the State in whose territory he was born if he does not have the right to any other
nationality. 3. No one shall be arbitrarily deprived of his nationality or of the right to
change it.” The notable feature of this provision is that it refers to the obligation of the
country of a person’s birth to grant nationality.
In Europe, the European Convention on Nationality was adopted in 1997 and the
Council of Europe Convention on the Avoidance of Statelessness in Relation to State
Succession was adopted in 2006.67 The 1997 Convention incorporates the basic right of
nationality for all and prohibits arbitrary deprivation of nationality and change of
marital status automatically affecting the nationality of either spouse (Article 4). It
provides that states shall grant foundlings discovered on their territory the nationality of
the state if they would otherwise become stateless and children shall acquire the
nationality of the state of birth if s/he would otherwise become stateless (Article 6). It
also has a provision to prevent statelessness when one loses nationality (Article 7). The
2006 Convention deals with nationality in state succession. It provides for facilitation of
nationality procedures for those rendered stateless as a result of state succession, and
obligatory granting of nationality based on jus soli to prevent statelessness at birth.68
Nationality as a human right (acquisition and maintenance) is the basic principle for
preventing statelessness.69 On the other hand, improving the legal status of de facto
stateless persons who often lack legal resident status is an urgent need. De jure stateless
persons are in the same situation if they lack legal resident status. What is of importance
here is the principle of non-discrimination, which constructs the main pillar of
67
Yasuhiro Okuda and Shoko Iida, “Yoroppa kokuseki joyaku (European Nationality Conventions) “in
Okuda ed., Kokusaishihou
Kokusekihou
Kazokuhou Shiryousyu-gaikoku no rippo to joyaku
(International Private Law, Nationality Act and Family Law: Collected Materials on Foreign Legislations
and Treaties)(1997), pp.92-124; Mari Kawamura, Nanmin no Kokusaiteki Hogo (International Protection
of Refugees) 2003 pp.177-201; Kozue Niwa and Iku Kobata trans.,”Kokkashoukei ni kanrennsuru
mukokuseki no boushi ni kansuru yoroppahyougikaijouyaku oyobi setsumeihoukokusho (Council of
Europe Convention on the Avoidance of Statelessness in Relation to State Succession and its Explanatory
Report)”, Housei Ronsyuu (Nagaya University Law Journal), No.218 (2007), pp.267-83.
68
The ILC had attempted to codify the principles regarding the impact of state succession on nationality
issues as a response to the spate of state successions in Eastern Europe. Based on recommendations from
the ILC, the General Assembly adopted the 2000 Resolution on Nationality of Natural Persons in Relation
to the Succession of States. UN Doc.A/Res/55/153, 30 January 2001. This declaration addresses the
prevention of legal statelessness among nationals and habitual residents of predecessor states and children
born after the succession.
69
As ILC Special Rapporteur Hudson pointed out more than half a century ago, merely assigning a
nationality will not solve problems. “Purely formal solutions…. might reduce the number of stateless
persons but not the number of unprotected persons. They might lead to a shifting from statelessness de
jure to statelessness de facto.” Hudson, supra note 9, p.20. Attribution of an effective nationality, which
ensures protection by a state, is essential.
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