Solving statelessness

Abstract

This article examines what is necessary to solve statelessness in a sustainable manner that enhances the enjoyment of human rights. It does so by interpreting the right to nationality using three lenses through which the meaning of a response to statelessness can be better understood. It draws on human rights standards and democratic principles to comment on the traditional understanding of nationality, which gives States discretion over granting and withholding nationality. The three lenses used in this article to explore the concept of nationality are the idea of the right to be a citizen, that of one’s “own country”, and the right to an “effective” nationality. These three lenses present complementary views of what nationality means and how it relates to solving statelessness. Taken together they make clear that any real solution to statelessness requires more than the acquisition of “a” nationality. If we are to solve statelessness, we need to move beyond a State-centric understanding of the right to nationality to an understanding of nationality as the content of a human right to citizenship. What is needed is a nationality that represents a meaningful connection between a person and a State that enables the person involved to actively enjoy the rights attached to a nationality.

Introduction

Statelessness and nationality are closely related. The lack of nationality—statelessness ¹ —can have serious consequences for the person concerned. It is widely recognised that stateless persons struggle when trying to access various human rights, such as access to health care and education, which are pivotal for the development of a person. Moreover, stateless persons are often marginalised, excluded, discriminated against, and are unable to participate in society. ² Their lack of nationality makes stateless persons among the most vulnerable in the world. ³ Statelessness thus presents the world with a significant human rights challenge, not only because it is in itself a violation of the right to nationality, but also because of its impact on the enjoyment of other rights.

In light of recent global efforts to eradicate statelessness, including a global campaign by UNHCR, this article questions what is really needed to “solve” statelessness, and what “solving” statelessness actually means. ⁴ It also argues that the human rights based approach to solving statelessness should be concerned not only with acquisition of nationality, but, ultimately, with ensuring tangible improvements to the individual’s enjoyment of human rights. This article invites readers to think beyond purely technical solutions to statelessness and rethink the concept of (the right to) nationality.

Many protracted situations of statelessness demonstrate that statelessness and the marginalisation attached to it are not necessarily solved once the stateless acquire a nationality. ⁵ For example, in 2008 an Urdu-speaking minority living in Bangladesh, formally known as the Bihari, were recognised as Bangladeshi nationals through a ruling by the Supreme Court. This put an end to nearly 40 years of statelessness, and was a very positive outcome. The issue of Bihari statelessness can be considered to be fully solved from a legal perspective. However, almost eight years after becoming Bangladeshi nationals, many Bihari continue to face the same obstacles they encountered while they were stateless: for instance, they face difficulties in obtaining birth certificates, obtaining legal documents, accessing education and finding employment. ⁶ Many still live in camps, as they did prior to becoming citizens, and suffer poverty and exclusion. ⁷ The Bihari are no longer formally stateless, but their situation does not seem to have significantly improved since becoming Bangladeshi nationals.

Another example is that of the Bidoon, a stateless group present in various Gulf States. Kuwait has proposed to solve the statelessness of the Bidoon living in Kuwait by paying Comoros to grant them Comorian nationality. ⁸ Comoros, a small and economically underdeveloped State, has agreed to this solution; ⁹ it will provide the Bidoon with Comorian nationality and all rights attached to this nationality. While these solutions would end their formal statelessness, they would not address the structural problems causing statelessness or resolve the problems associated with the marginalisation of these groups in the country which they consider “their own”. Whether it is possible to consider this a solution to statelessness depends on how the relationship between statelessness and nationality is conceived, and how the human right to a nationality is interpreted.

These examples illustrate that purely legal solutions may reduce numbers, but may have little to no impact on the number of unprotected persons. ¹⁰ Most importantly, solutions that do not facilitate wider enjoyment of human rights may not change anything for stateless individuals themselves. This can leave them with the feeling that, despite having acquired nationality, their situation has not improved. Surely, solutions to statelessness must be meaningful to the individual as well as to States, looking beyond mere acquisition of nationality. UNHCR’s Global Action Plan to end statelessness (GAP) seems to endorse this approach. The GAP defines ten Actions that will guide efforts to end statelessness within ten years. ¹¹ For example, Action 1 (resolving existing major situations of statelessness) promotes the development of long-term solutions through dialogue, reconciliation and creating trust where statelessness is a result of discriminatory social attitudes. ¹² This, along with other GAP actions, demonstrates that efforts to end statelessness seem to endorse solutions that do not end once nationality has been acquired, but also seek to ensure meaningful and sustainable social inclusion. In order to identify what “solving statelessness” means, it is perhaps not helpful to think of statelessness purely as a legal matter. Instead, it may be helpful to recognise that statelessness (like nationality) is a mixed question of fact and law ¹³ and therefore requires solutions which grapple with both the legal exclusion characterised by de jure statelessness and the marginalisation of individuals and groups (both a cause and a consequence of statelessness). Exclusion, which lies at the core of statelessness, is not resolved by mere acquisition of nationality—even though being recognised as a national should be evidence of inclusion—since only persons who are considered “one of us” instead of part of the “other” are able to acquire a State’s nationality.

