1 Introduction
The statelessness of children is a particularly concerning phenomenon, yet it does
have at least one partial solution, nationality of the birth state, arising from a
patchwork of human rights treaties. The Office of the United Nations High
Commissioner for Refugees (UNCHR) is currently in the middle of an aggressive
promotion of the 1954 and 1961 Statelessness Conventions,1 attempting to convince states to adhere to them. This goal is
admirable and will add to the legal protection of a great number of stateless
persons. In particular, it should have the result of bringing countless numbers of
children into a legal bond with a state, and in the case of the 1961 Statelessness
Convention, states will be obliged to grant their nationality to children born in
their territory who would otherwise be stateless. Unfortunately, the Statelessness
Conventions, as of yet, still have far from universal participation. This low
participation means that some states do not have an obligation under the terms of
the Statelessness Conventions to grant nationality to stateless children born in the
state. However, there are a large number of other human rights treaties that are
relevant for the legal protection of stateless persons, especially for the
particular case of children who are stateless. It is through the overlapping
application of these treaties, in addition to the two Statelessness Conventions,
that children born otherwise stateless must receive the nationality of the state in
which they are born.
Statelessness touches every region in the world, with many of the largest stateless
populations being composed of individuals born in a state without nationality. In
Asia, Myanmar hosts almost 1 million stateless persons. Thailand has almost 500,000
people who are stateless. The central Asian nation of Uzbekistan has almost 100,000.
In Africa, Côte d’Ivoire has a population of approximately 700,000
stateless persons, and in the Americas, the Dominican Republic has approximately
200,000. Europe’s stateless population is concentrated in Eastern Europe, with
250,000 stateless in Latvia and almost 100,000 stateless in both Estonia and Russia.
Ukraine has a significant population of 35,000 stateless. Western Europe as well
hosts large numbers of stateless, with, for example, Sweden, having a stateless
population of 36,000. The Middle East is also home to large numbers of stateless
persons. Syria has approximately 160,000, while Kuwait has 93,000, Saudi Arabia has
70,000, and Iraq has almost 50,000. While the migration of individuals in de
jure and de facto stateless situations is a
significant problem, this paper will focus on cases throughout the world where
children are being born without a nationality.
Most of these situations of statelessness at birth come about from a variety of
causes, ranging from the application of exclusive jus sanguinis
laws to issues of state succession, and can be cured with a multi-pronged approach.
This paper will only address solutions for child statelessness at birth by extending
the application of nationality law, not other solutions such as expanded birth
registration or regularization of older individuals. This paper will also examine
the legal obligations on states only, and will not address methods for ensuring
violations of legal obligations are remedied.2
Specifically, it will locate in various treaties the obligation to grant nationality
to a child born in a state and will examine whether it is possible, under current
treaty law, to identify the state that bears the obligation to extend its
nationality to the stateless child. If every state with a stateless population,
bearing this duty, extended its nationality in this manner, a significant amount of
stateless situations would begin to be resolved. This paper will survey the field of
treaties that govern statelessness or protect the right to a nationality, and
determine how, through the various instruments, identifiable states have this
obligation. It will consider both universal treaties, such as the International
Covenant on Civil and Political Rights (ICCPR),3
and the Convention on the Rights of the Child,4
as well as regional treaties. Based on this survey, it will demonstrate that through
multiple overlapping treaties, most states must grant nationality to children born
in their territory if they would be otherwise stateless.
2 International Treaties
This study will begin with treaties of a universal character governing statelessness,
before secondly considering regional treaties.
Universal treaties concerning statelessness are relevant for several reasons. Some
treaties directly pertain to statelessness. Others provide for a right to
nationality, yet it is often difficult to identify the state that is responsible for
granting nationality. Also, there are treaties that specially provide protections
for children, including protections for either statelessness or nationality. These
universal instruments already cover a significant number of the states in the
world.
The first class of treaties is those that specifically concern statelessness, the
1954 and 1961 Statelessness Conventions.5 The
objective of these treaties was to reduce cases of statelessness,6 for example, the 1951 Convention requires states to facilitate
naturalization of stateless persons.7 More
important for this article is the 1961 Convention that requires states to grant
their nationality to children born in their territory who would otherwise be
stateless.8 Unfortunately, this convention
does not have universal adherence, whether by signature and ratification, accession
or succession to the treaty.9 A number of states
have recently adhered to it, and there are a large number of pledges to adhere to it
in the near future,10 which means its impact
will likely grow. For the time being, it is only those states that are party to the
1961 Convention that have a treaty obligation to grant nationality to stateless
children born in their territory.11
In addition, the 1961 Statelessness Convention has several exceptions and conditions
to its requirement that states grant nationality to stateless children born in the
state. The first condition is that a state may require an application during a
particular time frame for nationality rather than grant nationality ex
lege.12 The second exception is
that a state may require the child’s family to have a habitual residence in
the state in order for nationality to be extended.13 Also, the state need not extend its nationality to a child who has
not “always been stateless”.14 The
last limitation, though not generally relevant for children, is that states may
withhold their nationality from individuals with serious criminal records.15 All of these provisions limit the application,
and thus the utility, of the 1961 Statelessness Convention for stateless children
born in a state. However, other treaties can partially address these
shortcomings.
In addition to the statelessness conventions, there are number of other universal
treaties that provide for a right to a nationality.16 The right to nationality has been included in most major
international human rights treaties,17 and some
authorities believe that the right to nationality is even a non-derogable
right.18 Specifically, those treaties
include the 1957 Convention on the Nationality of Married Women,19 the ICCPR,20 the
International Convention on the Elimination of All Forms of Racial Discrimination
(CERD),21 the Convention on the Elimination
of All Forms of Discrimination against Women (CEDAW),22 the International Convention on the Rights of All Migrant Workers
(CRMW),23 and the Convention on the Rights
of Persons with Disabilities (CRPD).24 While
these conventions all protect the right to nationality for everyone, some of these
treaties have additional provisions protecting the rights of children to a
nationality,25 the most important of these
probably being the Convention on the Rights of the Child (CRC).26 The CRC is even more significant for the purposes of this
article because it has virtually universal adherence and almost no reservations to
the child’s right to nationality.27 Thus,
for purposes of child statelessness, essentially every state in the world must
protect the child’s right to nationality.
That being said, what remains difficult about the right to nationality is identifying
the state that must ensure this right, perhaps including granting nationality.28 All of the above treaties simply say that the
person and/or child has a right to ‘a’ nationality.29 Upon encountering a stateless child born in its territory, a
state might say that the child rightly deserves the nationality of his or her
parents, who came from another state, and then the problem arises of which state
must ensure the child’s nationality.
Some authorities have concluded that the obligation to ensure ‘a’
nationality does not oblige a state to grant its nationality to a child born in the
state. Gerard-René de Groot and Jaap Doek have argued that the provisions in
the ICCPR regarding the child’s right to a nationality do not require the
birth state to extend its nationality to stateless children.30 This view is also reflected in the views of the Human Rights
Committee31 which has concluded that states
need only ensure nationality ‘in cooperation with other States’.32
However, these views may not be entirely accurate. We can begin to find some way to
identify the responsible state following from the general principles of how these
treaties are applied. Human rights treaties, including the ones discussed above are
generally applicable to a state’s territory under its jurisdiction,33 a view affirmed by the Human Rights
Committee,34 among others. Provided no
other state asserts its jurisdiction by providing for the nationality of a child
born abroad, then the child holds the right to ‘a’ nationality in
regards to only one state, the state of birth. In this way, the state of birth
accrues the responsibility to ensure the child has a nationality.35 Unless the state can secure the child’s nationality
from another state, for example the state of parent’s nationality, then the
state must take the only other measure it can to ensure the child has a
nationality.
