Nationality and Statelessness in the International Law of Refugee Status

Eric Fripp

• Publisher: Hart Publishing
• Year: 2016
• Print ISBN:
  9781782259213
• Edition: 1
• eBook ISBN:
  9781782259220
• Topic: Law
• Subtopic: International Law
• Index: Law

International refugee law anticipates state conduct in relation to nationality, statelessness, and protection. Refugee status under the Convention relating to the Status of Refugees 1951 and regional and domestic instruments referring to it can be fully understood only against the background of international laws regarding nationality, statelessness, and the consequences of national status or the lack of it. In this significant addition to the literature a leading practitioner in these fields examines, in the light of international law, key issues regarding refugee status including identification of 'the country of his nationality', concepts of 'effective nationality', and the inclusion within 'persecution' of a range of acts or omissions focused on nationality.

Part I

Background

1

Nationality, Citizenship, Statelessness

Nationality is the expression of affiliation to a State for purposes of international law. The classical position that nationality falls to the reserved domain of the State in principle remains in force, and nationality can be created only by municipal law. However, state exclusivity is balanced by the increasing development of international standards relevant to state conduct affecting nationality, and breach of international conventions, international custom and principles of law generally recognised with regard to nationality, will be relevant to whether the bestowal or removal of status by a State will be recognised on the international plane.

Contents

A.Nationality Defined

A1.General Definition

A2.Relationship Between National and International Law

i.General Features

ii.Nationality and Citizenship

iii.The Interaction of State Exclusivity and International Law

iv.Domestic Law is Not a Defence to Breach of International Law

A3.Nationality Requires Existence of a State

A4.Modes of Acquisition and/or Loss of Nationality

i.Acquisition

ii.Loss

iii.Denationalisation

iv.State Succession

A5.Nationality and ‘the Operation of its Laws’ by the State

A6.Incidents of Nationality

i.Entry/Remaining in the Country of Nationality

ii.Diplomatic Protection

iii.Internal Protection

A7.Dual or Plural Nationality

A8.Minimum Content

A9.‘Effective Nationality’

A10.Recognition and Non-Recognition

i.Non-Recognition in General

ii.Denationalisation in Particular

iii.Other Instances of Non-Recognition

A11.Opposability

A12.Nationality Documentation

i.National Passports and Travel Documents

ii.Travel Documents

iii.Consular Certificates

iv.Birth Certificates or Other Documents

A13.Proof of Nationality

i.Presumption of Nationality from Passport

ii.Assessment of Evidence

iii.Expectation of Application to Authorities of State in Certain Circumstances

B.Nationality and Citizenship

B1.Distinction of Nationality from, and Relation to, Citizenship and Equivalent Status

B2.Acquisition and/or Loss of Citizenship

B3.Regional Citizenship

C.Statelessness

C1.Definition of Statelessness

i.De Facto Statelessness

A.Nationality Defined

A1.General Definition

1.1The Oxford English Dictionary sets out several meanings of ‘nationality’, including ‘national quality or character’, ‘Nationalism; attachment to one’s country or nation; national feeling’ and ‘The fact of belonging to a particular nation; spec. a legal relationship between a state and an individual involving reciprocal rights and duties’. The root concept ‘nation’ is defined as:

An extensive aggregate of persons, so closely associated with each other by common descent, language, or history, as to form a distinct race or people, usually organised as a separate political state and occupying a definite territory.

In early examples the racial idea is usually stronger than the political; in recent use the notion of political unity and independence is more prominent.¹

1.2The dictionary entry states the existence of two potential concepts, related to but independent of the other, either of which may underlie the idea of a ‘nation’ in a particular case. One of these is a term exclusively of law, the other one of society and politics. This is wholly consistent with the observation of Paul Weis, who, writing in 1956 at the start of his very important study of Nationality and Statelessness in International Law (a second edition was published in 1979),² emphasised the existence of two senses in which the term ‘nationality’ might be employed:

The term ‘nationality’ in the sense in which it is used in this book is a politico-legal term denoting membership of a State. It must be distinguished from nationality as a historico-biological term denoting membership of a nation. In the latter sense it means the subjective corporate sentiment of unity of members of a specific group forming a ‘race’ or ‘nation’ which may, though not necessarily, be possessed of a territory and which, by seeking political unity on that territory, may lead to the formation of a State.³

Nationality in that sense, which is essentially a conception of a non-legal nature belonging to the field of sociology and ethnography, is not the subject of this work. The use of the same term for two different notions, belonging to two different branches of science is, however, not merely accidental. It can be explained by historic-genetic reasons and is not entirely irrelevant when treating nationality as a legal concept, as will be shown later.⁴

1.3Weis noted the origin of the root term ‘nation’ as the Latin word ‘natio’, but this provides only a starting point in definition of the modern term ‘nation’ and its extension ‘national’—the Latin term possessed a range of potential meanings including ‘people, tribe, kin, genus, class, flock’ as well as legal membership.⁵ Equivalent terms exist in many other languages, including for example French (nationalité), German (Nationalität), Italian (nazionalità) and Spanish (nacionalidad).⁶

