Edited by Vincent Chetail and Céline Bauloz
Chapter 11: Citizenship, nationality, and statelessness
Citizenship and nationality have traditionally been situated largely beyond the reach of international law. The attribution of nationality was thought a matter of exclusive state discretion. Although States were constrained from overreaching in the extension of nationality (a dictum reflected in the Nottebohm decision) they were otherwise free to fashion requirements relating to the loss and acquisition of citizenship. Even as States took aim at statelessness in the wake of the Second World War, nationality remained a matter of sovereign discretion. States were unencumbered from assertions of individual rights in the context of nationality. This traditional conception of international law and nationality is eroding. International actors are engaging state practices relating to citizenship on a rights-metric. There appear to be two major dimensions to this engagement. First is an emerging norm relating to access to citizenship on the part of habitual residents. This dimension is most evident in the context of state succession. However, it is also being deployed in the context of migration. The second dimension is an anti-discrimination norm precluding the use of otherwise invidious discriminatory criteria and requiring the equal treatment of like individuals. This dimension also comprehends a procedural aspect. Both dimensions implicate practices relating to birth right citizenship, naturalization, dual citizenship, and loss of citizenship. These norms remain highly provisional. The treaty committees and non-state actors are taking the lead, but other actors, including States and regional organizations, are evidencing their assent.
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