Some authors, such as Carol Batchelor, understand that when there is more than one
state that is potentially responsible, it may become impossible to identify which
state must ensure nationality. Indeed, states have obligations to persons within
their jurisdiction, and that the right to a nationality accrues to children born in
their jurisdiction.36 Following from that
conclusion, Batchelor would excuse the state from ensuring nationality if another
state exercised jurisdiction over the child’s nationality jus
sanguinis.37 This view is correct,
but only partially, because it considers whether another state has exercised
jurisdiction over the child’s nationality as an easily determined fact, and
quickly displacing the obligations on the birth state. The truly problematic
situation resulting in statelessness is when the state of birth asserts that another
state has exercised its jurisdiction, yet that other state refutes that assertion.
The irreconcilable disagreement between the states over which bears responsibility
must be resolved for the birth state to bear responsibility.
The meaning of ‘secure’ in this context is fairly demanding, requiring
the state to make all efforts,38 and should not
be discharged by a hypothetical application of the understanding of another
state’s nationality laws. When a child is born in a state, it has only ever
existed within one state’s territory. The burden is on the birth state to show
that another state has definitively exercised jurisdiction, for example, by
acquiring a passport in hand. The African Committee of Experts on the Rights and
Welfare of the Child, in applying comparable terms in the African Charter on the
Rights and Welfare of the Child, concluded that the birth state bears the primary
responsibility for ensuring the right to a nationality, meaning that it must grant
its nationality unless it can effectively secure another nationality.39 The Committee noted that a speculative
determination that the child should acquire nationality from another state on the
basis of that state’s nationality laws was not sufficient to discharge this
obligation to ensure nationality.40 This
conclusion accords with the views of De Groot and the Human Rights Committee above,
that the state need not necessarily extend its nationality. However, those views
implied that the state could abandon the child should it choose to do so, and it
would not violate the ICCPR. The better conclusion for the ICCPR is that the default
application is that the state must grant its nationality, unless it discharges its
duty by definitively securing another nationality for the child.
In addition, while the above treaties provide for a right to nationality, this right
is given more content by prohibiting the arbitrary deprivation of nationality.41 For example, the Universal Declaration of
Human Rights (UDHR) specifically states that, ‘[n]o one shall be
arbitrarily deprived of his nationality nor denied the right to
change his nationality.’42 Also, in
interpreting the right to leave and return to one’s own country, the Human
Rights Committee concluded that some aliens must be permitted to enter a state when
they have been unlawfully deprived of their nationality in that state.43 Although the state may have effectively denied
their nationality, it cannot make them aliens unlawfully or deny their special
connection to their home country.44 In fact,
the right against unlawful deprivation of nationality is understood to also include
the right to acquire a nationality when there are sufficient connections between the
child and the state.45 Therefore the right to a
nationality includes the right to acquire a nationality in certain situations.
Whether the refusal of nationality is arbitrary is tested both procedurally46 and substantively.47 Certainly when a state acts without legal provision or
refuses to comply with its own laws, then the state has acted arbitrarily in a
procedural sense.48 However, the state can also
act arbitrarily in a substantive sense by applying measures that are gravely
unreasonable.49 A clear example of an
unreasonable measure would be nationality laws that discriminate on the basis of
race, gender, disability, or other protected ground.50 Unreasonable measures could also include nationality laws that
violate legal predictability51 or
proportionality.52 Following from these
requirements, the prohibition on arbitrary refusal of nationality is understood to
include acts that create situations of statelessness.53
In summary, if a child who would otherwise be stateless is born in the state, then
the human right to a nationality would require the birth state to extend its
nationality. The birth state is the only state that asserts jurisdiction over the
child, so it is the only state that has the obligation to secure the child’s
right to a nationality. The refusal to permit the child to acquire nationality is
potentially a violation of the right of the child to a nationality. If the child
would be otherwise stateless, then it would be an arbitrary denial of nationality to
block the acquisition of nationality of the birth state.54
In addition to the Statelessness Conventions and the treaties providing for the right
to a nationality, otherwise stateless children are also protected by the CRC, which
has near universal applicability. In terms of nationality at birth, the CRC protects
the child’s right to ‘a’ nationality and obliges states to
register children at birth, as a means to facilitate the acquisition of
nationality.55 The right to a nationality
has already been discussed above and the application of this provision will largely
reflect that of other treaties with similar language. The obligation to register
does not directly pertain to nationality, though it can, especially where the child
should receive nationality of the birth state.
One provision that makes the CRC distinct for the protection of otherwise stateless
children is that the Convention requires all states to adopt the child’s best
interests as the guiding principle for all decisions concerning children, including
prescribing and applying nationality laws.56
Other treaty bodies interpreting similar language have concluded that becoming
stateless is never in the child’s best interests,57 so states should never prescribe or apply legislation concerning
children within their territory that would result in making a child stateless. It is
still open for a state to argue that a child might be better off stateless, though
such a situation is perhaps very difficult to imagine, and, in any event, the state
would need to specifically conclude that the child would be better stateless than to
have that very same state’s nationality. It is perhaps even more difficult to
imagine any state concluding that its own nationality would impose that level of
disadvantage on a child. A more likely scenario is for the birth state to conclude
that a child’s interest is to have the nationality of its family, and to
secure nationality that way.58 But, should that
effort fail, the child would likely be in a better situation with the nationality of
the birth state.
The Committee on the Rights of the Child has concluded that the CRC is best
interpreted in line with the argument of this article, that states must take all
steps to ensure children born in the state acquire a nationality.59 Furthermore, the Committee has concluded that, where the
state cannot secure the child’s nationality through state cooperation
elsewhere,60 then the state must grant its
nationality.61 This conclusion was
identical to the one reached by the Committee on the Rights of Migrant Workers, so
both Committees produced a joint general conclusion on the matter.62 Similar to the conclusion above, under the
CRC, the efforts required to secure nationality cannot be merely hypothetical, but
must include ‘every appropriate measure’.63
The conclusion for the ICCPR and the CRC is the same: that it is the obligation of
the birth state to grant its nationality, unless it excuses itself from this duty by
definitively acquiring another nationality for the child. The CRC adds the
requirement that the acquisition of nationality must be in the child’s best
interests and in accordance with the child’s identity.64 These requirements will further limit the ability of the
state to freely choose whether to grant or otherwise secure a different nationality.
For example, the acquisition of a nationality from a state with which the child has
no ties or identity, or a nationality that would risk separation of the child from
family against its best interests, would not be lawful options. These considerations
further support the conclusion that, for children, the default must be the
nationality of the birth state.
From all of the foregoing, we see that under international treaties, all states in
the world have agreed that children have a very strong right to a nationality,
protected multiple times over. This multiple protection requires states to act on
the best interests of the child by adopting all possible measures to secure a
nationality for the child. These measures could naturally include cooperating with
other states to find a nationality for the child that benefits from a genuine
connection with the state, or simply providing the child who would otherwise be
stateless, the nationality of the state where he or she was born.
3 Regional Treaties
Having discussed international treaties, we then turn to regional treaties. Europe,
the Americas and Africa all have human rights treaties protecting the right to a
nationality,65 in particular the right to a
nationality for children.66
First, we will consider the European region. There are several regional treaties that
are relevant,67 but this article will only
consider the two major clusters of treaties centered on the Council of Europe and
the European Union. The Council of Europe system provides three treaties that are
relevant for statelessness: the European Convention on Human Rights (ECHR), the
European Convention on Nationality (ECN), and the Convention on the Avoidance of
Statelessness in relation to State Succession.
Starting with the ECHR, this instrument does not specifically address matters of
nationality; nonetheless, it is increasingly important for protecting against
statelessness because denationalization can touch on other rights in the Convention.
The text of the ECHR does not mention rights to nationality, although article 3 of
Protocol 4 prohibits denationalization as a means for expulsion.68
Aside from this one example, claims for protection of nationality have largely
failed.69 Claims over loss of nationality
have begun to show some promise, however, where the denationalization affects other
Convention rights.
