Filling the Holes in the Rights Framework: Statelessness, Racial Discrimination, Genuine Connections and the Right to a (Specific) Nationality

Abstract This article returns to a 2005 criticism of international law’s tolerance of State discretion in the regulation of nationality for creating ‘holes in the rights framework’. The article sets out normative advances in international law since that date, aiming to show that they go further than recognised in more recent literature. It focuses on five interlinked elements of respect for the right to a nationality: the avoidance of statelessness; due process in case of loss or deprivation of nationality; the inclusion of arbitrary denial within the interpretation of arbitrary deprivation of nationality; the evolution in the interpretation of the definition of ‘stateless person’; and, finally and in greatest depth, the challenge to racial discrimination, both direct and indirect. The article highlights the role of strategic litigation in these developments and foregrounds especially the contribution of the Inter-American and African human rights institutions, starting from the groundbreaking judgment of the Inter-American Court of Human Rights in the Yean and Bosico case against the Dominican Republic. In particular, the article argues for the potential significance of moves to reinterpret the ‘genuine connection’ condition for recognition of nationality—the lack of which was famously invoked by the 1955 Nottebohm judgment of the International Court of Justice as a reason to deny a State’s right to exercise diplomatic protection on behalf of a naturalised citizen—to establish instead an individual’s positive right to claim the nationality of a particular State.