1.4Whilst the Latin word clearly illustrates antecedent usage, the meaning focused upon both by Weis, and in this work, is nationality as that term is generally employed in the context of international and national laws, that is, as ‘a politico-legal term denoting membership of a State’. This meaning reflects appropriation of the earlier, broader usage of the term in order to give a name to the legal connection of membership or affiliation as between an individual and the State, as opposed to the relationship between a subject and a monarch. This core legal meaning of ‘nationality’ as denoting legal connection between individual and State is surprisingly recent. It seems to have its first roots in the development, after the French Revolution in 1789, of legal language referring to nationhood as emanating from the popular will rather than from shared fealty to a monarch.⁷ According to Zernatto and Mistretta, ‘“Nationalité” as a term denoting State membership was confirmed officially by the 1835 Sixth Edition of the Dictionnaire de l’Académie Française’.⁸

1.5In international law, ‘nationality’ means not simply membership of a State, but ‘attachment to that State for purposes of international law,’ the attachment necessarily being of a form indicative of affiliation or membership. Harvard Law School research done in the 1920s, and later cited with approval by Plender, defined nationality in this context as ‘the status of a natural person who is attached to the State by the tie of allegiance’.⁹ In Messih v Minister of the Interior (1950) 28 ILR 291, the Egyptian Conseil d’État concluded that nationality ‘is the juridical and political link which unites an individual with a State’ and that ‘its rules form part of public law’. Oppenheim’s International Law further asserts that ‘Nationality is the principle link between individuals and international law’,¹⁰ whilst Dörr, in the Max Planck Encyclopedia of Public International Law, states that ‘the legal bond of nationality becomes the essential element of the individual’s legal status under international law’.¹¹

1.6It has been held that the legal relationship of nationality must reflect a particular connection between a national and the State of his nationality. In the Nottebohm case (Liechtenstein v Guatemala) [1955] ICJ Reports 4 (at 20), the majority finding in the International Court of Justice was:

According to the practice of States, to arbitral and judicial decisions and to the opinions of writers, nationality is 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. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State. Conferred by a State, it only entitles that State to exercise protection vis-à-vis another State, if it constitutes a translation into juridical terms of the individual’s connection with the State which has made him its national.

As will be seen later, this decision potentially impacts upon international law as regards the recognition and opposability of a nationality asserted on the basis of a State’s laws. But it is important to recognise both that the ‘social fact of attachment’ or ‘genuine connection’ held inherent in nationality by the Court may be minimal whilst still effective for the purpose of sustaining status as a national, and also that the ‘social fact’ and ‘genuine connection’ cannot create the legal status of nationality.

1.7Nationality, existing at the level of international law, follows from membership of the State defined by its municipal law, which in the modern era is most often referred to as citizenship. The congruence between the two concepts—nationality and citizenship—is so close that the terminology denoting state membership under domestic law (‘citizenship’ in most States today—in the United Kingdom formerly ‘subject’ and now ‘British citizen’ status, ‘Staatsangehörigkeit’ in Germany) is frequently if imprecisely also used to refer to the usual extension of that status on to the international plane as ‘nationality’.¹² By contrast the term ‘alien’ denotes a person who is not a national of a particular State, whether a national of another State or without any nationality. In comparative domestic practice there has over time been a substantial movement towards the preferential use of ‘citizen’ rather than ‘subject’, as language indicative of feudal rather than constitutional relationships has fallen into disfavour. However, the precise word or phrase employed in municipal law, whether citizen, or subject, or something else, is irrelevant on the plane of international law.

1.8At the level of legal theory the national of a State has been characterised as an extension of the sovereignty of the State itself, following the eighteenth-century Swiss philosopher, diplomat and legal theorist Emmerich de Vattel. In 1758 Vattel wrote that ‘Whoever uses a citizen ill, indirectly offends the state, which is bound to protect this citizen; and the sovereign of the latter should avenge his wrongs’.¹³ The Vattelian concept of the citizen as an extension of the State, also known as the ‘Vattelian fiction’ provides the theoretical justification for the interest in protection of a national by the State of nationality, even where the national is on the territory of another State which therefore possesses territorial supremacy. By doing so the Vattelian fiction provides the theoretical foundation for interrelationship of sovereignties as between that of the territorial State and that of the state of an alien’s nationality, and hence represents a factor offsetting in some part what had been advanced in classical international law as the absolute supremacy of the territorial State. The protection of its national by a State against a State possessing territorial supremacy is known as ‘international protection’ or ‘diplomatic protection’. Amerasinghe, a leading authority on diplomatic protection, has said that:

even though this protection is based on what has come to be called a fiction, it is a valuable source o...

Table of contents

• Cover
• Title Page
• Foreword
• Table of Contents
• Preface
• Acknowledgements
• List of Acronyms and Abbreviations
• Table of Cases
• Table of Treaties and Other International Materials
• Table of Domestic Legislation
• Part I: Background
• Part II: Interpretation of Relevant Provisions
• Select Bibliography
• Index
• Copyright Page