This evolution in the jurisprudence does not mean that all rights in the convention
will protect nationality, for example, claims under article 6, the right to a fair
trial, have not been successful,70 but there
has been some limited success in protecting nationality under other rights. The
first right that asked to protect nationality is article 8, the right to private
life. While this right is not understood to protect the acquisition of nationality
by naturalization,71 it can protect the
acquisition of nationality at birth72 and in
cases of state succession.73 The right to
private life includes the right to one’s identity,74 and arbitrary deprivation of nationality can impact
one’s sense of identity.75 This impact is
all the more significant when it results in statelessness.76 In addition to article 8, the ECHR can also protect a person
from statelessness due to state succession or discriminatory laws that would result
in degrading treatment, a violation of article 3.77 The Court has also held in Kurić v Slovenia
that there is generally a customary international law obligation on states to avoid
statelessness,78 and at least one judge,
Judge Pinto de Albuquerque in dissenting opinion in Ramadan v
Malta, understands the ECHR to require states to grant their nationality to
children born in their territory who would otherwise be stateless.79 While this last view only appears in dissent,
the overall progression of cases suggests that there is building jurisprudence for
an implicit right to a nationality in the EHCR.80
The second relevant instrument within the Council of Europe is the European
Convention on Nationality, which addresses nationality issues more directly than the
ECHR. The ECN provides that all persons have a right to a nationality,81 suggesting a similar scope and content as the
right to nationality in other international instruments. That being said, the ECN
goes further than other human rights treaties in that it specifically requires the
state of birth to grant nationality to a child, if the child would be otherwise
stateless.82 The ECN does not require that
the grant of nationality be operationalized purely by operation of law; it does
allow states to require an application for the grant of nationality, although the
state does not retain the discretion to refuse the application as long as the child
qualifies.83 It is important to observe,
however, that the ECN does not benefit from widespread adherence.
The final convention within the Council of Europe that is relevant is the Convention
on the Avoidance of Statelessness in relation to State Succession.84 This treaty also protects the right to a
nationality,85 but its scope of application
is only situations of state succession, where habitual residents now discover that
they no longer have nationality in the territory in which they live.86 States that achieve their independence must
grant nationality to any otherwise stateless child who was born in the territory of
the state or whose parents had the nationality of the prior state that had
sovereignty over the territory of their habitual residence.87
In addition to the Council of Europe, the European region is also home to the
European Union. EU law is more focused on EU citizenship and its rights, not the
right to a nationality in its Member States.88
A person acquires Member State nationality also acquires EU citizenship,89 but the rules for acquisition of Member State
nationality is almost exclusively governed by the nationality laws of the Member
States.90
However, the protections against loss of Member State nationality can have
implications for EU law insofar as the loss of nationality results in the loss of EU
citizenship. The Court of Justice of the EU (CJEU) has concluded that revocations of
Member State nationality oblige the Member State to take the impact on EU
citizenship into account.91 While this
requirement places some protections from loss of nationality, EU law does not
contain protections for the acquisition of nationality.92 After all, until a person holds EU citizenship, EU law does not apply
to their status.93 For children who are born
otherwise stateless within the EU, these provisions do not provide much
assistance.
One source of law that may be helpful, however, is the Charter of Fundamental Rights.
The Charter has been adopted within the EU legal system as a binding
obligation.94 Similar to the ECHR, the
Charter does not expressly provide a right to a nationality, though it does provide
for a variety of other rights that may be affected by the refusal of nationality,
for example rights against discrimination,95
and rights protecting private life.96 Using the
same logic as the ECHR, some of these rights may be interpreted to offer some
protections for nationality.
Moving away from Europe to the Americas, the situation in treaty law changes
significantly. The American Convention on Human Rights (AmCHR) expressly provides
for the right to a nationality, and goes so far as to also expressly require states
to grant their nationality to children born in their territories, if they would be
otherwise stateless.97 This obligation has been
litigated before the Inter-American Court of Human Rights and consistently
affirmed.98 For example, in the
Yean and Bosico case, the Court found that the Dominican
Republic had failed to extend its nationality to stateless children born in its
territory. In fact, the Court went beyond the narrow requirements of the AmCHR and
concluded that states have an obligation under international law generally to avoid
and reduce cases of statelessness,99 and that
the right to a nationality operated as a critical right for the protection of many
other human rights.100 In the Expelled
Dominicans and Haitians case, the court concluded similarly, and
affirmed the reasoning discussed above for the ICCPR and other human rights
instruments, that the right to a nationality was acquired at the time of birth and
that the birth state was responsible for ensuring that right.101
Shifting to the African context, again the right to a nationality is well protected
in treaty law. The African Charter on Human and Peoples’ Rights (AfCHPR) does
not expressly provide a right to nationality,102 although it has been interpreted to implicitly protect the right
through the collective force of other provisions in the Charter, such as the right
against discrimination,103 and the rights to
equality and dignity.104 The African
Commission on Human and Peoples’ Rights has applied all of these rights to
collectively protect the right to nationality.105 Currently, there is a draft protocol to the Charter that would
articulate the right to nationality expressly.106
In addition to the AfCHPR, the African region also has the African Charter on the
Rights and Welfare of the Child.107 This
treaty expressly protects the right to nationality for children,108 and has been interpreted to protect the acquisition of
nationality at birth.109 In addition, this
Charter also requires states to apply the best interests of the child analysis to
any decision, and has been interpreted to say that statelessness is never in the
best interest of the child.110 The Committee
monitoring this treaty in the Nubian Children case concluded that
the birth state accrues the obligation to ensure nationality and can only discharge
this obligation by either securing nationality from a different country or granting
its own nationality.111
Having discussed the European, African and American regions, the remaining regions
would be Asia and the Pacific. Currently, those regions do not have any binding
regional treaty obligations directly on point. That being said, there are many
initiatives to consult and develop new norms, for example, the Association of
Southeast Asian Nations (ASEAN) Human Rights Declaration provides for a right to a
nationality112 and the ASEAN Charter also
reaffirms human rights.113 Both the ASEAN
Intergovernmental Commission on Human Rights114 and the ASEAN Commission on the Promotion and Protection of the
Rights of Women and Children115 have placed
statelessness on their agendas for consultations, and ASEAN in generally has liaised
with the UNHCR on the topic.116
The regions featured above are the most significant in terms of the breadth and
application of these treaty obligations, but they are not alone. Other regions of
the world have adopted treaties with similar obligations, although perhaps with less
application and jurisprudence. For example, the Charter for European Security of the
Organization for Security and Co-operation in Europe provides that everyone has a
right to a nationality,117 the Commonwealth of
Independent States Convention on Human Rights and Fundamental Freedoms protects the
right to a nationality, and against arbitrary deprivation of nationality,118 and the 2004 Revised Arab Charter on Human
Rights prohibits deprivation of nationality ‘without a legally valid
reason’.119 If all of these treaty
terms are interpreted consistently with the right to a nationality in other
instruments, then they may very well also protect an otherwise stateless child born
in a state from arbitrary refusal of nationality. Also, the Covenant on the Rights
of the Child in Islam requires states to actively seek solutions for stateless
children and provides for nationality for foundlings (children born in state whose
parents are unknown).120 This instrument
therefore requires that certain stateless children receive nationality unless the
state of birth can secure their nationality elsewhere, much like the interpretation
of the African Charter on the Rights and Welfare of the Child above. Therefore, a
variety of other instruments create additional obligations for other regions in the
world.
The conclusion from this survey of regional treaties shows that a significant number
of states are covered by some binding regional instrument in addition to potentially
also being covered by the ICCPR, CRC and other international instruments mentioned
in the previous section. Many of these treaties also provide for a right to a
nationality with similar language as the ICCPR and CRC. These overlapping
instruments mean that most states are covered by a combination of international and
regional treaty obligations to extend nationality to an otherwise stateless child
born in their territory.
