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STATELESSNESS AS RHETORIC
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conditions of harm and from intrusions on individual liberties. 359 International
law's concept of an obligation to protect is part of a broader trend that seeks to
suppress human rights abuses by reference to associated international responsibility. 360
International law also provides the right to nationality with a dynamic meaning that can inform an analysis of the more ambiguous, intractable concept of
statelessness. Since the adoption of the UDHR in 1948, States have elaborated on
the concept of the right to nationality. Previously, the question of nationality was
completely within the domaine réservé of States. 361 However, in the Nottebohm
Case, which the ICJ decided in 1955 (about a year after the Statelessness Convention), the court viewed nationality as a juridical expression of a social fact that
connects the individual to a State, and that such a link should be genuine and
effective. 362 Nottebohm transferred the genuine connection principle belonging
to the discourse of dual nationality to the field of diplomatic protection, and thereafter, to the field of rights protection. 363
Nationality, as I have argued elsewhere, is therefore no longer regarded as
entirely within the domaine réservé of States. 364 Various instruments after the
1954 Statelessness Convention incorporated the right to nationality in adopted
treaty texts to strengthen State obligations. 365 For example, Article 24(3) of the
International Covenant on Civil and Political Rights (ICCPR) states that every
child has the right to acquire a nationality. 366 From childhood, all of us thus have
the right to nationality. The Human Rights Committee declares that the enjoyment
of the rights in the ICCPR is "not limited to citizens of States Parties but must also
be available to all individuals, regardless of nationality or statelessness." 367 This
359. See, e.g., THOMAS HOBBES, LEVIATHAN 153 (Richard Tuck ed.) (1991); JOHN LOCKE,
SECOND TREATISE ON CIVIL GOVERNMENT §§ 7–13, at 123–30 (3rd ed., 1988); ROBERT NOZICK,
ANARCHY, STATE, AND UTOPIA 25 (1974).
360. See Monica Hakimi, State Bystander Responsibility, 21 EUR. J. INT'L L. 341, 341 (2010).
361. See Nationality Decrees Case, supra note 114, ¶ 38.
362. See Nottebohm Case, supra note 114, at 23.
363. Albrecht Randelzhofer, Nationality, in ENCYCLOPEDIA OF PUBLIC INTERNATIONAL LAW
502 (1997). Cf. International Law Commission, Draft Articles on Diplomatic Protection with commentaries, U.N. Doc. A/61/10, at 33 (2006).
364. Francis Tom Temprosa, Statelessness in Philippine Law: Expanding Horizons of the International Stateless Person Protection Regime, 58 ATENEO L. J. 29 (2013).
365. See, e.g., Article 24 of the ICCPR; Article 18 of the Convention of the Rights of Persons
with Disabilities; Article 25 of the International Convention for the Protection of All Persons from
Enforced Disappearance; Article 29 of the International Convention on the Protection of the Rights of
All Migrant Workers and Members of Their Families; Articles 7 and 8 of the Convention on the Rights
of the Child; and Article 5 of the International Convention on the Elimination of All Forms of Racial
Discrimination.
366. International Covenant on Civil and Political Rights art. 24(3), Dec. 19, 1966, 999 U.N.T.S.
171.
367. U.N. Human Rights Committee, General Comment No. 31 Article 10, 2187th Session of the
Human Rights Committee, CCPR/C/21/Rev.1/Add. 1326 (Mar. 29, 2004).