JIMS ENGINEERING MANAGEMENT TECHNICAL CAMPUS SCHOOL

OF LAW, GRETAER NOIDA (AFFILIATED TO GGSIPU)

Subject- Refugee Law

Submitted to- Mr. Ashish Saraswat

Topic- Dual or Multiple Nationality and Statelessness

FOR THE FULFILLMENT OF THE DEGREE OF B.A L.L.B

The concept of statelessness

A person is stateless if he or she is not considered to be a national by any State. This definition of
statelessness is known as de jure statelessness because it arises from the absence of the formal
bond of nationality, where nationality is determined according to a State’s domestic laws. While
clearly undesirable, de jure statelessness is not inconsistent with customary international law,
which recognises the general competence of States to confer or withdraw their nationality. 1The
operation of a State’s domestic laws may thus leave a person without any nationality, subject
only to treaty obligations that modify this situation for States Parties.
The concept of de jure statelessness has been criticised as being too narrow. Some individuals
technically possess a nationality but are unable to enjoy its benefits because they cannot prove
their nationality or because the State of their nationality is not able or willing to offer them
protection. This lack of effective nationality has been described as a situation of de facto
statelessness. For example, women and children who have been subjected to human trafficking
are often held in a foreign country in conditions akin to slavery, with no access to their passports
and no practical possibility of seeking the protection of their national State. This places the
victims of trafficking in a situation that some people describe as de facto statelessness.
The concept of de facto statelessness provides a useful tool for considering the ways in which
nationality, or its absence, affects the legal rights of individuals. It may also have operational
significance in so far as it affects which international agency has responsibility for affording
protection. Yet, if viewed as a legal concept, de facto statelessness is a broad and imprecise
concept that generates discord with established legal regimes for protecting refugees and human
rights more generally. For this reason, international instruments that address issues of
statelessness are generally confined to dejure statelessness. Thus, the Convention Relating
to the Status of Stateless Persons 1954(art 1) defines a stateless person as ‘a person
who is not considered as a national by any State under the operation of its law’. The number of
stateless persons in the world today is similar to the number of refugees. At the end of 2009, the
United Nations High Commissioner for Refugees (UNHCR) had identified 6.6 million stateless
persons in 61 countries, and estimated the global population of stateless person to be 12 million.
This may be compared with 10.4 million refugees, whose plight is generally much better known.
Information on the magnitude of stateless populations is incomplete, however, because the
majority of countries do not register stateless persons and cannot provide reliable data. Of those
countries for which data are available, Thailand has the largest stateless population(3.5 million),
followed by Nepal (800,000) and Myanmar (724,000), while stateless populations of more than
100,000 are also found in Latvia, Syria and Iraq. Difficulties of estimation are compounded by
the nexus between statelessness and status as a refugee or internally displaced person.
Statelessness, and the lack of State protection that this implies, may be the primary reason
underlying some individuals’ decision to flee their place of origin, but such persons cannot
strictly become refugees until they are outside the State of their habitual residence (see Chapter
XR). Many stateless persons do not cross international borders and are unable to access the
benefits of the international regime of refugee protection. The UNHCR is the principal United
Nations agency that addresses the challenges of statelessness. Since its inception, UNHCR has
