1. Introduction: holes in the rights framework
In 2005, James Goldston lamented the ‘holes in the rights framework’ created by international law’s deference to State discretion in the grant and withdrawal of citizenship, urging that this discretion be narrowed ‘by the incorporation of human rights concerns, including the prohibition against racial discrimination, into international legal rules on citizenship’.Footnote 1 More than a decade and a half after Goldston’s article, Michele Foster and Timnah Rachel Baker once again emphasised the normative gap in relation to racial discrimination and nationality,Footnote 2 examining in depth both the conflicted language of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD),Footnote 3 and the somewhat disappointing record of the Committee on the Elimination of Racial Discrimination (CERD Committee) responsible for the oversight of the treaty in interpreting this language.Footnote 4 In quick succession, Neha Jain illustrated how States are able to ‘manufacture’ statelessness despite the minimum standards of international law, ‘through creative techniques of indirect discrimination that circumvent international law standards by tampering with ostensibly neutral criteria relevant to nationality’ and administrative requirements that are impossible to fulfil.Footnote 5
And yet, during the gap between these assessments, Peter Spiro had suggested that the world was on the brink of a ‘new international law of citizenship’, in which international human rights law was colonising nationality as ‘the last bastion of sovereign discretion’.Footnote 6 Around the time that Spiro was writing, the United Nations High Commissioner for Refugees (UNHCR) began for the first time to devote significant resources to its mandate on statelessness and, in 2014, launched a ten-year campaign to end statelessness.Footnote 7 Normative guidance on nationality and statelessness multiplied at both United Nations (UN) and regional levels.Footnote 8 It could be declared that the eradication of statelessness had achieved ‘issue emergence’, as a ‘concept whose time has come’.Footnote 9 In 2024, UNHCR’s #ibelong campaign was converted into a Global Alliance on Statelessness, with membership from States and civil society as well as UN agencies.Footnote 10 Even the pessimists would agree that international law has moved on from the position expressed by Hersch Lauterpacht in 1955 that ‘according to international law, States are fully at liberty to adopt legislation resulting in statelessness’.Footnote 11 It is increasingly hard to argue that international law still regards the management of nationality as entirely within the domaine reservé of States.Footnote 12
But has the increased focus on avoidance of statelessness really had so little effect on the underlying prerogative given to States by international law to determine who are their citizens, including through the use of discriminatory laws and procedures? Even if the rhetoric has improved, is international law still essentially in the world of 1955, the same year that the International Court of Justice (ICJ) issued its famous judgment in the Nottebohm case, affirming that ‘international law leaves it to each State to lay down the rules governing the grant of its own nationality?’Footnote 13 Many States continue to emphasise this discretion, a principle established in 1930 by the League of Nations Convention on Certain Questions Relating to the Conflict of Nationality Law (League of Nations Convention on Nationality),Footnote 14 despite the intervening establishment of the international human rights regime. Goldston, Foster and Baker and Jain are far from the only scholars dismayed by the limited constraints in place.Footnote 15
This article revisits these discussions and asks where international law now stands on the right to a specific nationality. Its ambition is to show that the norms of international law in this area have moved further than recognised by recent literature, especially in relation to arbitrary denial of nationality on discriminatory grounds. It also revisits the concept of the ‘genuine connection’ that should exist between a person and the State of nationality, the lack of which was invoked in Nottebohm to deny the right of Liechtenstein to exercise diplomatic protection on behalf of its naturalised citizen.Footnote 16 The 2025 decision of the Court of Justice of the European Union (CJEU) to strike down the ‘investor citizenship’ programme adopted by MaltaFootnote 17 has revived this discussion in relation to the constraints on State discretion to extend citizenship to those without a ‘genuine connection’.Footnote 18 The article highlights an alternative approach, reinterpreting the idea of a ‘genuine connection’ as a positive reason for the State to grant nationality, even without proof of statelessness; and the particular contribution of the African and Inter-American human rights institutions to these developments.
The article takes the 2005 judgment of the Inter-American Court of Human Rights (IACtHR) in the Yean and Bosico case against the Dominican Republic as the starting point (issued the same year as Goldston’s article), the first contentious case at international level to conclude that the discretion of States in relation to nationality is limited ‘by their obligations to guarantee equal protection before the law and to prevent, avoid, and reduce statelessness’.Footnote 19 The article picks out five themes in the evolution of the normative frameworks: (a) the obligation to prevent and reduce statelessness; (b) loss and deprivation of nationality and the right to due process; (c) arbitrary denial of nationality as arbitrary deprivation; (d) an expanded interpretation of the definition of ‘stateless person’; and, in greatest depth, (e) the challenge to racial or ethnic discrimination, and the positive role of other types of ‘genuine connection’ as the basis for nationality. The concluding section reflects on the contribution of strategic litigation, proposed by Neha Jain, as a tool to challenge the manufacturing of statelessness.