4 Conclusion
In conclusion, international and regional treaties covering statelessness and the
right to a nationality combine and overlap, along with special protections for
children, to provide significant protections for child statelessness. Firstly, a
number of international treaties either expressly provide or can be understood to
provide for nationality for stateless children born in a state. Where states are not
party to one of these conventions, they are party to others. Secondly, a
supplementary range of regional treaties also cover the same and can be interpreted
to require states to grant nationality to stateless children born in their
territory. Between these various instruments with largely consistent requirements,
the great bulk of states in the world are covered by some instrument that requires
the state to grant nationality to an otherwise stateless child born in its
territory.
Notes
1See Convention relating to the Status of Stateless Persons (Sep.
28 1954) 360 UNTS 117 (1954 Statelessness Convention); Convention on the
Reduction of Statelessness (Aug. 30 1961) 989 UNTS 175 (1961 Statelessness
Convention).
2Admittedly, even with rules in place, states may violate those rules. There are
numerous studies documenting state violations of international law regarding
statelessness. See, e.g., Gerard-René de Groot, Katja
Swider, Olivier Vonk, ‘Practices and Approaches in EU Member
States to Prevent and End Statelessness’ (Study for
the LIBE Committee, Eur. Parl. Doc. PE 536.47628-29,2015)
<http://www.europarl.europa.eu/thinktank/en/document.html?reference=IPOL_STU(2015)536476>
accessed 7 May 2019; Also see Carol Batchelor,
‘Statelessness And The Problem Of Resolving Nationality Status’
(1998) 10 International Journal of Refugee Law, (“International
instruments, of course, cannot actually grant the nationality to which a given
individual may have a claim, or make nationality effective.”).
3See International Covenant on Civil and Political Rights (Dec 19
1966) 999 UNTS 171 (ICCPR).
4See Convention on the Rights of the Child (Nov 20 1989) 1577
UNTS 3 (CRC).
5See 1954 Statelessness Convention; 1961 Statelessness
Convention.
6See ILC, ‘Report of the International Law Commission
Covering the Work of its Fifth Session’ (1 June – 14 August 1953) UN
Doc A/2456, para 134 (discussing assignment of nationality to stateless children
under the stateless conventions based on birth in the state’s
territory).
7See 1954 Stateless Convention, art 32.
8See 1961 Statelessness Convention at art 1(1) (“A
Contracting State shall grant its nationality to a person born in its territory
who would otherwise be stateless.”); UN Human Rights Council,
‘Report of the Secretary-General on Human rights and arbitrary deprivation
of nationality’ (2011) UN Doc A/HRC/19/43, para. 4; However, the 1961
Statelessness Convention does permit a state to require an application in order
to grant nationality in this scenario, rather than simply receiving nationality
by operation of law, see 1961 Statelessness Convention, art
1(1)(b).
9See Convention on the Reduction of Statelessness (30 August
1961) 989 UNTS 175 (documenting 73 states party to the Convention).
10See e.g. EU, ‘Note Verbale to the United Nations
containing Pledge Registration Form’ (UN 2012) §A, para 4
<https://www.un.org/ruleoflaw/files/Pledges%20by%20the%20European%20Union.pdf>
accessed 7 May 2019 (EU Member States pledged at the UN High Level Rule of Law
Meeting in New York in September 2012 to address the issue of statelessness by
ratifying the 1954 UN Convention relating to the status of stateless persons and
considering the ratification of the 1961 UN Convention on the reduction of
statelessness).
11See 1961 Statelessness Convention at art 1(1). Note that of the
states mentioned in the introduction, several have become parties to the
Convention, specifically, Sweden since Apr 2 1965, Latvia since Nov 5, 1999,
Ukraine since Mar 25, 2013 and Côte d’Ivoire as of Oct 3, 2013.
12See id at art 1(1)(b), (2)(a).
16See Universal Declaration of Human Rights (adopted 10 December
1948) UNGA Res 217 A(III) (UDHR) art 15(1); International Covenant on Civil and
Political Rights (adopted 16 December 1966, entered into force 23 March 1976)
999 UNTS 171 (ICCPR) art. 24(3); Convention on the Rights of the Child (adopted
20 November 1989) 1577 UNTS 3 (CRC) art 7; 1954 Stateless Convention, art 1;
1961 Statelessness Convention, art 1(1); International Convention on the
Elimination of All Forms of Racial Discrimination (adopted 21 December 1965) 660
UNTS 195 (CERD) art. 5(d)(iii); International Convention on the Protection of
the Rights of All Migrant Workers and Members of their Families (adopted 18
December 1990) 2220 UNTS 3 (Migrant Workers Convention) art 29.
17See Convention on Conflict of Nationality Laws (adopted 12 April
1930) 179 LNTS 89, art 1; Protocol relating to a Certain Case of Statelessness
(adopted 12 April 1930) 179 LNTS 115; in some of these instruments, the
protection is for the right to legal identity, which includes nationality; UN
Human Rights Council, ‘Report of the Secretary-General. Human Rights and
Arbitrary Deprivation of Nationality’ (December 19 2013) UN Doc
A/HRC/25/28; International Convention for the Protection of All Persons from
Enforced Disappearance (adopted 20 December 2006) 2716 UNTS 3, art 25(4); UN
Committee on the Elimination of Racial Discrimination, ‘CERD General
Recommendation XXX on Discrimination Against Non Citizens’ (adopted 1
October 2002) paras 13–14; other general provisions pertaining to the
right to equal protection of the law, the right to the recognition of
one’s own legal status, the right to freedom of movement and residence
within the borders of the State and the right to enter one’s own country:
CERD, art 5(d)(iii); ICCPR, arts 12(4), 23(4), 26; Borzov v.
Estonia (2004) 12 IHRR 122.s.
18See Case of Expelled Dominicans & Haitians v Dominican
Republic, Inter-American Court of Human Rights (IACHR) Series C No
282 (28 August 2014) para 253; Yean & Bosico Children v. Dominican
Republic, IACHR Series C No 130 (8 September 2005) paras
136–8; Inter-American Commission on Human Rights, ‘American
Declaration of the Rights and Duties of Man’ (1948); UDHR, art 15(1);
ICCPR, art 24(3); CRC, art 7(1); Migrant Workers Convention, art 29; 1961
Statelessness Convention, art 1(1).
19Convention on the Nationality of Married Women, 1957, arts 1–3.
20See ICCPR, art 24(3); UN Human Rights Council Decision 2/111 (27
November 2006); UN Human Rights Council Resolution 13/2, ‘Human rights and
Arbitrary Deprivation of Nationality’ (14 April 2010) UN Doc
A/HRC/RES/13/2; UN Human Rights Council Res 10/13, ‘Human rights and
arbitrary deprivation of nationality’ (Mar 26 2009) UN Doc
A/HRC/RES/10/13; UN Human Rights Council Res 7/10, ‘Human rights and
arbitrary deprivation of nationality’ (Mar 26 2009) UN Doc A/HRC/RES/7/10;
UN Commission on Human Rights Res 1998/48 (17 April 1998) UN Doc
E/CN.4/RES/1998/48; UN Commission on Human Rights Res 1999/28 (26 April 1999) UN
Doc E/CN.4/RES/1999/28; UN Commission on Human Rights, ‘CCPR General
Comment No. 17: Article 24 (Rights of the Child)’ (7 April 1989) paras
7–8; UN Commission on Human Rights Res 2005/45 (19 April 2005) UN Doc
E/CN.4/RES/2005/45.
21See CERD, art 5(d)(iii).
22See CEDAW at art 9; CEDAW, ‘CEDAW General Recommendation
No. 21: Equality in Marriage and Family Relations’ (1994) art 9.
23See UN Human Rights Council, ‘Report of the
Secretary-General. Human Rights and Arbitrary Deprivation of Nationality’
(December 19 2013) UN Doc A/HRC/25/28; Migrant Workers Convention art 29.
24See CRPD, art 18(1)–(1).
