right to determine its citizens should accord
with the relevant provisions of international law. The concept of the
genuine and effective link was formally enunciated in the NoUebohm Case
as a means of defining the nature of nationality, the particular facts of
the case relating to opposability vis-a-vis another State. In the words of
the International Court of Justice (ICJ):
7
See art. 38, Statute of the International Court ofJustice.
' UNGA res. 50/152, 9 Feb. 1996.
9
Permanent Court of International Justice, Advisory Opinion on the Tunis and Morocco Nationality
Deems, Scr. B, No. 4, 1923, 23.
10
179 /JV75 89, 99.
According to the practice of States, to arbitral and judicial decisions and to the
opinion of writers, nationality is a legal bond having as its basis a social fact of
attachment, a genuine connection of existence, interest and sentiments, together
with the existence of reciprocal rights and duties."

The genuine and effective link, as extrapolated from the Notiebohm Case,
has since been moulded and developed into a broader concept in the
area of nationality legislation and practice based upon principles embodied
in State practice, treaties, case law and general principles of law.12
According to State practice, birth, descent, or residence can each be
presumed to support a genuine and effective link or substantial connection
between the individual and the State. Most States, however, do not apply
these elements on an equal basis but, rather, indicate a preference for
either birth or descent by basing national legislation and practice on
either jus soli (nationality based upon place of birth) or jus sanguinis
(nationality based upon descent).13 Naturalization procedures are generally
available for immigrants who remain in the country for a fixed period
prior to application and who meet certain criteria. Thus, birth, descent,
and long-term residence serve as evidence of either an automatically
established link, or of a link acquired over time, between the individual
and the State.
The 1961 Convention bases die right to a nationality on ties implicidy
held widi die State in which one is born, or in die State in which a
parent held citizenship at die time of one's birth. This right is contingent,
however, on die fact that one would odierwise be stateless. According to
tiieir terms of reference, die drafters of the 1961 Convention were to
focus on how best to avoid statelessness, not on development in general
of the right to a nationality. Nonetheless, in focusing on birth and descent,
die drafters indicated diat diese factors are sufficient to establish a link
between the individual and die State, a foundation upon which it is
legally sound to grant nationality, in particular, to a person who has
received none. The 1961 Convention does not require a contracting State
unconditionally to grant nationality to any stateless person but seeks,
radier, to balance factors of birth and descent in an effort to avoid die
" ICJ Reports, 1955, 23.

Examples include the 1997 European Convention on Nationality and the 'Principles on
Citizenship Legislation Concerning the Parties to the Peace Agreement on Bosnia and Herzegovina',
adopted by the Expert Meeting on Citizenship Legislation held in co-operation with the United
Nations High Commissioner for Refugees (UNHCR), the Council of Europe, Office of the High
Representative, OSCE, and State party delegates from the five States on the territory of the former
Yugoslavia (attached in Annex to Batchelor, Leclerc, Schack, 'Citizenship and Prevention of
Statelessness Linked to the Disintegration of the Socialist Federal Republic of Yugoslavia', UNHCR
European Sena, Vol.3, No. 1, June 1997). Bodi instruments refer explicitly to the genuine and effective
link and request States to apply this doctrine in specific circumstances.
For example, European States tend to grant nationality on the basis of descent, place of birth
being used as a 'stop-gap1 in many States to avoid statclessness for foundlings or stateless children
bom on the State's territory.
creation of statelessness by reflecting an individual's genuine and effective

existing connection with the State.
This approach is developing as a principle in international law outside
the context of the 1961 Convention on the Reduction of Statelessness,

as may be seen, for example, in the provisions of the 1997 European
Convention on Nationality.l+ Article 6 of the European Convention
provides for automatic acquisition of a Contracting State's nationality for
children, 'one of whose parents possesses, at the time of the birth of these
children, the nationality of that State Party'.15 Foundlings and children
born on the State's territory who do not acquire at birth another
nationality are also to be granted the nationality of die State Party.15
Thus, the principles of nationality based on descent, or jus sanguinis, and
nationality based on place of birth, or jus soli, are reflected in the 1997
European Convention.'7
Moreover, article 6(3) of the European Convention takes a significant
step forward in nationality legislation and practice:
Each State Party shall provide in its internal law for the possibility of naturalisation
of persons lawfully and habitually resident on its territory. In establishing the
An important reference tool for contemporary law and practice relating to nationality, this
Convention is relevant not only within the Council of Europe member and observer States
participating in its formulation, but also for analysis of problems relating to nationality for individuals
appearing elsewhere who originate from these States. The International Law Commission's (TLC)
Special Rapporteur utilizes the concept of the genuine and effective link as the basis for the ILC's
work on nationality in the context of State succession, (see Mikulka, Vaclav, Special Rapporteur,
International Law Commission, 'First Report on State Succession and its Impact on the Nationality
of Natural and Legal Persons': UN doc. A/CN.4/467, 17 Apr 1995; 'Second Report on State
Succession and Its Impact on the Nationality of Natural and Legal Persons': UN doc. A/CN.4/
474, 17 Apr. 1996, and 'Third Report on Nationality in Relation to the Succession of States': UN
doc. A/CN.4/480, 27 Feb. 1997). The genuine and effective link, dropped by the ILC during its
1997 session in favour of an 'appropriate connection' between an individual and a State, is, in fact,
one of the pivotal reference points underlying the 'Draft Articles on Nationality of Natural Persons
in Relation to the Succession of States'. See 'Report of the International Law Commission on the
work of its forty-ninth session', 12 May-18 July 1997: UN doc. A/52/10, (1997), 14, hereinafter,
ILC 'Draft Articles'). The revised 'Draft Articles' were adopted by the ILC in July 1997 and discussed
in the UNGA Sixth Committee in October 1997. States have been requested to submit comments
on the draft for further discussion. A final version in the form of a Declaration on the Nationality
of Natural Persons in relation to the Succession of States is currently anticipated for 1999.
15
While children born abroad may be subject to variations on this acquisition (art 6(1 Xa)), any
initial differences in treatment (failure to acquire the nationality ex lege, for example) could later be
done away with through facilitated acquisition of nationality by descent (art. 6(4)(b)): above, note 5.
Guidelines currently being drafted on the implementation of the 1997 Convention emphasize that
statelessness should not occur for children of nationals born abroad, with some indication of the
means of avoiding this also elaborated upon.
16
See arts. 6(l)(b) and 6(2), above note 5.
" See also art. 12, ILC 'Draft Articles', which provides that a child born after the date of
succession, who has not acquired any nationality, 'has the right to acquire the nationality of the
State concerned on whose territory that child was bom', resolving cases in which nationality by
descent has not been acquired. Prior habitual residence, tempered by principles of, for example,
family unity, will resolve the nationality of children bom prior to the date of succession: above, note
13.
Statelessness and the Problem o/Jiesofoing NatumaUty Status 163
conditions for naturalisation, it shall not provide for a period of residence
exceeding ten years before the lodging of an application.18
Thus, habitual residence, another of the elements of the genuine and

