Laura van Waas “Nationality and Rights”

Van Waas, Laura 2011. Nationality and Rights. – Brad K. Blitz; Maureen Lynch (eds). Statelessness and Citizenship: A Comparative Study on the Benefits of Nationality. Cheltenham; Northampton: Edward Elgar, 23-44.

[…] in the contemporary human rights environment, to what extent is nationality still relevant to the enjoyment of rights? (23)

The [Universal] Declaration [of Human Rights] opens with the important proclamation that ‘all human beings are born free and equal in dignity and rights.’ (24)

[…] the development of human rights law heralded both a move towards universally recognized rights as well as the possible denationalization of rights. […] The advent of human rights law initiated an uncoupling of nationality and rights. Instead of citizenship being the basis for the enjoyment of rights, ‘the principles of human rights would maintain that being human is the right to have human rights.’ (25)

There are, in fact, still a number of citizens rights dressed up as human rights:

1)      The first and most evident example of this phenomenon is the right to participate in government. For instance, in Article 21 of the Universal Declaration, this political right […] is formulated as follows: ‘everyone has the right to take part in the government of his own country.’ (26)

2)      The human rights regime admits a similar limitation of the enjoyment of rights by the stateless in relation to freedom of movement, which includes the right to leave, the right to enter/re-enter and the right to remain in a state. (26)

3)      A third area in which human rights law plainly allows for restrictions to be placed on the enjoyment of rights is that comprised of ‘economic rights’. (27)

In particular, the situation of the stateless, the lack of bond of nationality with any state, places some doubt on the inclusiveness of the term ‘human’ in human rights. Interestingly, the human rights framework itself recognizes this apparent flaw and attempts to remedy it by promulgating, among the rights to be enjoyed by everyone, the right to a nationality. […] Thus, the acquisition/reacquisition of a nationality, putting an end to their actual statelessness, may indeed be the only real remedy to their vulnerability. (28)

Indeed, not only were the rights relating directly to participation in government absent from the draft [of the 1954 Convention relating to the Status of Stateless Persons], but all attempts to codify even the freedom of opinion and expression or the freedom of political assembly – rights that can be exercised to the benefit of political activity in the broadest sense and are critical to individual empowerment – were also beaten back. States were indeed keen to retain the right to restrict the political activity of stateless persons. (32)

Stateless persons may be unable to go to school or university, work legally, own property, get married or travel. They might find it difficult to enter hospital, impossible to open a bank account and have no chance of receiving a pension. If someone robs them or rapes them, they may find they cannot lodge a complaint because legally they do not exist, and the police require proof that they do before they can open an investigation. They are extremely vulnerable to exploitation as cheap or bonded labour, especially in societies where they cannot work legally. (36-37)

In order to establish that an individual is stateless, it is necessary to substantiate that he does not possess any nationality. He must, in effect, prove a negative. (37)

[…] stateless persons are, by definition, unable to enjoy those rights that are presently accorded only in relation to the country of nationality, such as key political rights and the right to enter/re-enter and reside in a state. Moreover, although citizenship is no longer a precondition for the attribution of most human rights, in practice it is often still a practical requirement for the exercise of such rights, for example, due to the lack of any official ‘home country’ in which residence rights are guaranteed or as a result of problems relating to an overall lack of documentation. Thus, where states are failing either individually or collectively to ensure that everyone enjoys the bond of citizenship somewhere, the human rights regime’s assertion of universality of begins to crumble unless special provision is made for those persons who find themselves excluded by the system: the stateless. (41)