had responsibility for stateless refugees, but this mandate was extended beyond refugees by the
United Nations General Assembly in 1974—the year the Convention on the Reduction of
Statelessness 1961 came into force—and extended again in 1994 and 1995. The mandate is
universal in that it is not restricted to States Parties to relevant international instruments. There is
a degree of similarity, and sometimes overlap, between the agency’s functions with respect to
stateless persons and refugees, both of whom lack national protection. UNHCR seeks to collect
reliable data on stateless persons for the purpose of discharging its functions; actively promotes
wider ratification of relevant treaties; and has acknowledged the need to ‘redouble its efforts’ to
address statelessness in coordination with other agencies, organisations and civil society.
Paths to statelessness
De jure statelessness may arise either at birth because a child does not acquire an original
nationality according to the law of any State, or it may arise subsequently if a person loses his or
her nationality without acquiring another nationality. De facto statelessness usually arises in
situations of State repression and is addressed below in relation to human rights of stateless
persons. Statelessness at birth results from the circumstance that nationality is determined by a
State’s domestic law, and States adopt different bases for granting their nationality. If all States
adopted the jus soli principle, statelessness at birth would not arise because all children are born
in the territory of one State or another (once the principle is extended to ships and aircraft).
However, application of the jus sanguinis principle can lead to statelessness at birth in various
ways, which are illustrated by following examples.
The first is where a child is born in a State that applies the jus sanguinis principle to parents who
are themselves stateless. With no nationality to receive from its parents by descent, the child
inherits the parents’ statelessness, thus perpetuating social and economic disadvantage from one
generation to another. This is the experience of many Bidun children born in Kuwait.24 A second
example is where a child is born in StateA (which applies the jus sanguinis principle based only
on paternal descent) to a mother who is a national of State A and a father who is stateless. The
child is unable to acquire the mother’s nationality, while the father has no nationality to confer. A
third example is where a child is born in State A (which applies the jus sanguinis principle based
only on paternal descent) to a mother who is a national of State A and a father who is a national
of State B (which applies the jus soli principle). The mother is unable to confer her nationality on
her child because of State A’s gendered nationality laws, while the father’s nationality is
unavailable because it is not conferred by descent and the child is not born in State B. As
discussed further below, a number of human rights treaties address the problem of statelessness
at birth by imposing obligations on States to grant nationality to children who would otherwise
be stateless. Statelessness can also arise subsequent to birth if a person loses his or her
nationality without acquiring another nationality. There are many ways this can occur, reflecting
the variety of circumstances in which nationality may be lost through renunciation, revocation,
or State succession, as discussed above. For example, a person may become stateless, even if
temporarily, by renouncing an existing nationality in anticipation of acquiring a new one. A
person may become stateless if a State revokes its nationality upon discovering that it was
obtained by misstatement or fraud. The United States has done this in respect of naturalised
immigrants who were later found to have concealed their Nazi involvement during the Second
World War. Large groups of people may become stateless when States fragment or recombine.

