Nationality as an Element of the Refugee Definition and the Unsettled Issues of ‘Inchoate Nationality’ and ‘Effective Nationality’

Hugo Storey[1]
This is the second of a two-part article dealing with the issues of ‘inchoate nationality’ and ‘effective nationality’ in the context of determination of nationality as an element of the refugee definition.

Part 2: ‘Effective Nationality’

Nationality (or its absence) was identified in Part I[2] as the first element of the refugee definition. This flows from the fact that the definition of a refugee set out in Article 1A(2) of the Refugee Convention requires the country by reference to which there is a well-founded fear of being persecuted to be either a person’s ‘country of nationality’ or (if they are stateless) their ‘country of former habitual residence’. In Part I, I maintained that, in Article 1A(2) of the refugee definition, nationality has to be interpreted by close reference to international law norms governing the acquisition and possession of nationality, and that nationality is to be defined as the legal tie between an individual and the state; there is no other accepted legal sense. I argued that, properly applied, international law norms do not support recourse to the notion of ‘inchoate nationality’ advanced, inter alia, by Hathaway and Foster. In this second part, I take issue with another notion sometimes seen, including by the 1979 UNHCR Handbook[3] and by Hathaway and Foster,[4] to be necessary in order to ensure proper application of the refugee definition to persons of plural nationality, namely the concept of ‘effective nationality.’ I shall seek to show that too many difficulties beset use of this notion in the context of refugee law and it should be abandoned. To comply with the further requirement set out in the second paragraph of Article 1A(2), and to avoid contravention of the Article 33(1) principle of non-refoulement, decision-makers need only be satisfied that any other country of nationality will admit that person and not refoule them to that other persecuting country.

Multiple meanings of effective nationality

‘Effective nationality’ is an elusive term. That should hardly be a surprise; ‘effective’ is a descriptor that is highly porous in content. It has been used to mean different things.

In international law, the term ‘effective nationality’ has principally been applied in cases involving disputes between states as regards persons of plural nationality, where it is primarily a ‘method of distinguishing one or more nationalities from others on the basis of greater “effectiveness” in respect of some specified incident of nationality.’[5] Being a method of difference, it is sometimes termed the ‘master’ or ‘dominant’ nationality principle.[6] The notion of ‘effective nationality’ received its most high-profile endorsement in the Nottebohm case.[7] Nottebohm was a German national who had settled in Guatemala in 1905. In October 1935, he had become a naturalised citizen of Liechtenstein and by doing so ceased to be a German citizen. Liechtenstein brought proceedings on behalf of Nottebohm for damages arising from the acts of Guatemala, which was seeking war reparations. Ruling that claim inadmissible, the International Court of Justice (‘ICJ’) held in a majority decision with strong dissenting opinions that Nottebohm lacked the real and effective links with Liechtenstein on the basis of which it could exercise diplomatic protection on his behalf.[8]

A second identifiable use of ‘effective nationality’ has been to describe nationality that possesses a certain quality, denoting enjoyment by a national of some or all key rights and benefits that nationality may confer on a person. The ICJ in the Nottebohm case lent support to this use by stating that nationality may be lawfully bestowed only where there is a ‘genuine connection’ between the granting state and the recipient of its nationality, and that nationality should be understood as “a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties.”[9]

A third use of ‘effective nationality’ equates the term to de facto nationality, meaning a nationality which does not exist in the formal sense but exhibits some or all of the main features commonly seen to flow from possession of a nationality.[10]

‘Effective nationality’ in the refugee law context: uses and justifications

The notion of ‘effective nationality’ has made its way into refugee law via the 1979 UNHCR Handbook, which states at paragraph 107 that:

In examining the case of an applicant with dual or multiple nationality, it is necessary, however, to distinguish between the possession of a nationality in the legal sense and the availability of protection by the country concerned. There will be cases where the applicant has the nationality of a country in regard to which he alleges no fear, but such nationality may be deemed to be ineffective as it does not entail the protection normally granted to nationals. In such circumstances, the possession of the second nationality would not be inconsistent with refugee status. As a rule, there should have been a request for, and a refusal of, protection before it can be established that a given nationality is ineffective. If there is no explicit refusal of protection, absence of a reply within reasonable time may be considered a refusal.[11]

The notion has been espoused by a number of academics, including Hathaway in The Law of Refugee Status,[12] Goodwin-Gill and McAdam,[13] and Hathaway and Foster in the second edition of The Law of Refugee Status.[14]

There are relatively few reported cases dealing with the notion of effective nationality in the context of claims to refugee status brought by persons of plural nationality. The main two cases to have promoted and developed the application of the notion have been the Australian Federal Court decisions in Jong Kim Koe[15] and Lay Kon Tji,[16] both of which concerned persons from East Timor having Indonesian nationality and the issue of whether they could be denied refugee status on the basis that they also had Portuguese nationality.

