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Right to a Nationality in International Law: Analysis of Historical Development
Hajime Akiyama Master’s Student, International Christian University akiyama.hajime.0618@gmail.com
1. Introduction Statement of the Problem
No research has comprehensively analysed the “right to a nationality” in international instruments.
Research Question
How has the right to a nationality developed in international law?
Method
- Analysis of an intention of drafting states (=states’ position to the right to a nationality) - Provisions, preamble, and travaux préparatoires
Significance
States’ views on the right to a nationality will be clarified.
=> It is important to see states’ views in the given sovereign state system.
International Instruments to Consider
1. Universal Declaration of Human Rights (Adopted on 10 December 1948)
2. Convention on the Nationality of Married Women (20 February 1957 / 11 August 1958) 3. Convention on the Reduction of Statelessness (30 August 1961 / 13 December 1975) 4. International Covenant on Civil and Political Rights
(16 December 1996 / 23 March 1976)
5. Convention to Eliminate All Forms of Discrimination against Women (18 December 1979 / 3 September 1981)
6. Convention on the Rights of the Child (20 November 1989 / 2 September 1990) 7. Convention on the Rights of Persons with Disabilities
(13 December 20006 / 30 March 2007)
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Framework of Analysis
1. Is a nationality considered as human rights? 2. Who is the subject of the right to a nationality? 3. What dimension of nationality is covered? 4. Right to which nationality?
5. How each international instrument relevant?
2. Right to a Nationality in International Instruments
Before the UDHR
Convention on Certain Questions Relating to the Conflict of Nationality Law (1930 Convention, 1930 / 1937)
Note: The preamble writes that “it is in the general interest of the international community to secure that all its members should recognise that every person should have a nationality and should have one nationality only.”
1. Human Rights: It does not recognise a nationality as human rights
2. Subjects: Married women (Arts. 8-11) and children (Arts. 13-16)
3. What Nationality:
Prevention of statelessness after birth (married women), naturalisation (children), acquisition of a nationality (children) and prevention of statelessness (children)
4. Which Nationality:
Original nationality (Married Women), parents’ naturalised nationality (naturalisation of Children) and the nationality of the state the child was born (foundling)
Universal Declaration of Human Rights (UDHR) Article 15:
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.
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Prohibition of deprivation of a nationality and the right to change a nationality (= not prevention of statelessness) were the central concern.
1. Human Rights: Nationality is regarded as human rights.
2. Subjects: All individuals
3. What Nationality:
(Right to a nationality,) Prevention of an arbitrary deprivation of a nationality and change of a nationality
Secretariat draft of the UDHR (4 June 1947, E/CN.4/AC.1/3, p. 12)
Right to nationality = Acquisition of a nationality of the State where he is born + Non- deprivation of a nationality unless acquiring another nationality + Right to renounce the nationality of his birth upon acquiring another nationality
=> Prevention of statelessness
Renunciation of a nationality and freedom of movement (1 July 1947, E/CN.4/21)
“[R]ight to a nationality” reappeared in December 1947 (E/600)
Second Session of the Drafting Committee, May-June 1948 (E/CN.4/AC.1/SR.39)
- UK proposed to change to “[p]ersons shall not be deprived their nationality, which they have acquire at birth, unless possessing another nationality.”
- France stated “[t]he purpose of article 15 was to express one of the general principles of mankind and to affirm that every human being should be a member of a national group. The United Nations should contribute to putting an end to statelessness by urging the necessary measures upon sovereign States.”
=> UK’s proposal was not adopted.
Third Session of the Commission on Human Rights, June 1948 (E/CN.4/SR.59)
- UK and India proposed to change to “[n]o one shall be arbitrarily deprived of his nationality.” (E/CN.4/99, p. 4)
- US: Importance to prevent an arbitrary deprivation of a nationality - Lebanon: Change of a nationality
=> Prohibition of an arbitrary deprivation of a nationality and a change of a nationality were inserted, and “the right to a nationality” was omitted.
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In October 1948, several states requested to include “the right to a nationality” in the Third Committee of the General Assembly (A/C.3/286/Rev.1), and it was included.
4. Which Nationality: Original nationality (Prevention of deprivation of a nationality)
Convention on the Nationality of Married Women (1957 Convention) 1. Human Rights:
Nationality is regarded as human rights (Preamble mentions Article 15 of the UDHR).
2. Subject: Married women
Nationality of married women was considered in the Economic and Social Council in 1951 in response to a recommendation of the Commission on the Status of Women. Originally the Convention on the Nationality of Married Persons was considered (E/CN.6/227, paras. 17-26), but later, it was limited to married women.