2. Normative advances regarding the right to a nationality in international law
The right to a nationality was first articulated in international law by Article 15 of the Universal Declaration of Human Rights (UDHR).Footnote 20 Notoriously, however, the question of which specific State had the obligation to ensure that any particular individual enjoyed the right to a nationality remained unanswered for many years.Footnote 21 Nonetheless, some basic rules aimed at avoiding statelessness had already been established as early as 1930 by the League of Nations Convention on Nationality,Footnote 22 reinforced and elaborated in the UN era by the Convention on the Reduction of Statelessness (adopted in 1961, before the human rights treaties, but with low levels of adherence for many years).Footnote 23 The right to a nationality was also gradually incorporated into the treaty framework of the developing UN human rights regime, especially the right of every child to acquire a nationality.Footnote 24 But it was not until 1997 that the next treaty specific to nationality was adopted, when the European Convention on Nationality established somewhat more ambitious provisions than the Convention on the Reduction of Statelessness, followed in 2006 by a European treaty on the Avoidance of Statelessness in relation to State Succession.Footnote 25
The clearest advance in international law over these decades was the prohibition of discrimination based on sex in transmission of nationality to children and spouses. Discrimination based on sex was presumed to be the norm in the League of Nations Convention on Nationality, and in the Convention on the Nationality of Married Women (adopted in 1957);Footnote 26 it was finally explicitly prohibited in 1979 by the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).Footnote 27 Since Karen Knop and Christine Chinkin surveyed this progress in a comprehensive article at the turn of the twenty-first century,Footnote 28 non-discrimination based on sex in nationality matters is now also the norm in the overwhelming majority of national laws.Footnote 29 Human Rights Council resolutions condemning such discrimination are adopted without the need for a vote.Footnote 30 Even the League of Arab States, in the region hosting the majority of States that continue to discriminate on the basis of sex in transmission of nationality, adopted a declaration in 2017 calling for equal rights.Footnote 31
In relation to the specific rules required to realise the right to a nationality, however, there is no treaty body or court with oversight of the UN statelessness conventions, nor of the European treaties, since they are not (as originally proposed) protocols to the European Convention on Human Rights (ECHR) but, rather, freestanding texts with no designated oversight body.Footnote 32 The UN human rights treaties—most importantly the International Covenant on Civil and Political Rights (ICCPR)Footnote 33 and the Convention on the Rights of the ChildFootnote 34—do provide for every child’s right to acquire a nationality, but only in general terms. It was, therefore, the inclusion within the American Convention on Human RightsFootnote 35 and the African Charter on the Rights and Welfare of the ChildFootnote 36 of an otherwise stateless child’s right to the nationality of the State of birth that enabled legal challenges to State discretion to go beyond a demand for due process of law in the most egregious deprivation cases. The contribution of the African human rights institutions was cemented in 2024, when African States adopted the Protocol to the African Charter on Human and People’s Rights relating to the Specific Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa, the most expansive treaty framework to date, elaborating not only substantive obligations of States but also the procedures needed to implement them.Footnote 37
2.1. The obligation to prevent and reduce statelessness
Peter Spiro traced the evolution of the international law regime on nationality and statelessness from its initially thin content, focused on conflicts of law and the rights of States, into a more robust set of rules, concerned also with the rights of individuals. By 2011, he could assert the positive obligation to grant nationality in certain cases, especially for the prevention of statelessness in case of succession of States.Footnote 38 While the extent of State obligations to avoid statelessness is still contested in international law,Footnote 39 the trend is towards the strengthening of these rules. The avoidance of statelessness was emphasised in a series of resolutions of the UN Human Rights Council on arbitrary deprivation of nationality,Footnote 40 and has also increasingly featured in interventions by States at the UN Human Rights Council’s Universal Periodic Review.Footnote 41 In 2018, the African Court on Human and Peoples’ Rights (AfCtHPR) held that the elements of the right to nationality in Article 15 UDHR are part of customary international law.Footnote 42
The presumption that the State in whose territory a birth takes place should grant nationality to a child who would otherwise be stateless is one of the longest-standing in international law, established since the League of Nations Convention on Nationality, and incorporated into the Convention on the Reduction of Statelessness.Footnote 43 Nevertheless, the first regional or international court or treaty body to find a violation of this obligation in a contentious case was the IACtHR in the Yean and Bosico case;Footnote 44 the Court strengthened its position almost a decade later in a further decision against the Dominican Republic.Footnote 45 The African Committee of Experts on the Rights and Welfare of the Child (ACERWC) then drew on the Yean and Bosico decision in the first decision it adopted, against Kenya,Footnote 46 following this decision with its General Comment No 2 on Right to a Name, Birth Registration and a Nationality, reaffirming the responsibility of the State of birth,Footnote 47 and referencing both in a further decision against Sudan.Footnote 48 The African Commission on Human and Peoples’ Rights (AfComHPR) followed the lead of the ACERWC in relation to the obligation of States Parties towards people born in their territory, in decisions relating to Côte d’IvoireFootnote 49 and Kenya,Footnote 50 overcoming the absence of a specific provision on the right to a nationality in the African Charter on Human and Peoples’ Rights by holding that nationality is implied within the wording of Article 5 on the right to dignity and legal status;Footnote 51 a position confirmed by the AfCtHPR.Footnote 52 The Inter-American Commission on Human Rights (IACHR) has codified the principles from the regional jurisprudence into more general guidance on the right to nationality;Footnote 53 while the AfComHPR has specifically endorsed the rights of children to nationality in guiding principles on the rights of migrants.Footnote 54
The Council of Europe has also moved forward on this agenda, though more cautiously, based on the provisions for the grant of nationality to otherwise stateless children within the European Convention on Nationality.Footnote 55 In 2009, the Committee of Ministers adopted a Recommendation on the Nationality of Children, providing that States should ‘provide that children born on their territory who otherwise would be stateless acquire their nationality’; albeit with the important proviso that this is ‘subject to no other condition than the lawful and habitual residence of a parent’.Footnote 56 The further elaboration of the recommendation is in the course of being reviewed.Footnote 57 The European Court of Human Rights (ECtHR) has increasingly been willing to apply the international legal framework for the protection of stateless persons.Footnote 58
In 2021, the UN Human Rights Committee became the first UN treaty body to confirm the primary obligation of the State of birth to grant or ensure the acquisition of another nationality by a child born in its territory, in a case brought against the Netherlands by the stateless child of a stateless parent (both denied recognition of nationality by the Chinese authorities).Footnote 59 This jurisprudence has drawn upon and, in turn, informed an increasing body of general comments and other soft law from UN treaty bodies on the rights of children to a nationality,Footnote 60 as well as guidelines adopted by UNHCR in the context of its mandate on statelessness.Footnote 61
