country should not have the right to rid itself of undesirable persons by denationalizing and
subsequently expelling them.”87 To address this, many states simply have no domestic law that
would permit deprivation of nationality.88
The ICCPR, in Article 24(3), also safeguards children’s right to acquire a nationality. The
Human Rights Committee, which oversees the interpretation and state compliance with the
instrument, has clarified that Article 24(3)’s requirement that children have a right to “acquire
a nationality” means that:
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 is
born. In this connection, no discrimination with regard to the acquisition of
nationality should be admissible under internal law as between legitimate children
and children born out of wedlock or of stateless parents or based on the nationality
status of one or both of the parents.89
Article 24(1) requires that states afford additional measures of protection as may be needed in
order to realize the rights of the child guaranteed under the covenant. Article 2(2) likewise
entails general positive obligations “to adopt such laws or other measures as may be necessary
to give effect to the rights recognized in the present Covenant.” These provisions would surely
be triggered should the United States restrict access to citizenship by birth on the territory, and
are equally relevant to derivative denaturalizations and deprivation and denial of passports
due to the particular impact these measures have upon children.
The Prohibition of Arbitrary Deprivation of Nationality
A host of international instruments, commentary, and jurisprudence has helped to elaborate
the meaning of Article 15’s prohibition on the arbitrary deprivation of nationality. In the
sections that follow, elements of that prohibition are explored in three general categories:
scrutiny of the purpose or aim of deprivation, scrutiny of the impact of deprivation, and considerations of procedural protections that should apply in cases of deprivation.
“Deprivation of nationality” covers situations where individuals who have previously been
recognized as citizens of a state are stripped of recognition of that nationality, whether by
invocation of formal procedures provided under the law, or in violation of that law.90 It also
covers cases in which individuals are arbitrarily deprived of nationality through actions taken
by administrative authorities.91 Significantly, “arbitrariness” in this sense is broader than
“against the law” and instead covers a wider range of “elements of inappropriateness, injustice, lack of predictability and due process of law.”92
I. History and Context
29
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