2.1. Article 18 VCLT

The key provision in treaty law is the ‘Obligation not to defeat the object and purpose of a treaty prior to its entry into force’ in Article 18 VCLT:

Article 18 finds its origins in Article 9 of the Harvard Draft Convention on the Law of Treaties (1935) (Obligation of a signatory prior to the coming into force of a treaty) and the principle of good faith.Footnote ¹² The scope and content of the provision were extensively discussed in the 1962 and 1966 ILC Draft Articles.Footnote ¹³ In 1968, the general view was that both sub-paragraphs (a) and (b) ‘conformed to general rules of international law’ or at least ‘could be regarded … as progressive development of international law’ and Article 18 was adopted.Footnote ¹⁴ Spanning this history, the Special Rapporteurs on the Law of Treaties (i.e. Brierly, Lauterpacht, Fitzmaurice and Waldock) all took a slightly different view on the nature of the obligation in Article 18, but in the end the general agreement was that this interim obligation was a legal obligation, albeit with some deficiencies.Footnote ¹⁵

Aust describes the obligation under Article 18 as ‘the obligation only “to refrain” (a weak term) from acts which would “defeat” (a strong term) the object and purpose of the treaty’ before its entry into force for the State.Footnote ¹⁶ Scholars agree that behind these simple words lies an enigma.Footnote ¹⁷ The provision captures the idea that ‘even a simple signature entails certain legal obligations … a middle ground between there being no obligations at all and full commitment to the treaty’.Footnote ¹⁸ Thus, the Article 18 obligation has been found to fulfil a dual purpose: domestically, it ‘allows States to review the treaty before it becomes fully binding on them, while, internationally, the interim obligation of Article 18 furthers and facilitates cooperation between signatory States’.Footnote ¹⁹

Most scholars read the ‘object and purpose’ of a treaty conjunctively,Footnote ²⁰ viewing them as encompassing both the reasons why States concluded the treaty and its ‘continuing functions and raison d’être’.Footnote ²¹ On this syncretic view,Footnote ²² one distinguishes what is essential from what is not, drawing on the International Court of Justice (ICJ) jurisprudence on the validity of reservations and its empirical method for determining a treaty’s object and purpose.Footnote ²³ In the practice of the ICJ, the ‘object and purpose’ of a treaty refers to the essential aim that animates the treaty as a whole and guides the reading of individual provisions. The ICJ identifies this aim from internal indicia:Footnote ²⁴ the title, preamble, introductory clauses (or chapeau provisions) that define the treaty’s normative scope, operative provisions that express its core commitments, and the overall structure, including the pattern of reservations. Where appropriate, the travaux préparatoires are consulted to confirm or clarify the reading. The approach is synthetic rather than mechanical, seeking to give coherent effect to the treaty’s object and purpose. This approach is sometimes said to rest largely on ‘intuition’ or a ‘sort of inner conviction’.Footnote ²⁵

Yet, a strand of French doctrine maintains that the two notions are distinct in definition. Rousseau, for example, defines ‘object’ as the ‘direct and immediate effect of the act’, and ‘purpose’ as ‘the result of the legal effect produced by the act’.Footnote ²⁶ Reuter likewise maintains that ‘the object of an obligation is one thing and its purpose is another’.Footnote ²⁷ Boisson de Chazournes, La Rosa and Mbengue endorse this approach, arguing that ‘the notions of object and purpose require different criteria’;Footnote ²⁸ purpose corresponds to a ‘functional criterion’ grounded in the treaty’s ends, while object corresponds to a ‘material criterion’ grounded in ‘the body of norms that has to be established in order to realize the objective pursued by a treaty’.Footnote ²⁹ By contrast, Pellet rejects this distinction; aligning with much of the scholarship reading these notions conjunctively, he regards these notional distinctions as ‘disappointing’ and treats ‘object and purpose’ as a single reference to the treaty’s raison d’être.Footnote ³⁰

Article 18 provides for two different scenarios covered in paragraphs (a) and (b) respectively. Article 18(a) covers situations where a State has signed a treaty, and signature means authenticating the final text of the treaty and consenting to it subject to ratification. Although the VCLT remains silent on how a State may make clear its intention not to become a party to a treaty it has signed, ‘a certain measure of formality’ is required for such an act of withdrawal.Footnote ³¹ For now suffice to say that France has been a signatory of the 1961 Convention since 1962 and, as will be shown in Sections 4.3 and 4.4, it does not appear to have ever indicated its intention to withdraw from it. Thus this scenario falls under the first limb of Article 18(a) VCLT: ‘it has signed the treaty … subject to ratification’.

In contrast, Article 18(b) covers situations where a State has agreed to be bound (through ratification) but the treaty is yet to enter into force; that State must refrain from acts which would defeat the object and purpose of the treaty pending the entry into force of the treaty provided this ‘is not unduly delayed’. Since the 1961 Convention has entered into force, France’s signature is covered by Article 18(a) and thus Article 18(b) need not be discussed further.Footnote ³²

In parentheses, Article 25 VCLT concerning ‘Provisional measures’ may also be relevant in a non-ratification scenario as it can give rise to interim obligations.Footnote ³³ However, its application is subject to the conditions set out in its paragraph 1: ‘A treaty or a part of a treaty is applied provisionally pending its entry into force if: (a) the treaty itself so provides; or (b) the negotiating States have in some other manner so agreed’.Footnote ³⁴ Since the 1961 Convention neither provides for provisional application nor has France expressed agreement to the provisional application of the Convention, this provision will not be discussed further in this article.