These developments have, moreover, had influence on the decisions of national courts, and on legal reforms undertaken by States.Footnote 62 Scholars have noted a general trend towards liberalisation of access to citizenship for children born on the territory, and the influence of international norms on these developments (even as unconditional jus soli—the right to a State’s nationality based solely on birth in its territory—has also been limited).Footnote 63 As of 2025, the laws of most States within the Council of Europe provided for the grant of nationality to otherwise stateless children born in their territory (albeit some with further conditions);Footnote 64 globally, 93 States had legal provisions to this effect.Footnote 65 It is increasingly strongly asserted that there is sufficient State practice and support for the normative frameworks that the obligation to grant nationality to otherwise stateless children born in the territory of a State is now customary international law, binding even on those States that are not party to the relevant treaties.Footnote 66
The Convention on the Reduction of Statelessness establishes a parallel obligation for the State of nationality of a parent to grant nationality to a child born outside of its territory if that child would otherwise be stateless.Footnote 67 Since the dominant mode globally for attribution of nationality at birth is descent-based,Footnote 68 this provision has been less contested. However, Chile, Brazil and other Latin American States with jus soli-based nationality laws that did not provide for acquisition of nationality in case of births outside their territory have faced—largely successful—campaigns to enable descent-based transmission of nationality to the foreign-born children of parents driven into exile under military governments.Footnote 69 In a 2024 decision relating to the children of Albanian Roma parents born in Greece, the UN Human Rights Committee affirmed this obligation at least in relation to otherwise stateless children, in a decision finding Albania in violation of Article 24 ICCPR (on the right of every child to birth registration and to acquire a nationality), for its discriminatory failure to enable Albanian Roma parents to register the births of children in Greece with the Albanian consulate, thus preventing the children from acquiring Albanian nationality.Footnote 70
There have in addition been significant steps by an appreciable number of States—including in response to UNHCR’s #ibelong campaign—to resolve the status of large groups of people left stateless in their country of long-term residence; whether by implementing the obligations in the Convention relating to the Status of Stateless Persons to facilitate naturalisation,Footnote 71 or by adopting measures to prevent and reduce statelessness among both children and adults, in line with the obligations of the Convention on the Reduction of Statelessness.Footnote 72
2.2. Loss and deprivation of nationality and the right to due process of law
These moves to reduce statelessness, on both an individual and a collective basis, have been countered by the dramatic expansion in the use of powers to deprive a person of nationality. Even as provisions for automatic loss of nationality on acquisition of another have been repealed, with the increasing tolerance of dual nationality, provisions permitting deprivation by decision of the authorities have multiplied.Footnote 73 The application of such provisions has also rapidly expanded—especially as a punishment for (alleged) threats to national security, but also on grounds of fraud or misrepresentation in the context of an application for naturalisation.Footnote 74 There has been a corresponding increase in scholarship on the invocation of deprivation provisions, seeing a trend to ‘renationalise’ citizenship as a privilege and not a right. In this, the liberalising impact of tolerance of dual nationality has paradoxical effects, increasing vulnerability to denationalisation and to statelessness, based on the presumed—but not necessarily actual—dual nationality of those with ancestral connections to another country.Footnote 75
The prohibition on arbitrary deprivation of nationality was included in the UDHR as a direct response to the denationalisations carried out by Germany and France before and during the Second World War.Footnote 76 More specifics were provided in 1961 by the Convention on the Reduction of Statelessness, prohibiting deprivation of nationality in violation of basic due process safeguards.Footnote 77 The most dramatic acts of denationalisation in the era of the UN have accordingly received condemnation from those supranational courts that have had jurisdiction to hear such cases. The claims commission established to determine loss and damage relating to the secession of Eritrea from Ethiopia in 1993 emphasised not only the avoidance of statelessness and the importance of a legal basis for deprivation of nationality, but also ‘whether there were legitimate reasons for [the decision] to be taken given the totality of the circumstances’.Footnote 78
The judicial response to individual deprivations on grounds of national security has, on the other hand, largely been one of deference to the executive, both at national and international levels. The Convention on the Reduction of Statelessness does, moreover, permit deprivation creating statelessness in some circumstances in response to a threat to the ‘vital interests of the state’ or in cases of fraud.Footnote 79 The British courts have been notably timid to challenge the particularly rapid expansion of deprivation powers in the United Kingdom (UK), following a highly legalistic interpretation of a person’s statelessness;Footnote 80 although they have been prepared to order restoration of British citizenship on grounds of statelessness and to protect the rights of children.Footnote 81 In France, the courts have also been criticised for excessive legalism, and have largely accommodated an expansion of executive powers.Footnote 82 But there are some stronger assertions of judicial oversight. The Australian High Court (the apex court for Australia) found in 2022 that the law governing deprivation of citizenship on grounds of involvement in terrorism improperly gave the Minister for Home Affairs ‘the exclusively judicial function of adjudging and punishing criminal guilt’, and restored the applicant’s citizenship.Footnote 83 The Dutch Council of State reversed the decision of the Minister of Justice and Security to remove the nationality of a woman who had joined Islamic State in Syria, finding that the Minister had failed to apply the principle of the best interests of her child.Footnote 84 In March 2025, a Dutch lower-level court refused the argument that a person’s presumed dual nationality enabled deprivation on national security grounds, finding that this amounted to impermissible racial discrimination.Footnote 85
The ECtHR has followed a conservative line, declining on several occasions to admit national security deprivation cases for consideration, or finding in favour of the State. What it has been prepared to do, however, is to draw on the principles that it has established on due process in other mattersFootnote 86 in order to call for nationality deprivation decisions to have a clear legal basis under the relevant national law, for hearings and remedies consistent with procedural fairness and for these procedures to consider the question of statelessness and proportionality.Footnote 87 In cases against Russia and Azerbaijan, the Court has ruled that deprivation of nationality was disproportionate to the wrongdoing alleged and that the national security grounds were not made out.Footnote 88
In cases that do not relate to national security, the CJEU has developed a somewhat stronger—though inconsistent—line of thinking on due process. In Rottmann,Footnote 89 Tjebbes,Footnote 90 JY Footnote 91 and X,Footnote 92 the Court has established rules on proportionality and the need for case-by-case consideration of cases (rather than providing for automatic loss in some circumstances) that also reflect the broader principles under the European Convention on Human Rights; although it has also found that withdrawal of nationality on grounds of fraudulent acquisition could sometimes be justified even if the person were rendered stateless.Footnote 93 In a case against Argentina concerning nullification of naturalisation on grounds of fraud, the IACtHR set out detailed protections required for deprivation to be permissible—including proportionality, non-discrimination, prevention of statelessness, respect for due process and regard for the best interests of the child—though it found the conditions satisfied in the specific case.Footnote 94 A due process argument has also succeeded in litigation at the national level in a number of African States challenging a continued prohibition or restriction on dual nationality that results in automatic loss for those who acquire or retain another (without permission).Footnote 95
In sum, both national and international courts are, unsurprisingly, hesitant to challenge executive power in the highly politicised domain of national security; but they have been prepared to insist on minimum due process requirements and to take steps for the protection of children.