25See ICCPR, art 24(3); CRPD art 18(2); CRMW, art 29;
International Convention for the Protection of All Persons from Enforced
Disappearance art 25(4); UNGA Res 50/152, ‘Office of the UN High
Commissioner for Refugees’ (February 9 1996) UN Doc A/RES/50/152; UN Human
Rights Council Res 26/14, ‘Human rights and arbitrary deprivation of
nationality’ (July 11 2014) UN Doc A/HRC/RES/26/14; UN Human Rights
Council Res 20/5, ‘Human rights and arbitrary deprivation of
nationality’ (July 16 2012) UN Doc A/HRC/RES/20/5; UN Human Rights Council
Res 13/2, ‘Human rights and arbitrary deprivation of nationality’
(14 April 2010) UN Doc A/HRC/RES/13/2; UN Human Rights Council Res 10/13,
‘Human rights and arbitrary deprivation of nationality’ (Mar 26
2009) UN Doc A/HRC/RES/10/13; UN Human Rights Council Res 7/10, ‘Human
rights and arbitrary deprivation of nationality’ (Mar 26 2009) UN Doc
A/HRC/RES/7/10; UN Human Rights Council, ‘Report of the Secretary-General.
Human Rights and Arbitrary Deprivation of Nationality’ (December 19 2013)
UN Doc A/HRC/25/28.
26See Committee on the Rights of the Child and UN Committee on the
Protection of the Rights of All Migrant Workers and Members of Their Families,
‘DRAFT: Joint General Comment No. 3 (2017) of the Committee on the
Protection of the Rights of All Migrant Workers and Members of Their Families
and No. 22 (2017) of the Committee on the Rights of the Child on the general
principles regarding the human rights of children in the context of
international migration’ (April 24 2017) UN Doc. INT/CRC/INF/81/E paras
61–62 <http://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/1_Global/INT_CRC_INF_8181_E.docx>
accessed 7 May 2019; Sustainable Development Goals – Target 16.9:
‘By 2030, provide legal identity for all, including birth
registration’ <https://sustainabledevelopment.un.org/sdg16> accessed 7 May
2019.
28See Carol Batchelor, ‘Statelessness And The Problem Of
Resolving Nationality Status’ (1998) 10 International Journal of Refugee
Law 156, 168–9, (‘While human rights law states clearly in several
international instruments that everyone has the right to a nationality, little
direction is given in these instruments as to which
nationality.’ (emphasis in the original).
30See Gerard-René de Groot, ‘Children, their right to a
nationality and child statelessness’ in ALICE EDWARDS & LAURA VAN WAAS
(EDS), NATIONALITY AND STATELESSNESS UNDER INTERNATIONAL LAW
(Cambridge University Press, 2014) 146–7; Jaap Doek, ‘The CRC and
the Right to Acquire and to Preserve a Nationality’ (2006) 25 Refugee
Survey Quarterly 26.
31See UN Commission on Human Rights, ‘CCPR General Comment
No. 17: Article 24 (Rights of the Child)’ (7 April 1989) para 8,
(“While the purpose of this provision is to prevent a child from being
afforded less protection by society and the State because he is stateless, it
does not necessarily make it an obligation for States to give their nationality
to every child born in their territory.”).
32See ICCPR, art 24; Case of Expelled Dominicans &
Haitians v Dominican Republic, Inter-American Court of Human Rights
(IACHR) Series C No 282 (28 August 2014) para 258; UN Commission on Human
Rights, ‘CCPR General Comment No. 17: Article 24 (Rights of the
Child)’ (7 April 1989) para 8; also see Institute for Human Rights
and Development in Africa (IHRDA) and Open
Society Justice Initiative (on behalf of Children of Nubian
Descent in Kenya) v. the Government of Kenya (22
March 2011) Decision No 002/Com/002/2009, African Committee of Experts on the
Rights and Welfare of the Child, para 42, (“a purposive reading and
interpretation of the relevant provision strongly suggests that, as much as
possible, children should have a nationality beginning from birth.”);
African Committee of Experts on the Rights and Welfare of the Child,
‘General Comment No. 2 on Article 6 of the ACRWC: “The Right to a
Name, Registration at Birth, and to Acquire a Nationality”’ (16
April 2014) AU Doc ACERWC/GC/02; UN Human Rights Committee, ‘Concluding
Observations: Colombia’ (21 September 1997) UN Doc A/52/40 para 306.
33See ICCPR, art 2(1); Convention for the Protection of Human
Rights and Fundamental Freedoms (European Convention on Human Rights, as
amended) (ECHR) art 1; American Convention on Human Rights 1144 UNTS 123, OASTS
No 36, art 1(1).
34See UN Human Rights Committee, ‘General comment no. 31
[80], The nature of the general legal obligation imposed on States Parties to
the Covenant’ (26 May 2004) UN Doc CCPR/C/21/Rev.1/Add.13, para 11.
35See UN Commission on Human Rights, ‘CCPR General Comment
No. 17: Article 24 (Rights of the Child)’ (7 April 1989) para 8.
36See Carol Batchelor, ‘Statelessness And The Problem Of
Resolving Nationality Status’ (1998) 10 International Journal of Refugee
Law 156, 168–9, (‘Naturally, when States become party to treaties,
they take on obligations for their own internal structure and in relation to
persons subject to their jurisdiction. Thus, for example … States parties
have made the commitment to ensure that children under their
jurisdiction … have the right to acquire a nationality.’) (emphasis
in the original).
37See id. (‘It could be argued that the right to acquire
a nationality has no meaning unless all States, even those
with legislation based upon the principle of jus sanguinis,
grant their nationality to children born on their territory who would otherwise
be stateless. Nonetheless, … the two systems for granting nationality
based on jus soli and jus sanguinis are both
fully developed and equally legitimate …’).
38See UN Commission on Human Rights, ‘CCPR General Comment
No. 17: Article 24 (Rights of the Child)’ (7 April 1989) para 8.
39See Nubian Children case para 42 (interpreting right to
nationality to mean right to a nationality from birth); id.
paras 50–51.
40See Nubian Children case para 42 (interpreting right to
nationality to mean right to a nationality from birth); id.
paras 50–51.
41See UN Human Rights Council, ‘Arbitrary deprivation of
nationality: report of the Secretary-General’ (26 January 2009) UN Doc
A/HRC/10/34; CRC art 8(1); 1997 European Convention of Nationality art 4(c);
American Convention on Human Rights 1144 UNTS 123, OASTS No 36 (AmCHR); 2004
Revised Arab Charter on Human Rights art 29; 1995 Commonwealth of Independent
States Convention on Human Rights and Fundamental Freedoms art 24(2); ILC,
‘Draft Articles Nationality in relation to the Succession of States’
at art 16.
42See UDHR, art 13 (providing that “1) Everyone has the
right to freedom of movement and residence within the borders of each state; 2)
Everyone has the right to leave any country, including his own, and to return to
his country”).
43See UN Human Rights Committee, ‘CCPR General Comment No.
27: Article 12 (Freedom of Movement)’ (2 November 1999) UN Doc
CCPR/C/21/Rev.1/Add.9.
45See UN Human Rights Council, ‘Arbitrary deprivation of
nationality: report of the Secretary-General’ (26 January 2009) UN Doc
A/HRC/10/34, para 60 (“In the context of the avoidance of statelessness,
arbitrary denial of nationality is just as grave as arbitrary deprivation of
nationality.”); UN Human Rights Council, ‘Human rights and arbitrary
deprivation of nationality: report of the Secretary-General’ (14 December
2009) UN Doc A/HRC/13/34 para 21; UNHCR Executive Committee of the High
Commissioner’s Programme, ‘Conclusion on Identification, Prevention
and Reduction of Statelessness and Protection of Stateless Persons Conclusion on
Identification, Prevention and Reduction of Statelessness and Protection of
Stateless Persons No. 106 (LVII)’ (2006) para (i); but
cf. Case C-192/99 R v Secretary of State for the Home
Department, ex parte: Manjit Kaur, intervener: Justice [2001] ECR
I-01237; Case C-135/08 Rottmann v Bayern [2010] ECR I-01449,
para 49 (applying different standards to loss of nationality from acquisition of
nationality).
