Chapter 1. Introduction
a state and an expression of membership of a state, which was the only way through
which an individual could benefit from international law61, through diplomatic
protection for instance. This has changed with the growth of the international human
rights framework after World War II, through which individuals can now claim
their rights and nationality being proclaimed as a human right.62 This implies that
individuals should be able to claim the right to a nationality, but at the same time the
question remains to which nationality an individual has a right. Also, states remain the
important actors: they decide who is granted nationality and who is not. In determining
who is a citizen, a one-sidedness still exists and the notion of reciprocity is not yet
commonplace in this regard. It is no accident that nationality law has been called “the
last bastion in the citadel of sovereignty”.63 As such, there is a clear dichotomy between
the conception of nationality and a right thereto in (international) law.
It was already noted that the lack of a nationality could have serious consequences
for stateless people due to problems with accessing basic rights. Indeed, it has often been
held that the right to a nationality is the right to have rights64 – nationality and the right
thereto provide the gateway to the enjoyment of other (human) rights. This would seem
to mean that having a nationality comes with a set of rights. There is no legal document at
universal or European regional level that lists the rights that are associated with a status as
a national. Nonetheless, Alice Edwards, drawing on international (human rights) norms,
has indicated a number of rights that are generally connected to holding a nationality:
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“the right to leave one’s ‘own country’ and to re-enter and reside permanently in the
territory of the state of one’s nationality;
the right to consular assistance (…);
the right to vote and participate in public life (…)65;
rights to economic, social and cultural advancement.”66
These are rights that a state should provide to its citizens. Still, in the event that the state
is unable or unwilling to take action and ensure these rights for its nationals, the legal
status of citizen is not altered; one remains a national. Conversely, a citizen does not
only have certain rights, (s)he also has duties, such as paying taxes, military service or
another form of participation in the community.
61
62
63
64
65
66
L Oppenheim, International Law. A Treatise (Vol 1: Peace; Longmans, Green and Co. 1905) 344–346;
WR Bisschop, ‘Nationality in International Law’ (1943) 37 American Journal of International Law 320,
321.
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR)
Art 15.
Peter Spiro, ‘A New International Law of Citizenship’ (2011) 105 The American Journal of International
Law 694, 746.
Eg Chief Justice Earl Warren in Trop v Dulles 356 US 86 (1958).
Including the right to be elected.
Alice Edwards, ‘The Meaning of Nationality in International Law in an Era of Human Rights:
Procedural and Substantive Aspects’ in Alice Edwards & Laura van Waas (eds), Nationality and
Statelessness under International Law (Cambridge University Press 2014) 40.
Intersentia
19
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