In Jong Kim Koe, the Court rejected arguments that Mr. Koe was not a dual national but drew closely on the UNHCR Handbook to reason that:

[Paragraph 107 of the UNHCR Handbook] reveals a clear view that the inquiry does not necessarily end, in the case of a person with dual nationality, once it is concluded that the person has a second nationality and has no fear of persecution for a convention reason in the country of the second nationality. In such a case there remains the question whether the nationality is ‘effective,’ which in turn may lead to an inquiry as to the “availability” of protection.[17]

In Lay Kon Tji, Judge Finkelstein went considerably further, concluding that ‘effective nationality’ meant ‘nationality that provides all of the protection and rights which a national is entitled to receive under customary or conventional international law;’[18] and in light of that, held that that the Refugee Review Tribunal had erred in concluding that the Portuguese nationality of the applicant was an ‘effective nationality.’[19]

Justifications

The main justification that has been given for importing the notion of ‘effective nationality’ (from international law principles dealing primarily with diplomatic protection) is that it best fits with the objects and purposes of the Refugee Convention and in particular the underlying principle of surrogate nationality. That was most prominently stated in the Jong Kim Koe case, where the Australian Federal Court held:

To interpret ‘nationality’ for the purposes of Article 1A(2) as something of a ‘merely formal’ character . . . instead of something effective from the viewpoint of a putative refugee, would be liable to frustrate rather than advance the humanitarian objects of the Refugees Convention. Nor would such a construction advance, in any practical way, another object of the Refugees Convention, namely the precedence of national protection over international protection. That precedence has no obvious relevance where national protection is not effective.[20]

For the Federal Court in this case, the principle of surrogacy dictated that, in the dual nationality context, an applicant’s nationality in the second country of nationality could not consist just of the legal tie between an individual and that country but had to be effective.

In the Lay Kon Tji case, Judge Finkelstein sought additional support for applying it by way of a hermeneutical reading of the Refugee Convention referencing Article 1C(3)[21] and Article 1E.[22]

Difficulties

However, recourse to the notion of ‘effective nationality’ in the context of the refugee definition has attracted significant criticism,[23] and there has been limited support for it in the case law.[24] Notwithstanding the imprimatur of the UNHCR Handbook, it cannot be said that ‘effective nationality’ has become an established concept of refugee law.

In the opinion of this author, this is because there are a number of singular difficulties with it.

I shall leave aside the lack of widespread acceptance of the notion in leading cases of courts and tribunals simply because there have been too few cases.[25]

The first difficulty is the fact, already highlighted, that it is a highly porous notion. ‘Effective’ has no specific content and, significantly, uses of the notion demonstrate quite varied views about what ‘effective’ means in this context, as will be noted further below.

Second, being highly porous, it risks being equated with the plainly erroneous idea that a person can only be said to have a nationality for the purposes of the Refugee Convention if they possess the full gamut of the rights and benefits normally accorded to nationals. This was where Judge Finkelstein went wrong in the Lay Kon Tji case when he concluded that ‘[i]n my view, conformably with the views expressed in the United Nations Handbook and conformably with the purpose and object of the Refugees Convention, “effective nationality” is a nationality that provides all of the protection and rights to which a national is entitled to receive under customary or conventional international law.’[26] Accepting this position of equivalency is tantamount to asserting that even people who can be protected by their country of nationality against persecution can qualify as refugees whenever they can show that they will not obtain the full panoply of rights normally attached to nationality in their other country or countries of nationality. That is not consistent with the requirement set out in the second paragraph of Article 1A(2) that a person must show a ‘valid reason based on well-founded fear’ for not availing himself of the protection of another country of nationality. There could only be a valid reason if the denied rights would cause them to be refouled to the country of nationality where they face persecutory harm.

Such a position is also inconsistent with the principle of surrogacy, since it would result in persons who have sufficient – albeit not absolute – protection available in the second country of nationality being accorded refugee status in a host state. If, for example, this criterion is equated with the idea of nationality as a full set of rights and benefits, then the principle of surrogacy would not necessarily be served because a person could qualify simply because, for example, they were denied voting rights even when in a particular case such denial did not amount to persecutory conduct and had no impact on the ability of the person to be admitted to and remain in such a state.

Third, this notion confuses the issue of nationality with the distinct issue of whether the State’s treatment of its nationals is persecutory. If, for example, nationality is said to be ‘ineffective’ because the usual benefits of nationality, whilst theoretically available, cannot in practice be accessed by the applicant, that may well go towards establishing a well-founded fear of being persecuted – and for a Convention reason of nationality or some other reason.[27] But it does not negate the fact that the applicant is a national of the State in question. A destitute person with no passport and no access to benefits accorded to nationals generally is still a national.[28] To take such a position does not affront any objects and purposes of the Convention because international protection will be afforded to such persons if such deprivations can be shown to cross the threshold of persecution.

Although Judge Finkelstein’s expansive approach has been subjected to telling criticism, it could be said in his defence that he was encouraged by the non-specific wording of paragraph 107 of the UNHCR Handbook, which simply refers unqualifiedly to ‘protection normally granted to nationals.’

