individual), 16 by which a State guarantees and protects certain rights to individuals,
generally including, the right to leave and re-enter one’s own country, the right to
permanent residence, freedom of movement within the State, the right to vote, to be elected
or nominated to public office, the right of access to public services, and the right to
diplomatic protection.17 Whether this legal bond remains regulated entirely by the ‘genuine
link’ theory or through an open and flexible approach more in tune with today nationality’s
diverse functions falls outside the scope of this paper. 18 However, this paper essentially
agrees that ‘Nationality does not stand apart from citizenship’,19 and that nationality is and
continues to be an evolving concept:
Nationality has no positive, immutable meaning. On the contrary its meaning and
import have changed with the changing character of states … It may acquire a new
meaning in the future as the result of further changes in the character of human society,
and developments in international organization. Nationality always connotes, however,
membership of some kind in the society of a state or nation.20
2 THE FUNDAMENTAL RIGHT TO A NATIONALITY
Traditionally, considerations of nationality (and statelessness) fell within the reserved
domain of States. 21 The 1930 Hague Convention on Certain Questions Relating to the
Conflict of Nationality Laws provides:
It is for each State to determine under its own law who are its nationals. This law
shall be recognized by other States in so far as it is consistent with international
conventions, international custom and the principles of law generally recognized
with regard to nationality.22
This is the meaning of ‘nationality’ in article 2(a) of the 1997 European Convention on Nationality (Council of
Europe, ETS no 166), in international law more generally, and in the practice of some States; other States use
‘citizenship’ when referring to this legal bond. See Carol A Batchelor, ‘Statelessness and the Problem of Resolving
Nationality Status’ (1998) 10 International Journal of Refugee Law 156-182.
17 UNHCR Handbook on Protection of Stateless Persons, paras.52-56.
18 For an excellent discussion on this, see Robert D. Sloane, ‘Breaking the Genuine Link: The Contemporary
International Legal Regulation of Nationality’, 50 Harvard International Law Journal 2009, 1-60.
19 Alison Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law (Oxford University Press
2012) at 65.
20 Manley O. Hudson and Richard W. Flournoy Jr., ‘Nationality – responsibility of states – territorial waters,
drafts of conventions prepared in anticipation of the First Conference on the Codification of International Law,
The Hague 1930’, 23 American Journal of International Law (1929) supplement, p.21.
21 The same may be said of considerations of ‘property’ or indeed ‘asylum’, which until their mention in the
Universal Declaration of Human Rights of 1948 were part of State’s sovereignty. Chaloka Beyani, ‘The Right to
Seek and Obtain Asylum under the African Human Rights System’, Tall at the 4 th International Refugee Law
Seminar Series, Refugee Law Initiative, London, 16 October 2013.
22 Article 1, League of Nations Treaty Series vol.179, p.89.
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