status and ultimate acquisition of nationality. In the case of individuals or groups not recognised as nationals of their state of birth and life-long residence—especially where there is a multigenerational connection to that country—then naming their situation as statelessness may create more political urgency for resolution of the problem, as well as engaging any legal protections that exist against statelessness in national law. The formal label of “stateless person” may also be the first stage towards protection of an individual not born in the country, including asylum-seekers and refugees; perhaps especially in case of failed asylum-seekers who cannot be deported. If the person does not have an arguable claim under national law to existing nationality of the state of residence, then recognition and registration as a stateless person is likely to be a necessary step on a pathway towards acquisition of nationality. An argument based on statelessness may also ensure recognition of the particular vulnerability of stateless persons (compared to other non-citizens). In other contexts, however, especially in national courts, it may be counterproductive to refer to a person or group denied nationality documents as “stateless”, since to do so may imply a confirmation of the official view that people with this profile are indeed not nationals. This is especially the case where many residents of the state concerned lack identity documents, including those whose nationality is not contested. It may be more helpful to describe those in this situation as “undocumented nationals”, of whom some are additionally “at risk of statelessness”. The solution, therefore, is for their nationality to be confirmed and documents issued accordingly. (u section 2.1: Statelessness and u section 7.1: The definition of stateless person and the determination that a person is stateless). The right to a nationality One challenge in using the international legal framework on statelessness is the requirement to prove a negative, that a person does not have a nationality elsewhere. The provisions of international human rights law on the right to a nationality, especially for children, allow for a more positive framing, focused on the arbitrariness of refusing nationality to a person whose strongest connection is to the country of birth and/or long term residence, even if there may be some theoretical possibility of acquiring recognition of nationality in another country. The argument that recognition of nationality reflects a social reality that a person is “more closely connected with the population of the State conferring nationality than with that of any other State” elaborated in the decision of the International Court of Justice in the Nottebohm case (u section 2.2), and used there to justify non-recognition of a state’s right to exercise diplomatic protection on behalf of an individual, has increasingly been applied in a broader, positive sense, to establish the right to a nationality even in the absence of proof of statelessness. There may be scope to explore such propositional arguments especially in the context of multigenerational statelessness, inherited from parent to child. u section 7.2, u section 7.5 and u section 7.6) Arbitrary deprivation of nationality and the right to due process In the most egregious cases of nonrecognition of nationality, where people who were previously documented as nationals have had that recognition withdrawn, the appropriate framing of litigation is most likely to be about arbitrary deprivation of nationality and the lack of respect for norms of due process and a fair hearing. This may be the best approach in cases of deprivation of nationality on grounds of national security; but is even more likely to be the best framing if the formal deprivation provisions in the nationality law were not invoked, but documents were simply cancelled or not renewed. Examples of retroactive denial of nationality of this type, that amounts to arbitrary deprivation, include many of the Rohingya of Myanmar and Dominicans of Haitian descent in the Dominican Republic. There are less widely reported smaller groups and individual cases scattered all over the world. In many—perhaps most—such cases, denial of nationality is based on discriminatory laws or practice. (u section 7.5.) Discrimination based on sex Equal nationality rights are central to an idea of equal citizenship, more broadly conceived. In those states where nationality law—or procedures for civil registration—discriminate on the basis of sex of a parent or spouse, litigation may be a powerful tool to argue for gender equality, especially if this is supported by a constitutional bill of rights. Depending on national context, it may be easier to make a general discrimination argument than one based on statelessness and the right to nationality. This is perhaps especially true where women cannot transmit nationality to their children, leaving children of foreign, stateless or absent fathers vulnerable to statelessness; or where women, elderly or disabled people are disproportionately likely not to have access to identity documents. There is often more case law at the national level on which to base such an argument. Even before courts that do not have strong constitutional jurisprudence, litigation framed in terms of gender equality can create a focus for media attention and public support. UN treaty bodies have strongly endorsed gender equality in nationality rights. (u section 7.3.) U N H C R | L I T I G AT I N G T H E R I G H T T O A N AT I O N A L I T Y: A G U I D E F O R P R AC T I T I O N E R S 37