The Shifting Parameters of Nationality
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nationality.151 The international law rules that are thus developing further limit state
sovereignty regarding the acquisition and deprivation of nationality. Nevertheless, as
the following overview will reveal, ample state discretion remains.
The Universal Declaration on Human Rights already enshrined a right to a nationality (for everyone), and prohibits the arbitrary deprivation of nationality. Since then
the right to a nationality features in various international conventions, including the
International Covenant on Civil and Political Rights (1966, ICCPR), the Convention
on the Rights of the Child (1989, CRC), the International Convention on the Elimination of Racial Discrimination (1969, CERD) and the Convention on the Elimination of All Forms of Discrimination against Women (1979, CEDAW), the latter two
conventions confirming the central importance of the prohibition of discrimination
in this respect. It should be highlighted though that these general recognitions of
everyone’s right to nationality does not identify on what state the responsibility lies
to grant its nationality. The 1961 UN Convention on the Reduction of Statelessness
and the 1997 European Convention on Nationality152 do specify that children are to
acquire the nationality of the country in which they are born if they do not acquire
any other nationality.153 Furthermore, the latter Convention adds more generally as
one of its overarching principles that ‘the rules on nationality of each State Party
shall be based on the following principles: everyone has the right to a nationality.’154
While this is difficult to translate in concrete benchmarks, it has an undeniable signaling function. The 1997 European Convention on Nationality also gives pride of
place to the prohibition of discrimination in relation to nationality questions where it
stipulates that states must avoid all discrimination on grounds of sex, religion, race,
colour, national or ethnic origin.155
Given the importance of nationality as anchor point for the effective enjoyment
and protection of one’s rights, the right to a nationality encompasses a right to retain
one’s nationality. Consequently, it has been long understood that international law
limits states’ sovereign power to deprive persons of their nationality.156 The prohibition of arbitrary deprivation of nationality already featured in the Universal Declaration on Human Rights,157 and has been further regulated in the UN 1961 Convention and the 1997 European Convention. Both conventions strictly circumscribe the
situations in which states are allowed to deprive persons of their nationality. While
these limitations on state sovereignty may be welcomed, it should be highlighted
151
These two strategies are interrelated since the right to a nationality implies the right of each individual to acquire, change and retain a nationality: see https://www.ohchr.org/EN/Issues/Pages/Nationalit
y.aspx (accessed 11 October 2018).
152
The 2006 Council of Europe Convention on the avoidance of statelessness in relation to state succession has so far only been ratified by 3 states.
153
Arts. 1(4) and 2 of the Convention on the Reduction of Statelessness (1961); and Art. 6(2) of the
European Convention on Nationality (1971).
154
Art. 4.
155
Art. 5(1).
156
Gibney (2017), pp. 359–360. See also Eritrea Ethiopia Claims Commission—Partial Award: Civilian
Claims—Eritrea’s Claims 15, 11, 23 and 27–32 (2004) Reports of International Arbitral Awards No. 16,
pp. 195–247.
157
Art. 15(2).
123