Fourth, use of the notion fosters marked confusion as regards whether in plural nationality cases any ineffectiveness in the other countries of nationality nullifies that nationality. At international law, it is clear that in cases of disputes between states, a person of plural nationality does not cease to hold these nationalities just because it is decided that for specific purposes they are to be treated as if they do not have that nationality. Just because the ICJ decided in Nottebohm that Liechtenstein could not assert a right of diplomatic protection over Nottebohm did not mean that Nottebohm was any less a national of Liechtenstein for all other purposes. This potential for confusion is not simply an academic concern. Andrew Wolman, for example, when analysing dual nationality cases concerned with North and South Korea, argues: ‘[I]f nationality is not effective, then the asylum seeker will not be considered a dual national for the purposes of Article 1A(2) of the Refugee Convention.’[29] That observation does not reflect the position in general international law and, even assuming the ‘effective nationality’ notion has a valid role in the context of the Refugee Convention, it follows from the first requirement of the second paragraph of Article 1A(2) – and from the exposition set out in paragraph 107 of the UNHCR Handbook – that a dual national remains a dual national even if his or her nationality is ‘ineffective’ in another country of nationality. It is just that in the case of dual nationals, something additional (not less) is required (that being, as is dealt with below, non-availment, based on a well-founded fear, of the protection of that other country).

Fifth, it is confusing for decision makers who are not experts in the minutiae of nationality law (they can be expected to be familiar with broad principles of nationality law, but not contentious areas). On the one hand, they are being told that in sole nationality cases ‘country of nationality’ denotes simply the legal tie between an individual and the state; on the other hand, they are told that when it comes to plural nationality cases there is a different concept of nationality. Support for a different concept of nationality may be stated in unqualified terms, for example by the Australian Federal Court in Jong Kim Koe: ‘To interpret “nationality” for the purposes of Article 1A(2) as something of a “merely formal” character . . . instead of something effective from the viewpoint of a putative refugee, would be liable to frustrate rather than advance the humanitarian objects of the [Refugee] Convention.’[30] The easily drawn, but wrong implication, is that in the context of dual nationality cases (what it calls ‘formal’), nationality as the legal tie between an individual and the state (in the accepted sense) has no role to play. In plural nationality cases it still has a role to play; it is only that such a person cannot be denied refugee status unless an additional requirement is met. (This additional requirement is set out in the second sentence of the second paragraph of Article 1A(2) and its purport is discussed below).

This confusing aspect has deeper roots in the way in which general international law[31] seeks to combine two positions, asserting on the one hand that nationality is a formal legal concept, and on the other hand that for the purposes of international recognition it must be based on ‘genuine and effective’ links. It is easily, and again wrongly, inferred that if nationality must be based on genuine and effective links then it can be acquired by any such links, even if they are not one of the specified modes of acquisition that determine whether a person is a national for international law purposes. Thus, it might be wrongly thought that a person who has resided for a long time in country X should be treated as a national of country X, even if they have not applied under the law of that country for naturalisation based on discretionary criteria that include length of residence.[32] The legal tie of nationality may have its basis in the notion of an effective link and the existence of social attachments and associations, but, absent highly unusual circumstances, it only exists as a matter of law when a person possesses it by virtue of their State’s nationality law (which is ordinarily based on acquisition by birth, descent, naturalisation – e.g. by marriage or adoption or legitimation or grant based on residency, cession, or state succession).

Sixth, the attempted reliance on Articles 1C(3) and Article 1E of the Refugee Convention has properly been found overstated – not being consistent, for example, with the elaborations of these articles in the UNHCR Handbook. In relation to the meaning of the phrase in Article 1E – ‘rights and obligations which are attached to the possession of the nationality of that country’ – paragraph 145 of the UNHCR Handbook simply says that whilst there is no precise definition, “[i]t may . . . be said that the exclusion operates if a person’s status is largely assimilated to that of a national of the country. In particular he must, like a national, be fully protected against deportation or expulsion.”[33]

I accept that not all these difficulties identify inherent flaws in the notion, but given how it has been imported into refugee law putatively to help decision makers deal properly with dual nationality cases, it is especially important to weigh how it is said to help against the risk it carries of sowing confusion.

Proposed solutions

Given the identifiable pitfalls to applying the notion of effective nationality in the refugee law context, it must be asked, are there better ways to give proper effect to the clear intent behind the text of the second part of the second paragraph of Article 1A(2) to ameliorate the position somewhat for dual nationals? What are the important things to bear in mind?

Nationality as the legal tie between an individual and the state

First of all, it is important to begin any recast analysis with a clear affirmation that nationality, understood to denote the legal ties between an individual and his/her state (what Lay Kon Tji calls the ‘formal’ sense), remains the operative concept within the Article 1A(2) definition.[34] In sole nationality cases, nationality must be used in its accepted sense only, denoting the legal tie between an individual and a state based on established modes of acquisition. But nationality in the accepted sense must also be applied in plural nationality cases. It is just that in plural nationality cases there is also one additional requirement (which, as we shall see, amounts in fact to a qualification).