So what is necessary to solve statelessness in a sustainable manner which enhances enjoyment of human rights? This question invites consideration of what nationality is, what it entails and what it means to people and States. This article considers three lenses through which the meaning of a response to statelessness can be better understood. It draws on human rights standards and democratic principles to comment on the traditional understanding of nationality, which gives States discretion over granting and withholding nationality. The three lenses used in this article to explore the concept of nationality are the idea of the right to be a citizen, that of one’s “own country”, and the right to an “effective” nationality. These lenses tie in with the much cited definition of nationality used in the Nottebohm case by the International Court of Justice (ICJ). ¹⁴ In this case, the ICJ summarises the practice of States, arbitral and judicial decisions and the opinions of writers on the meaning of nationality as follows: ‘…a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties’. ¹⁵ Nationality is often described as the legal bond between a person and a State, but the Nottebohm definition includes two further elements: that of genuine connection and that of the existence of reciprocal rights and duties.

These ideas are central to this article, with Section 2 looking at the right to be a citizen using democratic principles. This Section presents a contemporary interpretation of the ideas behind Nottebohm, thus providing the democratic imperative necessary for exploring nationality today. Section 3 analyses the connection or belonging portion of nationality, using the concept of the individual’s “own country”. Finally, Section 4 considers the concept of “effective” nationality, interpreting it as requiring two elements, a genuine connection and the existence of reciprocal rights and duties. As such, this article centrally addresses how the right to a nationality can be interpreted by unpacking the notions of “citizenship”, “own country” and “effective” nationality, to ensure that solutions to statelessness are meaningful to individuals and States.

The right to be a citizen

The attempts to put an end to statelessness are usually addressed to States as a sort of advocacy in the interest of stateless persons. This approach is fraught with an implicit view of nationality, which—though mostly unnoticed—legitimises the freedom of the State to decide whether the individual is a national. This section questions the very legitimacy of the view of nationality as a status at the State’s disposal.

This view and the opposing view of citizenship as a human right are directly related to the conceptualisation of nationality and citizenship. ¹⁶ Compared to the word “nationality”, the notion of “citizenship” fits better—because of its political-philosophical connotations—into a modern view of the role of the individual within the State. A person who holds the nationality of a State is not only or primarily the subject (German “Untertan”, Dutch “onderdaan”) of the State but rather the origin of its authority since the existence of a stable population is one of the defining characteristics of statehood. ¹⁷ By “granting”—this word is telling—or confirming citizenship the State gives the person a role in determining the limits and mechanisms of the collective exercise of authority in its territory. The legal order manifests itself as the (legitimate) system of control over the population, consisting of citizens and non-citizens, including stateless people, within that territory. This view establishes basically a sovereign-subject relationship between the State and its subjects. Nationals and foreigners are both subject to the State’s authority, but nationals are “better off” than foreigners in that they have greater rights and these rights are better protected. Also, nationals are certainly better off than stateless persons (unless they have received a special status like the stateless South-Moluccas independence advocates, who have equal rights with Dutch citizens). ¹⁸

In the established view, acquisition and continuation of citizenship can be made dependent on effective allegiance. In order to acquire nationality an individual has to prove that he or she will be a worthy citizen by his or her abilities (such as understanding the language and customs) and willingness to fulfil duties (such as snow shovelling and military service). He or she may be deprived of his or her nationality in the event of a failure to respect this allegiance, such as affiliation with an enemy army. However, most “duties”, with the exception of military service or serving as a jury member, are imposed equally on citizens and non-citizens. What then precisely justifies withholding citizens’ rights from the latter individuals, when they are effectively members of the same society?

According to Iris Marion Young, this distinction ‘appears to be based on contingent psychological and historical circumstances rather than moral principle’. ¹⁹ Nationality often serves as a principle of exclusion, whereas it should be a principle of inclusion. ²⁰ Non-citizens who are nationals of a different State still enjoy inclusion to a certain degree, although they are not fully included in their place of residence; stateless persons, however, are mainly excluded. Nils Butenschøn notes the “‘Janus-faced” nature of citizenship’, whose function ‘to exclude people is just as important as the function to include [them]’. ²¹ Inclusion and exclusion are always expressions of the power relations within a society. The majority of the nationals—which is not necessarily the same as the majority of the population—decide via their representatives on the fate of minority groups, of nationals, and of the non-citizens. The realistic observation that among the citizens inequalities often reduce their effective political influence cannot diminish the value of the constitutional principle that citizens ought to have voice in legislation and other public affairs.

Political power relations may be rendered acceptable through an adequate constitutional framework if the constitution includes effectively guaranteed human rights for the outvoted minority. Nevertheless, the sovereign-subject power structure places the minority in a vulnerable position. Majorities may have an interest in laying down rules—citing the democratic legitimacy of majority decisions—that force those discriminated against to accept their fate. ²² The only way to prevent the unfreedom that results from majoritarianism is the establishment of constitutional safeguards.

