Rising Statelessness Due to Disappearing Island States Statelessness (‘The Final Act of the 1961 Convention’), which provides that ‘persons who are stateless de facto should as far as possible be treated as stateless de jure to enable them to acquire effective nationality’. 32 Thus, it is at state discretion to follow the recommendations made by the Final Acts to the Conventions on Statelessness. 33 Nonetheless, Part V will show the practical importance of closing this gap in legal protection in the example of disappearing island states. For the purposes of this article it is, however, first necessary to explore the relevance of having a nationality in general. Subsequently it will be argued that nationality is essential for the effective enjoyment of human rights. III THE IMPORTANCE OF HAVING A NATIONALITY Statelessness and nationality are necessarily interlinked, as statelessness results from the fact that a person does not have the nationality of any state. However, not having a nationality has many detrimental consequences. The International Court of Justice (‘ICJ’) prominently held in its Nottebohm Case (Liechtenstien v Guatemala) (‘Nottebohm Case’) that nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. 34 Accordingly, states grant a range of rights only to their nationals. 35 Most importantly, these guarantees include political participation rights such as the right to vote, rights to residence and free movement, consular assistance, or social benefits such as health care, social assistance or family benefits. 36 Frequently, the right to education and employment is also linked to the nationality of a person, thus often driving stateless people into poverty. 37 Rights are usually limited to nationals, as such, the right to nationality has been frequently called ‘the right to have rights’. 38 This applies both domestically as well as internationally: without nationality, persons will not enjoy certain fundamental rights under domestic constitutional law; likewise the enforcement of human rights on the international 32 33 34 35 36 37 38 Final Act of the United Nations Conference on the Elimination or Reduction of Future Statelessness, opened for signature 4 December 1954, 989 UNTS 250 (entered into force 30 August 1961) 279 (‘Final Act of the 1961 Convention’); See also McAdam, Climate Change, Forced Migration (n 29) 141. See also van Waas, Nationality and Statelessness (n 15) 81: ‘it remains to be seen whether states are willing to go beyond their present obligations and nevertheless extend international protection’. See also Final Act of the 1954 Convention (n 29); Final Act of the 1961 Convention (n 32); 1954 Convention (n 3); 1961 Convention (n 3). Nottebohm Case (Liechtenstein v Guatemala) (Second Phase) (Judgment) [1955] ICJ Rep 4, 23 (‘Nottebohm Case’). See, eg, Staatsgrundgesetz über die allgemeinen Rechte der Staatsbürger 1867 [Basic Law on the General Rights of Citizens 1867] (Austria) arts 2, 3, 6, 12; Grundgesetz für die Bundesrepublik Deutschland 1949 [Basic Law for the Federal Republic of Germany] (Germany) arts 8, 9, 11, which only offer protection to citizens. Katja Swider, ‘Why End statelessness’ in Tendayi Bloom, Katherine Tonkiss and Phillip Cole (eds), Understanding Statelessness (Routlege 2017) 191, 192; Edwards (n 16) 12. See also Kristy A Belton, ‘Statelessness and Economic and Social Rights’ in Lanse Minkler (ed), The State of Economic and Social Human Rights (Cambridge University Press 2013) 221. Cf Katja Göcke, ‘Stateless Persons’ in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (Oxford University Press, 2012) vol 9, 551[3]. This phrase stems from philosopher and writer Hannah Arendt, who was stripped of her nationality by Nazi Germany. Weissbrodt and Collins (n 8) 248. 47