The very first part of the second paragraph of Article 1A(2) stipulates in effect that in the case of dual nationals, nationality is to be given the same meaning as in sole nationality cases. It provides that ‘[i]n the case of a person who has more than one nationality, the term ‘the country of his nationality’ shall mean each of the countries of which he is a national.’[35] This is not just a matter of literal construction, but is also consistent with the Convention’s objects and purposes. If it were given any wider meaning, for example to mean possession of all the incidents/rights/benefits normally associated with nationality, it would conflict with the very rationale of the Refugee Convention which is to protect those nationals who in one way or another have had most of the normal incidents of nationality denied. Reaffirming that nationality in both paragraphs of Article 1A(2) denotes merely a legal tie does not mean turning a blind eye to dilemmas faced by nationals such as denial of recognition. As already noted, if acts of denial are persecutory in nature, refugee status has been established. The question then is whether it is justified to require a different concept of nationality – so-called ‘effective nationality’ – to be applied when the context shifts to dual or plural nationality cases.

The text of Article 1A(2)

Secondly, to get to the bottom of whether ‘effective nationality’ is the notion we should apply, it is necessary to go back again to the full text of the second paragraph of Article 1A(2) which provides:

In the case of a person who has more than one nationality, the term ‘the country of his nationality’ shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.[36]

What is important to note about this paragraph[37] is that it lays down two requirements.

The first is that if a person has more than one country of nationality, he or she must demonstrate a well-founded fear of persecution in each of them;[38] once ‘country of nationality’ is read (as it must be) to mean ‘each of the countries of which he is a national,’ that requirement logically follows. Further, as already explained, in this first part of the second paragraph there is no reason to read nationality as meaning anything other than the legal tie between an individual and the state.

However, if that requirement was intended to have no qualification, the second subparagraph could have stopped there. Instead, the conjunction ‘and’ is used to impose a second requirement, which is clearly a qualification of the first, namely that “. . . a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.”[39]

There is then, a textual basis for considering dual or plural nationality cases differently from sole nationality cases. The question is, what can be meant by this further requirement/qualification? We have seen that the UNHCR Handbook, along with some leading academics such as Hathaway and Foster, say it can properly be described as one of ‘effective nationality.’ But not only does the text make no reference to this notion (this part of the text is plainly about protection, not nationality),[40] but the requirement itself does not need to be given such a gloss. Obviously, if a person can establish that each of their countries of nationality is a persecutory country, they fully meet the refugee definition: if the other country (or countries) is persecutory, then by definition a person cannot avail himself of their protection. Hence the second requirement can only apply to some other set or sets of circumstances limited to ones where (i) the other country of nationality is not persecutory, but yet (ii) there is a ‘valid reason based on well-founded fear’ for not availing oneself of the protection of that state. The ‘valid reason based on well-founded fear’ can only refer to the original (or to use Fripp’s term, ‘index’) country of nationality.

Non-admission and refoulment (direct or indirect)

The only two circumstances that fit this description are non-admission to one’s country of nationality (which may also be tied to the issue of recognition by the state in question),[41] and the risk of refoulement.

The former is material because if a person cannot access another country of nationality, then they are in the same position as persons of sole nationality: they are outside a persecutory country of nationality, with the only possible state that can afford them protection being the host state in which they are claiming refugee status.

If it is established that a person will not be denied admission to their other country of nationality, then the only other material circumstance which could give rise to a well-founded fear of persecution would be if there was a real risk that that country would expel them to a persecutory country of nationality. At general international law, states are not prevented from expelling nationals who have another nationality,[42] but they would stand in breach of Article 33(1) of the Refugee Convention if such expulsion refoules them to a country of persecution.[43]

It might be argued that identification of these two sets of circumstances – i.e., those pertaining to the right to be admitted to one’s country of nationality and the right not to be refouled to persecution – suffices to justify applying the notion of ‘effective nationality.’ Such a position appears near to that taken by Andrew Wolman, who states that whilst the Australian case law may have involved a ‘misguided expansion’ of the concept of effective nationality, ‘that does not mean that the principle itself – when properly understood as an evaluation of right of entry – should have also been dismissed.’[44]

However, the notion of effective nationality suffers from an open-ended material scope and it cannot be equated with one or two instances of it. The fact that Wolman on the one hand thinks ‘effective nationality’ can be reduced to two instances of it, whereas Judge Finkelstein in Lay Kon Tji regards it as covering the full gamut of rights and benefits normally associated with nationality, just illustrates the point made earlier, that such a porous term is prey to varying interpretations. Furthermore, identification of these two sets of circumstances is not dependent on the notion of effective nationality, and hence there is no need to take a complex detour through international law, borrowing from cases involving disputes between states, to apply Article 1A(2). The notion of effective nationality is both too blunt an instrument and an unnecessary one. Thus, I would respectfully align myself with the position taken by Fripp in his recent book that:

Although the language of ‘effective nationality’ has been a feature of a number of significant refugee law cases, it is considered that absence of clarity including the potential for multiple relevant meanings favours avoiding the continued use of the term in relation to the international law of refugee status . . . .[45]

Had the Australian Federal Court in Jong Kim Koe and Lay Kon Tji not relied on the notion of ‘effective nationality’ and applied a proper construction of the refugee definition, they would have had to conclude that the second requirement of paragraph 2 of Article 1A(2) was not met since it was accepted that the applicants did not face non-admission to Portugal or refoulement from it.[46]

Perspectives on existing analyses

It is perhaps valid to spell out how what is proposed here[47] differs from the two contemporary publications that have gone into more detail on the issue of effective nationality than any other books, namely Hathaway and Foster’s The Law of Refugee Status and Fripp’s book on Nationality and Statelessness in the International Law of Refugee Status.

