individual would otherwise be stateless, the Contracting State in which the
child is born has to grant nationality to prevent statelessness. In the event that
a child is born to the national of a Contracting State in the territory of a nonContracting State, a subsidiary obligation comes into play and the State of
nationality of the parents must grant nationality if the child would otherwise
be stateless. As a result, the Convention addresses conflicts of nationality laws
through an approach that draws on the principles of both jus soli and jus
sanguinis.
Options for granting nationality to comply with 1961 Convention obligations
20. Article 1 of the 1961 Convention provides Contracting States with several
alternative means for granting nationality to otherwise stateless children born in
their territory. Such States can either provide for automatic (ex lege, or by
operation of law) acquisition of its nationality upon birth pursuant to Article
1(1)(a), or for acquisition of nationality upon submission of an application
pursuant to Article 1(1)(b). Article 1 of the 1961 Convention also allows
Contracting States to provide for the automatic grant of nationality to otherwise
stateless children born in their territory subsequently, at an age determined by
domestic law.
21. A Contracting State may apply a combination of these alternatives for
acquisition of its nationality by providing different modes of acquisition based
on the level of attachment of the individual to that State. For example, a
Contracting State might provide for automatic acquisition of its nationality by
otherwise stateless children born in their territory whose parents are permanent
or legal residents in the country, whereas it might require an application
procedure for those whose parents are not legal residents. Any distinction in
treatment of different groups, however, cannot be based on discriminatory
grounds and must be reasonable and proportionate.
Acquisition of nationality at birth or as soon as possible after birth
22. The rules for preventing statelessness among children contained in Articles
1(1) and 1(2) of the 1961 Convention must be read in light of later human
rights treaties, which recognize every child’s right to acquire a nationality, in
particular where they would otherwise be stateless. The right of every child to
acquire a nationality (CRC Article 7) and the principle of the best interests of
the child (CRC Article 3) together create a presumption that States need to
provide for the automatic acquisition of their nationality at birth by an
otherwise stateless child born in their territory, in accordance with Article
1(1)(a) of the 1961 Convention.
23. Where Contracting States opt for an application procedure to grant their
nationality to otherwise stateless children, developments in international
human rights law create a strong presumption that States should limit
application requirements so as to allow children to acquire nationality as soon
as possible after birth.
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