This situation and these risks result from the view that citizenship derives its existence and attributions from the State. An understanding of citizenship in the full context of human rights has the potential to turn this relationship upside down. The recognition of the right to be a citizen as a human right implies that the State is dethroned ²³ as the author and owner of citizenship. This view would restore the original meaning of a citizen (πολíτης—a man of the city) as someone who is, albeit necessarily in the context of his or her own city (πóλις), together with his or her fellow citizens master of his or her own fate: the citizens accept a constitution that will make them co-producers of the laws that bind them and prevent abuses by the majority. Such a view produces a sort of “natural” citizenship, not in the sense of bloodlines or privileged birthplaces ²⁴ but in the sense of belonging to a (national) community where his or her citizenship can be “effectuated”, that is, “rendered effective”.

Authorities are necessarily involved in recognition, authorisation and revocation of citizenship. However, it makes a difference whether this role is viewed as an expression of the State’s sovereignty over the people within its jurisdiction, or rather as a duty to administer an entitlement of the individuals concerned, i.e. a human right. Acceptance of the latter view implies a rejection of any lasting deprivation of citizenship, i.e. statelessness.

The ideas of “genuine connection” and one’s “own country”

If the possession of a nationality is the opposite of statelessness, an attempt to find such solutions or to establish whether particular responses “solve” statelessness needs to understand what nationality is and what the right to nationality entails from an international legal perspective. The right to a nationality has been recognised in Article 15 of the Universal Declaration of Human Rights (UDHR). However, the UDHR provision does not define nationality, and due to the UDHR’s status as a non-legally binding instrument no institution has authoritatively interpreted and applied its provisions. This means that it is necessary to turn to other instruments and their interpretations by international bodies and courts in order to come to an understanding of how nationality is defined. This section unpacks the idea of a “genuine connection” between the individual and the State as a foundation of nationality. This is considered first from a State-centric perspective drawing on the ICJ’s Nottebohm decision which establishes the limitations of nationality in the absence of such a connection. The idea of a “genuine connection” is then examined from a human rights based understanding, drawing on the idea of an individual’s “own country” in order to consider how this idea can inform a positive understanding of the right to a nationality and so guide solutions to statelessness.

Genuine connection as a defining characteristic of nationality

When looking for definitions of nationality in international law, there is for instance that under the European Convention on Nationality (ECN), ²⁵ a document adopted relatively recently by the Member States of the Council of Europe. It draws on different international instruments on (multiple) nationality and statelessness, and attempts to consolidate in a single text the ideas that have emerged as a result of developments in national law and in international law on nationality matters. ²⁶ As such, its provisions are derived from the body of international law on these matters. Article 2 of the ECN defines various concepts relevant to its interpretation. “Nationality” is one of the concepts that is clearly defined. According to the ECN, nationality is ‘the legal bond between a person and a State and does not indicate the person’s ethnic origin’. The idea of a “legal bond” as the defining characteristic of nationality can also be found in a definition of nationality adopted by the Inter-American Court of Human Rights (IACtHR), ‘[n]ationality can be deemed to be the political and legal bond that links a person to a given State and binds him to it with ties of loyalty and fidelity, entitling him to diplomatic protection from that State’. ²⁷ However, nationality is, as the IACtHR has recognised, a human right as well as a competence of the State. ²⁸ In the case of Yean and Bosico, the IACtHR says that ‘nationality is a juridical expression of a social fact that connects an individual to a State’. ²⁹ All of these definitions are explicitly or implicitly inspired by and based on the definition used in the Nottebohm case, which was introduced above. ³⁰

It is thus clear that in international law, nationality can be defined as the legal bond between a person and a State. This legal bond is characteristically expressed through the recognition of rights and duties attached to the status of being a national. However, questions remain about what this bond should look like and what the defining factors are that create a strong enough connection to underlie and validate the legal bond. The ICJ says the following on this matter:

Different factors are taken into consideration, and their importance will vary from one case to the next: the habitual residence of the individual concerned is an important factor, but there are other factors such as the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc. ³¹

The idea of a meaningful—or genuine—connection, link, bond or tie between a person and a State thus underlies the concept of nationality in international law. This concept of nationality acknowledges that nationality has effective and social features, and that in the absence of a factual basis and genuine connection between the individual and the State, the claim of nationality becomes increasingly meaningless. ³² It therefore shows that nationality is more than just a label; it needs to have a factual basis.

This idea is visible in the way in which international law approaches the prevention of statelessness; the international legal instruments dealing with the prevention of statelessness include provisions defining the responsibility of States to grant nationality to individuals who would otherwise be stateless based on their connection with that State. The 1961 Convention on the Reduction of Statelessness (1961 Convention) says, for instance, that States parties shall grant nationality to children born in their territory who would otherwise be stateless—a type of connection that reflects the jus soli principle. ³³ Another example are the Draft Articles on the Nationality of Natural Persons in Relation to the Succession of States of the International Law Commission (ILC). These Draft Articles and the commentaries thereto repeatedly speak of the importance of “appropriate connection” as a factor in determining which nationality should be granted to particular persons in the context of State succession. ³⁴ The emphasis on a meaningful connection is thus certainly present in State considerations regarding the prevention of statelessness.

The understanding of a genuine connection as a precondition of nationality is also present in State practice and legislation at the national level. Moreover, it is a logical corollary of State-centric conceptions of nationality. The ability to grant nationality—based on State sovereignty—is in fact one of the defining features of Statehood. ³⁵ Control of who is considered a national makes sense from this perspective, as the State wants to be able to influence who “its people” are and through these means define and protect its identity as a State. In a democratic society, this is articulated through the mechanisms of democracy which permit citizens to participate in democratic processes, and in establishing the rules that apply to the society, including those which define the parameters for membership.