2.3. Arbitrary denial of nationality as arbitrary deprivation
Media and scholarly attention to the litigation challenging deprivation of nationality has mainly focused on the expanded invocation of formal deprivation provisions in national law. More significant, however, may be the contribution of the regional human rights systems in expanding the scope of the prohibition of arbitrary deprivation, both to the cancellation or confiscation of identity documents on the grounds that they were issued in error,Footnote 96 and to the arbitrary denial of nationality to those apparently entitled in law.Footnote 97
In a series of cases often relating to politicians seeking to run for the highest office, the AfComHPR has repeatedly ruled that it is arbitrary for the State to simply refuse to recognise the nationality of a person previously treated as a national on the alleged ground that a person held another nationality, without showing proof that this is the case.Footnote 98 In its 2018 judgment in the Anudo case against Tanzania, concerning an ordinary citizen with no political profile, the AfCtHPR drew on the decisions of the AfComHPR to reassert the importance of the right to have a case heard, in the context where Tanzanian law excluded all court review of an executive decision on citizenship status. The Court ruled that if a person had in the past been issued documents by the State recognising nationality, the burden shifted to the State to prove that the facts on which the documents had been issued were incorrect and that the person held another nationality.Footnote 99 In 2024, the AfComHPR drew on its own jurisprudence, also restating principles set out in Anudo, to determine that South Sudan’s cancellation of a politician’s nationality certificate and passport constituted arbitrary deprivation of nationality.Footnote 100
State discretion to deny the right to acquire nationality based on long-term residence or other ties remains relatively undisturbed (aside from equality between the sexes in relation to marriage, established by CEDAW). Nonetheless, there has been some movement towards a more rights-based procedural framework for naturalisation in international law.Footnote 101 In national law, there has also been a weak trend, observed mainly in Europe, towards a positive requirement to grant naturalisation if the conditions stipulated in law are met, even as these decisions are accompanied by ongoing court statements of deference to executive privilege in the grant of nationality.Footnote 102 Some national courts in Africa—where naturalisation is very hard to access, as in most countries of the global southFootnote 103—have taken steps to ensure that at least the process is available in principle, ordering governments to adopt regulations establishing procedures to implement the possibility of naturalisation provided in law,Footnote 104 to consider applications within a reasonable timeFootnote 105 or to exempt an individual person from a requirement of legal residence.Footnote 106
More significant, perhaps, are cases that erode a State’s ability to refuse to recognise the nationality of people who appear, on their own account, to qualify under the law, but do not have the paperwork to prove it: those whose statelessness is manufactured through the imposition of the impossible evidentiary conditions highlighted by Neha Jain.Footnote 107
There are innumerable national court cases instructing the executive to recognise the existing nationality of a particular individual under national law. There are also court orders of much wider significance, impacting many thousands of people otherwise left stateless: for example, judgments declaring members of the Urdu-speaking minority in Bangladesh to be citizens;Footnote 108 confirming the citizenship rights of Ugandans of Somali origin;Footnote 109 and ordering the Kenyan Government to recognise citizens ‘double registered’ as refugees.Footnote 110
The AfComHPR and the ACERWC have adjudged that these ‘vetting’ procedures, such as those that exist in Kenya and impose additional administrative requirements to verify the status of residents of border regions or some urban neighbourhoods, will be considered arbitrary if they have no basis in primary legislation and discriminate on impermissible grounds.Footnote 111 All three African human rights institutions have held that, where the systems for the registration of births or for the delivery of related documents are weak, the burden of proof that a person without documents who claims nationality is in fact a national—or has the nationality of another State—must be shared between the person and the State.Footnote 112 The AfComHPR has held that provisions of nationality laws will be invalid if they lack clear meaning.Footnote 113 The ACERWC concluded that Sudan’s denial of nationality to a child born to a Sudanese mother and a father who would have acquired the nationality of the new State of South Sudan in 2011 constituted arbitrary deprivation.Footnote 114 Building on these precedents, the Protocol to the African Charter on the Right to a Nationality, adopted in early 2024, established stronger due process principles than any previous treaty, including the reversal of the burden of proof where a person has ever held an official identity document recognising their nationality.Footnote 115
This developing normative framework was, in turn, drawn on by UNHCR in the Guidelines on Statelessness later incorporated into the 2014 Handbook on Protection of Stateless Persons (UNHCR Handbook), especially in relation to the determination of statelessness and a shared burden of proof, and in the subsequent Guidelines on Statelessness No 5 on Loss and Deprivation of Nationality adopted in 2020.Footnote 116 Guidelines No 5 state firmly that arbitrary deprivation encompasses cancellation, confiscation or refusal to renew identity documents without justification.Footnote 117 The UNHCR Handbook’s view on the burden of proof has been cited and followed in national jurisprudence on the right to a nationalityFootnote 118 and by the UN Human Rights Committee.Footnote 119 The Human Rights Committee’s views have, in turn, been cited by the South African High Court as it adopted a similar position on the shared burden of proof where the nationality of a child is in doubt.Footnote 120
These principles may appear no more than common sense to human rights lawyers. But their affirmation is important in a context where States frequently assert that it is always for the individual to prove entitlement to nationality, even on an application for simple renewal of a document.