Hathaway and Foster are clearly not in favor of the broad equivalency reading of the kind advanced by Judge Finkelstein in Lay Kon Tji. They state that ‘[t]he notion of effective nationality does not mean that the putative country of second citizenship is to be treated as a county of reference only if it provides protection against persecution and would ensure respect for human rights.’[48] They also recognise that issues of rights, whilst relevant, ‘do not inform the threshold question of whether putative nationality is effective such as to require consideration of risk in that country.’ However, they are still content to go on to cite with approval the open-ended formulation given by the Australian Federal Court in Jong Kim Koe, namely that this requires consideration of a ‘range of practical questions,’ For Hathaway and Foster to draw on the Lay Kon Tji case risks confusion. For reasons already explained, appearing to pin their flag to the mast of the Lay Kon Tji case is perilous, since that case adopts a manifestly erroneous approach of broad equivalency that does not impose any threshold. Furthermore, treating the principle to be applied in individual cases as one of asking a ‘range of practical questions’ wrongly implies that they support such questions being open-ended and extending, for example, to rights and benefits that have no impact on the danger of indirect persecution.[49]

Much of my foregoing critique is consonant with that of Fripp, who shares my view that effective nationality is an unhelpful notion to apply in refugee law. However, as an alternative to application of the notion of ‘effective nationality’ to plural nationality cases, Fripp advocates the notion of ‘the National Protection Alternative.’[50] Having noted that the second part of the second paragraph of Article 1A(2) only applies if it has been established that a person of dual nationality faces persecution for a Convention reason in their home State (‘the index country’), he proposes that the relevant standard for deciding whether there is adequate protection available in the second country of nationality is that of whether ‘external relocation’ would be unduly harsh or unreasonable.[51] He considers these standards to align with those already applied by decision makers when deciding whether an applicant who has established a well founded fear of being persecuted in the home area of their country has an ‘internal protection alternative.’ However, this approach is problematic. In the first place, in any ‘external protection alternative’ context the relevant area would have to be the whole country (not a part of it), and so the unduly harsh or unreasonable circumstances would have to be shown to arise throughout the country. Secondly, there is no consensus within refugee law regarding the criteria to be applied when applying the ‘internal protection alternative,’[52] and hence it offers too contingent a basis for dealing with plural nationality cases. Thirdly, adoption (in his version of it) of a test of unduly harshness or unreasonableness carries the danger of expanding the sets of circumstances in which protection could be considered inadequate beyond denial of admission and refoulement (direct or indirect), and hence potentially extending the range of situations in which protection was considered ineffective beyond those warranted by either the text of the second paragraph or the principle of surrogacy. Suppose, for example, an individual suffers from ill health and that in their alternative country of nationality they would only be able to access very basic treatment for their condition. Whilst that might well be unduly harsh or unreasonable, it may not amount to a lack of adequate protection and may not, in particular, cause indirect refoulement.

Conclusion

My principal conclusion is that when applying the refugee definition to persons of dual or plural nationality, there is no role for the notion of ‘effective nationality’. Use of it should be abandoned.

A cluster of difficulties have been identified with reliance on this notion: that it possesses multiple meanings and is highly porous; that it only has a valid role (if at all) in limited branches of international law concerned with disputes between states, in particular diplomatic protection and state succession; that it risks conflation of the issue of nationality with that of persecutory acts based on nationality; that it invites the misconception that an ineffective nationality is not a nationality; that it can muddle the issue of established modes of acquisition of nationality with that of the rights and benefits attaching to nationality (just because rights and benefits also represent a ‘genuine and effective link’ does not mean they too can give rise to a nationality).

All in all, ‘effective nationality’ is too blunt an instrument to help achieve a proper reading of the second paragraph of Article 1A(2). Properly understood, the threshold required by the second sentence of this (second paragraph) – that a dual national must be able to show ‘a valid reason based on well-founded fear’ for not availing oneself of the protection of the other state of nationality – can only be met in two circumstances, namely non-admission to one’s country of nationality (which may also be tied to the issue of recognition by the state in question),[53] and the risk of refoulement.


[1] I record my thanks to Ryszvard Piotrowicz and Eric Fripp for their comments on an earlier draft.

[2] Hugo Storey, Nationality as an Element of the Refugee Definition and the Unsettled Issues of ‘Inchoate Nationality’ and ‘Effective Nationality’ – Part 1, RefLaw (June 11, 2017) , <https://perma.cc/RS6E-9A5R> accessed June 1, 2019.

[3] United Nations High Comm’r for Refugees, Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status ¶ 107 (2d ed. 1992, reissued 2019) <https://perma.cc/7JFS-KSY8> last accessed June 1, 2019 [hereinafter UNHCR Handbook].

[4] James C. Hathaway & Michelle Foster, The Law of Refugee Status 55-57 (2d ed. 2014).