The two main principles on which States grant nationality are in fact based on the idea of a connection to the State: jus soli (law of the soil), where nationality is based on place of birth, and jus sanguinis (law of blood), where nationality is based on the nationality of one or both parents. Besides these common principles, nationality may also be acquired (or changed) as a result of events later in life, such as adoption, marriage, or a significant period of permanent residence. ³⁶ These grounds for acquisition are generally recognised in international law as reasonable definitions of what constitutes a sufficient connection with the State to justify acquisition of nationality. International law can be seen as limiting States’ freedom to determine who is and is not a national through the application of a number of principles. For instance, the principles of avoidance of statelessness, of non-discrimination, and the principle that no one should be arbitrarily deprived of nationality. ³⁷ However, it does so without challenging the notion of the connection that underlies nationality.

Both from an international legal perspective as well as from the State perspective it can thus not be denied that the notion of a “genuine connection” underlies (the granting and recognition of) nationality. Applying this idea to the problem of statelessness leads to the proposition that, as statelessness can (legally) only be solved by acquisition of a nationality and nationality presupposes a “genuine connection”, statelessness can only be solved by the acquisition of a nationality representing a real link between the person and the State. The Nottebohm case establishes that a State is allowed to grant nationality and so assert its interest in an individual on certain conditions (a “genuine connection”) while the treaties and standards concerning statelessness are fundamentally concerned with assigning responsibility between States. In essence, this is a problem of approaching nationality as a matter of international law, which is a body of law concerned with the behaviour and interaction of States and in which the individual traditionally is mostly invisible. Indeed, these considerations have focused on the perspective of States while considerations from the angle of the interested individuals have been largely absent. That is not to say that a nationality granted by a State never coincides with the nationality that is considered appropriate from the perspective of the individual. In fact, in many cases the two will coincide. However, as long as the discussion focuses on States “granting” nationality to those who meet their criteria for “genuine connection” a more State-centric approach is implied, which appears to focus on the exclusion of those with no sufficient connection. As Rubenstein and Lenagh-Maguire explain:

Nottebohm suggests that where formal legal nationality is present, but a genuine connection is lacking, the person is not to be treated as holding effective nationality (at least where the formal dimension of nationality was obtained via naturalization). However, Nottebohm does not provide a solution in the reverse where there is ample evidence of the social connection between an individual and a state, but formal citizenship is lacking as a matter of domestic law. That task falls most often to human rights law as invoked by individuals seeking some of the benefits of nationality from a nation state that either refuses to grant them legal status, or conversely labels them with a citizenship they do not want to retain. ³⁸

As such, the concept of “genuine connection” does not in itself provide a solution to statelessness for persons with clear and meaningful ties to a country. For that, it is useful to explore the idea of one’s “own country” as articulated in human rights law. However, what the idea of a “genuine connection” as a necessary condition of nationality indicates is that a nationality, and hence any solution to statelessness, should be based on meaningful connections.

One’s “own country”: when is a “genuine connection” sufficient to justify nationality?

The concept of nationality is thus based on the existence of meaningful connections between a person and a State. Where the previous Section considered the idea that from a more traditional State perspective the concept of nationality demands a meaningful connection, the current section explores the content of the “genuine connection” using a more inclusive rights-based approach and the viewpoint of the individual.

Nationality was established as a human right in Article 15 of the UDHR, a “soft law” instrument. However, other human rights treaties establish a legally binding right to nationality. In particular, the right of every child to a nationality, included in Article 7 of the Convention on the Rights of the Child (CRC) ³⁹ —which is almost universally ratified—and in Article 24(3) of the International Covenant on Civil and Political Rights (ICCPR), provide a strong legal basis for obliging States to ensure that no child is stateless. Other relevant provisions and documents ensuring a right to a nationality include Article 18 of the Convention on the Rights of Persons with Disabilities (CRPD), and at the regional level, Article 6 of the African Charter on the Rights and Welfare of the Child (ACRWC), Article 20 of the American Convention on Human Rights (ACHR), and the ECN. ⁴⁰ However, these provisions have in common that they provide a right to a nationality, but may not directly point towards a solution to statelessness in the (formerly) protracted situations that were discussed earlier.

Do other human rights provide additional information as to what nationality—and solutions to statelessness—should entail? It has been held that a number of specific rights are generally associated with having a nationality as they are not in practice accessible to non-nationals: the right to leave one’s “own country” and to re-enter and reside in the territory of the State of nationality, the right to consular assistance, as well as the right to vote and to participate in public life, and rights to economic, social and cultural advancement. ⁴¹ Some of these rights were addressed in Section 2 as part of a discussion of what it means to be a citizen. Here the focus is on the right to leave, and in particular the right to enter one’s “own country”, because the idea of one’s “own country” and the existence of rights in relation to that country provides a useful perspective to consider the situation of in situ stateless populations, that is:

Stateless persons who are (usually) in a non-migratory situation and remain stateless in their “own country”, often since birth—who are long-standing residents or were residents at the time of [S]tate succession, who have close personal and family ties to this country and intentions to remain, as well as no such ties elsewhere—which warrants a different response than to stateless migrants, ⁴² as the former should be granted nationality. ⁴³

The concept of “own country” is a prominent part of understanding in situ statelessness, but is also attached to one of the rights generally associated with nationality. In practice, the impossibility of leaving or returning to a country or of traveling at all is a common consequence of statelessness. ⁴⁴ As a result, the human right to enter and leave one’s “own country” is an important and interesting concept to consider when trying to solve statelessness.