2.4. The interpretation of the definition of ‘stateless person’
Critical to all these debates—on the grant of nationality to otherwise stateless children, on loss and deprivation of nationality and on arbitrary denial of nationality—is the interpretation of the definition of a ‘stateless person’: ‘a person who is not considered as a national by any State under the operation of its law’.Footnote 121 As Jain noted, the difficulty of proving either nationality or statelessness, often designed into nationality administration, is a primary enabler of arbitrary deprivation and denial of nationality.Footnote 122 Since the prohibition on the creation of statelessness in deprivation cases is widely accepted, including in national laws, and a State’s obligation to grant nationality to an otherwise stateless child depends on the determination of the child’s statelessness, the question of whether a person is or is not ‘really’ stateless becomes central to the protection of their rights.
There have been many laments over several decades of the ‘technical, legal definition’ of statelessness.Footnote 123 There has, however, been an important shift in the approach in recent years, as discussed by this author in depth elsewhere.Footnote 124
In official guidance first adopted in 2012, included within the UNHCR Handbook, the UNHCR urged that statelessness should be seen as a ‘mixed question of fact and law’, warning against use of the term ‘de facto stateless’, because of the danger that ‘those who qualify as “stateless persons” … may fail to receive the protection guaranteed under the 1954 Convention’.Footnote 125 The UNHCR Handbook recognises the reality that laws, policies and practices in relation to civil registration, consular assistance, family law, interpretation of foreign law or admissible evidence may be as important for the determination of nationality or statelessness as the substantive provisions of the nationality code itself.Footnote 126 This guidance that the determination of a person’s statelessness must involve an assessment of the broader legal and policy environment of another State has gained traction in national courts, for example, in Hungary,Footnote 127 ItalyFootnote 128 and the UK.Footnote 129
The trends noted in Section 2.1 in both national and international courts to expand the obligation on States to prevent and reduce statelessness have in part been enabled by this movement away from narrow legalism in determining if a person is in fact stateless (albeit with the partial exception of national security cases, noted in Section 2.2). A central argument has been that it is impermissible for a State to insist that a person is neither its national nor stateless because of a theoretical right—typically inferred on the basis of ethnic identity—to the nationality of another State where the person has never lived and has no meaningful connection.Footnote 130
2.5. The challenge to racial discrimination and the nature of genuine connections
Underlying every discussion about the limits to State discretion in establishing nationality laws is a discussion about permissible discrimination based on race, ethnicity or religion; about the nature of the ‘nation’ that is the basis of the State. Express provisions in national law that restrict the grant of nationality at birth on such grounds are very rare;Footnote 131 preferential access to naturalisation is more common, but still only found in a minority of States.Footnote 132 Nonetheless, the dominant principle among States in attributing nationality to children is the nationality of a parent.Footnote 133 If access to naturalisation is limited (which is commonly the case), the impact of even neutral descent-based rules is likely to be indirectly discriminatory. Increasing legal equality between men and women in transmission of nationality to children potentially reduces this impact, especially if dual nationality is permitted, as is increasingly the norm.Footnote 134 In practice, procedural obstacles often limit the effect of substantive reforms to the nationality code. As Jain points out, discrimination is pervasive in nationality administration and a major cause of statelessness.Footnote 135
International law is at first sight clear that such discrimination is not allowed: the prohibition of racial discrimination was included in the list of jus cogens or peremptory norms proposed by the International Law Commission (ILC) in 2022.Footnote 136 That the non-discrimination norm also applies to provisions on nationality is supported by treaty law, including specific prohibitions on deprivation of nationality on racial, ethnic, religious or political grounds in the Convention on the Reduction of StatelessnessFootnote 137 and on discrimination in nationality provisions in both the European Convention on NationalityFootnote 138 and in the Protocol to the African Charter on the Right to a Nationality adopted in 2024 (albeit with a proviso in relation to ‘public order rules’).Footnote 139
The situation is rendered more complex by ambiguities in ICERD, which excludes from its remit not only ‘distinctions, exclusions, restrictions or preferences … between citizens and non-citizens’, but also ‘legal provisions … concerning nationality, citizenship or naturalization, provided that such provisions do not discriminate against any particular nationality’.Footnote 140 The newly independent States that were the central force behind the adoption of ICERD as the first UN human rights treaty both insisted on the importance of adopting a convention outlawing racial discrimination and also wished not to be constrained as they redressed the imbalances caused by pervasive discrimination under colonial laws.Footnote 141
Michelle Foster and Timnah Rachel Baker provided a detailed examination of the language of ICERD in their 2021 article, considering its history and interpretation by the CERD Committee.Footnote 142 They were critical of the CERD Committee’s cautious approach in its views addressing communications on nationality discrimination, in concluding observations on State reports and in its 2004 General Recommendation on the rights of non-citizens.Footnote 143 A separate survey of the CERD Committee’s concluding observations also found a lack of focus on provisions that discriminate in attribution of nationality at birth, despite some more assertive findings.Footnote 144 Prospectively, Foster and Baker proposed ‘a narrowly circumscribed construal’ of the exception relating to nationality, advancing ‘new grounds’ for a reading ‘based on the jus cogens norm of racial non-discrimination, applicable only in relation to acquisition and not deprivation of citizenship, pursuant to a legitimate aim, and proportional to the achievement of that aim’.Footnote 145
In supporting their argument that the prohibition of racial discrimination as a jus cogens norm extends also to nationality, Foster and Baker considered the views of the IACtHR,Footnote 146 but a range of other international jurisprudence and soft law instruments would also have supported their case—and made it more strongly. This includes resolutions on arbitrary deprivation of nationality dating back to the 1990s adopted by States represented in the UN Commission on Human Rights and then the Human Rights Council, which have consistently called for all UN Member States ‘to refrain from taking measures and from enacting legislation that discriminates against persons or groups of persons on grounds of race, colour or national or ethnic origin’ in exercise of the right to nationality.Footnote 147 In his survey of 2011, Peter Spiro noted criticisms from other UN treaty bodies of such provisions, and this criticism has continued, albeit inconsistently.Footnote 148 Special rapporteurs have increasingly taken on discrimination on racial, ethnic and religious grounds in relation to nationality law and administration as belonging within their mandates, both as a specific theme,Footnote 149 and as these issues affect other topics.Footnote 150
The ECtHR has also begun to look beyond direct discrimination to consider indirect discrimination through provisions that disproportionately affect certain groups. In a case against Denmark, for example, the Court found that national legislation on the right to family reunification for the spouses of Danish citizens was discriminatory, since requirements in relation to the strength of ties to Denmark were more likely to affect naturalised citizens not of Danish origin.Footnote 151 But it is again the Inter-American and African human rights mechanisms that have developed furthest the arguments condemning discrimination in the acquisition of nationality, not only in the law but also in its application, linking non-discrimination to the principle of equality before the law.
