Worster
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right to change his nationality.’42 Also, in interpreting the right to leave and return to one’s own country, the
Human Rights Committee concluded that some aliens must be permitted to enter a state when they have
been unlawfully deprived of their nationality in that state.43 Although the state may have effectively denied
their nationality, it cannot make them aliens unlawfully or deny their special connection to their home
country.44 In fact, the right against unlawful deprivation of nationality is understood to also include the right
to acquire a nationality when there are sufficient connections between the child and the state.45 Therefore
the right to a nationality includes the right to acquire a nationality in certain situations.
Whether the refusal of nationality is arbitrary is tested both procedurally46 and substantively.47 Certainly
when a state acts without legal provision or refuses to comply with its own laws, then the state has acted
arbitrarily in a procedural sense.48 However, the state can also act arbitrarily in a substantive sense by applying
measures that are gravely unreasonable.49 A clear example of an unreasonable measure would be nationality
laws that discriminate on the basis of race, gender, disability, or other protected ground.50 Unreasonable
measures could also include nationality laws that violate legal predictability51 or proportionality.52 Following
from these requirements, the prohibition on arbitrary refusal of nationality is understood to include acts
that create situations of statelessness.53
42
43
44
45
46
47
48
49
50
51
52
53
See UDHR, art 13 (providing that “1) Everyone has the right to freedom of movement and residence within the borders of each
state; 2) Everyone has the right to leave any country, including his own, and to return to his country”).
See UN Human Rights Committee, ‘CCPR General Comment No. 27: Article 12 (Freedom of Movement)’ (2 November 1999) UN Doc
CCPR/C/21/Rev.1/Add.9.
See id.
See UN Human Rights Council, ‘Arbitrary deprivation of nationality: report of the Secretary-General’ (26 January 2009) UN Doc A/
HRC/10/34, para 60 (“In the context of the avoidance of statelessness, arbitrary denial of nationality is just as grave as arbitrary
deprivation of nationality.”); UN Human Rights Council, ‘Human rights and arbitrary deprivation of nationality: report of the
Secretary-General’ (14 December 2009) UN Doc A/HRC/13/34 para 21; UNHCR Executive Committee of the High Commissioner’s
Programme, ‘Conclusion on Identification, Prevention and Reduction of Statelessness and Protection of Stateless Persons Conclusion on Identification, Prevention and Reduction of Statelessness and Protection of Stateless Persons No. 106 (LVII)’ (2006) para (i);
but cf. Case C-192/99 R v Secretary of State for the Home Department, ex parte: Manjit Kaur, intervener: Justice [2001] ECR I-01237;
Case C-135/08 Rottmann v Bayern [2010] ECR I-01449, para 49 (applying different standards to loss of nationality from acquisition
of nationality).
See Ivcher Bronstein v Peru, Inter-American Court of Human Rights Series C No 74 para 95 (Febraury 6 2001).
See UN Human Rights Council, ‘Arbitrary deprivation of nationality: report of the Secretary-General’ (26 January 2009) UN Doc
A/HRC/10/34, para 61 et seq.; UNGA, ‘Annual Report. Human rights and arbitrary deprivation of nationality: Report of SecretaryGeneral’ (2009) UN Doc A/HRC/13/34, para 40.
See Eritrea v Ethiopia [2004] 44 ILM 601 (Permanent Court of Arbitration) paras 57–78; Explanatory Report to the European Convention on Nationality, CETS No 166, para 36 <http://conventions.coe.int/Treaty/en/Reports/Html/166.htm> (providing that
denaturalization “must in general be foreseeable, proportional and prescribed by law”).
See UN Human Rights Committee, ‘CCPR General Comment No. 27: Article 12 (Freedom of Movement)’ (2 November 1999) UN Doc
CCPR/C/21/Rev.1/Add.9., para 21; UN Human Rights Committee, ‘Communication No 538/1993. Stewart v Canada’ (Individual
Opinion of Evatt & Medina Quiroga, Dissent, Aguilar Urbina, 1996) UN Doc CCPR/C/58/D/538/1993, para 8; ICCPR art 26.
See UDHR, art 15(2); CERD, art 5(d)(iii); CEDAW, art 9, para 1; CRC, art 2(1); CRPD, art 18(1)(a); Karassev v Finland App no 31414/96
(ECtHR, 12 January 1999); Nubian Children case paras 57, 263; Expelled Dominicans & Haitians v Dominican Republic, para 263;
Yean & Bosico v Dominican Republic, paras 136, 139, 141; Eriterea v Ethiopia, paras 57–78; UNGA Third Committee (3rd Session)
UN Doc A/C.3/SR.123 (5 November 1948) 352; ILC, ‘Draft Articles Nationality in relation to the Succession of States’ art 15 (prohibiting discrimination “on any ground”); UN Commission on Human Rights, ‘CCPR General Comment No. 17: Article 24 (Rights
of the Child)’ (7 April 1989); UN Human Rights Council Res 10/13, ‘Human rights and arbitrary deprivation of nationality’ (Mar
26 2009) UN Doc A/HRC/RES/10/13, paras 2–3; UN Human Rights Council Res 20/5, ‘Human rights and arbitrary deprivation of
nationality’ (July 16 2012) UN Doc A/HRC/RES/20/5, paras 2–4; UN Human Rights Council Res 7/10, ‘Human rights and arbitrary
deprivation of nationality’ (Mar 26 2009) UN Doc A/HRC/RES/7/10, paras 2–3; UN Human Rights Council, ‘Report of the Secretary-General. Human Rights and Arbitrary Deprivation of Nationality’ (December 19 2013) UN Doc A/HRC/25/28; UN Human
Rights Council, ‘Human rights and arbitrary deprivation of nationality: report of the Secretary-General’ (14 December 2009) UN
Doc A/HRC/13/34, art 4; Human Rights Council, Draft report of the Working Group on the Universal Periodic Review: Austria UN
Doc. A/HRC/WG.6/23/L.10 (11 November 2015) paras. 5.4, 5.5; Human Rights Council, ‘Draft report of the Working Group on the
Universal Periodic Review: Myanmar’ UN Doc. A/HRC/WG.6/23/L.9 (10 November 2015) paras. 7.54, 7.55, 7.66.
See UN Human Rights Committee, ‘van Alphen v. the Netherlands (Communication No. 305/1988)’ (1990) UN Doc CCPR/
C/39/D/305/1988, 5(8); UN Human Rights Committee, ‘A v Australia (Comm. No 560/1993)’ (1997) UN Doc CCPR/
C/59/D/560/1993, 9(2); UN Human Rights Committee, ‘CCPR General Comment No. 27: Article 12 (Freedom of Movement)’ (2
November 1999) UN Doc CCPR/C/21/Rev.1/Add.9.
See UNGA, ‘Annual Report. Human rights and arbitrary deprivation of nationality: Report of Secretary-General’ (2009) UN Doc A/
HRC/13/34, para 4; European Commission for Democracy through Law (Venice Commission), ‘Opinion on the Draft Constitutional
Law on ‘Protection of the Nation’’ adopted at its 106th Plenary Session (Venice 11–12 March 2016) CDL-AD (2016)006 para 25.
See 1961 Statelessness Convention arts 8, 9; European Convention on Nationality art 7(3); UN Doc A/HRC/13/34 (14 December
2009) para 25; UN Human Rights Council, ‘Arbitrary deprivation of nationality: report of the Secretary-General’ (26 January 2009)
UN Doc A/HRC/10/34.