2.2. The customary status of Article 18 VCLT obligations

A matter of significance is the fact that France is not a party to the VCLT: it has neither signed nor ratified it, which means that Article 18(a) only applies to France if it is customary international law.Footnote ³⁵ Even if France were a party, the VCLT does not apply retroactively (Article 4).Footnote ³⁶ Since the 1961 Convention entered into force on 13 December 1975, prior to the entry into force of the 1969 VCLT on 27 January 1980, Article 18(a) itself cannot apply, only a parallel rule of customary international law can. It is therefore necessary to first determine whether Article 18(a) VCLT is customary international law before discussing France’s international obligations as a result of its signature of the 1961 Convention.

In 1965, Mr. Pal (India) observed in the International Law Commission (ILC) that the interim obligation reflected in Article 18 had long existed ‘in virtually all systems of law’.Footnote ³⁷ A year later, the ILC commented that ‘an obligation of good faith to refrain from acts calculated to frustrate the object of the treaty attaches to a State which has signed a treaty subject to ratification appears to be generally accepted’.Footnote ³⁸

In 1968, the Drafting Committee addressed the issue directly. At the time, what was then Article 15 comprised three sub-paragraphs: (a) extending the obligation of good faith during treaty negotiations; (b) later becoming Article 18(a); and (c) later becoming Article 18(b).Footnote ³⁹ Sir Humphrey Waldock (Expert Consultant) explained that the ILC ‘would not wish to maintain that the principle stated in article 15, sub-paragraph (a) was a rule of customary international law’;Footnote ⁴⁰ the general view was that sub-paragraph (a) laid down a new principle of international law.Footnote ⁴¹ In contrast, sub-paragraphs (b) and (c), which evolved into Article 18(a) and (b), were considered to be ‘conformed to general rules of international law’,Footnote ⁴² or at least ‘could be regarded … as progressive development of international law’.Footnote ⁴³ Mr. Pal noted, ‘[t]he principle of interim good faith in those matters was an accepted one, both in doctrine and in practice’.Footnote ⁴⁴ Some delegations expressed concern that the application of the rules in Article 18 could potentially give rise to difficulties because these rules ‘codified principles of good faith rather than strictly legal obligations’, but they did not question their customary character.Footnote ⁴⁵ The United States, for instance, which like France is not a signatory to the VCLT, is on record repeatedly stating that Article 18 reflects customary international law.Footnote ⁴⁶

Considering that the Conference aimed to codify and progressively develop international law, it can be concluded that Article 18 either codified pre-existing rules of customary international law or crystallised into customary law ‘as a consequence of its unanimous adoption by states at the Vienna Conference and its incorporation in Article 18 of the Vienna Convention’.Footnote ⁴⁷ This interpretation remains valid today. The rule in Article 18 appears in numerous treaties, and national courts ‘routinely reference signed treaties’ suggesting they carry evidentiary weight.Footnote ⁴⁸

Thus, the facts that the VCLT came into force after the 1961 Convention and that France neither signed nor ratified the VCLT are immaterial since customary law, which imposes equivalent obligations to those stated in Article 18(a), applies to France.

2.3. Does a signature without a follow-up ratification have an expiration date?

A State’s obligation under Article 18(a) is limited in time in that it only applies during the period between signature and ratification. This obligation therefore ceases when ratification occurs or when intention not to ratify is indicated; a decision entirely ‘dependent on the subjective intention of the individual State not to become a party’, and on that State alone.Footnote ⁴⁹ Article 18(a) thus does not involve the application of other provisions of the VCLT (e.g. Article 26 VCLT on pacta sunt servanda) since ratification has not yet occurred.Footnote ⁵⁰

Svetličič describes the intention not to ratify as ‘a rather broad right of a State’ since it can ‘be expressed anytime unilaterally’ without the risk of objection by other States.Footnote ⁵¹ A clear intent is required, which can be expressed implicitly or explicitly but does not necessitate notification.Footnote ⁵² This reading can be inferred from Article 25(2) VCLT on the provisional application of a treaty or part thereof which, unlike Article 18, explicitly specifies notification of termination to the other States. Footnote ⁵³

A notable and often cited example of a State making clear its intention not to ratify is the United States withdrawal from the Rome Statute in December 2007 by a diplomatic note sent to the UN Secretary General (depositary of that treaty).Footnote ⁵⁴ Other examples include the United States ‘unsigning’ of the Trans-Pacific Partnership (TPP) in 2017 through a formal letter from the President to the TPP Depositary in New Zealand,Footnote ⁵⁵ and the decision by Australia in 2017 not to proceed to ratification of the Extradition Treaty with China, signed in 2007.Footnote ⁵⁶ Although none of these intentions expressly referred to Article 18(a), they clearly are an application of the provision.

What is less clear is whether a very long delay between signature and ratification constitutes clear intent.Footnote ⁵⁷ Indeed, the average time between signature and ratification of human rights treaties worldwide is three years and ten months.Footnote ⁵⁸ Thus, a 64-year period (France signed the 1961 Convention on 31 May 1962) is certainly unusual. However, it is not unique in international law. For example, the 1954 Convention relating to the Status of Stateless Persons was ratified by a number of countries roughly six decades after signing it: Colombia (65 years), El Salvador (61 years), Honduras (58 years) and the Philippines (56 years); despite all having been original signatories.Footnote ⁵⁹ In the case of France however, no other treaties it has signed yet involve such a lengthy interim period. For example, France signed the 1985 Hague Convention on the Law Applicable to Trusts and on their Recognition on 26 November 1991 (currently 34 years), but concerns about recognising foreign trusts and the creation of a domestic fiducie in 2007 reduced the incentive to ratify;Footnote ⁶⁰ it signed the 1992 European Charter for Regional or Minority Languages on 7 May 1999 (currently 26 years) but subsequently found it partly unconstitutional by the Constitutional Council, so a constitutional revision was required and a 2015 attempt was rejected by the Senate;Footnote ⁶¹ it signed the ECN on 4 July 2000 (currently 26 years) but successive governments have not prioritised ratification and it would require technical adjustments;Footnote ⁶² and it signed the 2016 EU-Canada Comprehensive Economic and Trade Agreement (CETA) on 30 October 2016 (currently 9 years), which has been provisionally applied since 21 September 2017, but France’s ratification was blocked when the Senate rejected the bill on 21 March 2024.Footnote ⁶³

