Filling the Holes in the Rights Framework: Statelessness, Racial Discrimination, Genuine Connections and the Right to a (Specific) Nationality Bronwen Manby (0000-0002-7027-0431) Lecturer, School of Advanced Study, University of London, London, UK; Visiting Senior Fellow, London School of Economics and Political Science, London UK; Africa Coordinator, Global Citizenship Observatory (GLOBALCIT), European University Institute (EUI), Florence, Italy Email: B.Manby@lse.ac.uk Abstract This article returns to a 2005 criticism of international law’s tolerance of State discretion in regulation of nationality for creating ‘holes in the rights framework’. The article sets out normative advances in international law since that date, aiming to show that they go further than recognised in more recent literature. It focuses on five interlinked elements of respect for the right to a nationality: the avoidance of statelessness; due process in case of loss or deprivation of nationality; the inclusion of arbitrary denial within the interpretation of arbitrary deprivation of nationality; the evolution in the interpretation of the definition of ‘stateless person’; and, finally and in greatest depth, the challenge to racial discrimination, both direct and indirect. The article highlights the role of strategic litigation in these developments and foregrounds especially the contribution of the Inter-American and African human rights institutions, starting from the ground-breaking judgment of the InterAmerican Court of Human Rights in the Yean and Bosico case against the Dominican Republic. In particular, the article argues for the potential significance of moves to reinterpret the ‘genuine connection’ condition for recognition of nationality—the lack of which was famously invoked by the 1955 Nottebohm judgment of the International Court of Justice as a reason to deny a State’s right to exercise diplomatic protection on behalf of a naturalised citizen—to establish instead an individual’s positive right to claim the nationality of a particular State. Keywords: nationality; citizenship; statelessness; human rights; racial discrimination; strategic litigation 1. Introduction: holes in the rights framework In 2005, James Goldston lamented the ‘holes in the rights framework’ created by international law’s deference to State discretion in grant and withdrawal of citizenship, urging that this discretion be narrowed ‘by the incorporation of human rights concerns, including the prohibition against racial discrimination, into international legal rules on citizenship’.1 More than a decade and a half after Goldston’s article, Michele Foster and Timnah Rachel Baker once again emphasised the normative gap in relation to racial discrimination and nationality,2 examining in depth both the conflicted language of the International Convention on the 1 JA Goldston, ‘Holes in the Rights Framework: Racial Discrimination, Citizenship, and the Rights of Noncitizens’ (2006) 20 Ethics & International Affairs 321, 341. 2 In international law, nationality and citizenship are used as synonyms to describe a legal relationship between a State and an individual, carrying (at minimum) the right to enter and remain indefinitely in that State. The terms can be used interchangeably in English in this context, though ‘nationality’ is more commonly used in international treaties, and therefore in this article (but see also n 143). In national laws, either term may be used, according to the legal tradition of the particular country concerned; this article follows the relevant national usage.