effective link, is now formally recognized as a sound basis for the grant
of nationality. Moreover, the individual will have the right to apply for
citizenship after a maximum period of 10 years of residence following
which, while the fulfilment of certain other criteria may still be required,
the habitual residence in itself constitutes a sufficient basis upon which
to ensure the individual is allowed to try to naturalize. This period of
time will logically be less for stateless persons and refugees, as article
6(4)(g) goes on to recommend that the access of such individuals to
naturalization procedures should be facilitated.
Notably, in Chapter VI of the 1997 European Convention, with
provisions concerning State succession, habitual residence and the genuine
and effective link are primary factors which the State should take into
consideration in determining the attribution of nationality. The will of
the person concerned should also be taken into account by the State,
giving the individual the opportunity to indicate expressly which nationality
is desired. States are encouraged, in article 19, to promote die conclusion
of treaties which 'shall respect die principles and rules' contained and
referred to in the chapter, including therefore, non-discriminatory
consideration of die genuine and effective link, habitual residence, and
die will of die persons concerned, in particular, so as to avoid statelessness.19
These elements are more broadly approached in article 10 of die 1961
Convention concerning transfer of territory, which stipulates tiiat a
Contracting State, in the absence of a treaty ensuring that statelessness
does not occur, shall confer its nationality on persons under that State's
jurisdiction who would otherwise be made stateless by the transfer of
territory.20
18
Art. 6(3), above note 5.
Also to be taken into account is the territorial origin of the person concerned. 'Territorial
origin' does not refer to either ethnic or social origin but, rather, to where the person was born,
where the parents or grandparents were born or, perhaps, to an internal nationality designation. It
is therefore intended to be similar in application to the principles of jus soli and jus sanguuns in
determining nationality. Each element which the State must take into account under art. 18 is to
be weighed in the balance in a non-discriminatory manner, in particular, so as to avoid statelessness.
20
Art. 7, ILC 'Draft Articles', provides that, subject to consideration of the will of persons
concerned as stipulated in art 10, 'a successor State does not have the obligation to attribute its
nationality to persons concerned if they have their habitual residence in another State and also have
the nationality of that or any other State' (emphasis added). Art. 4 indicates a presumption of
nationality for persons who have their habitual residence in the territory affected by the succession,
the presumption being that they acquire the nationality of the successor State. Part II of the ILC
'Draft Articles' contains further provisions stipulating the grant of nationality to habitual residents:
see art. 19 and following. Art 10(2) requires States concluding treaties to provide for a right of
option 'to persons concerned who have appropriate connection with that State if those persons
would otherwise become stateless as a result of the succession of States'. Art. 10(1) requires States,
in general, to 'give consideration to the will of persons concerned whenever those persons are
qualified to acquire the nationality of two or more States concerned'. Presumably what qualifies
The drafters of the European Convention on Nationality drew
inspiration from the provisions of the 1961 Convention, incorporating
some elements almost verbatim and elaborating upon others to reflect
the many years of legal developments in the interim. An underlying tenet

of the European Convention is clearly the avoidance of statelessness, and
article 4 sets out this principle as one to which reservation may not be
made.21 Thus, through guiding principles and rules of law, coupled with
the priority to avoid statelessness, the 1997 European Convention on
Nationality has further developed the right to a given nationality, a
nationality based upon the principles of the genuine and effective link.
These principles are also reflected in die articles concerning die loss
of nationality in both the 1961 and die 1997 Conventions. Article 7(3)
of the European Convention allows die State to wididraw its nationality
resulting in statelessness only where nationality has been acquired on die
basis of fraudulent conduct, false information or concealment of relevant
facts direcdy attributable to die applicant. Article 8 of die 1961 Convention
stipulates diat a Contracting State should not wididraw nationality if
statelessness will result. While die article dien introduces certain exceptions
to diis rule, die criteria for die State acting upon diese exceptions are so
narrow (see article 8(3) and (4) and Parts II and HI attached in Resolution
to die Convention) tiiat it would only rarely be acceptable under die
Convention for die State to wididraw nationality and diereby creating
statelessness.22 Renunciation of nationality is permitted in article 7 of die
someone to acquire nationality b the 'appropriate connection1 with a State. According to the ILC
commentary, the concept of an appropriate connection 'should be interpreted in a broader sense
than the notion of "genuine link" In debate in the ILC, some members expressed the view that the
genuine and effective link was limited, in that its legal context derived from the questions of diplomatic
protection at issue in the Nottebohm Case. However, this does not take into account the many later
applications of the notion, or die fact that the components of die genuine and effective link derived
from State practice and were not enunciated by the Court as new concepts. Cf. 1997 European
Convention on Nationality as a good example of the application of genuine and effective link quite
outside the context of diplomatic protection. From a practical perspective, it would be helpful in
resolving nationality conflicts if legal terminology was harmonised.
21
Arts. 4(b), 6(2), 7(3), 8, and 18, 1997 European Convention on Nationality indicate the
importance placed on avoidance of statelessness. Art 3, ILC 'Draft Articles', provides that States
concerned should take all appropriate measures to prevent persons who had the nationality of the
predecessor State on die date of succession, from becoming stateless as a result of die succession.
However, those stateless before the succession will not acquire a right to a nationality by virtue of
the succession, and the avoidance of statelessness here is more a question of die 'transfer' of rights
and identity parallel to die transfer of territory, than recognition of a new right, even though the
stateless person may in fact have had an appropriate connection with the former State but never
have been granted its nationality.
22
Art. 13 of die 1961 Convention does stipulate diat die provisions of the instrument shall not
be construed as affecting any provisions more conducive to the reduction of statelessness as developed
in later legislation. Given die years which have passed since die drafting of die 1961 Convention,
the developments in human rights law and die presumption against die creation of statelessness, it
may be argued diat die removal of nationality resulting in statelessness must now be limited stricdy
to cases of fraudulent conduct, direcdy attributable to die applicant, which if known would have
disqualified the person concerned from die grant of nationality.
1961 Convention and article 8 of the 1997 Convention, but in both cases
it is premised upon the previous acquisition, or guarantee of acquisition,
of an alternative nationality and may not result in statelessness. Finally,
full procedural guarantees are in place for die individual in Chapter IV