3. What Nationality: Prevention of a loss of a nationality and privileged naturalisation
4. Which Nationality:
Original nationality (Prevention of a loss of a nationality) and husband’s nationality (privileged naturalisation)
Convention on the Reduction of Statelessness (1961 Convention) 1. Human Rights:
It is not apparent that whether the right to a nationality is regarded as human rights from the provision. However, some provisions of the 1961 Convention refers to the UDHR, and “the right to a nationality” has been placed in the preamble in the drafting process. 2. Subject: All individuals
3. What nationality:
Prevention of statelessness (acquisition of a nationality and prevention of a loss of a nationality)
Among two drafts (the Draft Convention on the Elimination of Future Statelessness and the Draft Convention on the Reduction of Future Statelessness, A/2456), states chose the
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latter one, which posed a modest obligation (A/CONF.9/SR.2) in the international conference in 1959.
4. Which Nationality:
Nationality of the territory he or she is born and a nationality of his or her parents
International Covenant on Civil and Political Rights (ICCPR) 1. Human Rights: Nationality is regarded as human rights.
2. Subjects: Children
3. What Nationality: Acquisition of a nationality
Right to a nationality by birth (proposed by Poland in 1962 as a part of protection of children, A/5365)
4. Which Nationality: None
Convention to Eliminate All Forms of Discrimination against Women (CEDAW) 1. Human Rights: Nationality is regarded as human rights.
2. Subjects: Women - 1957 Convention
- Article 5 of the Declaration on the Eliminate All Forms of Discrimination against Women (DEDAW)
3. What Nationality:
Equal right with the men to acquire, change, possess and pass a nationality to the child and prevention of statelessness
4. Which Nationality: None
Convention on the Rights of the Child (CRC)
1. Human Rights: Nationality is regarded as human rights.
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2. Subjects: Children
- Declaration on the Rights of the Child in 1959
3. What Nationality: Acquisition of a nationality
Right to a nationality by birth was proposed by Poland (E/CN.4/L.1366).
4. Which Nationality: None
- Poland added that states “undertake to introduce” municipal law to confer a nationality of his or her birth concerning children who do not acquire another nationality (E/CN.4/1349).
- Australia proposed to put an obligation on states to confer a nationality based on jus soli principle when the child do not acquire another nationality (E/CN.4/L.1542)
=> But jus soli principle is not reflected on the current provision.
Convention on the Rights of Persons with Disabilities (CRPD)
1. Human Rights: Human Rights: Nationality is regarded as human rights.
2. Subjects: Persons with disabilities and children with disabilities
3. What Nationality: Acquisition and change of nationality and a prevention of deprivation of nationality
Right to a nationality was inserted on January 2006 (just before adoption) as a part of freedom of movement.
Para. 1: Right to acquire and to change a nationality and non-deprivation of a nationality Para. 2: Right of children to acquire a nationality
4. Which Nationality: Original nationality (prevention of deprivation of a nationality)
3. Analysis (see Table 1 and Figure 1) Framework of Analysis
Human Rights: Increasing number of instruments providing the right to a nationality Subjects: Three pillars of the right to a nationality (all individuals, women and children) What Nationality: Acquisition of a nationality is provided the most
Which Nationality: Too few provisions to implement acquisition of a nationality
3rd Joint Seminar, Early-Career Researcher’s Network for Human Rights (20 Novembe Right to a Nationality in International Law Hajime Akiyama 7
Table 1: Comparison of International Instruments
Which What Subject of Human Rights
Original Nationality
(Married Women), Parents’ Naturalised Nationality (Naturalisation of
Children) and Nationality of the State the Child was Born (foundling)
Prevention of Statelessness after Birth (Married
Women), Naturalisation (Children), Acquisition of a Nationality (Children) and Prevention of Statelessness (Children)
Married Women and Children
Original Nationality (Prevention of Deprivation of a Nationality) (Right to a Nationality) No Arbitrary
Deprivation of a Nationality and Change of a Nationality All Individuals
Original Nationality
(Prevention of Loss of a Nationality) and Husband’s Nationality (Privileged Naturalisation) No Loss of Nationality and Privileged Naturalisation Married Women
Nationality of the Territory He or She is Born and a Nationality of His or Her Parents Prevention of
Statelessness (Acquisition of Nationality, and No Loss of a Nationality) All Individuals
No
Acquisition of a
Nationality Children
3rd Joint Seminar, Early-Career Researcher’s Network for Human Rights (20 Novembe Right to a Nationality in International Law Hajime Akiyama 8
Which What Subject of Human Rights
No
The Same Rights to Acquire, Change and Possess a Nationality, and Prevention of Statelessness Women
No
Acquisition of a
Nationality Children
Original Nationality
(Prevention of Deprivation of a Nationality)
Acquisition of and Change of a Nationality and Prevention of Deprivation of a
Nationality
Persons with Disabilities and Children with Disabilities
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Figure 1: Relevancy of International Instruments
- Thin arrows indicate a relevancy or a possibility of relevancy (e.g. similar provisions). - Thick arrows indicate an obvious relevancy or a strong relevancy (e.g. the instrument is referred in the drafting process or mentioned in the provision in the context of a nationality)
The 1930 Conv.
UDHR
The 1957 Conv. The 1961 Conv.
ICCPR CEDAW
CRC
CRPD
