Statelessness Working Paper Series No. 2017/7 3. Tension between non-discrimination and prohibition of statelessness under international law International human rights law explicitly prohibits arbitrary deprivation of nationality.28 Article 15 of the Universal Declaration of Human Rights (UDHR) reads: 1) Everyone has the right to a nationality. 2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality. The prohibition in Article 15 (2) is also found in: Article 18(1) (a) of the Convention on the Rights of Persons with Disabilities, Article 4(c) of the European Convention on Nationality, Article 20(3) of the 1969 American Convention on Human Rights, Article 24 of the 1995 Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms, Article 29(1) of the 2004 Arab Charter on Human Rights, and Article 18 of the 2012 ASEAN Declaration of Human Rights. 29 The Office of the High Commissioner and the United Nations Secretary-General published a report on human rights and arbitrary deprivation of nationality in 2009, which explains the legal framework applicable to the prohibition of arbitrary deprivation of nationality and important principles as well as components that need to be met in order for deprivation of nationality not the be arbitrary.30 In order for deprivation not to be arbitrary, it needs to: - Be non-discriminatory (on any ground) Have a firm legal basis in national legislation (no interpretation by analogy, law cannot have retroactive effect) Meet due process guarantees (i.e. right to appeal, right to a fair trial) Have a legitimate purpose (in line with international law) Be the least intrusive means to reach that purpose Be proportionate (i.e. weigh the impact deprivation of nationality has on the individual against the interest of the state to use this measure31) 28 Deprivation of nationality in this reflection covers all forms of involuntary loss of nationality, as well as arbitrarily precluding a person from acquiring or retaining a nationality. This is in line with UN Human Rights Council, Human rights and arbitrary deprivation of nationality: report of the Secretary-General, 14 December 2009, A/HRC/13/34, para. 23. 29 The right to a nationality and the prohibition of arbitrary deprivation of nationality is not enshrined in the European Convention on Human Rights. Nevertheless, the European Court deals with cases on deprivation of nationality as will be elaborated on later in this paper. 30 UN Human Rights Council, Human rights and arbitrary deprivation of nationality: report of the Secretary-General, 14 December 2009, A/HRC/13/34. Other guidelines on deprivation of nationality are: UN High Commissioner for Refugees (UNHCR), Expert Meeting - Interpreting the 1961 Statelessness Convention and Avoiding Statelessness resulting from Loss and Deprivation of Nationality, ("Tunis Conclusions"), March 2014 and ILEC (Involuntary Loss of European Citizenship), Guidelines on Involuntary Loss of European Citizenship (ILEC Guidelines), 2015. 31 The Court of Justice of the European stated in Rottmann v. Freistaat Bayern (Case C-135/08) gives interpretative guidance on what the principle of proportionality entails when it comes to withdrawal of nationality. It explains that the national court should ascertain whether the decision concerned observes the principle of proportionality. It states the following: “when examining a decision withdrawing naturalisation it is necessary, therefore, to take into account the consequences that the decision entails for the person concerned and, if relevant, for the members of his family with regard to the loss of the rights enjoyed by every citizen of the Union. In this respect it is necessary to establish, in particular, whether that loss is justified in relation to the gravity of the offence committed by that person, to the lapse of time between the naturalisation decision and the withdrawal decision and to whether it is possible for that person to recover his original nationality.” 9