Article 12 of the ICCPR ensures the right of every person to leave any country, including one’s own, and, importantly, says that no one shall be arbitrarily deprived of the right to enter his or her own country. ⁴⁵ It has been held that the notion of “own country” concerns the State of which a person formally (de jure) has a nationality, or when a formal nationality is absent, the State with which a person has a “genuine” connection as described in the Nottebohm case. ⁴⁶ However, this interpretation of “own country” is 20 years old, and the United Nations Human Rights Committee has provided further clarification since. ⁴⁷ In its General Comment on Article 12 of the ICCPR, the UN Human Rights Committee says that ‘[l]iberty of movement is an indispensable condition for the free development of a person’. ⁴⁸ In the light of the focus on the concept of “own country”, the interpretation of Article 12(4) of the ICCPR is especially relevant, as this is where the Human Rights Committee explores the meaning of this notion. The right protected by Article 12(4) ‘recognizes the special relationship of a person to that country’. ⁴⁹ However, this special relationship is not reserved for persons with the nationality of that State. As the UN Human Rights Committee puts it:

The scope of “his own country” is broader than the concept “country of his nationality”. It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. This would be the case, for example, of nationals of a country who have there been stripped of their nationality in violation of international law, and of individuals whose country of nationality has been incorporated in or transferred to another national entity, whose nationality is being denied them. The language of article 12, paragraph 4, moreover, permits a broader interpretation that might embrace other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence. ⁵⁰

The examples of stateless populations mentioned in the introduction to this article clearly fall within the categories of persons that are mentioned as examples of individuals who ‘cannot be considered to be a mere alien’. For instance, the stateless persons of Haitian descent in the Dominican Republic have been stripped of their nationality in violation of international law ⁵¹ and the Bihari were left stateless due to state succession. ⁵² Similarly, the long-term residence of the Bidoon in Kuwait should under this definition mean that Kuwait is to be considered their “own country”.

The Human Rights Committee’s decisions on individual communications give further guidance on the concept of “own country”. In the case of Stewart v. Canada, ⁵³ a dissenting opinion by Committee Members Evatt and Quiroga argued that the existence of a formal link to the State is irrelevant in the context of the rights under Article 12(4) of the ICCPR; the ICCPR ‘is here concerned with the strong personal and emotional links an individual may have with the territory where he lives and with the social circumstances obtaining in it’. ⁵⁴ It has been held that this is ‘a welcome expansion to the rather more limited notion of effective nationality employed in Nottebohm’. ⁵⁵ In the more recent case of Nystrom v. Australia, the Human Rights Committee took a position closer to this dissenting opinion and found that ‘[…] “own country” invite[s] consideration of such matters as long standing residence, close personal and family ties and intentions to remain, as well as the absence of such ties elsewhere’. ⁵⁶

What does the concept of “own country” as it is currently understood mean for solving statelessness? It was already shown how meaningful connections underlie the notion of nationality, and this Section demonstrates that the notion of “own country” is defined by the “special ties” of a person to a country. Based on these special ties, a person should be able to access one of the rights that is generally associated with nationality: the right to enter and reside in that country. The “own country” concept makes a distinction between persons who are long-term residents and have special ties to a country, and persons who do not possess these characteristics, that is, persons who are “mere aliens”, in terms of ensuring the right to enter a country. Reconsidering the lack of specification of and difficulty in enforcing the right to nationality in the UDHR, one could say that the concept of “own country” perhaps contributes to defining the content of this right under international law. ⁵⁷ Importantly, the Human Rights Committee has always recognised that persons who have no nationality can still have an “own country”.

If nationality reflects and is dependent on the existence of a “genuine connection” between individual and State, it follows that a person with the “special ties” to a country that the Human Rights Committee considers making that country the person’s “own country” have a stronger claim to the nationality of that country than persons without such ties. In today’s world, it is almost inconceivable that a person does not have some sort of bond or connection to any country; that is, nationality should in this sense be reachable for every person. One might therefore argue that a stateless person should be able to obtain the nationality—have a right to nationality—of the place that is his/her “own country” as he/she already has a right to be there. The concept of “own country” represents an approach which asserts the relevance of particular forms of connection with regard to the exercise of particular rights, helping to bridge the gap between the freedom of States to determine what connection between individual and State is sufficient for the acquisition of nationality, and the right of every person to a nationality. As such, the concept of one’s “own country” and the accompanying rights present a clear marker of a solution to statelessness that goes beyond the acquisition of nationality. At the same time, it offers a way of determining which potential nationality may be the most appropriate or complete solution for an individual by asking which is that person’s “own country”. This would address at least some of the problems that stateless persons face, and presents a framework for identifying solutions that correspond with the personal links an individual has with a country. This framework resembles the grounds on which States grant nationality, helping to make their eventual nationality “effective” rather than an empty shell.

