as the substantive provisions of the nationality code itself.126 This guidance that the determination of a person’s statelessness must involve an assessment of the broader legal and policy environment of another State has gained traction in national courts: for example, in Hungary,127 Italy128 and the UK.129 The trends noted in section 2.1 in both national and international courts to expand the obligation on States to prevent and reduce statelessness have in part been enabled by this movement away from narrow legalism in determining if a person is in fact stateless (albeit with the partial exception of national security cases, noted in section 2.2). A central argument has been that it is impermissible for a State to insist that a person is neither its national nor stateless because of a theoretical right—typically inferred on the basis of ethnic identity—to the nationality of another State where the person has never lived and has no meaningful connection.130 2.5. The challenge to racial discrimination and the nature of genuine connections Underlying every discussion about the limits to State discretion in establishing nationality laws is a discussion about permissible discrimination based on race, ethnicity or religion; about the nature of the ‘nation’ that is the basis of the State. Express provisions in national law that restrict the grant of nationality at birth on such grounds are very rare;131 preferential access to naturalisation is more common, but still only found in a minority of States.132 Nonetheless, the dominant principle among States in attributing nationality to children is the nationality of a parent.133 If access to naturalisation is limited (which is commonly the case), the impact of even neutral descent-based rules is likely to be indirectly discriminatory. Increasing legal equality between men and women in transmission of nationality to children potentially reduces this impact; especially if dual nationality is permitted, as is increasingly the norm.134 In practice, procedural obstacles often limit the effect of substantive reforms to the nationality code. As Jain points out, discrimination is pervasive in nationality administration and a major cause of statelessness.135 International law is at first sight clear that such discrimination is not allowed: the prohibition of racial discrimination was included in the list of jus cogens or peremptory norms proposed by the International Law Commission (ILC) in 2022.136 That the non-discrimination 126 Explored further in B Manby, ‘“Legal Identity for All” and Statelessness: Opportunity and Threat at the Junction of Public and Private International Law’ (2020) 2 Statelessness & Citizenship Review 248; L van Der Baaren, ‘Bridging the Citizenship Law Implementation Gap: A Typology for Comparative Analysis’ (2024) 12 Comparative Migration Studies 3. 127 Gyulai (n 118). 128 Marinai (n 118). 129 AS (Guinea) v Secretary of State for the Home Department [2018] EWCA Civ 2234, para 46 (Court of Appeal of England and Wales). 130 D Owen, ‘On the Right to Have Nationality Rights: Statelessness, Citizenship and Human Rights’ (2018) 65 NILR 299. 131 Only Brunei, Liberia, Sierra Leone, and Uganda. See GLOBALCIT Citizenship Law Dataset (n 65) mode of acquisition A01a. 132 The GLOBALCIT dataset lists 51 countries with some version of a ‘cultural affinity’ provision in law: ibid mode of acquisition A19. 133 I Honohan and N Rougier, ‘Global Birthright Citizenship Laws: How Inclusive?’ (2018) 65 NILR 337; I Honohan et al, ‘Global Birthright Indicators’ (European University Institute, 2020); GLOBALCIT Citizenship Law Dataset (n 65). 134 P Spiro, At Home in Two Countries: The Past and Future of Dual Citizenship (NYU Press 2016). 135 Jain (n 5); see also UNHCR, ‘Background Note on Discrimination in Nationality Laws and Statelessness’ (UNHCR 2021) (this report has some errors in its listing of countries with discriminatory provisions.). 136 ILC, ‘Draft Conclusions on Identification and Legal Consequences of Peremptory Norms of General International Law (Jus Cogens)’ in UNYBILC, vol II Part Two (2022).