of the European Convention and in article 8 of the 1961 Convention.
Article 11 of the 1961 Convention provides for 'a body to which a person
claiming the benefit of diis Convention may apply for the examination of
his claim and for assistance in presenting it to the appropriate authority'
— a function which has been entrusted to the United Nations High
Commissioner for Refugees.23 Review of the implementation of the 1997
European Convention on Nationality, however, is left to die legal system
of the State Party, no review being possible tiirough the European Court
of Human Rights or any other independent body.24
Human rights law, in conjunction with the genuine and effective link
between the individual and the State, acts as an additional basis, under
international law, for defining principles relating to nationality. Article
15 of the 1948 Universal Declaration of Human Rights declares that
'Everyone has the right to a nationality. No one shall be arbitrarily
deprived of his nationality nor denied the right to change his nationality.'25
Most of the relevant human rights principles in this area are die result of
developments following the drafting of instruments concerning nationality.
Article 5 of the 1965 International Convention on the Elimination of All
Forms of Racial Discrimination, for example, seeks,
[T]o prohibit and to eliminate racial discrimination in all its forms and to
guarantee therightof everyone, without distinction as to race, colour, or national
or ethnic origin, to equality before the law.26
Other international legal instruments dealing with the right to a nationality
Art. 16, 1LC Draft Articles provides for full procedural guarantees, indicating that relevant
decisions 'shall be issued in writing and shall be open to effective administrative or judicial review'.
A r t 17 obliges upon States to consult and negotiate in order to identify problems regarding nationality
arising from t h e succession a n d to seek solutions.
24
Art. 2 3 , 1997 European Convention on Nationality, calls upon States Parties to 'co-operate
amongst themselves a n d with other m e m b e r States' but there is little opportunity for die individual
to participate, for actual cases to be brought to a forum designed for resolving them, o r for any
means of guaranteeing the 'progressive development of legal principles a n d practice concerning
nationality and related matters' as called for in a r t 23. A review body, particularly in the case of a
treaty which is intended to address differences between national systems, would have been helpful
not only for the individual, b u t also for the State, a n d might well have contributed to consistency,
clarity, a n d close cooperation, while facilitating die resolution of conflicts in the attribution of
nationality. However, m a n y m e m b e r States did not wish to submit their nationality laws and practices
to external review. T h e Working G r o u p on Nationality which drafted the Convention has received
a provisionally extended mandate for purposes of drawing up guidelines o n implementation; die first
set, focusing o n statelessness, is expected to be concluded in J u n e 1998.
25
U N G A res. 217 AfJTT), 10 D e c . 1948; text in Human Rigits: A Compilation, 1.
26
U N G A res. 2 1 0 6 A ( X X ) , 21 D e c . 1965; text in Collation of International Instruments and Other Legal
Texts Concerning Refugees and Displaced Persons, vol. I, 2 0 5 .
include the 1957 Convention on the Nationality of Married Women,27

the 1966 International Covenant on Civil and Political Rights,28 the 1979
Convention on the Elimination of All Forms of Discrimination Against
Women,29 and the 1989 Convention on the Rights of the Child. The

1957 and 1979 Conventions seek to grant women equal rights with men
to acquire, change, or retain their nationality. The husband's nationality
status should not automatically change the nationality of the wife, render
her stateless, nor mandate acquisition by her of his nationality.
Women should also have equal rights with men with respect to the
nationality of their children avoiding both discrimination against women
and the inheritance, where applicable, of the father's statelessness. The
1989 Convention on the Rights of the Child and the 1966 International
Covenant on Civil and Political Rights stipulate that children should be
registered immediately after birth. Registration of birth is a critical factor
in establishing the right to a nationality in all legal systems, for the birth
certificate will indicate where the child is born, making acquisition of
nationality by jus soli possible, and to whom the child is born, making
acquisition of nationality by jus sanguinis possible. The 1989 Convention
and the 1966 Covenant further state that children have the right, from
birth, to acquire a nationality.
Regional instruments, such as the 1969 American Convention on
Human Rights, also provide for the right to a nationality. In the words
of article 20:
27
The Preamble to the 1957 Convention on the Nationality of Married Women recalls art. 15,
UDHR48, stipulating the right to a nationality and the right not to be arbitrarily deprived of
nationality, and seeks to promote 'universal respect for, and observance of, human rights and
fundamental freedoms for all without distinction as to sex'. Arts. 1—3 of the Convention contain
specific provisions on how the wife's nationality is to be addressed.
28
Art. 24, 1CCPR66 provides: '1. Every child shall have, without any discrimination as to race,
colour, sex, language, religion, national or social origin, property or birth, the right to such measures
of protection as are required by his status as a minor, on die part of his family, society, and State.
2. Every child shall be registered immediately after birth and shall have a name. 3. Every child has
the right to acquire a nationality.'
29
Art 9, CEDW79 provides: ' 1 . States Parties shall grant women equal rights with men to
acquire, change or retain their nationality. They shall ensure in particular that neither marriage to
an alien nor change of nationality by the husband during marriage shall automatically change the
nationality of the wife, render her stateless or force upon her the nationality of the husband. 2.
States Parties shall grant women equal rights with men with respect to the nationality of their
children.'
30
The following articles of CRC89 are also relevant: an. 2: ' 1 . States Parties shall respect and
ensure the rights set forth in the present Convention to each child within their jurisdiction without
discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race,
colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property,
disability, birth or odier status.' Art. 7: 'I. The child shall be registered immediately after birth and
shall have the right from birth to a name, the right to acquire a nationality and, as far as possible,
the right to know and be cared for by his or her parents. 2. States Parties shall ensure die
implementation of diese rights in accordance with their national law and dieir obligations under die
relevant international instruments in this field, in particular where die child would otherwise be
stateless.'
Every person has the right to a nationality. Every person has the right to the
nationality of the State in whose territory he was born if he does not have the
right to any other nationality. No one shall be arbitrarily deprived of his
nationality or of the right to change it.31

These principles have been supported by the jurisprudence of the Inter-
American Court. While it has confirmed that the conditions under which
nationality will be conferred remain within the domestic jurisdiction of
the State, the Court stated in an Advisory Opinion:
It is generally accepted today that nationality is an inherent right of all human
beings. Not only is nationality the basic requirement for the exercise of political
rights, it also has an important bearing on the individual's legal capacity. Thus,
despite the fact that it is traditionally accepted that the conferral and recognition
of nationality are matters for each State to decide, contemporary developments
indicate that international law does impose certain limits on the broad powers
enjoyed by the State in that area and that the manner in which States regulate
matters bearing on nationality cannot today be deemed to be within their sole
jurisdiction; those powers of the State are also circumscribed by tiheir obligations
to ensure the full protection of human rights. The classical doctrinal position,
which viewed nationality as an attribute granted by the State to its subjects, has
gradually evolved to the point that nationality is today perceived as involving
the jurisdiction of the State as well as human rights issues.32
Article 4 of the 1997 European Convention on Nationality incorporates
as basic principles the right to a nationality for all, the avoidance of
statelessness, the prohibition against arbitrary deprivation of nationality,
and preservation of nationality in marriage or the dissolution of marriage,
thereby consolidating the provisions of earlier agreements.33 The non-
discrimination clause was the subject of lengthy discussions, a balance
being sought in distinguishing between 'positive' discrimination for those
persons with stronger links to the State in question who might have access
to facilitated naturalization procedures, and 'negative' discrimination
based on grounds of sex, religion, race, colour or national or ethnic origin
in the grant of nationality. The language used in article 5 allows for
distinctions, provided they do not amount to discrimination on any of
the enumerated grounds. The non-discrimination clause of the European
51
Art. 20, A C H R 6 9 ; text in Collation of International Instruments and Other Legal Texts, Vol.11, 140.
See also art. 6, 1990 African Charter on the Rights and Welfare of the Child, not yet in force,
which requires States Parties to extend nationality to children bom on the State's territory who
receive no other nationality at birth.
32
Inter-American Court on Human Rights, Advisory Opinion, 'Amendments to the Naturalisation
Provision of the Constitution of Costa Rica', paras. 32—5; text in 5 HRLJ 1984. These human rights
issues included, in the opinion of the Court, limitations incumbent upon the State dirough the
principle of non-discrimination, as balanced by reasonableness, objectivity, and proportionality. Such
balancing factors apply to both the law on its lace and to the effects of the implementation of the
law pertaining to nationality.
13
See, for example, the 1957 Convention on the Nationality of Married Women, CRS61, and
UDHR48.
168 Carol A. Batchebr
Convention builds upon article 9 of the 1961 Convention, which in turn
stipulates against deprivation of nationality on racial, ethnic, religious or
political grounds reflecting, as is appropriate, developments in
international law between the post-war drafting of the 1961 Convention