The case of the 1961 Convention is therefore unusual because of the length of the delay in ratifying, but being unusual is not the same as a signature expiring. What will become clear from Section 4 is that such delay, even without an imminent end in sight,Footnote ⁶⁴ cannot be equated to an expression of a clear intention not to ratify, unless the treaty in question specifies a clear time limit for ratification which is uncommon.Footnote ⁶⁵ Furthermore, such delay would not constitute an act defeating the object and purpose of a treaty since clear intent must be expressed ‘in a different manner’ to such acts.Footnote ⁶⁶

Thus it appears that the passage of time as such does not affect the validity of the signature of a treaty; the determinant factor is the intention, which must be clear.

3.1. Origins of the Convention

The 1961 Convention is ‘one of the earliest human rights treaties of the modern era’.Footnote ⁶⁹ It finds its antecedents in the 1930 Convention on Certain Questions Relating to the Conflict of Nationality Laws,Footnote ⁷⁰ which sets the abolition of all cases of statelessness as the ‘ideal towards which the efforts of humanity should be directed’.Footnote ⁷¹ Following the Second World War, addressing statelessness became even more urgent as Nazi policies of denationalising minorities significantly increased the number of stateless persons, making it ‘a problem of the first magnitude’.Footnote ⁷² The 1951 Convention relating to the Status of Refugees and the 1954 Convention relating to the Status of Stateless Persons ‘avaient cherché à améliorer la situation matérielle et morale de ces personnes’.Footnote ⁷³ Both Conventions concern protection of persons and are ‘particularly relevant to those who find themselves in another country’.Footnote ⁷⁴ However, they leave untouched the ‘problem of nationality’,Footnote ⁷⁵ i.e. the predicament of ‘[t]he majority of stateless persons [who] live in their country of birth or long-term residence and have never crossed an international border’Footnote ⁷⁶ or of refugees and stateless persons who have lived a long time in their country of refuge.Footnote ⁷⁷ Indeed, the two protection treaties instruct States to ‘as far as possible facilitate the assimilation and naturalization’ of refugees and stateless persons,Footnote ⁷⁸ but do not require State Parties to reform their nationality laws.

The 1961 Convention was adopted with the objective of reducing future cases of statelessness through the conferral and the non-withdrawal of nationality, and rules for its implementation.Footnote ⁷⁹ The future dimension was important during the early discussions because most States saw mass naturalisation as potentially destabilising for States with large numbers of (stateless) refugees, and shifting the focus to future cases of statelessness was thought to alleviate this concern.Footnote ⁸⁰ Thus the 1961 Convention provides an international legal framework that ‘gives effect to article 15 of the Universal Declaration of Human Rights which recognizes that “everyone has the right to a nationality”’ in any new cases of statelessness.Footnote ⁸¹ Adopted on 30 August 1961, the Convention entered into force on 13 December 1975. When it opened for signature, only five States signed it: the Dominican Republic, France, Israel, the Netherlands, and the United Kingdom (UK).Footnote ⁸² Today, the Convention has 82 parties (ratifications) including the Netherlands and the UK, with three signatories that have yet to ratify it: the Dominican Republic, France and Israel.Footnote ⁸³

3.2. Object, purpose and scope of the 1961 Convention

The 1961 Convention is concerned with preventing and reducing statelessness at key moments of a person’s life (i.e. birth and acquisition of nationality, through loss or renunciation of nationality, deprivation of nationality including on discrimination grounds, or transfer of territory).Footnote ⁸⁴ The 1961 Convention is therefore an important constraint on States’ response to statelessness, intervening in the domaine reservé of States, particularly in relation to States’ rules on acquisition of nationality.Footnote ⁸⁵ Furthermore, its provisions operate as a minimum requirement and are supplemented by States’ obligations under other treaties.

The provision of minimum standards is central to the Convention’s legal architecture. The Convention does not purport to occupy the whole field of nationality law, nor does it establish a comprehensive code or set of rules governing the acquisition, loss or deprivation of nationality. Rather, it identifies a limited number of situations in which the creation or continuation of statelessness is considered legally unacceptable, and it imposes safeguards in those situations. Other instruments of international human rights law supplement this framework by protecting the right to a nationality, prohibiting discrimination in access to nationality, and requiring special protection for children, women, persons with disabilities and other groups exposed to particular risks of exclusion.Footnote ⁸⁶ The 1961 Convention should therefore be read as part of a broader normative environment: it establishes specific anti-statelessness guarantees, while these other human rights instruments place more general or group-specific constraints on the exercise of State competence in nationality matters.Footnote ⁸⁷

Applying the approach of the ICJ to identifying the object and purpose of the 1961 Convention, the title signals a preventive and remedial purpose, i.e. reducing statelessness. The preamble to the initial draft Convention comprised seven paragraphs, noting that ‘everyone has the right to a nationality’ pursuant to the Universal Declaration of Human Rights (UDHR), that statelessness causes ‘suffering and hardship shocking to conscience and offensive to the dignity of man’, and that statelessness is at the origin of ‘friction between States’, referring to ‘the evil of statelessness’.Footnote ⁸⁸ However, the text was viewed as ‘pretentious’ by the UK and ‘too lengthy and pompous’ by France, and on Denmark’s proposal, it was unanimously agreed to reduce it to a few words citing the General Assembly resolution calling for the conclusion of the Convention, declaring that it is ‘desirable to reduce statelessness by international agreement’, and framing the treaty as a coordinated effort to limit nationality practices that create or perpetuate statelessness.Footnote ⁸⁹ Moreover, the Convention lacks an article of general principles. Instead, Article 1 imposes an immediately operative obligation on States to confer nationality at birth to otherwise stateless children born in their territory, subject to narrowly defined conditions. This streamlined drafting, which favoured concrete safeguards over abstract declarations, aimed to secure consensus in a politically sensitive area.

