Grant of Nationality to Otherwise Stateless Persons Born to
Nationals of Contracting States Abroad (1961 Convention, Articles
1(4), 1(5) and 4)
35. Article 1 of the 1961 Convention places primary responsibility on Contracting
States in whose territory otherwise stateless children are born to grant them
nationality to prevent statelessness. The Convention also sets out two
subsidiary rules. The first is found in Article 1(4) and applies where an
otherwise stateless child is born in a Contracting State to parents of another
Contracting State but does not acquire the nationality of the country of birth
automatically and either misses the age to apply for nationality or cannot meet
the habitual residence requirement. In such cases, responsibility falls to the
Contracting State of which the parents of the individual concerned are citizens
to grant its nationality to that individual. In these limited circumstances where
Contracting States must grant nationality to children born abroad in another
Contracting State to one of their nationals, States may require that an
individual lodge an application and meet certain criteria set forth in Article
1(5) that are similar to those set forth in Article 1(2), with some distinctions.
36. The second subsidiary rule applies where children of a national of a
Contracting State who would otherwise be stateless are born in a nonContracting State. This rule is set out in Article 4. Although granting
nationality in these circumstances is obligatory, Article 4 gives Contracting
States the option of either granting their nationality to children of their
nationals born abroad automatically at birth or requiring an application subject
to the exhaustive conditions listed in Article 4(2).
37. Like Article 1, Article 4 of the 1961 Convention must be read in light of
subsequent developments in international human rights law. The right of every
child to acquire a nationality, as set out in CRC Article 7 and the principle of
the best interests of the child contained in CRC Article 3, create a strong
presumption that Contracting States should provide for automatic acquisition
of their nationality at birth to an otherwise stateless child born abroad to one of
its nationals. In cases where Contracting States require an application
procedure, international human rights law, in particular the CRC, obliges
States to accept such applications as soon as possible after birth.
Implicit Obligations in Articles 1 and 4 of the 1961 Convention
Appropriate information
38. Contracting States that opt for an application procedure are obliged to provide,
as soon as possible, detailed information to parents of otherwise stateless
children about the possibility of acquiring the nationality of the country.
39. Information needs to be provided to concerned individuals whose children
born in the territory of a Contracting State are otherwise stateless or of
undetermined nationality. A general information campaign is not sufficient.
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