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.