The core provisions implement the Convention’s purpose of reducing statelessness: Articles 1-4 establish safeguards at and around birth (full or conditional ius soli for otherwise stateless persons, foundlings, births on ships or aircrafts, and conferral through a national parent where birth occurs abroad). Articles 5-9 address the principal concern of the parties by prohibiting loss (automatic removal by law), renunciation (voluntarily by the individual) or deprivation (active withdrawal by the State) of nationality where this would result in statelessness, subject only to limited exceptions and procedural guarantees. The overall architecture of the Convention reinforces this reading: Article 10 addresses changes of territory, Article 11 envisages a UN body to assist individuals claiming the benefit of the Convention, Article 14 provides for dispute settlement before the ICJ, and Article 17 restricts the scope for admissible reservations to Articles 11, 14 and 15 only, thereby preserving the integrity of the core safeguards in the Convention.

Together, these indicia show that the 1961 Convention’s object and purpose is to prevent the emergence of statelessness and to establish corrective mechanisms where such risks persist. Although the Convention seeks to reduce rather than eliminate statelessness, its safeguards at birth are clearly ambitious, aiming to ensure that no child is born stateless. In contrast, its approach to statelessness arising from deprivation of nationality is more limited. Here, the measures focus on restricting permissible grounds and ensuring procedural safeguards. The Convention therefore encompasses two distinct approaches: a preventive approach directed at eliminating statelessness at birth and a regulatory approach designed to manage statelessness arising later in life. The Convention’s object and purpose are, moreover, consistent with the twin requirements of Article 15 UDHR, namely, guaranteeing the right to a nationality and prohibiting arbitrary deprivation of nationality.Footnote ⁹⁰

4.1. Participation of France in the drafting and negotiations of the 1961 Convention and the meaning of ‘signature’

France participated in both the first and second part of the UN Conference of Plenipotentiaries convened to conclude a convention on the elimination or reduction of future statelessness. The first part, which included 35 State Representatives as well as two States, four inter-governmental organisations and the Office of the UN High Commissioner for Refugees (UNHCR) as observers, was held in Geneva between 24 March and 19 April 1959. The second part included 30 State Representatives as well as two States, one inter-governmental organisation and UNHCR as observers, met in New York between 15 and 28 August 1961.Footnote ⁹²

Two observations may be made of France’s involvement in these lengthy discussions. The first observation speaks to the meaning of ‘signature’. France believed the principle of acceptability was as important as that of effectiveness when drafting a treaty provision. In its view, a treaty should not only be effective, it should also be broadly ‘acceptable to the greatest number of Governments represented at the Conference or of those which might later wish to accede to the Convention’.Footnote ⁹³ France’s signature of the 1961 Convention in 1962 can thus be understood as a gesture marking the conclusions of negotiations and signalling agreement with the consensus embodied in the treaty’s provisions, rather than as an act creating binding obligations. In this sense, France’s signature operated primarily as a symbolic or moral commitment.Footnote ⁹⁴ The second observation concerns France’s statement that ‘it was France’s tradition to permit as few reservations as possible to any legal instrument’.Footnote ⁹⁵ Despite this position, France entered reservations at the time of signature of the 1961 Convention, a decision likely shaped by the political context of the Algerian war and the broader dynamics of decolonisation .Footnote ⁹⁶

France’s involvement in the Conference was not insignificant; it was a member of the Drafting Committee during the first part of the Conference and a member of the Working Group during the second part of the Conference. Throughout the negotiations, France consistently expressed reservations regarding Articles 1 and 8 of the draft convention. It objected to Article 1 (on acquisition of nationality based on being born in the territory i.e. ius soli), arguing that French law in this area was already ‘comprehensive’ and could not ‘be abandoned or modified’, particularly its requirement of a genuine connection between the individual and the State whose nationality they are to obtain.Footnote ⁹⁷ Similarly, France opposed Article 8 (on deprivation of nationality), arguing that its wording would impose unnecessary restrictions on French law which, in France’s view, already provided ‘appropriate and adequate guarantees’.Footnote ⁹⁸

At the conclusion of the Conference, when the full text of the Convention was put to a vote, Mr Hubert said on behalf of the French delegation:

The divide between participating States on the issue of deprivation of nationality was a key factor behind the adjournment of the first part of the Conference (even prompting the Chairman to resign) and the decision to convene a second part.Footnote ¹⁰⁰ States advocating an automatic right to nationality for anyone born on their territory (ius soli) in return for broader grounds for deprivation, clashed with States whose nationality laws were based on ius sanguinis, where acquisition is more restrictive, and thus the need for deprivation measures is less pressing.Footnote ¹⁰¹ This divide highlights the interdependence of Article 1 (acquisition) and Article 8 (deprivation).