As noted by Foster and Baker, the IACtHR affirmed the principle of non-discrimination as jus cogens in its 2003 Advisory Opinion on Legal Status and Rights of Undocumented Migrants. Footnote 152 In the Yean and Bosico case, the Court asserted that ‘States must abstain from producing regulations that are discriminatory or have discriminatory effects on certain groups’.Footnote 153 In the later case relating to Dominicans and Haitians expelled from the Dominican Republic to Haiti, the Court held that is for the State to prove that differentiated treatment does not entail a violation of the right to equal protection of the law, and fulfils the criteria of legitimate purpose and proportionality with the end sought.Footnote 154 In 2023, the IACHR codified these principles in a comprehensive resolution on nationality and statelessness.Footnote 155
The African mechanisms have shown a particular sensitivity to questions of historical injustice and highlighted the impact of colonial history on current challenges, in cases dating back to the 1990s that deprecate the imposition of borders and forced movement of labour by the colonial powers. Thus, in the case brought on behalf of former Zambian President Kenneth Kaunda, who had been prevented from running for office again on the grounds that he was actually Malawian, the AfComHPR went well beyond questions of due process in its reasoning, with a statement of much wider resonance:
[T]o suggest that an indigenous Zambian is one who was born and whose parents were born in what came (later) to be known as the sovereign territory of the State of Zambia may be arbitrary and its application of retrospectivity cannot be justifiable according to the Charter.Footnote 156
In its decision on the Nubian Community in Kenya, the AfComHPR stated clearly that ‘States may not discriminate in law or in practice when providing people with or depriving them of nationality’.Footnote 157 In a later case considering the problems of recognition of nationality faced in Côte d’Ivoire by northern Ivorians and descendants of colonial-era (forced) migrants, the AfComHPR noted that:
[N]ationality as an ethnic, social and cultural unit poses a fundamental problem in the African context since the demarcation of borders inherited from independence has caused a split of entities of nationalities that existed before colonisation.Footnote 158
The judgments condemning racial and ethnic discrimination are, moreover, often directed not only at explicitly discriminatory laws, but much more broadly at rules and procedures that have a discriminatory impact. Although, as Jain notes, the distinction between direct and indirect discrimination is generally not explicitly made in these cases, the decisions do implicitly incorporate the developments in analysis of the impact of indirect discrimination made in relation to other rights.Footnote 159
In the Yean and Bosico case, the IACtHR urged the Dominican Republic to ‘combat discriminatory practices at all levels’ and adopt affirmative measures to ensure equal protection of the law.Footnote 160 The African treaty bodies have adopted the same reasoning. The AfComHPR, while noting that not all members of the Nubian community in Kenya were stateless, deplored the ‘arbitrary standards and undue hurdles’ put in place by the administration ‘which impede their access as a community to identity documents which are proof of their citizenship’. It stated that:
[T]he practice of requiring members of the Nubian community, simply because of their ethnic and religious affiliations, to meet different and more burdensome requirements in order to obtain identity documents is discriminatory and places them in a situation of extreme vulnerability as regards the exercise and enjoyment of their rights.Footnote 161
The ACERWC equally condemned the discriminatory treatment of children of Nubian descent, reaffirming the prohibition on racial discrimination as jus cogens.Footnote 162 In its General Comment No 2 building on this decision, the Committee condemned discrimination in all criteria relating to nationality.Footnote 163 The AfComHPR has held, moreover, that where an individual or group has a right to the nationality of the relevant country under existing law, but this has been arbitrarily denied in practice, it is not a suitable remedy for the previous discriminatory denial if those impacted are only permitted to acquire nationality with a status different from those attributed nationality at birth.Footnote 164
The African institutions have also moved towards a reversal in the application of the definition of nationality famously established by the Nottebohm case—a ‘social fact of attachment’ making a person ‘more closely connected with the population of the State conferring nationality than with that of any other State’Footnote 165—to operate not to allow non-recognition of nationality granted without such a connection but, rather, to provide a right to nationality in a State where those connections exist. In this, they have provided the Nottebohm judgment with an afterlife that was not imagined by the ICJ in 1955, nor by those commentators criticising the judgment for implying both that the ‘genuine connections’ that matter are those of ethnicity and descent rather than other types of ‘attachment’, and that the lack of such genuine connections might provide grounds for loss of nationality.Footnote 166
This evolution in jurisprudence—long urged by legal scholarsFootnote 167 as much as political theoristsFootnote 168—was also enabled by other developments in international law, especially the elaboration of normative frameworks in response to the populations left stateless following the dissolution of the Soviet Union.Footnote 169 The concept of ‘genuine link’ or ‘genuine connection’ as the foundation for the grant of nationality on State succession is relied on both within the Council of Europe’s treaties on nationalityFootnote 170 and by the ILC’s Articles on Nationality of Natural Persons in relation to the Succession of States.Footnote 171
