2011] AN INTERNATIONAL LAW OF CITIZENSHIP 711 practice appears to have been significantly affected by these provisions.110 Thus, although statelessness had emerged as a target of international lawmaking efforts, the resulting regime was thin and did not substantially constrain state nationality practice.111 The Statelessness Convention also prohibited the deprivation of nationality on the grounds of race, ethnicity, and religious or political orientation, and required that deprivation for other causes be made contingent on having acquired nationality in another state.112 This provision was in line with the Universal Declaration’s aspiration that no one be arbitrarily deprived of nationality—itself conceived as a mechanism for addressing statelessness.113 The approach was meant, in particular, to address mass denationalizations of the sort undertaken by the Nazi regime against German Jews.114 Nevertheless, although some advocated an international norm against the arbitrary deprivation of nationality, its status remained contested.115 One leading commentator argued that, insofar as such denationalization did not affect the interests of other states, it could not be framed as inconsistent with international law.116 Even to the extent that some forms of denationalization were deemed inconsistent with international law,117 the norm did not, except in aberrant cases, significantly diminish state discretion to use nationality practice as a tool for shaping national identity. The norm would have constrained state capacity only to terminate nationality and would be applicable only when nationality had been extended in the first place. Because international law had nothing to say about the extension of nationality, the norm would come into play only in cases of attempted redefinition of national identity (for example, redefining German to exclude Jewish). Such uses of nationality practice are likely to be pathological in the sense that the redefinition does not comport with organic community on the ground, at least insofar as states retain complete discretion over the 110 See 1 Multilateral Treaties Deposited with the Secretary-General, ch. V.4, UN Doc. ST/LEG/SER.E/25 (2009), at http://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20V/V-4.en.pdf. 111 Nor did the post–World War II regime relating to refugees materially constrain citizenship practices. The 1951 Convention Relating to the Status of Refugees provides only that parties “shall as far as possible facilitate the assimilation and naturalization of refugees”—in particular, by minimizing naturalization fees. Convention Relating to the Status of Refugees, Art. 34, G.A. Res. 429(V) ( July 28, 1951). 112 Convention on the Reduction of Statelessness, supra note 109, Art. 9. 113 JOHANNES MORSINK, THE UNIVERSAL DECLARATION OF HUMAN RIGHTS: ORIGINS, DRAFTING AND INTENT 80 – 83 (1999); Pejic, supra note 98, at 312. 114 MORSINK, supra note 113, at 80. 115 See Hudson Report on Nationality, supra note 17, at 10 (“The extent to which mass denationalization is prohibited by international law is not clear.”) 116 See WEIS, supra note 13, at 128 (rule against denationalization, although “certainly. . . a sound and desirable rule for the future, find[s] no justification in the present state of international law. . . . as distinct from the conferment of nationality, withdrawal of nationality does not involve a direct infraction of the rights of other states”); see also VAN PANHUYS, supra note 70, at 163 (“it remains to be seen whether, from the point of view of positive international law, this type of denationalisation must be regarded as illegal and void”). 117 As arguably they came to be. See, e.g., Hailbronner, supra note 20, at 70 (“There is substantial authority for a general recognition of the principle of prohibition of arbitrary deprivation of nationality as a part of customary international law.”); European Convention on Nationality, Art. 4, Nov. 6, 1997, 37 ILM 44 (setting forth principle that “no one shall be arbitrarily deprived of his or her nationality”); id., Art. 7 (limiting grounds for loss of nationality); Committee on the Elimination of Racial Discrimination [hereinafter CERD], General Recommendation No. 30, Discrimination Against Non-citizens, para. 14, UN Doc. HRI/GEN/1/Rev.7/Add.1 (May 4, 2005) (recognizing “that deprivation of citizenship on the basis of race, colour, descent, or national or ethnic origin is a breach of States parties’ obligation to ensure non-discriminatory enjoyment of the right to nationality”); Open Society Justice Initiative, More Primitive Than Torture: Statelessness and Arbitrary Denial of Citizenship in Africa (2007), at http://www.citizenshiprightsinafrica.org/Publications/2007/MorePrimitivethanTorture.02.07.pdf (condemning discriminatory mass denationalizations in Africa as arbitrary denials of citizenship inconsistent with human rights). This content downloaded from 82.196.111.31 on Thu, 07 Oct 2021 15:20:30 UTC All use subject to https://about.jstor.org/terms