and the recent drafting of the 1997 Convention.34
From this brief review of international law pertaining to nationality, it
is clear that the developments of recent decades have fundamentally
altered the reference points for nationality legislation and practice. The
reasons for these developments are also clear. Everyone has the right to
a nationality. Everyone needs a nationality because nationality serves as
the basis for legal recognition and for exercise of other rights. Nationality
should, therefore, be effective in ensuring the exercise of these rights.
Statelessness should be avoided as it defeats these goals and may, further,
lead to displacement and instability in international relations. One of the
best means of avoiding statelessness is to ensure recognition of an
individual's genuine and effective link with a State, based on identifiable
factors including place of birth, descent, and residency.35
As everyone has these links to some degree, often having all of them
in a single State, the avoidance of statelessness should not be difficult to
achieve in theory. Yet, statelessness persists. One difficulty is, naturally,
the time lag between the development of international law and its
implementation in State nationality legislation and practice. Furthermore,
States may need encouragement and assistance in altering their nationality
legislation and practice which, for some, would represent significant
change.
Another problem surfaces in the application of the law, when trying
to incorporate international legal principles to avoid statelessness in
practice. While human rights law states clearly in several international
instruments that everyone has the right to a nationality, little direction is
given in these instruments as to which nationality. Naturally, when States
become party to treaties, they take on obligations for their own internal
structure and in relation to persons subject to their jurisdiction. Thus,
for example, in relation to article 7 of the Convention on the Rights of
the Child, States parties have made the commitment to ensure that
34
Art. 14 of the ILC Draft Articles provides: 'States concerned shall not deny persons concerned
the right to retain or acquire a nationality or the right of option upon the succession of States by
discriminating on any ground'. Art. 15 prohibits arbitrary deprivation of the nationality of the
predecessor State or arbitrary deprivation of the right to aapmr the nationality of the successor State,
which is a step forward in promoting the positive right to a nationality for the individual as against
the less specific obligation upon States to avoid statelessness. Art. 15 also stipulates against arbitrary
deprivation of the right of option.
5
Many States provide in their legislation for the automatic acquisition of the State's nationality
for foundlings discovered on their territory, die presumption being that unless there is evidence to
the contrary, the genuine and effective link is with die State in which the child is found. Thus,
nationality can be resolved even when place of birth and descent are not dear, and residency is not
relevant
children under their jurisdiction are registered immediately after birth and
have the right to acquire a nationality. It could be argued that the right
to acquire a nationality has no meaning unless all States, even those with
legislation based upon the principle of jus sanguinis, grant their nationality

to children born on their territory who would otherwise be stateless.
Nonetheless, as described above, the two systems for granting nationality
based upon jus soli and jus sanguinis are both fully developed and equally
legitimate, though there are numerous variations in their implementation.
If an individual is stateless, the question arises, which State should assume
responsibility. In the case of article 7 CRC89, the State which has
ratified this instrument has taken on responsibilities for persons under its
jurisdiction who have a right to acquire a nationality. This right is denied
if the law is applied in a strictly formal way without taking into account
the necessity to achieve a balance between law and practice in each of
the relevant States. Further problems may arise in the case of a 'shift' of
obligations from a. jus sanguinis State, in which the parents hold nationality
but which refuses to grant nationality to the child because it is born
abroad, to another State which is left to deal with the problem of a
stateless child 'created' on its territory. While individual rights should not
be lost because of an inability of States to resolve differences in their
legislation and practice, it is understandable that a State with which the
individual may have a very minor connection through 'chance' birth on
its territory becomes frustrated with the refusal on the part of the parents'
State of nationality to acknowledge as a national a child who has a
significant connection with that State.
In summary, it can safely be said that States have an obligation under
international law to avoid the creation of statelessness. If a State has
legislation or practice which creates statelessness, it is that State which
should resolve the problem. Yet, the real issue here is one of who created
the statelessness, of which State should grant nationality. This remains a
problem even with reference to provisions such as article 7 CRC89
because the underlying presumptions about the rights and obligations
differ from State to State. How much more difficult is it, then, to resolve
cases which do not entail children, where individuals have gone through
life without a nationality or have inadvertently lost it through marriage,
dissolution of marriage, departure from the State, State succession, shifting
ofties,and so on. The underlying philosophy for nationality determination
requires some modification, therefore, in order for the right to a nationality
to become, in practice, actual acquisition or retention of nationality.
Some positive obligations on States are developing which would help
to resolve the question of which nationality an individual may have a
right to acquire. The 1997 European Convention on Nationality provides
for the right to apply for nationality after 10 years of lawful and habitual
residence. It also provides for other absolute rights based on birth
and descent. The Draft Articles of the International Law Commission

concerning nationality attribution following a succession of States do
likewise, in indicating that persons cannot be arbitrarily deprived of the
right to acquire the nationality of the successor State, nor can they be

arbitrarily deprived of a right of option.36 Previously, international law
merely provided that a person could not be arbitrarily deprived of a
nationality already held. Thus, there is some progress in turning a negative
obligation on States to avoid cases of statelessness into a positive obligation
to grant nationality in certain circumstances. The 1969 American
Convention on Human Rights is quite specific in this regard, article 20
requiring States to grant nationality to persons born on dieir territory
who do not have die right to another nationality. While mis is a clear
and positive provision, it is a reflection of the legislation of States in the
Americas and does not, in practice, represent a consistently applied
philosophy concerning an inherent right. Moreover, problems can be
created through conflict with the legislation and practice ofjus sanguinis-
based countries. This arises, for example, when die latter refuse to grant
nationality to the children of meir nationals born overseas to whom die
State of birth does not wish to grant nationality eidier because of a lack
of any real tie, odier man the fact of birth under their jurisdiction to
parents who have no status in die country of birdi, but who do have very
strong ties to dieir State of nationality. Even widi a provision as clear as
article 20, which represents die jus soli tradition and is, in many ways,
die simplest means of ensuring die avoidance of statelessness, diere can
still be difficulties. Given die various categories of stateless persons, not
all of whom are stateless by reference to law, die problem of identifying
who is really stateless and, as such, in need of a nationality arises. The
latter category is in need of review if a real reduction of statelessness is
to be achieved.
2. The 'Categories' of Statelessness

2.1 Who is stateless?
Owing to the frequent similarity in circumstance between tiiose who lack
national protection while possessing a nationality, and diose who have
no nationality eidier in name or in practice, a great deal of confusion
has arisen around die definition of a stateless person. The 1954 Convention
relating to the Status of Stateless Persons and die 1961 Convention on
die Reduction of Statelessness have defined, by terminology in die former
and by reference in die latter, botii de jure and de facto stateless persons.
The definitions and use of terms contained in diese instruments have, as
36
Sec above, note 33 with reference to notes 19 and 20.
StateUssness and the Problem of Resolving Nationality Status 171
originated in and promulgated by the United Nations International Law
Commission, been accepted in both private and public international legal
parlance pertaining to nationality and serve as die basis of discussions
relating to statelessness.37