[5] Eric Fripp, Nationality and Statelessness in the International Law of Refugee Status 52 (2016); see also Jeffrey Blackman, State Succession and Statelessness: The Emerging Right to an Effective Nationality Under International Law, 19 Mich. J. Int’l L. 1141 (1998) <https://perma.cc/ZCA7-EE9U> last accessed June 1, 2019; Oliver Dorr, Nationality, in Max Planck Encyclopaedia of Public International Law (online ed. 2006) , <https://perma.cc/Z5M3-EWWB> last accessed June 1, 2019; Kay Hailbronner, Nationality in Public International Law and European Law, in Acquisition and Loss of Nationality: Policies and Trends in 15 European States (2006) <https://perma.cc/53Z2-RMZE> last accessed June 1, 2019; I.A. Shearer & Brian Opeskin, Nationality and Statelessness, in Foundations of International Migration Law 93-122 (2012) <https://perma.cc/3B9L-PWKT> last accessed June 1, 2019.

[6] Leading cases include Canevaro (Italy v. Peru), Hague Ct. Rep. 2d (Scott) 284-96 (Perm. Ct. Arb. 1912) <https://perma.cc/S5EM-F2ZH> last accessed June 1, 2019; Salem (United States v. Egypt), Ann. Dig. & Rep. Pub. Int’l L. Cases (1932) <https://perma.cc/MD59-BD79> last accessed June 1, 2019; Mergé (Italy v. US), 22 I.L.R. 443 (1955) <https://perma.cc/QKF8-VVHF> last accessed June 1, 2019; Asghar v. Iran, 24 Iran-U.S. Cl. Trib. Rep. 242-43 (1990).

[7] Nottebohm (Liech. v. Guat.) (Second Phase), Judgement, 1955 I.C.J. Rep. 4 (Apr. 6) <https://perma.cc/W3CV-7H5E> last accessed June 1, 2019. It may be thought somewhat curious that the Nottebohm case has been cited most to support the application of the notion of ‘effective nationality’ in dual nationality cases, when Nottebohm himself was not a dual national, having lost his German nationality upon acquiring Liechtenstein nationality.

[8] The ICJ in Nottebohm drew on Article 5 of the 1930 Convention on Certain Questions Relating to the Conflict of Nationality Laws: ‘Within a third State, a person having more than one nationality shall be treated as if he had only one. Without prejudice to the application of its law in matters of personal status and of any conventions in force, a third State shall, of the nationalities which any such person possesses, recognise exclusively in its territory either the nationality of the country in which he is habitually and principally resident, or the nationality of the country with which in the circumstances he appears to be in fact most closely connected.’ Convention on Certain Questions Relating to the Conflict of Nationality Law, Apr. 13 1930, 179 L.N.T.S. 89 <https://perma.cc/B6US-7GER> last accessed June 1, 2019 [hereinafter 1930 Convention].

[9] Nottebohm, 1955 I.C.J. at 23.

[10] Fripp, op. cit. note 6, at 54.

[11] UNHCR Handbook, op. cit. note 4, at ¶ 107.

[12] “The major caveat to the principle of deferring to protection by a state of citizenship is the need to ensure effective, rather than merely formal, nationality. It is not enough for example, that the claimant carries a second passport from a non-persecutory state if that state is not in fact willing to afford protection against return to the country of persecution. While it is appropriate to presume a willingness on the part of a country of nationality to protect in the absence of evidence to the contrary, facts that call into question the existence of basic protection against return must be carefully assessed.” James C. Hathaway, The Law of Refugee Status 59 (1st ed. 1991).

[13] “In cases of dual or multiple nationality, refugee status will only arise where the individual in question is unable or unwilling on the basis of well-founded fear, to secure the protection of any of the States of nationality. In this context, whether the link of nationality is effective in the sense of general international law will be a relevant consideration.” Guy Goodwin-Gill & Jane McAdam, The Refugee in International Law 67 (3d ed. 2007). Seemingly meaning to convey that this statement is contentious, the authors insert a footnote stating: “Cf. Goodwin-Gill, G.S., International Law and the Movement of Persons Between States (1978), 46-49; Piotrowicz, ‘Lay Kon Tji v Minister for Immigration and Ethnic Affairs: The Function and Meaning of Effective Nationality in the Assessment of Applications for Asylum, 11 IJRL 544 (1999).’”

[14] Hathaway & Foster, op. cit. note 5, at 56 (“The major caveat to the principle of deferring to protection by a second state of citizenship is the need to ensure effective, rather than merely formal nationality.”).

[15] Jong Kim Koe v Minister for Immigration & Multicultural Affairs [1997] 306 FCA (2 May 1997) (Austl.) (cited by Hathaway & Foster, op. cit. note 5, at 57).

[16] Lay Kon Tji v Minister for Immigration & Ethnic Affairs [1998] 1380 FCA (30 October 1998) (Austl.) <https://perma.cc/VP7Z-JM7Z> last accessed June 1, 2019.

[17] Jong Kim Koe, 306 FCA.