“Effective” nationality

As established above, acquisition of nationality is necessary for statelessness to be ended. However, what characteristics must a nationality hold for it to be able to truly solve statelessness? Is acquisition of “any old nationality” enough for statelessness to be considered to be fully resolved? The concept of “effective” nationality can provide some answers. ⁵⁸ However, it should first be clarified that this discussion of “effective” nationality is placed in the context of solutions to statelessness; “effective” nationality is explored with a view to promoting the idea that when trying to solve a situation of statelessness, it is important to ensure that the nationality acquired is “effective” and not just “any” nationality. This position is endorsed by experts: van Waas, for instance, has stated that for statelessness to be solved, stateless persons should acquire a nationality that is “effective”. ⁵⁹ Statelessness—and its effects—has been equated with the lack of an “effective” nationality, ⁶⁰ which supports the idea that in order for statelessness to be ‘solved’, the nationality acquired must be “effective” rather than purely formal. This interpretation is reinforced by the fact that the Final Act of the 1961 Convention mentions that persons who have an ineffective nationality should ‘as far as possible be treated as stateless de jure to enable them to acquire an effective nationality’. ⁶¹ This non-legally binding provision highlights the centrality of “effective” nationality in solving statelessness, not only because of its content but also as a result of its inclusion in the 1961 Convention’s Final Act.

But what does “effective” nationality mean? Despite having appeared in literature exploring solutions to statelessness for decades, “effective” nationality has never been clearly and authoritatively defined. One of the difficulties in establishing a clear understanding of this concept is the fact that in addition to appearing in discussions on “solving statelessness”, “effective” nationality is a central tenet of discussions on dual nationality. As it was noted in Section 1, in Nottebohm, the ICJ found that in situations where there are two rival (possible) nationalities, the “real and effective” nationality is that of the State with which the individual enjoys stronger factual ties (even though Mr. Nottebohm was not a dual national). This use of “effective” nationality is widespread in literature dealing with dual nationality. ⁶²

Leaving aside the use of “effective nationality” to distinguish between a dual national’s primary and secondary nationality, this article focuses on the meaning and use of “effective” nationality in the context of “solving statelessness”. It may be useful to begin with a definition of “effective”. Under international law, “effective” is understood by experts to mean ‘phenomena in which a factual situation corresponding to legal status and legal rights exists’. ⁶³ However, the problem is that “effective” has been used in international law ‘ambiguously, and with various meanings’. ⁶⁴ “Effective” can also be defined as ‘successful in producing a desired or intended result’, ⁶⁵ or ‘adequate to accomplish a purpose; producing the intended or expected result’. ⁶⁶ Therefore, for a nationality to be “effective”, it needs to be ‘successful in producing a desired or intended result’. But what is this desired or intended result of nationality?

In literature on solving statelessness, ideas on the nature of “effective” nationality can generally be divided into two streams of thought: “effective” nationality as reflecting a “genuine connection” with a State and “effective” nationality as a “functioning” concept—that is, an “effective” nationality is one that enables the individual to act as a citizen with the full ability to enjoy his or her rights and perform his or her duties as a citizen, as distinct from a nationality that exists only on paper. These two streams of thought link to the issues discussed in the other Sections of this article. This Section revisits the ideas of “own country” and “genuine connection” and the notion of rights and duties of citizens, and connects them to “effective” nationality in the context of solving statelessness.

“Genuine connection”, “own country” and “effective” nationality

The concept of “genuine connection”, discussed in section 3 above, is often present in literature on “effective” nationality in relation to the phenomenon of statelessness. This “genuine connection”, sometimes referred to as the “genuine and effective link”, requires nationality to be based on ‘factual ties’. ⁶⁷ According to Batchelor, in State practice ‘nationality is not granted indiscriminately but generally reflects factors which in turn indicate an established link between the individual and the State’. ⁶⁸ Applying this logic to the problem of resolving the situation of stateless persons leads to the conclusion that ‘a person should be eligible to receive citizenship from states with which she or he has a substantial connection or a genuine and effective link’. ⁶⁹ In fact, ‘[i]nability to acquire nationality in that State [where the individual enjoys his/her strongest links] will constitute significant hardship.’ ⁷⁰ Furthermore, the International Law Commission’s Special Rapporteur Manley O. Hudson highlighted in his report the importance of acquisition of the nationality of the State with which the individual enjoys a ‘genuine connection’. ⁷¹ Van Waas has stated that acquisition of a nationality based on the existence of a genuine link with a state ‘increases the likelihood that the citizenship acquired will be an effective one.’ ⁷² Section 3 presented the idea that where an individual has “special ties” with a State such that they cannot be considered a “mere alien”, that State is their “own country” even if it is not their country of nationality. The relevance of the idea of one’s “own country” to solving statelessness can be demonstrated by the situation of Dominicans of Haitian descent in the Dominican Republic. The position of those denationalised has been clear; they consider the Dominican Republic their “own country” and demand a solution that respects this fact and acknowledges their genuine connection with the Dominican Republic. ⁷³