The second part of the Conference was primarily dedicated to the contentious issue of States actively depriving individuals of their nationality, with Article 8 finally adopted by 23 votes in favour, zero against and seven abstentions.Footnote ¹⁰²

Both Articles 1 and 8 are masterpieces of compromise. The complexity of Article 1 combines ius soli and ius sanguinis.Footnote ¹⁰³ Article 8 incorporates the duty of loyalty, removes any possibility for States to later adopt less stringent laws (indeed declarations under Article 8(3) may only be made on grounds existing in the national law at the time of signature, ratification or accession),Footnote ¹⁰⁴ and applies equally to naturalised individuals and born nationals. On this latter point, the only provision in the 1961 Convention that explicitly distinguishes between naturalised and born citizens is Article 7, even if some countries (e.g. the UK) have agreed to limit the application of Article 8(3)(a) on deprivation of nationality to naturalised citizens.Footnote ¹⁰⁵

On its last day (28 August 1961), the UN Conference adopted the Convention on the Reduction of Statelessness, which was open for signature from 30 August 1961 until 31 May 1962.Footnote ¹⁰⁶ France signed on the last day, and as noted above, it is one of only three States that have signed but not ratified the Convention.Footnote ¹⁰⁷

4.2. Reservations

Upon signature, France declared that it retained its right under Article 8(3) to deprive a person of their nationality in certain circumstances, even if such deprivation would render them stateless. France also attached reservations to Articles 11 and 14 of the Convention, pursuant to Article 17 which permits reservations at the time of signature to Articles 11, 14 and 15.Footnote ¹⁰⁸

In relation to Article 11, France considered that external oversight by a body such as UNHCR was incompatible with the normal exercise of its administrative and jurisdictional prerogatives,Footnote ¹⁰⁹ a position that was understandable given that France had established its own Office Français de Protection des Réfugiés et Apatrides (OFPRA) in 1952, responsible for examining applications and assisting refugee and stateless applicants.Footnote ¹¹⁰

In relation to Article 14 concerning the jurisdiction of the ICJ, France sought to ensure that this compromissory clause neither operated asymmetrically nor displaced dispute-settlement arrangements already agreed with another Contracting Party. Its reservation accordingly accepted the Court’s jurisdiction only vis-à-vis State Parties that had themselves accepted it on the same terms, and excluded Article 14 where an earlier treaty between France and the other party provided for another method of dispute settlement.Footnote ¹¹¹ The latter limitation did not presuppose the existence of an earlier treaty dealing specifically with nationality or statelessness: general dispute-settlement agreements could extend to legal disputes arising under other treaties.Footnote ¹¹² More generally, the reservation reflected France’s contemporary approach to compulsory international adjudication; its 1959 declaration under Article 36(2) of the ICJ Statute similarly excluded disputes for which the parties had agreed, or might agree, to another method of peaceful settlement.Footnote ¹¹³

At the time of signing, France also notified the ‘territorial application’ of the Convention to the UN Secretary-General, confirming that once ratified, the Convention would apply to all overseas department and territories. This position reflects the principle that these entities form an integral part of French territory and therefore cannot be subject to a separate treaty regime, a standard feature of French treaty practice.Footnote ¹¹⁴ In essence this means that the 1961 Convention has the same status in, for example, French Polynesia, Nouvelle Calédonie and Wallis and Futuna as it does in France, with French citizenship laws applicable in all such entities.Footnote ¹¹⁵

4.3. Non-ratification

France’s official position on ratifying the 1961 Convention, expressed during the 2013 Universal Periodic Review but remaining the same at the time of writing, can be summed up, in its own words, as follows:

This position is best understood as a statement of non-ratification for the time being, not as a withdrawal from the Convention. France did not state that it would never ratify, nor did it contest the value of the Convention’s object and purpose. On the contrary, the reference to ongoing dialogue with UNHCR preserved the possibility of future movement. The language of the statement is therefore cautious rather than definitive. It identifies domestic legal obstacles, especially in relation to nationality legislation, but it does not amount to a formal act making clear France’s intention not to become a party. For the purposes of Article 18(a) VCLT, this distinction matters. A State may have no current plan to ratify a treaty and yet remain within the interim regime created by signature, provided it has not made clear its intention to abandon ratification altogether. Thus, the use of the word ‘currently’ suggests that France deliberately left open the possibility of future ratification. This is reinforced by the accompanying phrase ‘a discussion is underway’, which signals ongoing engagement rather than disengagement. Therefore, even though the statement was made more than ten years ago, it cannot be interpreted as a definitive act of withdrawal.

The incompatibility identified by France was not merely inferred from the Government’s abbreviated 2013 statement. It had already been expressly and substantively explained by the Government during the Senate debates of 3 February 2011.Footnote ¹¹⁷ Responding to an amendment requesting a report on the prospects for ratification, Philippe Richert, speaking on behalf of the Government, stated that these ‘deux dispositions du code civil relatives à la nationalité seraient incompatibles avec cette ratification’ and argued that the Convention, rather than French law, should be amended.Footnote ¹¹⁸ He then identified separately the difficulties arising under Articles 27-2 and 21-4 of the Civil Code. The 2013 statement that ratification would require modifications to those same provisions should therefore be likely understood as a condensed restatement of this position formally expressed in 2011.

With respect to Article 27-2, the Government’s analysis expressly distinguished between its two limbs. The provision permits the withdrawal of decrees of acquisition, naturalisation or reintegration, first, where the person did not satisfy the statutory conditions for obtaining French nationality and, second, where the decision was obtained by misrepresentation or fraud. The Government acknowledged in 2011 that the fraud limb is covered by Article 8(2)(b) of the 1961 Convention, but observed that the Convention contains no equivalent exception for the mere non-fulfilment of the statutory conditions.Footnote ¹¹⁹ This is the actual source of the potential incompatibility. A withdrawal based on fraud may render the person stateless within the limits established by Article 8(2)(b), subject to the required causal connection, proportionality and procedural safeguards. By contrast, where the applicant did not satisfy a statutory condition but engaged in no dishonest conduct, Article 8 does not generally permit deprivation if it would result in statelessness. The point nevertheless requires one precision that was implicit rather than explicit in the ministerial statement. Article 8(1) prohibits deprivation only where it would render the person stateless. Article 27-2 is therefore not incompatible with the Convention in every application: no conflict arises under Article 8(1) where the individual retains another nationality.

