THE RISK OF STATELESSNESS
78
YALE HUMAN RIGHTS & DEVELOPMENT L.J.
2017
[Vol. 19
she does not have a right to any other nationality.
When understood in these terms, the decision of the Inter-American
Court in Expelled Dominicans and Haitians expands statelessness protection
through a mandatory grant of nationality in the place of birth to persons
who face a “risk of statelessness.” Indeed, the Inter-American Court did not
find that the Jeans were stateless, but rather that under a possible
interpretation of Haitian law, they faced a risk of statelessness. By requiring
the Dominican Republic to extend Dominican nationality whenever it had
not adequately addressed such a risk, the Court effectively extended
statelessness protection to persons that had not been declared stateless.
The decision of the Inter-American Court to expand the right to
nationality in the place of birth under the American Convention to persons
who face a risk of statelessness is a notable normative development. The
next section provides a critique of this rule, arguing that it unnecessarily
extended a well-established rule of protection, and that policy implications
of this extension may cause the Court’s well-intentioned progressive
development of norms to backfire.
III. CONSIDERING RISK WITHIN THE STATELESSNESS DETERMINATION PROCESS
When the Inter-American Court extended protection under the
international law of statelessness to persons who face a risk of statelessness,
it expanded the scope of a well-established rule limited to the protection of
stateless persons.220 Gerald L. Neuman has criticized the Inter-American
Court for “undervalu[ing] the consent of the relevant community of states
as a factor in the interpretation of a human rights treaty” when it utilizes
international human rights norms to interpret the American Convention.221
Neuman has suggested that this “neglect” both distorts human rights
norms and potentially undermines the effectiveness of the regional human
rights system.222 Neuman’s critique can be applied to the Inter-American
Court’s interpretation of international obligations under the law of
statelessness in Expelled Dominicans and Haitians. Arguably, the InterAmerican Court’s decision distorts norms of statelessness protection, and
potentially undermines the effectiveness of the Inter-American system in its
effort to combat statelessness. These deleterious consequences can be
avoided by the Inter-American Court and other international authorities if
they remain anchored to the well-established rule of protection for stateless
persons, while incorporating a risk assessment into the determination of
statelessness.
The first sub-section below describes the exact nature of the normative
distortion in Expelled Dominicans and Haitians, and provides the reasoned
solution of including a risk assessment as part of a statelessness
220. See supra Section II.C.
221. Gerald L. Neuman, Import, Export, and Regional Consent in the Inter-American Court of
Human Rights, 19 EUR. J. INT’L L. 101, 102 (2008).
222. Id.
Electronic copy available at: https://ssrn.com/abstract=3111529
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