In the wake of WWII, political instability and discriminatory denationalization policies displaced millions of people, leaving many without a nationality.[1] This widespread statelessness crisis specifically affected the Jewish population of European countries, and increasing international concern for stateless individuals spurred the formulation of various international agreements aimed at protecting stateless persons and reducing statelessness generally.[2] Enacted in 1961, the Convention of the Reduction of Statelessness (“1961 Convention”) was developed with the goal of preventing and reducing statelessness through prohibitions on deprivation of nationality.[3] In the decades since the 1961 Convention was enacted, customary international law has developed a prohibition on the “arbitrary deprivation of nationality.”[4] This prohibition has significant overlaps with the 1961 Convention, however, the two are not entirely identical. This bulletin post will explore both the similarities and differences between this customary prohibition and the 1961 Convention.
Many of the 1961 Convention’s articles are dedicated to express prohibitions on deprivation of nationality. These articles include the prohibition on loss of nationality for the change of a personal status like marriage,[5] a prohibition on stripping the children of an individual who has been deprived of his nationality of their nationality,[6] and a prohibition on discriminatory deprivation of nationality, encompassing deprivation of nationality for racial, ethnic, religious, or political grounds.[7] Among additional prohibitions, the 1961 Convention forbids a contracting state from depriving an individual of his nationality “if such deprivation would render him stateless.”[8] The Convention does list limited exceptions to Article 8, allowing a contracting state to render a naturalized individual stateless for prolonged residences abroad,[9] for specific scenarios relating to nationals born outside of the contracting state,[10] and where an individual’s nationality was obtained by misrepresentation or fraud.[11] Article 8(3) lists additional infractions for which a contracting state may deprive an individual of his nationality.[12] However, the 1961 Convention specifies that to do so, the state must already possess a national law calling for the denationalization of an individual at the time of ratification. The contracting state must also file a declaration asserting its intention to retain this law in accordance with one of Article 8(3)’s exceptions.[13] These exceptions include: taking an oath of allegiance to another state, repudiating allegiance to the contracting state, and an individual acting inconsistently with his duty of loyalty to the state by either i) rendering services to or receiving emoluments from another state despite the express prohibition of the contracting state, and ii) conducting himself in a manner “seriously prejudicial to the vital interests of the State.”[14]
The same international concern that gave rise to the 1961 Convention also began to cement a prohibition on arbitrary deprivation of nationality as a customary principle in the international community as a whole. In December 1948, the United Nations adopted the Universal Declaration of Human Rights, whose Article 15 states that “everyone has a right to a nationality” and “no one shall be arbitrarily deprived of his nationality.”[15] What has been described as a negative and positive right to a nationality, the contents of Article 15 have come to reflect customary in international law.[16] Notably, the prohibition on arbitrary deprivation of nationality has evolved to include specific requirements.[17] Namely, to avoid being arbitrary, a state’s deprivation of an individual’s nationality must be 1) prescribed by law, 2) in furtherance of a legitimate aim, and 3) necessary and proportionate.[18] For a deprivation of nationality to be considered “prescribed by law,” the law must be sufficiently clear to enable an individual to reasonably foresee that his actions could result in the loss of his nationality.[19] To have a legitimate aim, a state’s stripping of an individual’s nationality must be consistent with international human rights law.[20] For example, matters of national security related to terrorism are often considered a legitimate aim,[21] but discriminatory reasons such as religions, ethnic, or political persecution are not.[22] Finally, to be necessary and proportionate, a deprivation of nationality must be “the least intrusive means proportionate to achieving a [ State’s] legitimate purpose.”[23]
While custom’s prohibition on arbitrary deprivation and the 1961 Convention share many similarities, there are a few distinct differences between the two. The two’s shared prohibition on deprivation of nationality on discriminatory grounds is perhaps the most explicit crossover, although custom would likely also forbid a loss of nationality for marital changes or other familial reasons under its “legitimate aim” and “necessary and proportionate” requirements.[24]
However, the two diverge slightly in what is explicitly allowed by the 1961 Convention. Because the 1961 Convention does not require that a state file a declaration stating its intention to preserve laws relating to Articles 7(4), 7(5), and 8(2)(b), it is possible that a state could deprive an individual of his nationality under these grounds without a clearly-defined pre-existing law, which would violate custom’s requirement that any deprivation of nationality be “prescribed by law.” While this would likely violate other human rights protections, it is still possible that a state could deprive an individual of his nationality for one of these actions and without the deprivation being “necessary/proportionate” or having a “legitimate aim.”[25] For example, in Usmanov v. Russia, Russia stripped a citizen of his Russian nationality after discovering that he had omitted the names of four of his siblings from a section titled “close relatives.” The European Court of Human Rights evaluated his claim for proportionality as well as foreseeability based on the European Convention on Human Rights Article 8 and ruled for Usmanov.[26] However, if this case had been tried in a different part of the world and only subjected to a 1961 Convention analysis, Usmanov could have lost, as many countries (including the United States) initiate fraud-based denaturalization based on faulty or incomplete information.[27] Whether adequately classified as an oversight, a loophole, or a reasonable and legitimate instrument of state sovereignty, this issue is particularly relevant as many Western countries have increased implementation of fraud-based denationalization in order to expel individuals who may have unwittingly filled out citizenship applications wrong or been misled as to how much information they are required to include.[28] The 1961 Convention does not subject such denationalizations to additional rules or requirements concerning proportionality or necessity. This is notable because enforceability of custom is incredibly difficult in the context of statelessness, meaning that for those rendered stateless under denationalization by misrepresentation/fraud law could potentially be left without recourse.