46See Ivcher Bronstein v Peru, Inter-American Court of Human
Rights Series C No 74 para 95 (Febraury 6 2001).
47See UN Human Rights Council, ‘Arbitrary deprivation of
nationality: report of the Secretary-General’ (26 January 2009) UN Doc
A/HRC/10/34, para 61 et seq.; UNGA, ‘Annual Report. Human
rights and arbitrary deprivation of nationality: Report of
Secretary-General’ (2009) UN Doc A/HRC/13/34, para 40.
48See Eritrea v Ethiopia [2004] 44 ILM 601 (Permanent Court of
Arbitration) paras 57–78; Explanatory Report to the European Convention on
Nationality, CETS No 166, para 36 <http://conventions.coe.int/Treaty/en/Reports/Html/166.htm>
(providing that denaturalization “must in general be foreseeable,
proportional and prescribed by law”).
49See UN Human Rights Committee, ‘CCPR General Comment No.
27: Article 12 (Freedom of Movement)’ (2 November 1999) UN Doc
CCPR/C/21/Rev.1/Add.9., para 21; UN Human Rights Committee, ‘Communication
No 538/1993. Stewart v Canada’ (Individual Opinion of Evatt & Medina
Quiroga, Dissent, Aguilar Urbina, 1996) UN Doc CCPR/C/58/D/538/1993, para 8;
ICCPR art 26.
50See UDHR, art 15(2); CERD, art 5(d)(iii); CEDAW, art 9, para 1;
CRC, art 2(1); CRPD, art 18(1)(a); Karassev v Finland App no
31414/96 (ECtHR, 12 January 1999); Nubian Children case paras
57, 263; Expelled Dominicans & Haitians v Dominican
Republic, para 263; Yean & Bosico v Dominican
Republic, paras 136, 139, 141; Eriterea v
Ethiopia, paras 57–78; UNGA Third Committee (3rd Session) UN Doc
A/C.3/SR.123 (5 November 1948) 352; ILC, ‘Draft Articles Nationality in
relation to the Succession of States’ art 15 (prohibiting discrimination
“on any ground”); UN Commission on Human Rights, ‘CCPR General
Comment No. 17: Article 24 (Rights of the Child)’ (7 April 1989); UN Human
Rights Council Res 10/13, ‘Human rights and arbitrary deprivation of
nationality’ (Mar 26 2009) UN Doc A/HRC/RES/10/13, paras 2–3; UN
Human Rights Council Res 20/5, ‘Human rights and arbitrary deprivation of
nationality’ (July 16 2012) UN Doc A/HRC/RES/20/5, paras 2–4; UN
Human Rights Council Res 7/10, ‘Human rights and arbitrary deprivation of
nationality’ (Mar 26 2009) UN Doc A/HRC/RES/7/10, paras 2–3; UN
Human Rights Council, ‘Report of the Secretary-General. Human Rights and
Arbitrary Deprivation of Nationality’ (December 19 2013) UN Doc
A/HRC/25/28; UN Human Rights Council, ‘Human rights and arbitrary
deprivation of nationality: report of the Secretary-General’ (14 December
2009) UN Doc A/HRC/13/34, art 4; Human Rights Council, Draft report of the
Working Group on the Universal Periodic Review: Austria UN Doc.
A/HRC/WG.6/23/L.10 (11 November 2015) paras. 5.4, 5.5; Human Rights Council,
‘Draft report of the Working Group on the Universal Periodic Review:
Myanmar’ UN Doc. A/HRC/WG.6/23/L.9 (10 November 2015) paras. 7.54, 7.55,
7.66.
51See UN Human Rights Committee, ‘van Alphen v. the
Netherlands (Communication No. 305/1988)’ (1990) UN Doc
CCPR/C/39/D/305/1988, 5(8); UN Human Rights Committee, ‘A v Australia
(Comm. No 560/1993)’ (1997) UN Doc CCPR/C/59/D/560/1993, 9(2); UN Human
Rights Committee, ‘CCPR General Comment No. 27: Article 12 (Freedom of
Movement)’ (2 November 1999) UN Doc CCPR/C/21/Rev.1/Add.9.
52See UNGA, ‘Annual Report. Human rights and arbitrary
deprivation of nationality: Report of Secretary-General’ (2009) UN Doc
A/HRC/13/34, para 4; European Commission for Democracy through Law (Venice
Commission), ‘Opinion on the Draft Constitutional Law on ‘Protection
of the Nation’’ adopted at its 106th Plenary Session (Venice
11–12 March 2016) CDL-AD (2016)006 para 25.
53See 1961 Statelessness Convention arts 8, 9; European Convention
on Nationality art 7(3); UN Doc A/HRC/13/34 (14 December 2009) para 25; UN Human
Rights Council, ‘Arbitrary deprivation of nationality: report of the
Secretary-General’ (26 January 2009) UN Doc A/HRC/10/34.
54See 1961 Statelessness Convention art 1(1); ICCPR art 24(3);
CRMW art 29; CRC art 7(1); Yean & Bosico v. Dominican
Republic, para 140; UN Human Rights Council, ‘Impact of the
arbitrary deprivation of nationality on the enjoyment of the rights of children
concerned, and existing laws and practices on accessibility for children to
acquire nationality, inter alia, of the country in which they are born, if they
otherwise would be stateless: Report of the Secretary-General’ (December
16 2015) UN Doc A/HRC/31/29.
56See CRC, art 3; UNGA, ‘Status of the Convention of the
Rights of the Child: Report of Secretary-General’ (2 August 2013) UN Doc.
A/68/257, para 57 et seq.
57See CRC, art 3; Committee on the Rights of the Child,
‘General comment No. 14 (2013) on the right of the child to have his or
her best interests taken as a primary consideration (art. 3, para. 1)’
(2013) UN Doc CRC /C/GC/14; UN Commission on Human Rights, ‘CCPR General
Comment No. 17: Article 24 (Rights of the Child)’ (7 April 1989) para 8;
Committee on the Rights of the Child, ‘Consideration of reports submitted
by States parties under article 44 of the Convention. Concluding Observations:
Czech Republic’ UN Doc CRC/C/CZE/CO/3-4; UNHCR, ‘Guidelines on
Statelessness No. 4’ (2012) UN Doc HCR/GS/12/04, para 11; African
Committee of Experts on the Rights and Welfare of the Child, ‘General
Comment No. 2 on Article 6 of the ACRWC: “The Right to a Name,
Registration at Birth, and to Acquire a Nationality”’ (2014) AU Doc
ACERWC/GC/02 (2014), (“being stateless as a child is generally an
antithesis to the best interests of children”); Nubian Children
case; Mennesson v. Fr.,; UN Human Rights Council,
‘Report of the Secretary-General. Human Rights and Arbitrary Deprivation
of Nationality’ (December 19 2013) UN Doc A/HRC/25/28; OHCHR ‘Fact
Sheet No.10 (Rev.1), The Rights of the Child’ (1997).
58See UN Commission on Human Rights, ‘CCPR General Comment
No. 17: Article 24 (Rights of the Child)’ (7 April 1989) para 8;
Cf. Mennesson v France App no 65192/11 (ECtHR, June 24
2014) (holding that the refusal to record a child’s birth, and thus
acquire French nationality from the parents, when the child was created through
the banned IVF procedure, was a violation of the right to private life, not
family life, because the child was not deprived of a family relationship).
59See UN Commission on Human Rights, ‘CCPR General Comment
No. 17: Article 24 (Rights of the Child)’ (7 April 1989) para 8; CRC, art
7(2).
