Literature on Customary norm to avoid statelessness

Against
1) Paul Weis
Scholars found it hard to identify a CIL rule preventing, avoiding, or reducing statelessness.
While scholars agreed that statelessness was undesirable for a state and for the international
community, they found it hard to contemplate a CIL.1 For instance, Weis believed that since
states determine who their nationals are, and since there are few restrictions on their right to
withdraw nationality, statelessness “cannot be entirely prevented by customary international
law”. 2 He concludes that there is no CIL norm to avoid statelessness except in cases of
discrimination in the withdrawal of nationality of a person and in cases where states are
obliged by specific treaties to confer nationality.3
Since the right of states to determine who its nationals are is well-rooted in international law, 4
a rule mandating states to prevent, avoid, or reduce statelessness presents a paradox.5

2) Alfred Michael BOLL

Boll also agrees that withdrawal of nationality rendering a person stateless could be construed
as an international problem, but concludes that a “claim that there exists an obligation to
avoid statelessness may overstep the requirements of international law”.6
3) Oliver DÖRR
While Dörr maintains that statelessness is undesirable, he opines that, apart from specific
treaty obligations undertaken by states and binding instruments creating an obligation in this
regard, there is a lack of opinio juris to establish a rule of CIL obliging states to avoid
statelessness.7
4) Andreas ZIMMERMANN
He notes that since there is scepticism surrounding the right to nationality under Article
15 of the UDHR being a CIL, there is no general CIL to avoid statelessness.8
For
1) Carmen TIBURCIO
1
See generally Paul WEIS, Nationality and Statelessness in International Law, 2nd ed. (Alphen aan den Rijn:
Sijthoff & Noordhoff, 1979) at 161–98.
2
Ibid., at 197.
3
Ibid., at 197–8.
4
See Nottebohm Case (Liechtenstein v. Guatemala) (Second Phase), [1955] I.C.J. Rep. 4 at 20; see also
Convention on Certain Questions Relating to the Conflict of Nationality Law, 13 April 1930, 179 L.N.T.S. 89
(entered into force 01 July 1937) [1930 Hague Convention], art. 1.
5
Paul WEIS, Nationality and Statelessness in International Law, 2nd ed. (Alphen aan den Rijn: Sijthoff &
Noordhoff, 1979) at 197.
6
Alfred Michael BOLL, Multiple Nationality and International Law, 1st ed. (Leiden/Boston: Martinus Nijhoff
Publishers, 2007) at 102–3.
7
Oliver DÖRR, “Nationality” (2006) Max Planck Encyclopedia of Public International Law at para. 9
8
Andreas ZIMMERMANN, “Secession and the law of State succession” in Marcelo G. KOHEN, ed., Secession:
International Law Perspectives (New York: Cambridge University Press, 2006) 208 at 228.
The obligation to avoid statelessness arising from the right to nationality and the prohibition
on the arbitrary deprivation of nationality in Article 15 of the UDHR are considered limits on
the state’s right to determine nationality.9
2) Laura Van Waas

“states are certainly under an overall duty to promote the right to a nationality and prevent
statelessness”.10
3) Presumption of the Norm (various authors)

There is an increasing trend to presume in favour of a CIL obligation to avoid, reduce, or

prevent statelessness based on the right to nationality.11
4) Adjami and Harrington

They have described this obligation as an “emerging norm”.12

5) Hailbronner

He affirms the existence in CIL of the obligation to avoid statelessness based on this obligation
being part of international instruments.13

6) Council of Europe

The Council of Europe recognizes the obligation to avoid statelessness as part of customary
international law with the 1961 Convention codifying the rules for its implementation.14
The Explanatory Report to the European Convention on Nationality interprets the right to
nationality as a positive formulation of the duty to avoid statelessness: The principle of a
right to a nationality is included in the Convention because it provides the inspiration for the
substantive provisions of the Convention which follow, in particular, those concerning the
avoidance of statelessness. This right can be seen as a positive formulation of the duty to
avoid statelessness (…)15
7) UNHCR

According to UNHCR, the avoidance of statelessness is a general principle of international

law.16

9
Carmen TIBURCIO, The Human Rights of Aliens Under International and Comparative Law, 1st ed. (The Hague:
Kluwer Law International, 2001) at 19–20; Batchelor, supra note 208 at 168–9.
10
Laura VAN WAAS, Nationality Matters: Statelessness under International Law, 1st ed. (Intersentia, 2008) at
40.
11
Annam FAROOQ, “Expunging Statelessness from Terrorist Expatriation Statutes” (2016) 44(3) Hofstra Law
Review 933 at 947–51; UNHCR, supra note 7 at 2; see also Jeffrey L BLACKMAN, “State Successions and
Statelessness: The Emerging Right to an Effective Nationality Under International Law” (1998) 19(4) Michigan
Journal of International Law 1141 at 1176.
12
Mirna ADJAMI and Julia HARRINGTON, “The Scope and Content of Article 15 of the Universal Declaration of
Human Rights” (2008) 27(3) Refugee Survey Quarterly 93 at 94;
13
Kay HAILBRONNER, “Nationality in Public International Law and European Law” in Rainer BAUBÖCK et al.,
eds., Acquisition and Loss of Nationality: Volume 1 Comparative Analyses: Policies and Trends in 15 European
Countries (Amsterdam: Amsterdam University Press, 2006) 35 at 65–6.
14
Council of Europe, Explanatory Report to the European Convention on Nationality, at para. 33.
15
Council of Europe, European Convention on Nationality. Explanatory Report [1997] ETS No 166 para 32.
16
UNHCR submission, U.N. Human Rights Council, Arbitrary deprivation of nationality: report of the Secretary-
General, 26 January 2009, A/HRC/10/34, at para. 51.