2.1.1 Dejure stateless
The 'condition' of statelessness was described in article 1 of the 1954
Convention relating to the Status of Stateless Persons:
For the purpose of this Convention, the term 'stateless person' means a person
who is not considered as a national by any State under the operation of its law.
To be considered as a national by operation of law means tiiat, under
die terms oudined in die State's enacted legal instruments pertaining to
nationality, die individual concerned is ex lege, or automatically, considered
a national. As a minimum, mere must be a State, the constitution or
laws of which make some provision for nationality. Those who are granted
citizenship automatically by die operation of these legal provisions are
definitively nationals of that State. Those who have to apply for citizenship
and mose the law oudines as being eligible to apply, but whose application
could be rejected, are not citizens of mat State by operation of diat
State's law. Wherever an administrative procedure allows for discretionary
granting of citizenship, such applicants cannot be considered citizens until
the application has been approved and completed and the citizenship of
that State bestowed in accordance with die law.
Most people are considered nationals by operation of one State's law
only, often die law of die State in which they were born or the law of
the State in which dieir parents or a parent held nationality at die time
of die birth. Everyone is born in a geographical location, has parents
who originate from a State, States, or a particular region, and most
people establish ties witii a particular country dirough residence in diat
country. Nonetheless, not everyone receives a nationality 'by operation
of law'. Those who have not received nationality automatically under die
operation of any State's law are stateless persons or, more specifically, de
jure stateless persons.38
The fact that there may be regional variations concerning nationality or citizenship does not alter
the meaning ascribed to nationality or the definition of statelessness incorporated into international
instruments, nor does it alter their meaning under international law in general. Thus, a State
adopting alternative definitions will run the risk of criticism and lack of recognition for national law
at the international level, and of conflicts and problems with other States concerning the nationality
status of persons at issue.
38
Residents who are treated as though they were citizens and who enjoy many of the rights
generally associated with citizenship are sometimes described as having 'dt facto citizenship'. The
phrase has no legal status, however, and is potentially misleading, for example, so far as it may
imply security within a State where the persons concerned are, in reality, dt jun stateless, often
despite having genuine, strong, and effective links.
2.1.2 De facto staUless
Those who cannot establish their nationality39 and those without an
effective nationality, referred to as de facto stateless persons, are not
included in the legal definition of a dejure stateless person oudined above.

The drafters separated these groups to avoid confusion in an individual's
status, to avoid encouraging individual efforts to secure an alternative
nationality, to avoid a situation in which some States decide to treat a
person as stateless, while other States consider that person to still hold
nationality, and to avoid confusing overlap between the 1954 Convention
relating to the Status of Stateless Persons and the 1951 Convention
relating to the Status of Refugees. The drafters presumed that de facto
stateless persons were those who still had a nationality in name, but for
whom tiiat nationality was not effective. They presumed that all those
without an effective nationality, that all de facto stateless persons, were,
and would be, refugees.
However, neither de jure nor de facto statelessness necessarily signifies
the existence of a well-founded fear of persecution under the terms of
the 1951 Convention. The definition of a de jure stateless person was
chosen in order to exclude the question of whether die person has faced
persecution, as there are conflicts of laws issues which might result in
statelessness widiout any wilful act of neglect, discrimination, or violation
on the part of the State.40 De facto statelessness, on the other hand, was
presumed to be the result of an act on die part of the individual, such
as fleeing die country of nationality because of persecution by the State.
The drafters of die 1954 and 1961 Conventions felt tiiat all diose who
faced persecution, and who did not have an effective nationality, would
be considered refugees and would receive assistance from the international
community under the terms of the 1951 Convention relating to the Status
of Refugees. Quite intentionally, dien, the drafters of the 1954 Convention
relating to the Status of Stateless Persons adopted a stricdy legal definition
of stateless persons which, like legal definitions relating to deadi, marriage,
or to the establishment of a business, is not one of content or quality but
simply one of fact. Dejure statelessness could be ascertained by reference
to national law, and defacto statelessness covered persons who were unable
39
Generally, States presume that an individual has a nationality unless there is some evidence to
the contrary, although there may be no agreement on which nationality it is.
40
The law of some countries allows an individual to renounce nationality without first acquiring
or being assured of another nationality, thereby leading to statelessness. Although States should
avoid such legislation in principle, the practice is not uniform. Formally 'correct' systems may also
clash by reason of the underlying philosophy for granting nationality. For example, State A, in which
the individual is bom, grants nationality by descent only ljus sattguims) and State B, in which the
parents hold nationality, grants nationality by place of birth only ljus soli). There are many variations
in law and practice which create gaps leading to statelessness, and one perennial problem is the
inability under the laws of many countries for a mother to pass nationality to her child even if the
father is stateless.
to 'act' on their nationality because its effectiveness was denied to them.
As it was assumed that de facto stateless persons had 'voluntarily'
disassociated themselves from their nationality and were, in any event,
refugees, they were made the subject of a recommendation in the Final

Act of the 1954 Convention relating to the Status of Stateless Persons.
The non-binding recommendation is intended to encourage host States
to assist de facto stateless persons. The Conference,
Recommends that each Contracting State, when it recognizes as valid the reasons
for which a person has renounced the protection of the State of which he is a
national, consider sympathetically the possibility of according to that person the
treatment which the Convention accords to stateless persons.
The Final Act of the 1961 Convention on the Reduction of Statelessness

contains a similar provision, recommending 'that persons who are stateless
de facto should as far as possible be treated as stateless de jure to enable
them to acquire an effective nationality'.
Given the developments in practice relating to asylum seekers over the
years, and the number of persons who do not receive citizenship in their
country of habitual residence but continue to live mere, it has become
clear diat not all defacto stateless persons are refugees. This is complicated
by the various positions adopted by States on nationality status, the State
of residence, for example, insisting that the persons concerned have
nationality in the State where a previous generation held citizenship,
while the latter State refuses to grant nationality insisting that die persons
concerned should have nationality where they were born or reside. The
'grey zone' of defacto statelessness has grown substantially, and today may
include, persons who are confirmed de jure stateless in their country of
long-term habitual residence but treated as if they held another State's
nationality, for example, because they might have the technical possibility
of applying for naturalization, notwithstanding the absence of any effective
link or ancestral connection; persons who have the nationality of a country
but who are not allowed to enter or reside in that country; persons who,
following a succession of States or transfer of territory, do not receive
nationality in the State where they were born, where they reside, work,
own property and have all dieir links but, rather, receive nationality in
die successor State widi which they have no genuine or effective connection
(die result being drey are no longer able to work, own property, have
health care, education, and so on in die only place of residence they have
known); persons who have die theoretical right to die nationality of a
State but who are unable to receive it owing to administrative and
procedural hurdles, excessive registration or naturalization fees, or otiier
criteria which block access to die nationality. The majority of dejure and
de facto stateless persons requiring assistance on questions relating to tiieir
nationality status are not, today, refugees. Moreover, persons defined as
de jure stateless under the 1954 Convention, stateless, by reference to

national law, today fall into the grey area of de facto statelessness, because
of the lack of agreement between States on their de jure stateless status.
Nonetheless, if stateless persons are really to benefit from the provisions

of international or regional instruments developed to resolve cases of
statelessness, they must be able to show dejure statelessness.
2.2 'Status' determination

