Nationality as a human right

In a previous post we have seen that the starting point under international law with regard to citizenship is that each State is autonomous in deciding who its citizens are and that nationality should represent a ‘genuine link’. We also noted by that this legal bond of nationality has become less a ‘tie of allegiance’ – traditionally to a monarch or absolute ruler – and more a matter of reciprocal rights and duties between individuals and a State.

At the same time, an enforceable right to a nationality does not exist; an individual cannot rely on a principle of international law which would allow an effective claim to the nationality of a given State. This state of affairs is particularly troubling because nationality is of primordial importance for membership and participation in a national community. The right to a nationality has famously been described by the philosopher Hannah Arendt as a civil and political meta-right of the most far reaching importance. It is ‘a right to have rights’.

The rule of State autonomy in nationality law is not altered by Article 15(1) of the Universal Declaration of Human Rights which states that everyone is entitled to a nationality. This provision has no binding force under international law, nor does it say to what nationality someone is entitled. As long as no State can be compelled to grant its nationality to the individual, the right to nationality is largely meaningless.

Among the scholars who have engaged with this topic is Gonçalo Matias. In Citizenship as a human right (see for the original PhD thesis here) he argues that States not only have a negative obligation not to render a person stateless, but have a positive obligation as well to grant citizenship to those who have built sufficient ties with a particular country. This latter idea is comparable to the idea of stakeholder citizenship as used by other commentators, meaning that ‘all those, and only those individuals, who have a stake in the future of a politically organised society have a moral claim to be recognised as its citizens and to be represented in democratic self-government … Stakeholdership in this sense is not a matter of individual choice, but is determined by basic facts of an individual’s biography’.

Author: Dr. Olivier Vonk