60UN Committee on the Protection of the Rights of All Migrant Workers and Members
of Their Families & Committee on the Rights of the Child, ‘Joint
general comment No. 4 (2017) of the Committee on the Protection of the Rights of
All Migrant Workers and Members of Their Families and No. 23 (2017) of the
Committee on the Rights of the Child on State obligations regarding the human
rights of children in the context of international migration in countries of
origin, transit, destination and return’ (16 November 2017) UN Docs
CMW/C/GC/4, CRC/C/GC/23, para 24 (arguing that jus soli application would
discharge the obligation, but so would international cooperation: “…
States … are required to adopt every appropriate measure, both internally
and in cooperation with other States, to ensure that every child has a
nationality when he or she is born. A key measure is the conferral of
nationality to a child born on the territory of the State, at birth or as early
as possible after birth, if the child would otherwise be stateless.”).
61See Committee on the Rights of the Child, UN Docs
CRC/C/NDL/CO/4, CRC/C/CHE/CO/2-4, CRC/C/TKM/CO/2-4, CRC/C/CZE/CO/3-4.
Also see Committee on the Rights of the Child, UN Docs
CRC/C/FJI/CO/2-4, CRC/C/HRV/CO/3-4; Migrant Workers Convention art 29; UNHCR
‘Guidelines on Statelessness No. 4’ (2012) UN Doc HCR/GS/12/04; UN
Human Rights Council, ‘Report of the Secretary-General. Human Rights and
Arbitrary Deprivation of Nationality’ (December 19 2013) UN Doc
A/HRC/25/28; CRC art 7; Yean & Bosico v Dominican. Republic
para 140; 1961 Statelessness Convention, art 1(1); Migrant Workers Convention,
art 29; ICCPR, art 24(3); UNGA, ‘Annual Report. Human rights and arbitrary
deprivation of nationality: Report of Secretary-General’ (2009) UN Doc
A/HRC/13/34; Committee on the Rights of the Child, ‘Joint General Comment
[Draft] No. 21 Human Rights of Children in the Context of International
Migration’ (April 24 2017) UN Doc INT/CRC/INF/81/E, para 66; Committee on
the Rights of the Child, ‘Concluding observations on the second periodic
report of South Africa’ (27 October 2016) UN Doc CRC/C/ZAF/CO/2 para
32(b); Committee on the Rights of the Child, ‘Concluding observations on
the combined third and fourth periodic reports of Suriname’ (9 November
2016) UN Doc CRC/C/SUR/CO/3-4, para 17; Committee on the Rights of the Child,
‘Concluding observations on the fifth periodic report of Pakistan’
(11 July 2016) UN Doc CRC/C/PAK/CO/5 paras 65–66; Committee on the Rights
of the Child, ‘Concluding observations on the combined fourth and fifth
periodic reports of Chile’ (30 October 2015) UN Doc CRC/C/CHL/CO/4-5 paras
30–33; Committee on the Rights of the Child, ‘Concluding
observations on the report submitted by Israel under article 12 (1) of the
Optional Protocol to the Convention on the Rights of the Child on the sale of
children, child prostitution and child pornography’ (13 July 2015) UN Doc
CRC/C/OPSC/ISR/CO/1, paras 24–25.
62See Committee on the Rights of the Child and UN Committee on the
Protection of the Rights of All Migrant Workers and Members of Their Families,
‘DRAFT: Joint General Comment No. 3 (2017) of the Committee on the
Protection of the Rights of All Migrant Workers and Members of Their Families
and No. 22 (2017) of the Committee on the Rights of the Child on the general
principles regarding the human rights of children in the context of
international migration’ (April 24 2017) UN Doc INT/CRC/INF/81/E para
66.
63See UN Committee on the Protection of the Rights of All Migrant
Workers and Members of Their Families & Committee on the Rights of the
Child, ‘Joint general comment No. 4 (2017) of the Committee on the
Protection of the Rights of All Migrant Workers and Members of Their Families
and No. 23 (2017) of the Committee on the Rights of the Child on State
obligations regarding the human rights of children in the context of
international migration in countries of origin, transit, destination and
return’ (16 November 2017) UN Docs CMW/C/GC/4, CRC/C/GC/23, para 24
(‘… States … are required to adopt every appropriate measure,
both internally and in cooperation with other States, to ensure that every child
has a nationality when he or she is born.’).
65See US Constitution, art 19; European Convention on Nationality,
art. 4; African Charter on the Rights and Welfare of the Child (adopted on July
11 1990) OAU Doc CAB/LEG/24.9/49, art 6.
66See AmCHR, art 20; African Charter on the Rights and Welfare of
the Child, art 6; Covenant on the Rights of the Child in Islam, art 7.
67See Concluding document of Helsinki, Conference for Security and
Cooperation in Europe, 1992, ch. VI para. 55; Charter for European security,
Organization for Security and Cooperation in Europe, 1999, para. 19.
68See Protocol No 4 to the Convention for the Protection of Human
Rights and Fundamental Freedoms (European Convention on Human Rights, as
amended) (ECHR) (September 16 1963) ETS No 46, art 3(1); Slivenko v.
Latvia App no 48321/99 (ECtHR, 9 October 2003); Also
see Explanatory Report to Protocol No 4, § 23.
69See Family K. and W. v. The Netherlands App no 11278/84
(Commission Decision, 1 July 1985); Poenaru v. Romania App no
51864/99 (ECtHR, November 13 2001); Makuc v Slovenia App no
26828/06 (ECtHR, May 31 2007) para 160.
70See Laura van Waas, ‘Fighting Statelessness And
Discriminatory Nationality Laws In Europe’ (2012) 14 European Journal of
Migration and Law; X v Austria App no 5212/71 (Commission
Decision, October 5 1972) 69.
71See Family K. and W. v. The Netherlands App no 11278/84
(Commission Decision, 1 July 1985) (“the right to acquire particular
nationality is neither covered by, nor sufficiently relate to, [article 8 in
conjunction with article 14] or any other provision of the
convention”).
72See Genovese v. Malta App no 53124/09 (ECtHR, Oct 11 2011) paras
30–33, para 33; Sylvie Mennesson v. France App no
65192/11) (ECtHR, 26 June 2014); Francis Labassee v. France App
no 65941/11 (ECtHR, 26 June 2014).
73See Fjodorova v. Latvia App no 69405/01 (ECtHR, 6 April
2006).
74See S. & Marper v UK App nos 30562/04 & 30566/04 (ECtHR,
2008) para 66; Ciubotaru v Moldova App no 27138/04 (ECtHR, 27
April 2010) para 53; Dadouch v. Malta App no 38816/07 (ECtHr,
2010) para 48; Genovese v. Malta App no 53124/09 (ECtHR,
October 11 2011) paras 30–33.
75See Makuc v Slovenia App no 26828/06 (ECtHR, May 31 2007) para
160; X v. Austria App no 5212/71 (ECtHR, Oct 5 1972) 69; and
Karassev v. Finland App no 31414/96 ECHR 1999-II
(ECtHR).
76See K2 v UK App no 42387/13 (ECtHR March 9 2017) (holding that
deprivation of nationality was not a violation of Article 8 of the ECHR, right
to family and private life, because the individual was not left stateless,
suggesting that if the child were left stateless, then it might be a violation);
Kuric v Slovenia, App no 26828/06 (ECtHR, July 13 2010)
para 361; Slovov v Sweden App no 44828/98 (ECtHR, 1999)
(removal of nationality of dual national acceptable); Kafklasi v
Turkey App no 21106/92 (admissibility, Commission Decision, May 22
1995) but see Kafklasi v Turkey App no 21106/92 (merits,
commission decision, May 22 1995) (finding a violation on the merits).
77See Slepcik v Netherlands & Czech Republic App no 30913/96
(Commission Decision, September 2 1996) (referring to East African
Asians versus United Kingdom App Nos 4403–19/70,
4422–23/70, 4434/70, 4443/70, 4476–78/70, 4486/70, 4501/70,
4526–30/70 (Commission Decisions, December 14 1973) (holding that the
refusal of residence to a particular group on the grounds of race was
discrimination amounting to degrading treatment, and thus a violation of article
3 of the ECHR); Zeibek v Greece, App no 34372/97 (Commission
Decision, May 21 1997) (discriminatory access to nationality on grounds of race
amounts to degrading treatment under article 3 of the ECHR).
