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person acquires foreign nationality on a voluntary basis or retains it following
acquisition by automatic/ex lege operation of law.8 Where an individual is
denationalised in advance of their voluntary acquisition (or retention) of a foreign nationality they will frequently be rendered as de jure stateless. If these
measures are implemented in a manner that fails to appropriately balance the
legitimate interests of the state and the individual this will constitute a violation of the guarantee against arbitrary deprivation of nationality found in
Article 15(2) of the Universal Declaration of Human Rights9 and now part of
customary international law.10 Bearing in mind the impact statelessness will
have on the individual, any deprivation which results in statelessness will be
arbitrary, save when this is done in response to the most pressing needs of the
state.11 As explained by UNHCR in their reply to the report of the UN SecretaryGeneral on the arbitrary deprivation of nationality:
The avoidance of statelessness is a general principle of international law.
Deprivation of nationality resulting in statelessness will generally be
8
9
10
11
A comprehensive list of such provisions is provided in Maurice Kamto Fourth Report on
the Expulsion of Aliens International Law Commission, Sixtieth Session, 24 March 2008,
UN Doc A/CN.4/594, 9-18.
Universal Declaration of Human Rights 1948 General Assembly Resolution 217A (III),
art. 15(2).
While not reflected in the International Covenant on Civil and Political Rights 999 UNTS
171 itself this right is now reflected in a wide range of other international treaties and
instruments; International Convention on the Elimination of All Forms of Racial
Discrimination 660 UNTS 195, art. 5(d)(iii); Convention on the Elimination of All Forms
of Discrimination Against Women UN Doc A/34/46, art/ 9; Convention on the Nationality
of Married Women 309 UNTS 65, art/ 9; Convention on the Reduction of Statelessness 989
UNTS 175, art/ 8(1); General Assembly Resolution 50/152 9 February 1996, para 16; Human
Rights Council Resolution 20/5, para 2; Human Rights Council Resolution 7/10, para 2;
Human Rights Council Resolution 10/13, para 2; Human Rights Council Resolution 13/2,
para 2; Report of the Secretary-General Human Rights and Arbitrary Deprivation of
Nationality UN Doc No A/HRC/13/34, 14 December 2009, paras 19-46; Permanent Court of
Arbitration, Eritrea-Ethiopia Claims Commission, Partial Award Civilians Claims, Eritrea’s
Claims 15, 16, 23 and 27–32, between the State of Eritrea and the Federal Democratic
Republic of Ethiopia, The Hague, 17 December 2004, para 60; ‘(…) while there may not
necessarily be a positive duty on States to confer nationality there is, arguably, ‘a negative
duty not to create statelessness’, so that any deprivation must be accompanied by strict
rules of procedure and should not result in statelessness.’ Carol A. Batchelor, ‘Stateless
Persons: Some Gaps in International Protection’ 7(2) IJRL 232, 238; J.M.M. Chan
‘Nationality as a Human Right’, 12 HRLJ 11, 18; James Crawford, Brownlie’s Principles of
Public International Law (8th edn OUP 2012) 516.
1961 Statelessness Convention (n 10), art. 8(2)a and 8(2)b.
tilburg law review 19 (2014) 236-247