As noted above, it is national legislation and practice to which reference
is made to determine dejure statelessness. If die law on its face does not
indicate ex lege acquisition of nationality, die individuals concerned may
be de jure stateless.41
Article 11 of die 1961 Convention on die Reduction of Statelessness
provides for an agency to help individuals and States clarify nationality
status, and to advise on how to avoid the creation of statelessness; this
role was extended to die United Nations High Commissioner for Refugees
(UNHCR) when die Convention came into force. An advisory body was
also discussed during die drafting of die 1997 European Convention
on Nationality, but none was provided for.42 The International Law
Commission's work on nationality attribution following a succession of
States is expected to result in a Declaration, which will be useful because,
unlike a treaty, it will not require lengdiy debate and negotiation to
ensure ratification by States, but equally it will not be able to provide for
a supervisory agency or mechanism to which die State and die individuals
concerned might turn for guidance.
While UNHCR does have die responsibility of assisting States and
individuals and has been requested by the General Assembly to assist
States in avoiding statelessness, neidier UNHCR, other international or
regional organizations, nor third States can pronounce authoritatively on
nationality in one or other State. The State concerned must indicate
whether die individuals in question do or do not have its nationality, for
it is that State which has both die privilege and die obligation to
determine who are its citizens, in accordance widi international law.
While organizations and odier States may promote die recognition of a
genuine and effective link and encourage recognition of these links
wherever they exist, only die State concerned can indicate whedier it
acknowledges diese links.
11
Nationality Actt lay down categories of persons entitled to nationality, and the State must
confirm that a given person has acquired its nationality. Its interpretation may, of course, reflect a
practice not apparent from the law itself, while the law also may not necessarily indicate all categories
of persons who receive nationality.
It is to be expected, however, that die principles of the 1997 European Convention on
Nationality will influence cases relating, for example, to family unity or minorities, which are subject
to the Court or Commission.
Thus, definitions relating to dejtm and defacto statelessness are important
for they show who, the de jure stateless, are obviously without a nationality
and therefore to be treated in accordance with the rules and principles
of international law pertaining to statelessness. If so inclined, States may

assist the de facto stateless, as indicated in the Final Acts, reference being
made to the principles contained in the 1954 and 1961 Conventions
and in international law generally. Nonetheless, given the strictly legal
definitions of a stateless person, this category is unlikely to receive the
same recognition as those who are dejure stateless.
International law has developed provisions concerning the right to a
nationality and, moreover, to a particular nationality; these are included
in conventions, and have been developed in jurisprudence and defined
to some degree by State practice itself. With these developments, and
given the clear preference in international law against the creation of
statelessness, it might appear that the sole remaining question is whether
States incorporate these principles into their domestic legislation and
practice. The technical distinctions between de jure and de facto stateless
persons should not be significant if the principles and intent of international
law are fully recognized. In fact, however, a review of nationality acts,
decrees, and State constitutions globally, while revealing some gaps in
legislation, would not reveal some of the more significant problems
concerning nationality practice today.
3. Statelessness Today
In analysing the right to a nationality as a human right, Chan points out
that 'The last sixty years have clearly witnessed the formation of a global
consensus on the undesirability of statelessness. Statelessness arises as a
result of a deliberate act of deprivation of nationality by the State
concerned, as a result of territorial change, or, more frequently, as a
result of a conflict of nationality law.'43
These are indeed the most apparent causes of statelessness. An
examination of domestic legislation and comparative studies can reveal
conflicts between national laws. Also, in cases of transfer of territory, the
change of sovereign is clear and, eventually, successor States adopt new
nationality legislation. In like manner, deliberate and, in particular, mass
deprivation of nationality is generally well-known, as the nationality is
revoked for the specific purpose of ensuring that neither the individuals
affected nor other States consider that particular group to continue to
enjoy citizenship in the State revoking citizenship.
While in no way seeking to underestimate these categories which
constitute much of the work now undertaken at the international and
43
Chan.J., "The Right to a Nationality as a Human Right', 12 HRLJ 13 (1991).
176 Caml A. Batchelor
regional levels to ensure that statelessness is avoided, two aspects are
significant: the first is the categories just mentioned are apparent and
often receive the attention of organizations dealing with statelessness; the
second is that there are legal reference points available, subject to the

will of the State or States involved, for resolving instances in which
statelessness is, or can be, created.
In the case of deprivation of nationality, the Universal Declaration
prohibits arbitrary deprivation of nationality, while general and regional
international law incorporates the positive rights outlined above. Articles
8 and 9 of the 1961 Convention prohibit discriminatory deprivation and
deprivation resulting in statelessness, as does article 4(6) of the European
Convention.44 United Nations General Assembly resolution 50/152 of 9
February 1996 further 'Calls upon States to adopt nationality legislation
with a view to reducing statelessness, consistent with fundamental
principles of international law, in particular by preventing arbitrary deprivation
of nationality.'45 (Emphasis added.)
In the case of territorial change and the right to a nationality, article
10 of the 1961 Convention stipulates that transfer of territory should in
no case result in statelessness, while Chapter VI of the 1997 European
Convention is devoted to nationality attribution following State succession,
and advocates resolution of the issue through treaty, and by way of
analysis of die genuine and effective link, habitual residence, right of
option, and territorial origin. Finally, resolution of conflict of laws issues
was the driving force behind the 1930 Hague Conference and has since
been developed at both regional and international levels in die instruments
referred to above, as well as dirough positive developments in die drafting
and amendment of nationality laws. While differences in laws still exist
and require attention, the problem for many countries is not so much
one of technically correct laws which appear to avoid statelessness and
do not conflict with the laws of neighbour States, it is, rather, a problem
of depth, of looking beyond the terms of the law itself, to the outcome
of its application in practice.
This is not to say that the areas of deprivation, territorial change, and
conflicts have been effectively or positively addressed in each instance,
or that die numbers of cases of statelessness resulting from a failure to
address these issues are not significant. The points to be illustrated are,
however, that one has to have had a nationality in order to show proof
of arbitrary deprivation of diat nationality; that in the case of territorial
change it is not usually the transfer per se which creates statelessness, the
vast majority of nationals of the predecessor State normally having
their nationality resolved rfirough treaty or through the adoption and
44
See also arts. 5-8, 1997 European Convention on Nationality.
45
A/RES/50/152, 9 Feb. 1996.
implementation of the successor State's nationality legislation; and that
in a conflict of laws situation there exist means of resolving conflicting
legislation which inadvertently creates statelessness.
What, however, of the case of those who have resided all their lives in

