YALE HUMAN RIGHTS & DEVELOPMENT L.J.
2017]
The Risk of Statelessness
VOL. XIX
53
The first section of this Article will provide necessary legal background
on the right to nationality and statelessness. It will trace the development of
nationality from an expression of pure sovereign authority to a
fundamental human right under international law. It will then describe
how the right to nationality was further cemented by the development of
the international regime to protect stateless persons and reduce
statelessness, as well as how this legal protection framework has gained
influence in recent years. This section will highlight both the deep roots of
nationality regulation in sovereign state authority and the measured
inroads that have been accomplished in recent years to balance sovereign
authority against the need to protect stateless persons.
The second section will illustrate how the transnational legal debate
about the right to nationality and statelessness in the Dominican Republic
has led the Inter-American Court of Human Rights to create a new rule of
protection for persons who face a “risk of statelessness.” It will begin by
describing the history and evolution of the Dominican nationality debate. It
will then describe how the nationality debate in the Dominican Republic
led to a series of legal rulings by the Inter-American Court, the Dominican
Supreme Court of Justice, and the Dominican Constitutional Court that
have interpreted and applied the international law of statelessness in the
Dominican context. Finally, this section will present a detailed account of
the Inter-American Court’s statelessness analysis in Expelled Dominicans and
Haitians and will explain how its decision created a rule that requires a
grant of nationality in the country of birth for a child at risk of statelessness.
The last section of this Article will argue that the statelessness
determination should remain the threshold for protection under the
international law of statelessness, and will explain how a risk assessment
may appropriately be part of that determination. This section will first
analogize the “risk of statelessness” doctrine to the concept of de facto
statelessness, which is unprotected under the international law of
statelessness. It will then argue for a return to the statelessness
determination as the trigger for statelessness protection, and break down
the different considerations that must be part of a statelessness
determination process specifically tailored to the Dominican context.
Finally, the Article will argue that once the appropriate rule of protection is
reestablished, a standard of risk that will trigger a finding of statelessness is
necessary. It will conclude that a child who is more likely than not stateless
at birth should be considered a stateless person for purposes of
international protection and receive a mandatory grant of nationality in the
place of birth.
I. THE HUMAN RIGHT TO NATIONALITY AND STATELESSNESS PROTECTION
The international community took many important steps in its work to
restore global order after the Second World War. The United Nations
planted the seed that would grow into the human rights legal order with
the Universal Declaration of Human Rights, and consolidated regimes for
Electronic copy available at: https://ssrn.com/abstract=3111529
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