2022 Statelessness & Citizenship Review 4(1) in certain circumstances, stateless children born outside their parent(s) country of nationality or former habitual residence have a latent habitual residence (as informed by child-specific indicia) that activates in the forward-looking refugee status inquiry through their hypothesised presence with their parent(s) in the designated country.20 II HISTORICAL OVERVIEW OF A ‘COUNTRY OF FORMER HABITUAL RESIDENCE’: THE INVISIBILITY OF CHILDREN IN THE DRAFTING OF THE REFUGEE DEFINITION It is first necessary to conceive of the historical trajectory of the notion of a country of former habitual residence, to inform the lacuna in understanding from the perspective of stateless children born in a country of refuge. The concept of ‘habitual residence’ was not novel at the time of crafting the refugee definition, as it had been in use as an international legal term from as early as the late 19th century, notably first depicted in the 1896 Hague Convention on Civil Procedure.21 Whilst not lending itself to precise definition, broadly speaking, the notion was used as a special term by states in national and international discourse, legislation and binding treaties to reflect an individual’s residence, with less strict indicia than traditional common law notions of domicile. 22 There has long been an understanding in international law that habitual residence in a country territory gives rise to a bond between a stateless individual and a state, approximating in critical respects the relationship between a national and a state.23 That the right to ‘enter one’s own country’, espoused in art 12 of the International Covenant on Civil and Political Rights (‘ICCPR’),24 is not limited to nationals and embraces individuals with ‘special ties’ to a country, has been interpreted and consolidated by the UN Human Rights Committee,25 the General Assembly26 and the International Law Commission. 27 States have obligations to afford civil and political protections and respect socio-economic rights, 20 21 22 23 24 25 26 27 As discerned by John Tobin and Florence Seow, the meaning of ‘parents’, in light of contemporary family contexts, ‘must not be confined to the dualist and heteronormative conception of parents that involves one mother and one father’ and may extend to ‘all those persons who play a gestational, biological, and/or social role in the creation and care of a child’: ‘Article 7: The Rights to Birth Registration, a Name, Nationality, and to Know and to Be Cared for by Parents’ in John Tobin (ed), The UN Convention on the Rights of the Child: A Commentary (Oxford University Press 2019) 237, 241. However, in the context of the question posited, the meaning of parent will naturally be tempered by the nature of the harm that concerns the discriminatory denial of a nationality. Here, there must be capability for the child to inherit from such parent(s) a nationality (by operation of the nationality principle of jus sanguinis) but for the effect of discrimination. See, eg, Hague Convention on Civil Procedure, opened for signature 14 November 1896, 88 British & Foreign State Papers 555 (entered into force 27 April 1899) art 32. See, eg, Whicker v Hume (1858) 7 HL Cas 124, 159–60, 164. James C Hathaway, and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2nd edn, 2014) 66–67. International Covenant on Civil and Political Rights, opened for signature 16 December 1996, 999 UNTS 171 (entered into force 23 March 1976). UNHRC, General Comment No 27: Freedom of Movement, UN Doc CCPR/C/21/Rev.1/Add.9 (2 November 1999) 5 [20]; Nystrom v Australia, Communication No 1557/2007, UN Doc CCPR/C/102/1557/2007 (18 July 2011) 18 [7.5]. International Law Commission, Nationality of Natural Persons in Relation to the Succession of States, UN Doc A/RES/55/153 (30 January 2001) annex art 14. International Law Commission, Report of the International Law Commission on the Work of Its Fifty-Fourth Session, UN Doc A/57/10 (29 April–7 June and 22 July–16 August 2002) 168. 12