This would be the case, for example, of nationals of a country who
have there been stripped of their nationality in violation of
international law, and of individuals whose country of nationality has
been incorporated in or transferred to another national entity, whose
nationality is being denied them.
ILC Draft Articles on the Expulsion of Aliens, Art. 8: “A State shall not
make its national an alien by deprivation of nationality for the sole
purpose of expelling him or her .
142. In addition to the international (human rights) law standards mentioned above, the principle on
the right to enter and remain in one’s own country also clearly reflects other international and
regional laws including Article 5(d)(iii) CERD, Article 10(2) CRC, Article 8(2) CMW, Article 18(1)(c)
CRPD, Article 3 of Protocol 4 ECHR, Article 22(5) ACHR, Article 8 of the American Declaration on
the Rights and Duties of Man, Article 27(2) of the Arab Charter on Human Rights, Article 12(2)
ACHPR, and HRC General Comment No. 27, para. 19.
143. A reciprocal duty to admit nationals exists between States, meaning also that States should not
expel nationals. Authoritative guidance on the definition of ‘expulsion’ is provided by the
International Law Commission in its Draft Articles on the Expulsion of Aliens, holding that it means
“a formal act or conduct attributable to a State by which an alien is compelled to leave the
territory of that State. 240 The prohibition of States to expel nationals is “a firmly established rule
of international law. 241 This duty is derivative from the obligation to admit nationals who have
been expelled from a third country,242 which, in turn, derives from the right of States under
international law to expel aliens.
“The expulsion of nationals forces other States to admit aliens, but, according to the accepted
principles of international law, the admission of aliens is in the discretion of each State. […] It
follows that the expulsion of a national may only be carried out with the consent of the State
to whose territory he is to be expelled, and that the State of nationality is under a duty
towards other States to receive its nationals back on its territory.”243
144. Depriving a national of their nationality, thus making the national an alien, for the purpose of
expelling them, is not legitimate.244 This is explicitly affirmed in Article 8 of the Draft Articles on
the Expulsion of Aliens, adopted by the International Law Commission in 2014, which provides
240
Art. 2(a) ILC, Draft Articles on the Expulsion of Aliens (2014).
L. Sohn and T. Buergenthal, ‘The Movement of Persons Across Borders’ ASIL Studies in Transnational Legal Policy No.
, p. .
242 Article 6 of the Inter-American Convention on the Status of Aliens (adopted 20 February 1928, entered into force 3 September 1929) 46 Stat.
2753: Treaty Series 8 , provides that “States are required to receive their nationals expelled from foreign soil who seek to enter their
territory. Available at: https://www.loc.gov/law/help/us-treaties/bevans/m-ust000002-0710.pdf.
243
P. Weis, Nationality and Statelessness in International Law (Sijthoff & Noordhoff 1979, 2nd ed), p. 45-46.
244
This is widely recognised in early international law scholarship and in discussions at the 1930 League of Nations Hague Conference, as set out
in Guy Goodwin-Gill, ‘Deprivation of Citizenship, Statelessness, and International Law’ May
. He cites, among others, Lauterpacht’s
work from
which sets out that “The indiscriminate exercise by a State of the right of denationalizing its subjects, when coupled with the
refusal to receive them when deported from a foreign country, constitutes an abuse of rights which could hardly be countenanced by an
international tribunal . H. Lauterpacht, The Function of Law in the International Community Oxford University Press
; repr’d
,
as
cited in G. Goodwin-Gill, ‘Deprivation of Citizenship, Statelessness, and International Law’ May
p. .
241
71
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