The rules for attribution of nationality on State succession have also been the background to many of the African cases. In in its decision on the Kenyan Nubians (descendants of Sudanese soldiers recruited by the British for military campaigns in East Africa and settled in Kenya), the AfComHPR noted that the Nubians had been resident in Kenya for over a century and had ‘formed inextricable links to the land which according to them constitutes the only homeland they have ever known and where they bury their dead’.Footnote 172 In the complaint brought against Sudan concerning the nationality of a child of mixed Sudanese and South Sudanese heritage denied recognition of Sudanese nationality following the secession of South Sudan in 2011, the ACERWC directly cited the language of Nottebohm to argue that it was an international obligation for a State (in this case, Sudan) to confer nationality on ‘children who have the required social fact of attachment, a genuine connection of existence, interests and sentiments in the State concerned’.Footnote 173 Similarly referencing the Nottebohm judgment, the AfComHPR noted in a case against Côte d’Ivoire that the sense of ‘having become Ivorians’ developed over decades by immigrants, and especially their children, had developed into ‘established rights’.Footnote 174 Building on its own jurisprudence, the ACERWC’ General Comment No 2 supported the right of a child born in the country to acquire nationality on application and for the automatic grant of nationality to the second generation born in the country, without any requirement to prove statelessness.Footnote 175 These principles established the basis for provisions in the Protocol to the African Charter on the Right to a Nationality adopted in 2024, the first international treaty to put in place such obligations.Footnote 176
The UNHCR has also drawn on the ensemble of this jurisprudence (not all of it explicitly cited) to state without qualification that denial of nationality on discriminatory grounds constitutes arbitrary deprivation of nationalityFootnote 177—thus fulfilling a call by Foster and Baker for racial discrimination to feature more strongly in the agency’s advocacy for the right to a nationality.Footnote 178
It has, however, proved harder to establish national or international norms on non-discrimination in relation to ordinary naturalisation; that is, the grant of nationality to adults on the basis of long residence (even as equality in rights based on marriage is provided for in treaties and increasingly the norm). The leading international court decision on this question remains the 1984 Advisory Opinion of the IACtHR requested by Costa Rica in relation to its own provisions on naturalisation. Citing the test of ‘objective and reasonable justification’ from the ECtHR’s 1968 judgment in the Belgian Linguistics case,Footnote 179 the Court found that affinity-based preferences for the Hispanic world in naturalisation provisions were not discriminatory, on the basis that such individuals ‘will be more easily and more rapidly assimilated within the national community’.Footnote 180
In line with this focus on assimilation, tests of civic integration and language skills are becoming more common, seen as part of the trend to ‘renationalisation’ of nationality; they have not been subject to legal challenge in principle.Footnote 181 Nonetheless, the UN Human Rights Committee did find against Denmark in a 2015 decision concerning refusal of naturalisation to a person with learning disabilities who could not fulfil the language test. After the usual ritual acknowledgment of State prerogatives in this area, the Committee asserted that, in this case, a ‘reasonable and objective justification and a legitimate aim’ had not been shown.Footnote 182
The normative response is especially complex in relation to the State’s extension of nationality, especially on a group basis, to people resident outside its internationally recognised borders. Both the Venice Commission of the Council of Europe and the Organisation for Security and Co-operation in Europe developed principles seeking to restrict such policies in response to Hungary’s extension of citizenship to ethnic Hungarian non-residents.Footnote 183 These concerns became more urgent with Russia’s imposition (technically, provision for facilitated acquisition) of citizenship following its annexation of Crimea in 2014 and invasion of other parts of eastern Ukraine in 2022.Footnote 184 Although the disquiet in these cases starts from the traditional concern of infringement on the sovereignty of other States, concern for the rights of the individuals impacted is also now more evident. In 2024, the UN Human Rights Committee held that Russia’s automatic naturalisation provisions in respect of citizens of Ukraine or stateless persons with permanent residence in Crimea constituted discrimination on the basis of national origin and was thus a violation of the right to equal protection of the law.Footnote 185
Provision for preferential access to nationality on the basis of racial or ethnic identity may, however, be welcomed where it is designed to remedy past injustices. Compensatory grant of nationality to redress past wrongs has been employed by several States, including not only Germany in respect of denationalised Jews and their descendants, but also Spain, Portugal, Namibia and some former Soviet States of Eastern and Central Europe.Footnote 186 As Foster and Baker note, the drafting history of ICERD shows that preferences of this type were envisaged as falling within State discretion.Footnote 187 The permissible boundaries of such grants remain contested, especially where the provisions seem to be not so much about repairing wrongs as achieving other policy aims. In general, however, the consensus seems to be that preferential grant of ‘reparatory’ citizenship may be justified, provided that it does not shade into exclusion of access for those not within the specified categories.Footnote 188
Finally, however, there is the question of whether nationality can simply be sold: the ‘citizenship by investment’ programmes adopted by some (mostly small island) States, in which a passport—and full citizenship rights—are exchanged for what is effectively a cash sum (with or without additional purchase of property). Can the ‘genuine connection’ of nationality be so diluted?Footnote 189 In 2025, the CJEU confirmed the view of the European Commission that such schemes are impermissible.Footnote 190 Some commentators condemned the judgment as threatening the return of ‘Blut und Boden’ from the ‘long nineteenth century’.Footnote 191 Others, however, welcomed the disapprobation of ‘transactional’ citizenship rules,Footnote 192 the emphasis on fundamental rights and common valuesFootnote 193 and the potential for future jurisprudence to further encroach on State discretion, for example in relation to excessive fees in nationality matters.Footnote 194 There is no need for a rejection of citizenship purchase to mean a return to ‘blood and soil’ discrimination on racial grounds; rather, there could be a move towards the positive implications of the Nottebohm judgment, including that States may be obliged in some contexts to grant citizenship based on ‘genuine connections’ seen through a more civic lens.