78See Kuric and Others v. Slovenia App no 26828/06 (ECtHR, 13 July
2010).
79See 1961 Statelessness Convention, arts 1–2; AmCHR, art
20(2); African Charter on the Rights and Welfare of the Child, art 6(4); CRC,
art 7; European Convention on Nationality, arts 6(1)(b)–(2); Covenant on
the Rights of the Child in Islam, art 7(3).
80But see Council of Europe ‘European Convention on
Nationality: explanatory report’ (1997) para 16.
81See European Convention on Nationality, art 3.
82See European Convention on Nationality, art 6; UN Human Rights
Council, ‘Report of the Secretary-General. Human Rights and Arbitrary
Deprivation of Nationality’ (December 19 2013) UN Doc A/HRC/25/28.
83See European Convention on Nationality, arts 4,
7(1)–(3).
84See Convention on the Avoidance of Statelessness in relation to
State Succession (19 May 2006) CETS No 200; Declaration on the Consequences of
State Succession for the Nationality of Natural Persons, adopted by the European
Commission for Democracy through Law (Venice Commission) at its 28th plenary
meeting, Venice (13–14 September 1996).
87See Convention on the Avoidance of Statelessness in relation to
State Succession, arts 5, 10.
88See Treaty of the European Union (consol. ver.) (TEU) (October
26 2012) OJ EU C 326/13 as amended by the Treaty of Lisbon
(December 17 2007) OJEU C 306 1.
89See id. at art 20(1) (ex art 17 TEC); Joined cases Case C165/14
Marín v Admin del Estado [2016] & Case C304/14
Secretary of State for the Home Department v CS [2016]
ECLI:EU:C:2016:75, Opinion of Advocate General Szpunar, para 107; Case C-34/09
Ruiz Zambrano v Office national de l’emploi [2011]
ECR I-01177, para 40; Case C-413/99 Baumbast and R v Secretary of State
for the Home Department [2002] ECR I-07091, paras 82–4; Case
C-224/98 D’Hoop v Office national de l’emploi
[2002] ECR I-06191, para 27; Directive 2004/38/EC on the right of citizens of
the Union and their family members to move and reside freely within the
territory of the Member States [2004] OJ EU L 158/77, art 2(1); Report from the
Commission, ‘Fourth Report on Citizenship of the Union’ [2004] EU
Doc COM(2004)695; Report from the Commission, ‘Report on the Citizenship
of the Union’ [1993] EU Doc COM(93)702.
90See Case C-192/99 R v Secretary of State for the Home
Department, ex parte: Manjit Kaur, intervener: Justice [2001] ECR
I-01237; European Council Decision concerning certain problems raised by Denmark
on the Treaty of European Union, (December 31 1992) OJ C 348 1, Annex 3 §A
“Citizenship”; Report from the Commission, ‘Report on the
Citizenship of the Union’ (December 21 1993) EU Doc COM(93)702; Report
from the Commission, ‘Third Report from the Commission on Citizenship of
the Union’ 506 (September 7 2001) EU Doc COM(2001); Report from the
Commission, ‘Fourth Report on Citizenship of the Union’ 695 (October
26 2004) EU Doc COM(2004); Report from the Commission, ‘Fifth Report on
Citizenship of the Union’ (February 15 2008) EU Doc COM(2008)85.
91See Case C-135/08, Rottmann v. Bayern, para 48;
Republic v. Nimal Jayaweera App No 37/2010 (Supreme Court of Cyprus, July 10
2014) (accepting, but reaffirming that Rottman only applied to
loss of nationality, not acquisition of nationality).
92See Case C-135/08, Rottmann v. Bayern.
93See Case C-192/99 R v Secretary of State for the Home
Department, ex parte: Manjit Kaur, intervener: Justice [2001] ECR
I-01237.
94See Charter of Fundamental Rights of the European Union,
(December 18 2000) OJEU C 364 1.
97See AmCHR, art 20(2). Also see US Constitution,
art XIX.
98See Proposed Amendments to the Naturalization Provision of the
Constitution of Costa Rica, Advisory Opinion OC-4/84,
Inter-American Court of Human Rights Series A No 4 (19 January 1984) at paras
32–5; Yean & Bosico v. Dominican Republic, paras
140–142, 154–158; Castillo Petruzzi et al v Peru,
Inter-American Court of Human Rights Series C No 52 (30 May 1999) § 101;
Baruch Ivcher Bronstein vs. Peru, Inter-American Court of
Human Rights Series C No 74 (6 February 2001) para 88.
99See Expelled Dominicans & Haitians v. Dominican Republic,
paras 253–64; Yean & Bosico v. Dominican Republic,
para 140.
100See Proposed Amendments to the Naturalization Provision of the
Constitution of Costa Rica, Advisory Opinion OC-4/84,
Inter-American Court of Human Rights Series A No 4 (19 January 1984) paras
32–5 (‘the right to a nationality established therein provides the
individual with a minimal measure of legal protection in international relations
through the link his nationality establishes between him and the state in
question…’).
101See Expelled Dominicans & Haitians v. Dominican Republic,
para. 258 (“Regarding the moment at which the State’s obligation to
respect the right to nationality and to prevent statelessness can be required,
pursuant to the relevant international law, this is at the time of an
individual’s birth”).
102African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered
into force 21 October 1986) (1982) 21 ILM 58 (African Charter); Protocol to the
African Charter on Human and Peoples’ Rights on the Rights of Women in
Africa (2003) art 6(g)–(h).
103See African Charter, arts 2–3.
104See id. at arts 3, 5, 12.
105See Malawi African Association, Amnesty International, Ms Sarr Diop,
Collectif des Veuves et Ayant-droit et Association Mauritanienne des droits
de l’homme v. Mauritania, App Nos 54/91, 61/91, 98/93,
164-196/97, 210/98 (African Commission on Human and Peoples’ Rights, 11
May 2000) para 126; John K. Modise v. Botswana, App No 97/93
(African Commission on Human and Peoples’ Rights, 6 November 2000) para
88.
106See ACHPR, ‘Decision on the Report of the
Activities’ at para 5.
107See Nubian Children case, para 46.
108See African Charter on the Rights and Welfare of the Child, art
6.
109See Nubian Children case, para 42 (interpreting right to
nationality to mean right to a nationality from birth).
110See African Committee of Experts on the Rights and Welfare of
the Child, ‘General Comment No. 2 on Article 6 of the ACRWC: “The
Right to a Name, Registration at Birth, and to Acquire a
Nationality”’ (2014) AU Doc ACERWC/GC/02 (2014).
111See Nubian Children case, para 42 (interpreting right to
nationality to mean right to a nationality from birth); id.
paras 50–51.
113See Charter of the Association of Southeast Asian Nations,
(November 20 2007) 2624 UNTS 223, arts 1(7), 2(2)(i)–(j), 14.
115See e.g. ASEAN Commission on the Promotion and Protection of the
Rights of Women and Children, Regional Review on Laws, Policies and
Practices within ASEAN relating to the Identification, Management and
Treatment of Victims of Trafficking, especially Women and Children
(2016) 127 <http://asean.org/storage/2016/09/ACWC-Regional-Review.pdf>
accessed 7 May 2019.
117See Charter for European Security of the Organization for
Security and Co-operation in Europe, art 19.
118See Commonwealth of Independent States Convention on Human
Rights and Fundamental Freedoms (26 May 1995), art 24(2).
119See Arab Charter on Human Rights (22 May 2004), art 29.
120See Covenant on the Rights of the Child in Islam (2005) art.
7(2) 2; UN Human Rights Council, ‘Report of the Secretary-General. Human
Rights and Arbitrary Deprivation of Nationality’ (December 19 2013) UN Doc
A/HRC/25/28.
Competing Interests
The author has no competing interests to declare.