The Bidoon, who might be granted Comorian nationality in the future, further illustrate this point. The solution proposed by Kuwait would result in the Bidoon acquiring Comorian nationality and rights and freedoms owed to (Comorian) nationals. They would be able to enjoy the right not only to nationality, but also the right to be a citizen in that country. What is missing in this case is the “genuine connection” between the individual and the State of nationality; Comoros cannot be said to be the Bidoon’s “own country”. To use the terminology adopted by Goris, Harrington, and Köhn, the State where the Bidoon are ‘most deeply embedded in’ (and so where their nationality should function) is Kuwait. ⁷⁴ On this basis, even if the Bidoon are given the complete set of rights owed to nationals and can exercise their citizens’ rights, it is doubtful whether it is possible to say their statelessness will be truly solved by the acquisition of Comorian nationality. Furthermore, as Section 2 shows, membership in the political community should benefit both individual and State: individuals legitimise their government, for instance through voting, and in exchange enjoy benefits, such as protection, from the State. ⁷⁵ Membership—which Kingston relates to the “functionality” ⁷⁶ of nationality—requires inclusion. If a person is not perceived as “one of us”, that person will not be treated as a full member of society, even if this person is given access to all rights owed to citizens, thus becoming the “other”. While being granted Comorian nationality can give the Bidoon access to all rights owed to Comorian citizens, there are no guarantees that they will be “included” in Comorian society rather than becoming a marginalised group within that society. Without inclusion, can situations of statelessness ever be truly resolved?

The right to be a citizen and the “functioning” aspect of “effective” nationality

Goris, Harrington, and Köhn consider that a person’s nationality should be ‘operative in the country in which that person is most deeply embedded’ ⁷⁷ —in essence, the individual’s “own country”—by which they mean that it should allow the individual to exercise their full array of civil, political, economic, social and cultural rights. “Operative” in this context is perhaps another way of saying that nationality should “function”, and this is linked to the possession of rights and the ability to take part in society as a citizen in the State with which the person enjoys a genuine connection. It therefore seems that for the nationality acquired by a stateless person to be “effective”, it is necessary for said nationality to be that of the country with which the individual enjoys a genuine link—his or her “own country”. This nationality must also be able to “function”, allowing the individual to exercise his or her “right to be a citizen”. Similarly, Kingston argues that being formally granted a nationality is not enough; nationality must have “functionality” ⁷⁸ to it. It can therefore be said that being able to exercise one’s right to be a citizen in the country whose nationality one acquires is necessary for statelessness to be solved. However, it should be stressed that solutions to statelessness that focus on realising the rights attached to nationality alone may fall short of fully solving statelessness if a “genuine connection” is lacking.

Real-life situations can demonstrate the importance of ensuring that the “functioning” aspect is present in solutions to statelessness. For example, the Bihari received the nationality of the State with which they enjoy a “genuine connection”, Bangladesh. Many members of this group were born and raised in Bangladesh and have not known any other country; it is clearly their “own country”. However, their situation has not significantly improved as a result of their acquisition of Bangladeshi nationality; they continue to be marginalised and live in poverty. ⁷⁹ The idea that statelessness cannot be “eliminated” until individuals not only acquire a nationality but also see an improvement in their status was acknowledged already in the early work of the International Law Commission’s Special Rapporteur Manley O. Hudson. In his report, the Special Rapporteur observes that:

As a rule, such an improvement will be achieved only if the nationality of the individual is the nationality of that State with which he is, in fact, most closely connected, his “effective nationality”, if it ensures for the national the enjoyment of those rights which are attributed to nationality under international law […]. ⁸⁰

The Special Rapporteur was conscious of the fact that purely technical solutions to statelessness which do not take into account ‘the need for a genuine improvement in the status of the person’ ⁸¹ do not truly resolve statelessness. While they (may) lead to an improved status for the (formerly) stateless person, they can also lead to acquisition of a “hollow” nationality, devoid of content. He clearly stated that ‘any attempt to eliminate statelessness can only be considered as fruitful if it results not only in the attribution of nationality to individuals, but also in an improvement of their status’. ⁸²

It is interesting to point out the Special Rapporteur’s use of the word “fruitful”; it is defined by the Oxford English Dictionary as ‘producing good or helpful results’, ⁸³ which is close to the definition of “effective” provided above: ‘successful in producing a desired or intended result’. Acquisition of a nationality that is “effective” would therefore be able to sustainably solve statelessness, since it would produce the desired or intended result: the acquisition and enjoyment of nationality which enables individuals to enjoy the rights associated with citizenship in a country with which they have a genuine connection.