[18] He stated that “[t]he domestic protection that is to be accorded a national of a state is usually a matter governed by the domestic laws of that state. But according to international law, including conventional international law, a person is entitled to certain ‘fundamental’ rights. Blackstone in his ‘Commentaries on the Laws of England’ (18th ed) (1821) described them as the right to personal security, to personal liberty and to private property: Blackstone vol 1 at 128ff. A national is entitled to have his or her ‘fundamental rights’ protected by the municipal laws of the state of his or her territory.” Lay Kon Tji, 1380 FCA. He interpreted paragraph 107 of the UNHCR Handbook to mean that “the issue of ‘effective nationality’ is explained in terms of equivalence to the protection normally granted to nationals. In other words, according to this view nationality will not be regarded as ‘effective’ if, for example, the putative refugee will not receive the protection under the domestic laws of the state which all other nationals in fact receive.” Id.

[19] Id.

[20] Jong Kim Koe, 306 FCA.

[21] Article 1C(3) provides that the Convention shall cease to apply to anyone falling under its terms where he or she ‘has acquired a new nationality and enjoys the protection of the country of his new nationality.’ Convention Relating to the Status of Refugees art. 1C(3), Jul. 28, 1951, 189 U.N.T.S. 154 <https://perma.cc/9WQZ-3ZNF> last accessed June 1, 2019 [hereinafter Refugee Convention].

[22] Article 1E excludes from the scope of the Convention anyone who has taken up residence in another country and is recognised by the competent authorities ‘as having the rights and obligations attached to the possession of the nationality of that country.’ Id. at art. 1E.

[23] Ryszard Piotrowicz, Lay Kon Tji and Minister for Immigration & Ethnic Affairs: The Function and Meaning of Effective Nationality in the Assessment of Applications for Asylum, 11 Int’l J. Refugee L. 544 (1999) <https://perma.cc/JP4F-5H58> last accessed June 1, 2019; see also Fripp, op. cit. note 6, at 52-54, 217-35; Ryszard Piotrowicz, Refugee Status and Multiple Nationality in the Indonesian Archipelago: Is there a Timor Gap?, 8 Int’l J. Refugee L. 319 (1996) <https://perma.cc/APF8-RVKT> last accessed June 1, 2019; Mark Sidhom, Jong Kim Koe v Minister for Immigration and Multicultural Affairs: Federal Court Loses Sight of the Purpose of the Refugee Convention, 20 Sydney L. Rev. 315 (1998) <https://perma.cc/AN3G-PE6U> last accessed June 1, 2019.

[24] In addition to Australian cases from the 1990s, Andrew Wolman cites a number of New Zealand cases, including Refugee Appeal No 75694 (2006), ¶ 33; Refugee Appeal No 71322/99 (2000) ¶¶ 20-26; Refugee Appeal No 2067/94 (4 July 1996) ¶¶ 10-11. Andrew Wolman, “North Korean Asylum Seekers and Dual Nationality,” 24 Int’l J. Refugee L. 793 (2013) <https://perma.cc/39GW-9T7M> June 1, 2019. However, he acknowledges that ‘in other countries, judges have been more reluctant to embrace an effective nationality analysis,’ citing, inter alia, in this regard the UK case of KK and others (Nationality: North Korea) Korea v. Secretary of State for the Home Department CG [2011] UKUT 92. Fripp, op. cit. note 6, at 225-29, cites as further cases applying the notion of ‘effective nationally’ the Canadian case of Katkova v Canada, [1997] 130 F.T.R. 192; a UK High Court case, R v. SSHD ex p.Milisavljevic [2001] EWHC (Admin) 203 Imm AR 580; and the UK Immigration Appeal Tribunal case of MA(Ethiopia-Eritrea-mixed ethnicity-dual nationality) Eritrea [2004] UKIA 00324, ¶ 46 <https://perma.cc/X83Q-NSVY> last accessed June 1, 2019. However, he notes that the UK Upper Tribunal rejected this notion in KK.

[25] In any event, in the Australian context, since the Jong Kim Koe case the government has legislated to prevent recourse to any concept of ‘effective nationality,’ although there remains some uncertainty as to whether that legislation has displaced the concept. See RRT Case No. 1001549 [2010] RRTA 843 (Austl.) <https://perma.cc/F9MQ-YW3P> last accessed June 1, 2019; Szouy & Ors v Minister for Immigration & Anor [2011] FMCA 347 (Austl.) <https://perma.cc/3UED-7TP9> last accessed June 1, 2019.

[26] Lay Kon Tji v Minister for Immigration & Ethnic Affairs [1998] 1380 FCA (30 October 1998) (Austl.).

[27] See, e.g., MA (Ethiopia) v. Secretary of State for the Home Department [2009] EWCA (Civ) 289 ¶ 43 (Eng.) (‘the fact that it may, for example, prove to be impossible in practice to return someone seeking asylum has no relevance to the determination of their refugee status. But where the applicant contends that the denial of the right to return is part of the persecution itself, the Tribunal must engage with that question.’).

[28] In emphasising that nationality is to be distinguished from rights of citizenship, which may be denied to persons who are nationals, I.A. Shearer in Starke’s International Law (11th ed. 1994) at 309 observes that ‘[d]isabilities in citizenship, even of a serious nature, do not involve loss of nationality’ and cites the case of Kabane v. Parisi, Ann. Dig. & Rep. Pub. Int’l L. Cases 213 (1929-30) and the Austrian State Decision of the Austro-German Mixed Arbitral Tribunal in Djevahirdijhian v Germany, Ann. Dig. & Rep. Pub. Int’l L. Cases 310 (1927-28). See also 1930 Convention, op. cit. note 20, at art. 1-2.