3. Conclusion and the role of strategic litigation
In her pessimistic assessment of the manufacturing of statelessness by States’ manipulation of apparently neutral procedural rules for discriminatory purposes, Neha Jain recommended strategic litigation as the most promising strategy to challenge these practices. It is hoped that this article has demonstrated that litigation has already had real success in establishing normative statements that condemn both explicit denial of nationality on racial or ethnic grounds, and the indirect discrimination embedded in procedures that have disproportionate impacts on some groups. The American and African human rights systems have played a particularly important role in developing these norms, responding to the post-colonial context in which an ethno-cultural ‘nation’ is so much harder to imagine.Footnote 195 These cases also provide a counterpoint to Michelle Foster and Timnah Rachel Baker’s relative pessimism about the weakness of the CERD Committee in the interpretation of its mandate.
Some of these cases were brought because they were the only option available to the person affected. The Anudo case before the AfCtHPR was initiated by the complainant himself who, without any assistance, had written directly to the Court (hosted by his home town of Arusha) for help.Footnote 196 But many were conceived from the outset as ‘strategic’; that is, litigation with a broader purpose to change law and practice and not only to assist the named complainants. One leading player in this effort was the Open Society Justice Initiative;Footnote 197 other transnational support has been provided by organisations such as the Center for Justice and International Law (CEJIL) or the Global Strategic Litigation Council.Footnote 198 National civil society organisations have done the hardest work in bringing these cases to court (such as Lawyers for Human Rights in South Africa; Family Frontiers in Malaysia; the People’s Legal Aid Centre in Sudan; Corporación Opción Legal in Colombia; or the Public Interest Law Project in the Netherlands).Footnote 199
It is well recognised that litigation can only play a ‘strategic’ role within a broader ecosystem of advocacy.Footnote 200 However, it is evident that nationality litigation has been particularly important both at the outset of a trend in reforms and in those States that continue to hold onto a policy even when most others have adopted reforms—as in the cases challenging discrimination based on sex brought in Botswana in 1991Footnote 201 and, at thirty years’ remove, in Sudan,Footnote 202 MalaysiaFootnote 203 and Eswatini.Footnote 204 Litigation has overturned residual discrimination based on sex affecting children born out of wedlock, in cases before the ECtHR,Footnote 205 the United States (US) Supreme Court,Footnote 206 the Bahamian Court of Appeal (confirmed by the Judicial Committee of the Privy Council)Footnote 207 and the South African Constitutional Court.Footnote 208 Litigation is also being employed to challenge those States holding out against the international trend to accept dual nationality.Footnote 209 Litigation has been an especially important tool for those groups of people with the least lobbying power for legislative reform, such as those born from assisted reproduction, before the ECtHR (in a case against FranceFootnote 210) and the CJEU (in cases against BulgariaFootnote 211 and PolandFootnote 212). But litigation has also been critical to advocacy on behalf of the poorest and much more numerous groups, such as those born in the territory with no real claim to another nationality, but who are nonetheless considered to be foreign (including the litigation referenced throughout this article before regional and international human rights bodies, and in national courts all over the world). Even though political shifts may be more important to law and policy reform in some cases (for example, in Côte d’Ivoire), these judgments help to create a framework for advocacy focused on implementation of the Court’s orders.Footnote 213 Litigation may of course also have perverse effects. The national backlash in the Dominican Republic against the IACtHR’s Yean and Bosico judgment is widely noted,Footnote 214 and a very large number of Dominicans of Haitian descent remain excluded from recognition of Dominican nationality.Footnote 215 There is nonetheless a strong argument for the positive impact of the litigation overall.Footnote 216 And the judgment has had transnational normative impacts, cited not only by subsequent decisions of the IACtHR, but also by national courts in the AmericasFootnote 217 and by the African and UN human rights treaty bodies.Footnote 218
In the current international context, the normative gains that this litigation has helped to advance, including as the basis for codification in soft law and treaties, seem ever more fragile. States continue to carry out egregious campaigns of mass denationalisation, apparently with impunity.Footnote 219 The second term of Donald Trump as US President has hyper-charged this tendency, including through a purported effort to end the constitutional right to citizenship based on birth in US territory.Footnote 220 Nevertheless, if human rights lawyers continue to show deference to the position that ‘international law treats citizenship as a state’s prerogative, except where it leads to statelessness’,Footnote 221 they are aligning themselves with what is now a quite conservative position; even if they go on to assert further desirable constraints around due process and discrimination. The moves towards establishing Nottebohm’s ‘social fact of attachment’ as a sufficient connection to require nationality to be recognised or granted, combine with more detailed guidelines on the procedural meaning of ‘arbitrary deprivation’, the increasing disapproval of both direct and indirect discrimination in nationality matters, the strengthened obligations in relation to the prevention of statelessness and the expanded interpretation of the definition of ‘stateless person’ to create new legal baselines for expected State behaviour. Emphasis should be given to the road that has already been travelled towards Peter Spiro’s ‘new international law of citizenship’ rather than only regretting the distance still to go, lest it becomes harder to reach the destination. At least some of the holes in the rights framework have been filled, even as the work of patching up the gaps remains a constant—and ever more urgent—task.
Acknowledgments
The first draft of this article was written as a Jean Monnet Fellow at the European University Institute (EUI) for the academic year 2022–2023; it draws on an evaluation commissioned by the Open Society Justice Initiative (OSJI) of its work supporting litigation on the right to a nationality, and a guide for practitioners litigating the right to nationality supported by OSJI and by the UNHCR. Thanks for comments and contributions are due to participants in workshops and seminars hosted by UNHCR and by the EUI, and to the two anonymous reviewers.