The Government’s explanation concerning Article 21-4 was equally clear. As that provision stood in 2011, it allowed the Government to oppose the acquisition of French nationality by the foreign spouse of a French national on grounds of indignity or lack of assimilation. Minister Philippe Richert recognised that such opposition could render the person stateless even though neither ground, as such, corresponds to one of the cases permitted by the Convention.Footnote ¹²⁰ The Government therefore treated the difficulty as substantive, rather than as a merely procedural question. As with Article 27-2, however, Article 21-4 is not incompatible with the Convention where the individual retains another nationality.

The Government’s 2011 statement therefore provides a strong basis for understanding the French position expressed during the 2013 Universal Periodic Review. It demonstrates that France considered the obstacle to ratification to be principally substantive: Article 27-2 permits withdrawal for non-fulfilment of statutory conditions, and Article 21-4 permits opposition for indignity or lack of assimilation; neither ground, as such, corresponds to the 1961 Convention’s exceptions to the prohibition of deprivation resulting in statelessness.

As a matter of domestic law, however, ratification would not necessarily have required a prior formal amendment of the Civil Code. Both provisions confer powers that the Government may exercise; neither requires withdrawal or opposition whenever its statutory conditions are met. The Government enjoys broad discretion as to whether or not to exercise those powers.Footnote ¹²¹ Once ratified and published, the 1961 Convention would have authority superior to ordinary legislation under Article 55 of the French Constitution. Moreover, Article 8(1) 1961 Convention, which establishes a clear prohibition subject to expressly defined exceptions, would be likely to satisfy the criteria for direct effect established by the Conseil d’État.Footnote ¹²² French authorities would accordingly be required to refrain from exercising the non-fraud limb of Article 27-2, or the power of opposition under Article 21-4, whenever doing so would render the person stateless. A French court could likewise annul a withdrawal or opposition adopted in breach of that prohibition. The existing statutory powers could nevertheless remain applicable where the person possessed another nationality and, in the case of Article 27-2, where deprivation resulting in statelessness was based on fraud within the meaning of Article 8(2)(b). A legislative amendment inserting an express safeguard against statelessness would have improved accessibility and legal certainty, but it was not necessarily a strict prerequisite for ratification or compliance.

The practical effect of ratification would therefore have been to narrow the Government’s discretion rather than to invalidate the two provisions in their entirety. This appears to have been the real point of resistance. The political stakes underlying the supposed incompatibility emerge even more clearly from a report presented in June 2011 by Claude Goasguen, a member of the governing Union pour un mouvement populaire (UMP) majority and rapporteur of a cross-party information mission established by the French National Assembly’s Law Committee, in the wake of the Senate debates examined above and shortly after the enactment of the 2011 Law. This report expressly acknowledged that bringing French law into conformity with the 1961 Convention would ‘limiter encore davantage la marge de manœuvre et d’appréciation de l’État en matière de nationalité’.Footnote ¹²³ It objected that ‘de tels aménagements iraient à contre-courant du caractère souverain du droit de la nationalité que prône votre rapporteur’.Footnote ¹²⁴ The asserted need to modify domestic legislation should therefore be understood less as an unavoidable technical obstacle to ratification than as the expression of a sovereignty-centred conception of nationality, defended by the conservative Government and its majority, under which France should retain the widest possible freedom to withdraw or oppose nationality even where the consequence might be statelessness. Amending the Civil Code is therefore not so much a condition of compatibility with the Convention as a means of placing before the legislature the question of how much discretion the Government should retain in nationality matters.

4.4 France’s position on statelessness

5.1. Obligations rooted in customary international law on statelessness

Treaty law and customary international law may impose parallel obligations. A treaty provision may codify a pre-existing customary rule, crystallise a rule already in formation, or contribute to the emergence of a new customary rule where it is followed by a sufficiently general practice accepted as law.Footnote ¹⁶⁸ Conversely, the inclusion of a rule in one or more treaties, even widely ratified treaties, does not by itself establish its customary status: sufficiently general State practice and opinio juris must still be demonstrated.Footnote ¹⁶⁹ Once established, however, the customary rule retains an existence separate from the treaty and may bind non-parties in its customary capacity, even where its content is identical to that of the treaty rule.Footnote ¹⁷⁰

The customary character of one treaty provision does not, however, imply that the treaty as a whole has acquired customary status. This parallelism is provision-specific. A finding that a substantive treaty obligation reflects customary international law does not automatically extend to the treaty’s procedural or institutional architecture. Such provisions would have to acquire customary status independently. Provisions establishing international bodies, supervisory procedures or other institutional arrangements will not accompany a substantive rule merely because that rule has become customary. To make it perfectly clear, a treaty clause conferring jurisdiction upon a court or tribunal remains dependent upon State consent and cannot be made applicable to a non-party through the customary character of the substantive law to be applied.Footnote ¹⁷¹

This distinction determines how the customary significance of the 1961 Convention should be approached. The question is not whether the Convention in its entirety has become binding upon non-parties, but whether particular substantive standards contained in it have acquired an autonomous existence in customary international law. Thus, if the obligation contained in Article 1, for instance, has acquired customary status, France may be bound by that obligation independently of ratification, but only within the substantive scope established by customary practice. This would neither make France a Contracting State nor, by itself, incorporate the Convention’s institutional and jurisdictional machinery into the customary rule.