[29] Wolman, op. cit. note 23, at 809.

[30] Jong Kim Koe v Minister for Immigration & Multicultural Affairs [1997] 306 FCA (2 May 1997) (Austl.).

[31] As illustrated by Nottebohm (Liech. v. Guat.) (Second Phase), Judgement, 1955 I.C.J. Rep. 4 (Apr. 6).

[32] This was similar to the error made by the UN Human Rights Committee in Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007 (18 July 2011) <https://perma.cc/S3PJ-APHZ> last accessed June 1, 2019, when seeking to construe the phrase ‘his own country’ within the meaning of Article 12(4) of the ICCPR, without any nexus to nationality in the accepted legal sense. I am grateful to Ryszard Piotrocwicz for this observation.

[33] UNHCR Handbook, op. cit. note 4, at ¶ 145.

[34] Save in respect of nationality as one of the five Convention reasons. See Storey, op. cit. note 3.

[35] Refugee Convention, op. cit. note 23, at art. 1(A)(2).

[36] Id.

[37] Which closely reflects the Statement of Mr. Fearnley of the United Kingdom, that ‘persons with dual or even plural nationality would be considered as refugees only after it had been ascertained that they were either unable or unwilling to avail themselves of the protection of the governments of any of their nationalities.’ U.N. ESCOR, 11th Sess., 160th mtg. at 6, U.N. Doc. E/AC.7/SR.160 (Aug. 18, 1950). In addition, see the Statement of Mr. Henkin of the United States that ‘so long as a person has one nationality and no reasons not to avail himself of the protection of the government concerned, he could not be considered as a refugee.’ Id. at 7 (cited by Hathaway & Foster, op. cit. note 5, at 55 nn. 221, 222).

[38] This formulation has properly been seen to be one expression of the principle of surrogate protection. As stated by the Supreme Court of Canada in Ward, ‘[t]he exercise of assessing the claimant’s fear in each country of citizenship…accords with the principles underlying refugee protection. Otherwise the claimant would benefit from rights granted by a foreign state while home state protection had still been available.’ Canada v. Ward, [1993] 2 S.C.R. 689, 753 (Can.) (cited by Hathaway & Foster, op. cit. note 5, at 55 n. 225).

[39] Refugee Convention, op. cit. note 23, at art. 1A(2).

[40] As was said by the UK Upper Tribunal in KK and ors (Nationality: North Korea) Korea v. Secretary of State for the Home Department CG [2011] UKUT 92 ¶ 67 <https://perma.cc/R3RP-MPX5> last accessed June 1, 2019.

[41] See Refugee Appeal No 72635 [2002] NZRSAA 33 (cited in Fripp, op. cit. note 6, at 232).

[42] See William Worster, International Law and the Expulsion of Individuals with More Than One Nationality, 14 UCLA J. Int’l L. & Foreign Aff. 423 (2009) <https://perma.cc/G56V-9U6J> last accessed June 1, 2019.

[43] Fripp argues that there is a further set of circumstances amounting to indirect refoulement: ‘a broad range of circumstances, difficult to categorise closely [in which] conditions in a non-persecuting plural nationality State may be so adverse as to generate very significant pressure either to refoulement by others (the State or non-state agents) or to self-refoulement. For instance, the non-persecuting State may be subject to foreign occupation or international armed conflict, or there may be severe civil conflict or famine or epidemic disease. The non-persecuting State might also be subject to some form of wide-ranging ecological collapse, such as the loss of its territory to vulcanism or rising sea level.’ Fripp, op. cit. note 6, at 222, 232. However, if such circumstances have the result that the person concerned will be refouled or be compelled to self-refoule, then these are really better understood as a sub-category of the second set of circumstances concerned with refoulement.

[44] Wolman, op. cit. note 23, at 809, 813.

[45] Fripp, op. cit. note 6, at 54.

[46] See Sidhom, op. cit. note 22, at 3C(ii).

[47] Which is much the same position set out by Mark Sidhom as long ago as 1998. Sidhom, op. cit. note 22.

[48] Hathaway & Foster, op. cit. note 5, at 56-57.

[49] By contrast, the approach taken by Hathaway in The Law of Refugee Status, op. cit. note 13, at 59, appears much closer with that taken in this article, namely limiting the additional requirements to non-admission and non-refoulement. Interestingly, that is how this passage was understood by Sidhom, op. cit. note 22, at 3C.

[50] Fripp, op. cit. note 6, at 230ff.

[51] Id. at 234.

[52] See Jessica Schultz, The Internal Protection Alternative in Refugee Law (2019).

[53] See Refugee Appeal No 72635 [2002] NZRSAA 33 (cited in Fripp, op. cit. note 6, at 232).

Suggested Citation: Hugo Storey, Nationality as an Element of the Refugee Definition and the Unsettled Issues of ‘Inchoate Nationality’ and ‘Effective Nationality,’ RefLaw (June 2, 2019), http://www.reflaw.org/nationality-as-an-element-of-the-refugee-definition-and-the-unsettled-issues-of-inchoate-nationality-and-effective-nationality-2/.

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