Pablo César Rosales Zamora*
In the present note it will be briefly examined how the actual extent of the right to a nationality are a reflection of the interaction between the classic international law and the contemporary international law, in the frame of the actual jurisprudence of the Inter-American Court of Human Rights.
The last year, in the case Dominican and Haitian People Expelled v. Dominican Republic, the Inter-American Court of Human Rights (hereinafter “IACtHR”) had indicated that “the determination of those who are nationals is still intern competence of the States”. This affirmation had been previously held in the case of the Yean girls and Bosico vs. Dominican Republic of 2005. Furthermore, in both sentences it had been mentioned that the limit of this sovereign competence is produced by the obligations related to the statelessness and by the principles of equality and non-discrimination.
- The right of nationality in the classic international law
Regarding the classic international law, the State did not have any limit with respect to the right to give or deny nationality. This issue was part of its exclusive jurisdiction. In this regard, the State was thought as a sort of “billiard ball” that got in touch with other sovereign entities, without the international Law saying something about its intern organization. The person, on the other hand, was considered just as an object of international law, so its presence and action in the international field was in an indirect way, because it depended on the action of the States.
The cases about diplomatic protection like the case about the Mavrommatis Palestine Concessions before to the Permanent Court of International Justice (1924) or the Nottebohm case, by the International Court of Justice (1955), reveal this perception. The last case demonstrates that the adoption of the Charter of United Nations does not lead immediate changes of standards about right to a nationality.
- The development of contemporary international law
Through the development of human rights’ treaties since the middle of last century and their ratification by many States of international community, sovereignty was revitalized. This phenomenon was originated by the sovereign entities’ discretion. In this way, sovereignty has been recently thought as a “responsibility to protect”, in other words, at the service of people and with full respect of human rights.
In this context, the international law of human rights (hereinafter “ILHR”) is a specific branch of contemporary international law and was originated by the inspiration of the Charter of the United Nations (1945) and the Universal Declaration of Human Rights (1948). Through the ILHR it is recognized that the individual has rights linked to his own quality of subject in the international scenario.
In this context, there are actually four human rights protection’s systems, where one of them, the Inter-American System of Human Rights, belongs to our region and has had a remarkable development in the identification of groups in vulnerability, as well as protection standards.
Many States of this region have ratified the American Convention of Human Rights and have accepted the contentious jurisdiction of the IACtHR. This tribunal, as control organ of the American Convention of Human Rights (and of other inter-american treaties), has improved the effect of the ILHR by interpreting these conventions in the exercise of its contentious and advisory functions.
Meanwhile, the contemporary international law, with all the changes that has brought with it, doesn’t significantly eliminate the so-called classic international law, but overlaps with it and coexists simultaneously. It consists of a difficult balance between norms and values that not necessarily reconcile with each other. This situation could be observed in multiple aspects, about which is enough to mention two related to the right to a nationality.
The first of them is that the State is who decides if it is or not part of a human rights’ treaty. Every State conserves its capacity to decide which international obligations recognize to be fulfilled by him, unless they are peremptory norms, which are enforceable even out of the conventional bond. The second aspect is that, despite the IACtHR affirms that it is still intern competence of the State to determine who its own national is, this tribunal remembers simultaneously the limits set by the ILHR in this field.
- Final remark
In short, the ILHR has trespassed the States’ borders and has transformed it from solid and impermeable “billiard balls” to transparent and transferable spheres, like in the right to a nationality. This evolution doesn’t extinguish the classic international law, because the State has not totally lost its centrality by the contemporary international law, but it does get its more valuable capacities limited, under the consideration that the individual is a subject of international law too.
* Master in International Law and International Relations by the University Research Institute “Ortega y Gasset” of Madrid, Spain. Lawyer by the Pontifical Catholic University of Peru. Former academic assistant in the Democracy and Human Rights Institute of the Pontifical Catholic University of Peru (IDEHPUCP).
 IACtHR. Case of Dominican and Haitian People Expelled v. Dominican Republic” Preliminary exception, Merits, Reparation and Costs. Judgment of August 28, 2014. Series C N° 282, paragraph 256.
 IACtHR. Case of the Girls Yean and Bosico v. Dominican Republic. Judgment of September 8, 2005. Series C N° 130.
 Other sentences of IACtHR about right to a nationality were: Case Castillo Petruzzi et al. v. Peru. Merits, Reparation and Costs. Judgment of May 30, 1999. Series C N° 52; Case Ivcher Bronstein v. Peru. Merits, Reparation and Costs. Judgment of February 6, 2001. Series C N° 74.
 ABI-SAAB, George. Course général de droit international public, Recueil des cours, Martinus Nijhoff, 1987 – VII, p. 62.
 Secretary-General of the United Nations. Implementing the responsibility to protect. Geneva, January 12, 2009, paragraph 11.a.
 With this criterion, WEILER, J.H.H. The Geology of International Law – Governance, Democracy and Legitimacy. En: Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, vol. 64, 2004, pp. 547 – 553.