a specific country, who have perhaps been in that country as a distinct
group for generations, who never had or who no longer have effective
links with another country, who are not the subjects of a transfer of
territory but who have, nonetheless, failed to acquire die nationality of
the State in which they reside? What of those who have never had the
nationality of the country in which they have all ties?
A similar question may be put for those who, in the context of State
succession, fail to acquire nationality in the place where they have
permanently resided because they are deemed to have links elsewhere.
Though they may avoid dejurt statelessness, these persons may be left de
facto stateless, widiout the right to work, to healdi care, to own property,
or to education in tiieir lifelong place of residence. The transfer of territory
itself may not create statelessness by operation of law, but die means
chosen to resolve nationality issues can result in defacto statelessness. What
mechanism exists for ascertaining where an individual has the strongest
links which could, accordingly, be reflected in the grant of nationality?
In his 1952 report for the International Law Commission in preparation
for the drafting of the international conventions on statelessness, the
Special Rapporteur, Manley Hudson, stated that the greatest number of
cases of statelessness had been created by collective denationalization on
political, racial or religious grounds.46 He further stated that,
Purely formal solutions ... might reduce the number of stateless persons but not
the number of unprotected persons. They might lead to a shifting from
statelessness 'dejun? to statelessness 'de facto'.A1
This analysis of future developments has proved largely true not, primarily,
because of continued denationalization on a large scale but, rather,
because of a failure ever to acquire the nationality of the State with which
die individual is most closely connected in daily life. While massive
denationalization still takes place and is currendy a problem in different
regions of the world, it is a visible problem which tends now to receive
attention from die international community as a whole. The legal
categories of statelessness were drafted under die presumption diat
agreement between States on their application would develop and
progress.
Equally difficult, but far less visible tiian denationalization, are die
problems for die group of stateless persons who fail to acquire nationality
Hudson, Manley O., 'Report on Nationality, Including Statelessness', International Law
Commission, 4th session: UN doc. A/CN.4/50, 21 Feb. 1952, 49.
47
Ibid.
in the State in which they reside, often because that State considers them
still, perhaps after generations, to have stronger links elsewhere. No
collective denationalization on political, racial or religious grounds is said
to have taken place because nationality was never extended to die group

in question. The reasons for diis may be numerous and may include
discrimination, but the manner in which the discrimination takes place
is less apparent.
Thus, there are currently thousands of those who are in a de facto
stateless situation, as predicted by Hudson. They are not declared de jure
stateless because the country in which they live believes they hold
nationality, or should hold nationality, in the country, for example, from
which their ancestors came. The country from which their ancestors
came, on the other hand, believes they ought to have acquired nationality
where they were born or where they live. The national laws of both
States may provide favourably for the grant of citizenship for de jure
stateless persons while, in practice, no administration actually considers
these persons to be stateless. They may languish this way for decades,
unable to exercise any of die rights of citizenship, fearful to leave die
country in which they reside because diey will not be readmitted, unable
to enter the 'country of their ancestors' and, in any event, no longer widi
significant ties elsewhere.
In many such cases, die cause of the dispute over nationality arose
originally out of a transfer of territory, sometimes accompanied by mass
displacement, making resolution of nationality in the context of State
succession extremely important. It is not necessarily die State succession
or transfer of territory per se which creates die problem, for the nationality
can be resolved by treaty, dirough State practice, negotiation, and by
way of legislation which seeks to ensure a right to a nationality. Dejure
statelessness is, in die context of transfer of territory, often less of a
problem dian defacto statelessness which is generally created in two ways:
lack of clarity concerning which nationality an individual has, each State
assuming die odier to be die responsible State; or imposition of nationality
which, by virtue of die situation, cannot be an effective nationality. In
both cases, the ineffective resolution of die nationality question is unlikely
to disappear but, radier, to become exacerbated as time passes.48
Permission to remain as a permanent resident in die State where one
has always lived may be helpful, but diose who are given favourable
status as permanent residents in one political climate may find diemselves
without such privileges in die grey zone of de facto statelessness, when die
n
See Batchelor, C A , 'Citizenship and Voting Issues in Bosnia-Herzegovina Following the
Dayton Peace Agreement', International FotmdatiaifirElation Systems (IFES), Electoral Code Working
Group (ECWG), OSCE/Office of Democratic Institutions and Human Rights/IFES, Legal and
Technical Analysis Compendium, Jan.-Mar. 1996, for analysis of issues relating to citizenship in
the context of State succession.
climate changes. There is no replacement for citizenship itself, in particular
as international law is better equipped to deal with the deprivation of a
nationality previously held than it is to deal with a failure to acquire a
given nationality for lack of determining the most effective link.

Whether de facto statelessness is created 'overnight', as may be in the
case of State succession or transfer of territory, or is an outstanding issue
of unresolved nationality generated by the events of years gone by, the
grey zone of unresolved cases of nationality is little addressed in practice.
Nonetheless, if reference is made to the genuine and effective link, in
most cases it is not difficult to identify one or two States which would be
the most logical candidates to ensure that the right to a nationality is an
effective right. This was, in essence, what Hudson proposed when, studying
the question as Special Rapporteur for the International Law Commission,
he observed that any attempt to eliminate statelessness would only be
fruitful if it resulted in,
[N]ot only... the attribution of a nationality to individuals, but also an
improvement of their status. As a rule, such an improvement will be achieved
only if the nationality of the individual is the nationality of that State with which
he is, in fact, most closely connected, his 'effective nationality', if it ensures for
the national the enjoyment of those rights which are attributed to nationality
under international law, and the enjoyment of that status which results from
nationality under municipal law.49
Hudson went on to say mat, in his view, the principle he coined as 'jus
connectionis', or right of attachment, was in diis regard superior to diose
of jus soli or jus sanguinis, for it advocates the nationality of the State to
which the individual is proved to be most closely attached in his or her
conditions in life.50
This is, in fact, an argument for a more balanced application of the
genuine and effective link going beyond the purely formal application of
either jus soli or jus sanguinis. Strict application of the jus sanguinis principle,
for example, can result in the inheritance of statelessness. If, on the other
hand, the principle of jus connectionis or place of attachment is used, in
particular when jus sanguinis would result in dejure or de facto statelessness,
an effective nationality is more likely to be secured. This concept, aldiough
not stated in these words, is reflected in the 1997 European Convention
on Nationality. The 1997 Convention has not on\y jus sanguinis and jus
soli provisions, but also provides for a maximum period of ten years of
residence after which the State of residence must allow applications for
naturalization. While such applications may still be subject to certain
criteria, ten years' residence is now presumed to be a sufficient legal
ground for the grant of nationality to persons neither born in the State
49
Ibid., 49.
50
Ibid.
nor descended from nationals of the State. Place of habitual residence,
moreover, has taken a prominent position in Chapter VI of the European
Convention concerning nationality attribution following State succession,
as it does also in article 10 of the 1961 Convention stipulating that the

