nationality Laws that “It is for each State to determine under its own law who are its nationals”, and therefore that courts have no jurisdiction over the recognition or grant of nationality. However, Article 1 goes on to state that “This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality.” The “international conventions, customs, and principles of law” governing states’ obligations in relation to recognition or grant of nationality have greatly evolved since the adoption of the 1930 Convention. Article 15 of the Universal Declaration of Human Rights adopted in 1948 provides that “[E]veryone has a right to a nationality” and that “[N]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”108 The status of this article as customary international law has been accepted by the African Court on Human and Peoples’ Rights.109 The right to a nationality has been restated in many of the international and regional human rights treaties—perhaps most significantly including the Convention on the Rights of the Child, to which every country in the world except for the United States is a party (u section 7.2: The right of every child to acquire a nationality). In its 1984 advisory opinion on naturalisation provisions in Costa Rica, requested by the government of Costa Rica itself, the Inter-American Court of Human Rights stated that: [D]espite the fact that it is traditionally accepted that the conferral and regulation of nationality are matters for each state to decide, contemporary developments indicate that international law does impose certain limits on the broad powers enjoyed by the states in that area, and that the manners in which states regulate matters bearing on nationality cannot today be deemed within their sole jurisdiction; those powers of the state are also circumscribed by their obligations to ensure the full protection of human rights.110 Thirty years later, in the Yean and Bosico case, the Inter-American Court further developed this statement: Although the determination of who is a national of a particular state continues to fall within the ambit of state sovereignty, states’ discretion must be limited by international human rights that exist to protect individuals against arbitrary state actions. States are particularly limited in their discretion … by their obligations to guarantee equal protection before the law and to prevent, avoid, and reduce statelessness.111 This principle has been endorsed by the African Committee of Experts on the Rights and Welfare of the Child in cases against both Kenya and Sudan.112 One ambition of strategic litigation may be to ensure that these limits are recognised by the national authorities—as well as to contribute to the evolution of the norms. Most often in contention are the obligations of a particular state to ensure that the right to nationality is respected, by recognising or granting nationality to a person with a connection to that state. The relevance of international law in litigation before national courts is more obvious in those civil law countries following the “monist” tradition by which international treaties have direct effect once ratified in accordance with national law. It is also common for nationality codes in these countries to include a provision confirming that international laws treaties apply; most laws in Africa modelled on the French code of 1945 for example, include a statement that the provisions of treaties are applicable even if they are different from those in national law.113 Although it is still not common for international treaties to be directly invoked before the courts in these jurisdictions, these laws explicitly envisage that they will be. In the common law countries following the “dualist” tradition, by which international treaties only have domestic effect once enacted in national law, it may be more difficult to persuade a judge to accept arguments based on international law principles. Nonetheless, on matters such as the definition of stateless person, courts in common law jurisdictions have accepted the international definition set out in the Convention relating to the Status of Stateless Persons, and UNHCR’s guidance on interpreting this definition. In some countries where new constitutions have been adopted since independence, there may also be greater openings to use international law imaginatively before See discussion in Mirna Adjami and Julia Harrington, “The Scope and Content of Article 15 of the Universal Declaration of Human Rights”, Refugee Survey Quarterly Vol. 27, no. 3 (2008), pp. 93–109, https://doi.org/10.1093/rsq/hdn047. 108 Anudo Ochieng Anudo v. United Republic of Tanzania, Communication No. 012/2015, African Court on Human and Peoples’ Rights, 22 March 2018, https:// www.african-court.org/cpmt/details-case/0122015; see also Bronwen Manby, “Case Note: Anudo Ochieng Anudo v Tanzania” (Judgment), African Court on Human and Peoples’ Rights, App. No. 012/2015, 22 March 2018, Statelessness and Citizenship Review Vol. 1, no. 1 (2019), pp. 170–76. 109 Advisory Opinion on Amendments to the Naturalisation Provisions of the Constitution of Costa Rica, Inter-American Court of Human Rights, No. OC-4/84, Inter-American Court of Human Rights, 19 January 1984. 110 111 Case of the Girls Yean and Bosico, supra n 52. 112 Kenyan Nubian children’s case, supra n 35; ACJPS & PLACE (Benjamin) v. Sudan, supra n 42, para. 35. For example, according to article 6 of the Mauritanian nationality code (Loi No. 1961-112, as modified): « Les dispositions relatives à la nationalité contenues dans les traités ou accords internationaux dûment ratifiés et publiés s’appliquent, même si elles sont contraires aux dispositions de la législation interne mauritanienne. » (“The provisions relating to nationality contained in duly ratified and published international treaties and agreements are applied even if they are contrary to the provisions of Mauritanian national legislation”.) 113 42 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