The Right to Have Rights
The right to a nationality (Batchelor 2006) implies the right of each individual to acquire, change, and retain a nationality (Blitz and Lynch 2011). The right to a nationality is a fundamental human right (Weissbrodt and Collins 2006; van Waas 2008) as afforded by Article 15 of the 1948 Universal Declaration of Human Rights (UDHR), which provides that “[e]veryone has the right to a nationality” and that “[n]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” In preserving the right to citizenship and the right to be free from arbitrary deprivation of citizenship as human rights in and of themselves, Article 15 establishes the bedrock legal relationship between individuals and states (Bariatti 1996). Even though all states are bound to respect the human rights of all individuals without distinction (Forlati 2007), an individual’s legal bond to a particular state through citizenship (Blitz and Lynch 2011) remains, in practice, an essential prerequisite to the enjoyment and protection of the full range of human rights in that state.
The proliferation of human rights norms in international and regional instruments has fostered substantial limitations on state sovereignty over citizenship regulation (Chan 1991), which gives meaning to that provision. In particular, the universal antidiscrimination norm and the principle that statelessness should be avoided have emerged as a means to constrain state discretion on citizenship (Southwick and Lynch 2009). Some significant gaps in the international legal framework on nationality persist (Ahmed 2010); consider, for instance, that few normative principles prescribe conditions for granting citizenship (Forlati 2007). Furthermore, there is a lack of consensus on what constitutes statelessness arising from ineffective citizenship (Aird et al. 2002; Bhabha 2009, 2011).
Although human rights developments over the years have made great strides in giving content and meaning to Article 15 of the UDHR, further normative and practical developments remain essential to fulfilling the valuable promise of that provision. Because states have the sovereign right to determine the procedures and conditions for acquisition and loss of citizenship (Blitz and Lynch 2011), statelessness and disputed nationality ultimately must be resolved by governments (Forlati 2007). Because state provisions for securing and sustaining citizenship must conform to general principles of international law, a number of international declarations and conventions are in place to exert pressure on governments to ensure the existence of opportunities to obtain national identity documentation.
The right to a nationality is preserved in numerous international declarations and conventions other than the 1948 UDHR. In particular, the 1954 Convention Relating to the Status of Stateless Persons defines a stateless person as “a person who is not considered as a national by any State under the operation of its law.” Furthermore, the 1961 Convention on the Reduction of Statelessness deals specifically with this issue. There is a list of other workable legal instruments—for example, the 1957 Convention on the Nationality of Married Women, the 1963 International Convention on the Elimination of All Forms of Racial Discrimination, and the 1966 International Covenant on Civil and Political Rights. Statelessness also is considered in the 1979 Convention on the Elimination of All Forms of Discrimination against Women, the 1989 Convention on the Rights of the Child, the 2003 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and the 2006 Convention on the Rights of Persons with Disabilities.
Nevertheless, such international instruments are not enforceable and their implementation is far from uniform around the globe (ENS 2015). International human rights law provides that the right of states to decide who their nationals are is not absolute and, in particular, states must comply with their human rights obligations concerning the granting and loss of nationality. Even though they are complemented by regional treaty standards and international human rights law, the two statelessness conventions of 1954 and 1961 are the only global conventions of their kind. The conventions attracted relatively few ratifications until 2011, when UNHCR launched a major campaign to promote concurrence to the two statelessness treaties. Since then there have been 33 accessions to one or both of the Conventions: Panama, 1954 and 1961; Nigeria, 1954 and 1961; the Philippines, 1954; Croatia, 1961; Serbia, 1961; Turkmenistan, 1954 and 1961; Benin, 1954 and 1961; Georgia, 1954; Bulgaria, 1954
and 1961; Moldova, 1954 and 1961; Burkina Faso, 1954; Paraguay, 1961; Ecuador, 1961; Honduras, 1954 and 1961; Portugal, 1954 and 1961; Jamaica, 1961; the Ukraine, 1954 and 1961; Nicaragua, 1954 and 1961; Lithuania, 1961; Cote d’Ivoire, 1954 and 1961; Montenegro, 1961; and Peru, 1954. This increased the number of state parties to the 1954 Convention from 65 to 80 and the number of state parties to the 1961 Convention from 37 to 55.
The right to retain a nationality corresponds to the prohibition of arbitrary deprivation of nationality (Blitz and Lynch 2011). Arbitrary deprivation of nationality, therefore, effectively places the affected persons in a more disadvantaged situation concerning the enjoyment of their human rights because some of the rights may be subjected to lawful limitations that otherwise would not apply (Bhabha 2011). Additionally, these persons are placed in a situation of increased vulnerability to human rights violations (Batchelor 2006). The Human Rights Council has addressed the enjoyment of the right to a nationality and the avoidance of statelessness in several resolutions on “Human rights and arbitrary deprivation of nationality,” in particular, Resolution 7/10 (2008), Resolution 10/13 (2009), Resolution 13/2 (2010), Resolution 20/4 on the Right to a Nationality: Women and Children (2012), Resolution 20/5 (2012), and Resolution 26/14 (2014).