In this respect, there is a growing basis for treating the core obligation in Article 1 of the 1961 Convention (securing access to nationality for children born in a State’s territory who would otherwise be stateless) as a rule of customary international law. Article 1 allows Contracting States to grant nationality either automatically at birth or subsequently upon application, subject, in the latter case, only to the conditions exhaustively specified by the Convention. Recent literature, drawing on State practice and opinio juris, has argued that the necessary degree of convergence has now been reached.Footnote ¹⁷² The international instruments considered below reinforce that conclusion, although their existence and ratification do not, without more, establish the customary rule. Article 24(3) of the 1966 International Covenant on Civil and Political Rights (ICCPR) states that ‘[e]very child has the right to acquire a nationality’.Footnote ¹⁷³ The Human Rights Committee has clarified that this provision does not impose an unconditional ius soli requirement, but requires States to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when born.Footnote ¹⁷⁴ Similarly, Article 7(1) of the 1989 Convention on the Rights of the Child (CRC) provides that ‘[t]he child shall be registered immediately after birth and shall have the right from birth to a name, [and] the right to acquire a nationality’.Footnote ¹⁷⁵ Article 7(2) requires States to implement those rights in accordance with their international obligations, particularly ‘where the child would otherwise be stateless’.Footnote ¹⁷⁶ The relevant UN treaty bodies have subsequently identified the conferral of nationality by the State of birth, at birth or as early as possible thereafter, as a key measure where the child would otherwise be stateless.Footnote ¹⁷⁷

At the regional level, the ECN reinforces this obligation by requiring States to grant nationality to foundlings who would otherwise be stateless and to children born on their territory who do not acquire another nationality at birth. Nationality must be conferred either automatically at birth or subsequently upon application, which may be made subject only to a period of lawful and habitual residence not exceeding five years immediately before the application.Footnote ¹⁷⁸ Unlike the 1961 Convention, which permits States to make acquisition upon application conditional on the absence of certain criminal convictions, including a sentence of five years’ imprisonment or more, the ECN contains no equivalent disqualification.Footnote ¹⁷⁹

The position is more complex in relation to deprivation of nationality. There is ‘substantial authority’Footnote ¹⁸⁰ for treating the prohibition of arbitrary deprivation of nationality, expressed in Article 15(2) UDHR, as a rule of customary international law. The principle has been reiterated in international and regional instruments and repeatedly invoked by international bodies. The Eritrea-Ethiopia Claims Commission, faced with nationality deprivations not governed by an applicable treaty, examined their legality under customary international law and applied the prohibition reflected in Article 15 UDHR.Footnote ¹⁸¹ UNHCR similarly considers that all States, including those not party to the 1961 Convention, are subject to obligations concerning loss and deprivation of nationality pursuant to the prohibition of arbitrary deprivation.Footnote ¹⁸² Arbitrariness in this context is not confined to the absence of a legal basis: deprivation must pursue a legitimate purpose, comply with requirements of necessity and proportionality, and be accompanied by appropriate procedural safeguards.Footnote ¹⁸³

The customary prohibition on arbitrary deprivation of nationality should not however be conflated with the more specific rule contained in Article 8(1) of the 1961 Convention. Article 8(1) addresses a particular consequence of deprivation: it prohibits a Contracting State from depriving a person of its nationality if that would render the person stateless, except in the limited circumstances exhaustively listed in paragraphs 2 and 3. The two rules are related but distinct. A deprivation of nationality may be arbitrary even where the individual retains another nationality. On the other hand, deprivation resulting in statelessness is not necessarily arbitrary in every case under general international law. Reflecting this distinction, the UN Secretary-General has accordingly stated that deprivation resulting in statelessness will ‘generally be arbitrary’ unless it serves a legitimate purpose and satisfies proportionality, rather than treating statelessness as an absolute prohibition under general international law.Footnote ¹⁸⁴ The customary rule therefore overlaps with, but does not replicate, the detailed anti-statelessness regime established by Article 8. Whether the more specific constraints contained in Article 8 have legal consequences for France by virtue of its signature of the 1961 Convention, rather than because they have themselves acquired customary status, is a separate question considered in Section 5.2.

At the regional level, the ECN reinforces these principles by prohibiting arbitrary deprivation of nationality and by strictly regulating loss of nationality both ex lege and at the initiative of the State.Footnote ¹⁸⁵ In particular, where loss of nationality would result in statelessness, it is prohibited except in the limited case where nationality was acquired through fraud, misrepresentation or the concealment of a material fact.Footnote ¹⁸⁶ The ECN therefore draws a clear distinction between the general prohibition of arbitrary deprivation and the more specific prohibition of deprivation resulting in statelessness, while subjecting both to a particularly restrictive regional framework.

These more specific customary rules should nevertheless be distinguished from the broader proposition that States are subject, in all contexts, to a general customary obligation to avoid, reduce and prevent statelessness. Some authorities have treated the avoidance of statelessness as already forming part of customary international law. The Explanatory Report to the ECN, for instance, states that ‘the obligation to avoid statelessness has become part of customary international law’, while other scholarship has reached similar conclusions.Footnote ¹⁸⁷ Yet the existence and precise scope of such a general rule continue to be debated, particularly because of uncertainty as to whether sufficiently general State practice is accompanied by the requisite opinio juris.Footnote ¹⁸⁸ A recent systematic examination of State practice and opinio juris accordingly characterises the obligation to avoid, reduce or prevent statelessness as an ‘emerging’ rule of customary international law, a formulation which indicates a developing rather than conclusively established universal norm.Footnote ¹⁸⁹

This distinction is important. The fact that particular aspects of the international law of nationality have acquired customary status does not necessarily establish a broader customary obligation encompassing the prevention and reduction of statelessness in all circumstances. The child-specific guarantee discussed above and the prohibition of arbitrary deprivation of nationality are narrower rules supported by their own practice, opinio juris and international recognition. Their customary character therefore does not, without further evidence, establish that the more comprehensive objective pursued by the 1961 Convention has itself crystallised into a single rule of general customary international law.

For France, the resulting position is both significant and limited. To the extent that substantive standards in the 1961 Convention have acquired customary status, France is bound by those rules irrespective of ratification and independently of its signature of the 1961 Convention. As discussed above, this applies to the child-specific guarantee and the prohibition of arbitrary deprivation of nationality within the scope established by customary international law. It does not follow, however, that the Convention’s broader object and purpose has been reduced to those customary rules alone. A distinct question therefore arises as to the legal consequences of France’s signature in relation to those aspects of the Convention’s object and purpose that extend beyond existing customary international law. That issue falls to be assessed under the separate customary interim obligation reflected in Article 18(a) VCLT and is addressed in Section 5.2.

