In other words, how a State exercizes its right to determine its citizens should conform to
the relevant provisions in international law. Throughout the 20th century, those provisions
gradually developed to favour human rights over claims of State sovereignty.
Article 15 of the 1948 Universal Declaration of Human Rights declares:
“Everyone has the right to a nationality. No one shall be arbitrarily deprived
of his nationality nor denied the right to change his nationality.”
This right is founded on the existence of a genuine and effective link between an individual
and a State. The first time this link was acknowledged as the basis of citizenship was
in a case decided by the International Court of Justice in 1955, the Nottebohm Case.
In that case, the Court stated that:
“According to the practice of States, to arbitral and judicial decisions and to
the opinion of writers, nationality is a legal bond having as its basis a social fact
of attachment, a genuine connection of existence, interest and sentiments,
together with the existence of reciprocal rights and duties.”
The genuine and effective link, made manifest by birth, residency, and/or descent, is now
reflected in the provisions of most States’ nationality legislation as well as in recent
international instruments relating to nationality, such as the 1997 European Convention on
Nationality.
Nationality is also defined by the Inter-American Court of Human Rights as
“the political and legal bond that links a person to a given State and binds
him to it with ties of loyalty and fidelity, entitling him to diplomatic protection
from that State” (Castillo-Petruzzi et al v. Peru, Judgment of May 1999,
IACHR [ser.C] No. 52 1999).
How are the rights of refugees and stateless persons protected?
Although Article 15 of the Universal Declaration of Human Rights asserts that every
person has the right to a nationality, it does not prescribe the specific nationality to
which a person is entitled. To ensure that individuals are not deprived of a minimum
set of rights associated with nationality, the international community developed two main
treaties: the 1951 Convention relating to the Status of Refugees and the 1954 Convention
relating to the Status of Stateless Persons.
Is there any link between the 1951 Convention relating
to the Status of Refugees and the issue of statelessness?
In the aftermath of World War II, one of the most pressing issues for the member States
of the newly created United Nations was how to address the needs of the millions of
individuals whom the war had left as refugees or had rendered stateless. A 1949 resolution
of the UN Economic and Social Council (ECOSOC) led to the appointment of an Ad
Hoc Committee whose task was to consider formulating a Convention on the status of
refugees and stateless persons and to consider proposals for eliminating statelessness.
9
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