Human rights of stateless persons

Stateless persons are some of the most vulnerable and oppressed people in the world, facing
daily obstacles and hardships that do not apply to a country’s nationals or even to foreign
nationals residing within a country. Examples of oppressed stateless peoples can be found all
over the world, including the Bihari in Bangladesh (see Case Study 4.2), the Bidun in the Middle
East, the Rohingya in Myanmar (Burma), the Roma in Europe, and the Karen in Thailand. In
many States with weak human rights records, stateless persons live on the margins of society and
are subjected to discrimination at the hands of the State, its agents, or private persons. Even in
States with generally sound human rights records, stateless persons must deal with the fact that
‘nationality is a practical prerequisite for accessing political and judicial processes and for
obtaining economic, social, and cultural rights’. Without status or documentation, stateless
persons may be unable to obtain health care, employment or education; acquire property; or
travel.
Some may be caught in a limbo of indefinite migration detention if they have entered a State
unlawfully and no other State is willing to accept their return. The legal frameworks that have
been developed to address these human rights concerns include both specialised and generalised
treaties. UNHCR is also developing ‘soft law’guidelines on statelessness to help States and
practitioners to better identify, prevent or reduce statelessness, and to protect the rights of
stateless persons.
Multiple nationality
Multiple nationality occurs where an individual possesses the nationality of more than one State.
As mentioned above, multiple nationality can occur as a result of birth of a child in a State that
accords nationality on the basis of the jus soli to foreign parents who are nationals of States that
recognise nationality by descent (jus sanguinis). It can also occur where individuals become
naturalised, or become married, in a State without relinquishing their original nationalities.
In past eras, and to some extent in the present, multiple nationality was disfavoured by States,
even though the status is permitted by international law. As late as 1974 the German Federal
Constitutional Court regarded dual or multilateral nationality as ‘an evil that should be avoided
or eliminated in the interests of States as well as the interests of the affected citizens’36 because
it was thought that a person should owe only one allegiance and thus have only one nationality.
In an age when the treatment by a State of its own nationals lay behind the walls of exclusive
‘domestic jurisdiction’ and was not subject to international law, the invocation of another
nationality was regarded as an unwelcome complication and as subversive of exclusive national
sovereignty.
Negative attitudes towards multiple nationality have substantially lessened in recent years. The
Preamble to the European Convention on Nationality 1997 notes ‘the varied approach of States
to the question of multiple nationality’ and adopts a neutral position on the question, except for
its prohibition of depriving children born with a foreign nationality, or married women, of
multiple nationality (arts 14–17). The trend of States towards acceptance of multiple nationality
has been informed by several forces. For migrant sending countries, it has been prompted by
their desire to maintain links with their Diasporas and also to sustain the inward flow of
remittances from migrants working abroad. For migrant receiving countries, it has been
prompted by the desire to encourage the integration of migrant communities by incorporating
them into the political and social community of the State, without forcing them to sever all ties of
sentiment with their countries of origin. More generally, the incidence of multiple nationality has
increased as a result of the greater mobility of individuals throughmigration and asylum in a
globalised world.
Some problems remain, even in States that recognise multiple nationality in principle and accord
human rights in their territories to all persons present there, without discrimination. The first of
these concerns compulsory military service. There are a number of bilateral treaties on this
subject, as well as the multilateral Protocol Relating to Military Obligations in Certain Cases of
Double Nationality 1930. This Protocol, which binds relatively few States, provides that military
service must be fulfilled only in the State where the dual national is ordinarily resident. This
would seem to be a sensible solution even for States not party to a relevant treaty, but some
States persist in their attitude of compulsory service for nationals, leading to diplomatic friction
with another State of which the individual is also a national and in which he is normally resident.
The problem is of diminishing significance as the number of states imposing compulsory
military service declines. The second problem concerns the right of diplomatic protection,
including the espousal of an international claim.
The Convention on Certain Questions Relating to the Conflict of Nationality Laws 1930 (art. 4)
lays down the rule that ‘A State may not afforddiplomatic protection to one of its nationals
against a State whose nationality such person also possesses’. This rule is said to reflect the
principle of equality. It has already been noted in connection with the Nottebohm Case that the
Court, by implication, even extended this notion to rule out a right of protection by the national
State against a State of permanent residence, albeit falling short of formal nationality (see Case
Study 4.1).
However, doubts about the binding nature of this rule in customary international law had been
voiced even before 1930, and were deepened with the Merge Claim Case of 1955.38 The
International Law Commission (ILC)—a subsidiary organ of the United Nations General
Assembly39—significantly modified the 1930 formulation in its Draft Articles on Diplomatic
Protection (2006), as follows:
Art. 7: A State of nationality may not exercise diplomatic protection in respect of a person
against a State of which that person is also a national unless the nationality of the former State is
predominant, both at the date of injury and at the date of the official presentation of the claim.
A further issue with respect to the right of diplomatic protection arises where a State asserts the
right of protection over a person possessing more than one nationality against a third State of
which he or she is not a national. The 1930 Convention (art. 5) laid down an ‘effective
nationality’ test but this has also been rejected by the ILC Draft Articles, which have adopted a
clear-cut approach allowing an unrestricted right by any State to protect its nationals: Art. 6: (1)
Any State of which a dual or multiple national is a national may exercise diplomatic protection
against a State of which that person is not a national. (2) Two or more States of nationality may
jointly exercise diplomatic protection in respect of a dual or multiple national.