5.2. Obligations rooted in the customary status of Article 18(a) VCLT

The second category of obligations arises directly from France’s signature of the 1961 Convention and the customary obligations reflected in Article 18 VCLT. This obligation must be distinguished from the substantive rules of customary international law examined in Section 5.1. It does not make the provisions of the 1961 Convention applicable to France as treaty law, nor does it require France to comply with each of its provisions prior to ratification. Rather, it imposes the narrower interim obligation to refrain from acts which would defeat the Convention’s object and purpose. The relevant inquiry is therefore not whether French law conforms in every respect to the substantive provisions of the Convention, but whether particular conduct would undermine an element sufficiently central to the Convention’s object and purpose.

As established in Section 3.2, the object and purpose of the 1961 Convention is to prevent the emergence of statelessness and to establish corrective mechanisms where such risks persist. The Convention gives effect to that objective through two complementary approaches: a preventive approach, principally reflected in Articles 1–4 and directed at statelessness at and around birth, and a regulatory approach, reflected in Articles 5–9 and constraining the circumstances in which nationality may subsequently be lost, renounced or deprived where statelessness would result. The distinction drawn in Section 5.1 is important here. To the extent that particular substantive guarantees in the Convention reflect customary international law, France is bound by those rules irrespective of its signature. However, the Convention’s broader objective of avoiding, reducing and preventing statelessness has not, in all its dimensions, been conclusively recognised as a rule of customary international law. Article 18(a) therefore retains an independent significance: it does not impose on France a positive obligation to implement the Convention as a whole but it prevents France from acting in a manner that would defeat this broader treaty objective.

The preventive dimension requires only limited additional consideration under Article 18(a). As discussed in Section 5.1, the core safeguard for children who would otherwise be stateless is already recognised as a rule of customary international law and therefore binds France independently of its signature. Consequently, Article 18(a) adds less in this respect than it does in relation to treaty-specific constraints that do not have customary status. This does not mean, however, that the preventive dimension falls outside the Convention’s object and purpose. France remains subject to an interim obligation not to adopt measures that would frustrate the Convention’s essential objective of preventing statelessness at and around birth, even where the treaty mechanisms designed to achieve that objective are not themselves binding on France as treaty law. The independent significance of Article 18(a) is however more clearly seen in the Convention’s regulatory dimension.

The regulatory dimension provides useful indications of the content of the constraint imposed by Article 18(a). State practice concerning objections to declarations made upon accession identifies elements that States have regarded as essential to the 1961 Convention’s object and purpose. For example, Belgium, Finland, Germany, the Netherlands and Sweden objected to the declaration made by Togo allowing deprivation of Togolese nationality for individuals sentenced to more than five years’ imprisonment without parole for crimes under Togolese law. These States argued that such a declaration exceeded the limits authorised by Article 8(3) of the 1961 Convention and was therefore incompatible with its object and purpose.Footnote ¹⁹⁰ Similar objections were made in relation to Tunisia’s declaration, which expanded the grounds for deprivation beyond those permitted under Article 8(3),Footnote ¹⁹¹ and to the Philippines’ declaration, which Germany regarded as similarly incompatible with the object and purpose of the Convention.Footnote ¹⁹²

These objections offer a valuable insight into aspects of the regulatory dimension of the Convention. Article 8, the product of difficult compromise, establishes a general prohibition on deprivation of nationality, subject to limited exceptions, particularly in cases of misrepresentation or fraud (Article 8(2)(b)) and breach of the duty of loyalty (Article 8(3)(a)). Even then such measures must be ‘in accordance with law’ and accompanied by ‘the right to a fair hearing’ (Article 8(4)). Complementing these safeguards, Article 9 of the 1961 Convention prohibits deprivation of nationality on ‘racial, ethnic, religious or political’ grounds. Taken together, these provisions establish a specific treaty framework restricting the creation of statelessness through deprivation of nationality. That framework overlaps with the customary prohibition of arbitrary deprivation discussed in Section 5.1, but is not identical to it: its distinctive feature is the regulation of deprivation leading to statelessness and the careful delimitation of the circumstances in which statelessness is nevertheless permitted.

The significance of the objections described above should not therefore be overstated. Article 18(a) does not require France to comply with Article 8 as though the 1961 Convention were already in force. Nor does every conduct inconsistent with a particular treaty provision necessarily amount to an act that defeats the Convention’s object and purpose. The threshold is both different and more demanding. The objections nevertheless provide evidence that States have regarded the prohibition against statelessness created through deprivation (subject only to narrow exceptions), as one of the Convention’s core obligations. Legislation permitting deprivation of nationality resulting in statelessness on grounds substantially broader than those contemplated by Article 8(2) and (3), particularly where it is not accompanied by the safeguards reflected in Article 8(4), or authorising deprivation on racial, ethnic, religious or political grounds contrary to Article 9, would constitute a paradigmatic case of conduct defeating the regulatory dimension of the Convention’s object and purpose.

For France, therefore, the customary rule reflected in Article 18(a) creates a constraint distinct from both the substantive customary rules identified in Section 5.1 and the full obligations that would arise upon ratification. It does not make Articles 8 and 9 directly applicable as treaty provisions. It does, however, require France, for as long as it remains a signatory, to refrain from measures that would undermine the essential anti-statelessness safeguards which those provisions embody. This framework also clarifies the significance of Articles 21-4 and 27-2 of the Civil Code discussed in Section 4.3; their mere existence, or a possible divergence from the detailed requirements of Article 8, does not in itself establish a breach of the interim obligation. The relevant question under Article 18(a) is whether their application would go further and defeat the Convention’s central objective of constraining the creation of statelessness through deprivation of nationality.