24. The presumption that States must grant their nationality either immediately at
birth or as soon as possible after birth is most evident in States that are not
only parties to the CRC, but also to regional human rights instruments, in
particular the American Convention of Human Rights and the African Charter
on the Rights and Welfare of the Child. Article 20 of the American
Convention and Article 6 of the African Charter explicitly establish that
children are to acquire the nationality of their country of birth if they would
otherwise be stateless.
Permissible conditions for the acquisition of nationality upon application (1961
Convention, Article 1(2))
25. Where Contracting States opt to grant nationality upon application pursuant to
Article 1(1)(b) of the 1961 Convention, it is permissible for them to do so
subject to the fulfilment of certain conditions. Permissible conditions are
established by the exhaustive list set forth in Article 1(2) of the 1961
Convention and include: a fixed period for lodging an application immediately
following the age of majority (Article 1(2)(a)); habitual residence in the
Contracting State for a fixed period, not to exceed five years immediately
preceding an application nor ten years in all (Article 1(2)(b)); restrictions on
criminal history (Article 1(2)(c)); and the condition that an individual has
always been stateless (Article 1(2)(d)). Imposition of any other conditions
would violate the terms of the 1961 Convention.
26. The use of the mandatory “shall” (“Such nationality shall be granted…”),
indicates that a Contracting State must grant its nationality to otherwise stateless
children born in their territory where the conditions set forth in Article 1(2) and
incorporated in their application procedure are met. The exhaustive nature of
the list of possible requirements means that States cannot establish conditions
for the grant of nationality additional to those stipulated in the Convention. As
a result, providing for a discretionary naturalization procedure for otherwise
stateless children is not permissible under the 1961 Convention. A State may
choose not to apply any of the permitted conditions and simply grant nationality
upon submission of an application.
Deadline for lodging an application (1961 Convention, Article 1(2)(a))
27. In accordance with developments in international human rights law,
Contracting States that opt to grant nationality upon application pursuant to
Article 1(1)(b) of the 1961 Convention, should accept such applications from
children who would otherwise be stateless born in their territory as soon as
possible after their birth and during childhood. However, where Contracting
States set deadlines to receive applications from otherwise stateless individuals
born in their territory at a later time, they must accept applications lodged at a
time beginning not later than the age of 18 and ending not earlier than the age
of 21 in accordance with Article 1(2)(a) of the 1961 Convention. These
provisions ensure that otherwise stateless individuals born in the territory of a
Contracting State have a window of at least three years after majority to lodge
their application.
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