Survey on Rules on Loss of Nationality in International Treaties and ...

SURVEY ON RULES ON LOSS OF NATIONALITY IN INTERNATIONAL TREATIES AND CASE LAW 7
operation of law for nationals born abroad if they do not take residence in the territory of the State before the
expiration of one year after attaining the age of majority, or do not register before the expiration of that
period.
Furthermore, Article 8(2)(b) of the 1961 Convention allows deprivation of nationality (i.e. not loss ex lege,
but on the initiative of the authorities) even if a person would be rendered stateless, if “the nationality has
been obtained by misrepresentation or fraud”.
Finally, Article 8(3) allows a Contracting State to retain some specific grounds for deprivation of nationality,
even with statelessness as a consequence. But these grounds must exist in the nationality law of a State at the
time of that State’s ratification or accession to the 1961 Convention, and a State must make a declaration
upon ratification or accession in order to maintain (one or more of) these grounds for loss. The grounds for
loss that can be retained, even if statelessness would be caused, are:
a. that, inconsistently with his duty of loyalty to the Contracting State, the person
(i) has, in disregard of an express prohibition by the Contracting State rendered or continued to render
services to, or received or continued to receive emoluments from, another State, or
(ii) has conducted himself in a manner seriously prejudicial to the vital interests of the State;
b. that the person has taken an oath, or made a formal declaration, of allegiance to another State, or given
definite evidence of his determination to repudiate his allegiance to the Contracting State.
Of importance is, that Article 8(4) prescribes, that a State shall not exercise a power of deprivation “except in
accordance with law, which shall provide for the person concerned the right to a fair hearing by a court or other
independent body.”
Deprivation of nationality on racial, ethnic, religious or political grounds is absolutely forbidden (Article 9).
Article 10 deals with the avoidance of statelessness in cases of transfer of State territory.
Articles 11 and 14 provide for the establishment of a body within the United Nations with special
responsibility for reducing statelessness and contain the obligation to submit disputes between States on
statelessness issues to the International Court of Justice. Four resolutions were adopted in the Final Act of
the 1961 Convention. The most important of these recommends that de facto stateless persons 30 should “as
far as possible” be treated as de jure stateless persons in order to enable them to acquire an effective
nationality. The other resolutions provide for guidance regarding the interpretation of certain terms used in
the Convention or recommend a certain administrative practice. Resolution II deals with the interpretation of
the term “naturalised person” in Article 7(4), whereas Resolution III relates to Article 7(4) and (5) and to
Article 8(2)(a): States making the retention of nationality by their nationals abroad subject to a declaration or
registration should take “all possible steps to ensure that such persons are informed in time of the formalities
and time limits to be observed if they are to retain their nationality.”
30 On this term, see paragraph 7 of the Guidelines on the Definition of “Stateless Person” in Article 1(1) of the 1954
Convention relating to the Status of Stateless Persons with reference to the Summary Conclusions of the Expert Meeting
on the Concept of Stateless Persons under International Law (Prato, May 2010). The Prato expert meeting concluded
on the following operational definition for the term: “De facto stateless persons are persons outside the country of their
nationality who are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country.
Protection in this sense refers to the right of diplomatic protection exercised by a State of nationality in order to remedy
an internationally wrongful act against one of its nationals, as well as diplomatic and consular protection and assistance
generally, including in relation to return to the State of nationality.”