In order to resolve statelessness, the nationality acquired by a stateless persons should ideally therefore be effective both in the sense of reflecting a genuine connection between the individual and the State, and in the sense that it gives the individual access to the rights generally associated with citizenship. Where such an effective nationality is acquired it is likely to result in an improvement in the situation of the stateless person. This addresses the criticism that any attempts to address statelessness while ignoring the marginalisation of stateless populations may result in a “hollow” nationality and no concrete improvement in people’s lives. It should once again be noted that this discussion of “effective” nationality is placed in the context of seeking solutions to the issue of statelessness. Several other categories of individuals might face similar challenges, and can be said to be in ‘statelessness-like’ ⁸⁴ situations. Their plight is usually addressed by the discourse that addresses questions of marginalisation based on ethnicity, race, religion, language, social status, national origin, and so on. The discussion in this Section does not necessarily argue for the challenges faced by formerly stateless persons to continue to be treated as a statelessness issue. Rather, this Section emphasises the importance of ensuring that when a situation of statelessness is solved, the nationality acquired by the (formerly) stateless is an “effective” nationality and not “any old” nationality. Furthermore, as van Waas and de Chickera suggest, it is perhaps also beneficial to advocate for a ‘human rights approach’ ⁸⁵ to “solving statelessness”, rather than one focused solely on the existing legal framework to address statelessness.

“Effective” nationality and statelessness: two opposite ends of a spectrum

An interesting perspective to consider is the suggestion that nationality exists along a ‘continuum’ ⁸⁶ or a ‘spectrum’ ⁸⁷ which, according to Goris, Harrington, and Köhn runs from full and “effective” nationality to (de jure) statelessness, where individuals have no legal membership nor any of the accompanying rights of this membership. This idea makes sense in the context of arguments that “effective” nationality is the solution to statelessness. If nationality is conceived as a spectrum, such solutions are in effect aiming to “push” individuals towards the “effective” nationality end of the spectrum and away from the de jure end. Understanding nationality—and solutions to statelessness—in this way can help articulate what “solving statelessness” can mean. For instance, acquisition of any nationality helps individuals leave the de jure stateless end of the spectrum and move towards the “effective” nationality end of it, since these individuals cease to be formally stateless. This can therefore be seen as a step in the right direction, but not as a complete resolution of the statelessness of the individual if it does not “push” them towards the “effective” end of the spectrum. A solution which ensures that stateless individuals acquire the nationality of their “own country” brings stateless individuals further along the spectrum (that is, closer towards “effective” nationality), since it ensures the acquisition of not just any nationality but one that is based on a genuine connection between the individual and the State, and so relates to the individual’s sense of belonging to a particular community. A solution that ensures that stateless individuals, upon acquisition of nationality, are able to become citizens and enjoy all rights attached to their new nationality, but where this nationality is not that of their “own country” also moves stateless individuals along the spectrum towards effective nationality. Meanwhile, a solution that provides “effective” nationality is seen as completely resolving the situation by bringing the individual to the other “end” of the spectrum. However, the steps along the spectrum are not clearly defined. Further research and development of the elements constituting effective nationality might help produce more sustainable and rights-based solutions to statelessness.

Conclusion

This article has considered the meaning of the right to nationality through three lenses in order to try to identify ways in which solutions to statelessness can be made to be meaningful to both individuals and States. The well-known definition from the Nottebohm case was used as a starting point for the interpretation of the right to a nationality, but the discussion then drew on the ideas of “citizenship” as membership of a community, one’s “own country”, and “effective nationality”, in order to explore the modern meaning of nationality.

When focusing on nationality in the sense of citizenship of a State, this article discovered an imperative which demonstrates that the State-centric approach to nationality has to be turned upside down. Equal protection of fundamental rights requires the recognition—for every member of the society who is able and willing to assume the reciprocal responsibilities of citizenship—of the right to be a citizen in the State where he or she is “at home” in the sense of belonging to a (national) community where his/her citizenship can be effective. ⁸⁸ The concepts of “genuine connection” and “own country” show that nationality needs to be based on meaningful, factual and special ties between a person and a State. In particular the notion of “own country” in international human rights law demonstrated the need for a focus beyond the State’s perspective, and the necessity of taking into account the personal ties of the individual with a country. As a consequence, certain rights like the right to enter one’s own country can be ensured. When looking at “effective” nationality, both a “genuine link” between the individual and the State and a “functioning” aspect of nationality are necessary for nationality to be effectuated, since either one without the other falls short of a full solution to statelessness.

The three lenses used to explore nationality in this article present complementary views of what nationality means and how it relates to solving statelessness. Taken together, they make clear that any real solution to statelessness requires more than the acquisition of a nationality. This is not a new argument; it is based on existing concepts in international law and human rights law and draws on numerous writings concerning solutions for statelessness and the legal instruments dealing with these matters. Implicitly, actors involved in finding solutions to statelessness already understand that statelessness cannot be solved by granting any nationality. This article’s exploration through the three lenses demonstrates (again) that the right to a nationality, and therefore solutions to statelessness, are about so much more than just “a” nationality. They are about giving people rights, dignity, identity, inclusion, equality, and a home. As the examples used in this article show, other solutions may fail to achieve the function of nationality as the heart of democratic legitimacy of States, disregard the individual’s valid interests, and fail to address the deeper issues attached to statelessness. In order to solve statelessness, it is necessary to recognise but also move beyond a State-centric understanding of the right to nationality toward an understanding of nationality as the content of a human right to citizenship. What is necessary is a nationality that represents a meaningful connection between a person and a State that enables the person involved to actively enjoy the full array of rights and to take part in society as a citizen.