2019 Statelessness & Citizenship Review 1(1) level is severely curtailed. 39 As a result, the sovereign right of states to grant citizenship comes into tension with the rights of individuals. While stateless persons might not enjoy fundamental rights granted under a state’s constitution because they lack citizenship, they may still enjoy human rights under international law. Since 1945, international law has increasingly granted rights to individuals — most importantly human rights — also heightening the importance of nationality on the international level. 40 Accordingly, international human rights treaties — such as the International Covenant on Civil and Political Rights (‘ICCPR’) — generally oblige a state to protect persons who find themselves on its territory or jurisdiction. 41 Stateless persons might therefore fall under the protection of such human rights treaties, if the pertinent violation occurs in the state’s territory or under its jurisdiction. 42 In that case, a state is under the obligation to protect the rights of stateless persons. However, the enforcement of such human rights obligations via states proves to be the actual obstacle to the enjoyment of human rights. The difficulties pertaining to enforcement will be illustrated below. The enforcement of human rights on the international level is generally entrusted to the home state, which might exercise diplomatic protection on behalf of its nationals against violations of their rights by other states. 43 This traditional concept of diplomatic protection is also espoused by the International Law Commission (‘ILC’) in its Articles on Diplomatic Protection and consequently requires the bond of nationality between the protecting state and the person. 44 However, the ILC Articles on Diplomatic Protection also provide exceptions regarding refugees and stateless persons. According to art 8(1) of the ILC Articles on Diplomatic Protection ‘[a] State may exercise diplomatic protection in respect of a stateless person who, at the date of injury and at the date of the official presentation of the claim, is lawfully and habitually resident in that State’. 45 While the efforts to propose new rules for stateless people de lege ferenda are laudable, the ILC itself noted that art 8 is still ‘an exercise in progressive development of the law’ 46 and thus cannot be considered to reflect customary international law. 47 Consequently, international law does not yet foresee the possibility for states to exercise diplomatic protection on behalf of stateless persons. 39 40 41 42 43 44 45 46 47 See also Belton (n 36) 223. The protection of international human rights has drastically increased post-Second World War. See also Edwards (n 16) 24. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered in force 23 March 1976) art 2(1) (‘ICCPR’). Cf Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (Advisory Opinion) [2004] ICJ Rep 136, [107–11]; Human Rights Committee, Views: Communication No 52/1979, 13th sess, UN Doc CCPR/C/13/D/52/1979 (29 July 1981) [12.1]. ILC Articles on Diplomatic Protection UN Doc A/61/10 (n 16) 24. See also Ahmadou Sadio Diallo (Guinea v DRC) (Preliminary Objections) [2007] ICJ Rep 582, 599 [39], where the International Court of Justice emphasised the customary nature of the ILC Articles on Diplomatic Protection art 1. See also Panevezys-Saldutiskis Railway (Judgment) [1939] PCIJ (ser A/B) No. 76, 16, with reference to the requirement of ‘the bond of nationality between the State and the individual which alone confers upon the State the right of diplomatic protection’. ILC Articles on Diplomatic Protection UN Doc A/61/10 (n 16) 47. ibid 48. ibid. The ILC also cited the case of R (Al Rawi and Others) v Secretary of State for Foreign Affairs and Another [2006] EWHC 972, in which the England and Wales Court of Appeal held that art 8 is ‘not yet part of international law’. 48