Thus, in at least one instance, the 1961 Convention’s requirements are narrower than those of custom. This is a logical outcome of the nature of custom versus treaties, as custom continues to evolve through court cases, additional treaties, and other international declarations.[29] However, these differences are important because enforceability of custom is difficult in cases of statelessness, as generally if a state improperly renders one of its nationals stateless, there may be no injured state party to bring a claim before a court. However, non-injured state parties to a treaty may be eligible to bring claims on behalf of treaty breaches.
In examining the 1961 Convention on the Reduction of Statelessness alongside the customary international law prohibition on arbitrary deprivation of nationality, it becomes evident that while they share common objectives and prohibitions, there are nuanced differences between the two frameworks. These disparities may hold significant implications for individuals affected by statelessness and the enforcement of legal protections.
[1] Michelle Foster, The 1961 Convention on the Reduction of Statelessness: History, Evolution, and Relevance, 4 Statelessness & Citizenship Rev. 188, 188 (2022).
[2] Id.;Simon Roland Birkvad, “Citizenship Cheaters” before the Law: Reading Fraud-Based Denaturalization in Norway through Lenses of Exceptionalism, 17 Int’l Political Socio. 1, 2 (2023).
[3] Foster, supra note 1, at 191-92; See Convention on the reduction of statelessness, Aug. 30, 1961, No. 14458 [hereinafter “1961 Convention”].
[4] See generally Human Rights and Arbitrary Deprivation of Nationality: Rep. of the S.G., U.N. Doc. A/HRC/25/28 (Dec. 19, 2013) [hereinafter “Human Rights and Arbitrary Deprivation”].
[5] 1961 Convention, supra note 3, art. 5(1).
[6] Id. art. 6.
[7] Id. art. 9.
[8] Id. art. 8(1).
[9] Id. art. 7(4).
[10] Id. art. 7(5).
[11] Id. art. 8(2)(b).
[12] Id. art. 8(3).
[13] Id.
[14] Id.
[15] Universal Declaration of Human Rights, United Nations, https://www.un.org/en/about-us/universal-declaration-of-human-rights (last visited Apr. 14, 2024).
[16] Rayner Thwaites, Proof of Foreign Nationality and Citizenship Deprivation: Pham and Competing Approaches to Proof in the British Courts, 85 The Mod. L. Rev. 1301, 1305 (2022).
[17] Human Rights and Arbitrary Deprivation, supra note 4, at ¶¶4,40.
[18] Id.
[19] United Nations High Commissioner for Refugees, Guidelines on Statelessness No. 5, Loss and Deprivation of Nationality under Article 5-9 of the 1961 Convention on the Reduction of Statelessness, ¶92, U.N. Doc. HCR/GS/20/05 (May 2020) [hereinafter “Guidelines-5”].
[20] Barbara von Rütte, The Human Right to Citizenship 314 (2022); Tamas Molnár, The Prohibition of Arbitrary Deprivation of Nationality Under International Law and EU Law: New Perspectives, Hungarian Y.B. Int’l L. & European L. 67, 77 (2014).
[21]Luuk van der Baaren & Maarten Vink, Instrumentalizing Citizenship in the Fight Against Terrorism, A Global Comparative Analysis of Legislation on Deprivation of Nationality as a Security Measure, pp.1, 16, ISI & Global Citizenship Observatory (Mar. 2022).
[22] RÜTTE, supra note 20, at 314; Molnár, supra note 20, at 77, 79-80.
[23] Guidelines-5, supra note 19, ¶¶91, 94-95.
[24] See Id. at ¶¶94-95.
[25] See ECtHR- Usmanov v. Russia, Statelessness Case Law Database, https://caselaw.statelessness.eu/caselaw/ecthr-usmanov-v-russia, (last visited Apr. 14, 2024).
[26] Id.
[27] Birkvad, supra note 2, at 2-3.
[28] Id. at 3 (describing how Norway has “spearhead[ed] the trend of naturalizing citizens on grounds of fraud” in response to the “2015-2016 refugee crisis” and how “the focus on taking away citizenship from ‘naturalization fraudsters’ has grown in countries such as France, the United Kingdom, and the United States.”); See also ECtHR- Usmanov v. Russia, supra note 25 (explaining that Usmanov “neglected to mention his two other brothers and two sisters as ‘close relatives’, which the applicant claimed was the result of the officer on duty telling him it was not necessary to list all of his relatives”). ”
[29] Custom, Encyclopedia Britannica, https://www.britannica.com/topic/international-law/Custom (last visited Apr. 14, 2024).