State grant nationality to persons under its jurisdiction who would
otherwise be made stateless by a transfer of territory.51
An overall reduction in dejun statelessness was the goal agreed by the
international community when drafting the 1961 Convention on the
Reduction of Statelessness. Having a nationality in name is important,
but if it does not address the underlying problems resulting from
statelessness which the international community found to be undesirable,
the intentions of the drafters and the underlying intent of the developments
in international law cannot be said to have been met. It is to the advantage
of the international community as a whole, and of the individuals
concerned, that nationality is not given in name only, but is also effective.
Both dejure and de facto statelessness must be addressed.
International law has generated certain principles which serve as a
good reference point for ensuring not only a nationality by operation
of law, but also an effective nationality. Thus, in resolving nationality in
the context of State succession, conflicts of laws, marriage or the dissolu-
tion of marriage, birth, administrative practice, denationalization,
renunciation, and any of the other numerous ways in which nationality
and statelessness issues arise,52 reference may be made to the principles
of jus soli, jus sanguinis, and the right of attachment established through,
for example, residence (or, to use Hudson's words, jus connectionis), in
essence, an objective means of arriving at the genuine and effective link.
Residence is not the only element of the genuine and effective link which
needs to play a greater role, however. The concept of jus connectionis might
also include, for example, recognition of the tie a child has with its mother
and with the mother's nationality which, in some cases, might take
precedence over other ties such as those based upon place of birth.
Positive consideration and uniform recognition of the tie a child has to
the mother's nationality would provide an automatic means of avoiding
statelessness at birth when a child is born to a stateless father. Similar
considerations of strong and relevant ties could be made in the context
51
This may also be said of the ILC's Draft Articles which seek to base the grant of nationality
on habitual residence and the appropriate connection, a broadened concept of the genuine and
effective link, and stipulate that States should ensure statelessness is not created for persons under
their jurisdiction as a result of the succession. Moreover, the arbitrary deprivation of the right of
option and of the right to acquire the nationality of the successor State for persons with an entitlement
in relation to the succession are also prohibited. This goes beyond the obligation to avoid statelessness
and creates, in conjunction with the other draft articles concerning habitual residence, family unity,
and appropriate connections, an obligation for the State toward persons with the specified links.
52
See Batchelor, C.A., 'UNHCR and Issues Related To Nationality', 14 &S&91 (1995), for an
overview of the underlying causes of statelessness.
StateUssness and the Problem ofResolving Nationality Status 181
of marriage, dissolution of marriage, and adoption, to name but a few
instances. Moreover, proactive application by States of the genuine and
effective link would serve, largely, to side-step the existing legal vacuum
in addressing cases of defacto statelessness. Rather than placing the burden

on the individual to establish a negative, to prove that he or she is dejim
stateless, emphasis would be placed on the positive right to a nationality
by establishing which nationality the individual has a right to, based upon
the well-founded principles of the genuine and effective link. By reflecting
an individual's existing links in this way, de jure and de facto statelessness
will be cut back and the category of de facto stateless persons reduced to
that intended by the drafters of the 1954 and 1961 Conventions (that is
to say, refugees).
Any successful effort in this regard will require a forum for discussions
and negotiations between States, with the opportunity for individuals,
non-governmental organizations, and concerned international agencies
to provide information on actual problems and cases. Without such
dialogue and openness, States may continue to make laudable efforts
individually and at the regional level, but which fail to address the core
philosophical differences in the approach to the law. The risk will be the
development of technically correct laws which miss the object and purpose
of international legal principles, which stipulate the right to a nationality
while recognizing the sovereign concerns of States. The approach needs
necessarily to be flexible, incorporating not only the acknowledged legal
systems of jus soli and jus sanguinis, but also additional relevant factors
which can resolve problems created between States through narrow
adherence to place of birth or descent. The tools for this proactive
application of the law exist already in nationality law itself, in legal
constructs such as the genuine and effective link. They should be applied
with reference to principles now well established in human rights law,
such as the right to a nationality and non-discrimination.
The right to a nationality is a positive right. It is more than the
unilateral obligation on a State to avoid the creation of statelessness under
its own legislation without regard to the international consequences of
the application of this legislation. The right to a nationality is, or should
be, based on a recognition of the link, or bond, established between an
individual and a State.
Conclusion
Stateless persons have been described as a kind of flotsam, as anomalies,
'nationality still being the principal link between the individual and the
Law of Nations'.53 The problem of statelessness is not only a legal problem
53
Wcis, P., T h e United Nations Convention on the Reduction of Statelessness, 1961', 11 ICLQ,
1073(1962).
182 Carol A. Batchtlor
resulting in the inability to exercise rights. It is a problem of identity
under the law. Article 15 of the Universal Declaration of Human Rights
proclaims that everyone has the right to a nationality. One difficulty in
ensuring that everyone does indeed have such a right has been that of

resolving which nationality there may be a right to. International law,
particularly as it has developed since the Universal Declaration of Human
Rights, offers means of resolving this problem, not least of which is the
'doctrine' of the genuine and effective link.
The categories of stateless persons have not only been further
illuminated, but have also shifted since the drafting and adoption of the
1954 Convention relating to the Status of Stateless Persons and the 1961
Convention on the Reduction of Statelessness. These Conventions referred
to categories of de facto stateless persons only in the Final Acts. Presently,
there are significant numbers of persons who are not considered to be
either de jure stateless or refugees, but who fail to acquire the nationality
of die State in which they have lived their lives or with which they are most
closely connected. The 1961 Convention promotes acknowledgement of
the links an individual has with a State through factors such as birth
and descent where the person concerned would otfierwise be stateless.
International law, too, has developed, with recent instruments such as
the 1997 European Convention on Nationality making explicit reference
to residence and to the genuine and effective link as a basis for resolution
of nationality status. Recognition of this link in a balanced application of
the principles of jus sanguinis, jus soli, and 'jus connectionis" can ensure
reduction of de jure and de facto statelessness, and the undesirable effects
of statelessness the international community has sought to avoid.
Efforts have been made to resolve significant conflicts between the
nationality laws of many States. Attempts to resolve these conflicts will
bear little real fruit so long as the fundamental philosophical positions
concerning State responsibility in determining nationality continue to
vary. The point of departure is where opposing laws meet, either colliding
as technically correct but artificial constructs which allow the individual
no way through, or more productively, as positive means of meshing
systems in an effort to address the practical outcome of their application.
Progress can be made toward the latter, through die development of pro-
active means of granting nationality without reliance solely on pre-existing
legal structures but, rather, with a view beyond to broader, more universal
means of applying national legislation so as to achieve the object and
purpose of international principles.
Statelessness is not only a legal problem, it is a human problem. Failure
to acquire status under the law, particularly in cases where the individual
was born and has lived the better part of his or her life in a single State,
creates significant human problems. These problems can negatively impact
upon many important elements of life, including the right to vote, to own
property, to have health care, to send one's children to school, to work,
and to travel to and from one's country of residence. International law
provides tools for ensuring the right to a nationality exists, and is
further developing the mechanisms to ensure that nationality is effective.

International law has, further, recognized the State's right to determine
nationality with reference to certain standards. Positive steps by all States
can ensure the integration and implementation of diese principles and
standards in State legislation and practice, reducing and, eventually,
eliminating the problem of statelessness.

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Statelessness and the Problem of

Resolving Nationality Status

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Introduction: The Right to a Nationality: Theory and

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1. International Law: The Right to a Nationality and

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" ICJ Reports, 1955, 23.

creation of statelessness by reflecting an individual's genuine and effective

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include the 1957 Convention on the Nationality of Married Women,27

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and descent. The Draft Articles of the International Law Commission

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2. The 'Categories' of Statelessness

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The Final Act of the 1961 Convention on the Reduction of Statelessness

de jure stateless under the 1954 Convention, stateless, by reference to

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2.2 'Status' determination

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