The Risk of Statelessness: Reasserting a Rule for the Protection of the Right to Nationality

49 Pages Posted: 5 Feb 2018 Last revised: 15 Feb 2018

David Baluarte

Washington and Lee University School of Law

Date Written: December 1, 2017

Abstract

A global effort to combat statelessness and defend the universal right to nationality is currently underway. Nevertheless, questions persist about the proper scope of the right to nationality, the appropriate form of statelessness protection, and the legal limits of state discretion to deny or deprive an individual of nationality. These questions have animated a heated transnational debate about statelessness in Hispaniola, where the government of the Dominican Republic has designed a legal system that excludes persons of Haitian descent from Dominican nationality. Central to this conflict is a question about whether actions by the Dominican state leave persons of Haitian descent stateless—without nationality anywhere in the world. This question has been the subject of a decade-long dialogue between the Inter-American Court of Human Rights and the Dominican justice system, which have expressed manifestly contrary views about the existence of statelessness in Hispaniola. In its most recent decision on the matter, the Inter-American Court declared that the Dominican state has an obligation to grant nationality to children born in its territory who face a “risk of statelessness.” This Article is the first to explore this doctrinal development, and it raises both legal and practical concerns regarding this new rule of protection. This Article warns of potential parallels between the “risk of statelessness” and “de facto” statelessness, which is a category unprotected under the international law of statelessness. It argues for the continued use of legal statelessness as the definitive trigger for statelessness protection and for the establishment of a standard of proof that will permit a determination of statelessness for persons who have disputed or unresolved nationality claims.

Keywords: statelessness; human rights; Inter-American Court; Dominican Republic

Suggested Citation

Baluarte, David, The Risk of Statelessness: Reasserting a Rule for the Protection of the Right to Nationality (December 1, 2017). Yale Human Rights and Development Law Journal, Vol. 19, 2017; Washington & Lee Legal Studies Paper No. 2018 - 04. Available at SSRN: https://ssrn.com/abstract=3111529

David Baluarte (Contact Author)

Washington and Lee University School of Law ( email )

204 W Washington St
Lexington, VA 24450
United States

Register to save articles to
your library

Register

Paper statistics

Downloads
42
Abstract Views
156
PlumX