Children born or found in the territory The clearest specific obligations on states to prevent and reduce statelessness relate to people born in the territory who cannot claim another nationality (whether because their parents are stateless or of unknown nationality, or because of restrictions on the acquisition of nationality from the parents based on place of birth or various forms of discrimination), and those found as children in the territory of unknown parents (foundlings). The claims of children of unknown parents and of parents who are stateless or of unknown nationality to be recognised as nationals of the state of birth were first set out in international law in the 1930 Convention on the Conflict of nationality Laws. It has been argued for several decades that the obligation to grant nationality to an otherwise stateless child born or found on a state’s territory has entered customary international law; these arguments have strengthened with greater state adherence to the relevant treaties and lack of explicit state opposition to the principle.196 The 1961 Convention on the Reduction of Statelessness provides in its first article that a contracting state “shall grant its nationality to a person born in its territory who would otherwise be stateless”; article 2 restates the presumption of nationality for foundlings. The American Convention on Human Rights (article 20) and the African Charter on the Rights and Welfare of the Child (article 6[4]) also create specific obligations on states to grant nationality to children born on their territory who are not granted nationality by any other state at the time of their birth. The European Convention on Human Rights does not include a provision on nationality; however, the European Convention on nationality provides both for the presumption of nationality in case of foundlings (article 6[1][b]), and for the grant of nationality to children who do not acquire another nationality at birth (article 6[2]). A key question in activating these protections is therefore whether a child born on the territory is in fact stateless or has the nationality of another country (u section 7.1: The definition of stateless person and the determination that a person is stateless). In the case of DZ v. The Netherlands, the Human Rights Committee cited the UNHCR Guidelines on Statelessness No. 4 on the shared burden of proof between the claimant and the state authorities to establish the facts as to whether a child would “otherwise be stateless” in the terms of the 1961 Convention, and noted that the Dutch authorities had made no attempt of their own to confirm Denny Zhao’s nationality status.197 The 1961 Convention provides that the grant of nationality by the state of birth to otherwise stateless children may either be by operation of law, or upon application; a limited set of conditions are permitted if an application is required, including a period of habitual residence (article 1[2]). UNHCR considers that there should no requirement that the residence of parent or child must be legal in case of a stateless person, since this may be impossible to establish without a specific procedure to grant such status.198 The Inter-American Court addressed the question of the immigration status of the parents in relation to the grant of nationality to a child born in the country in the Yean and Bosico case: a. The migratory status of a person cannot be a condition for the State to grant nationality, because migratory status can never constitute a justification for depriving a person of the right to nationality or the enjoyment and exercise of his rights; b. The migratory status of a person is not transmitted to the children; and c. The fact that a person has been born on the territory of a State is the only fact that needs to be proved for the acquisition of nationality, in the case of those persons who would not have the right to another nationality if they did not acquire that of the State where they were born.199 In the case of the Expelled Dominicans and Haitians, the Inter-American Court similarly instructed the state to adopt a range of measures to ensure non-repetition of the violations, including amendments to the substantive law, human rights training, and amendments to civil registration procedures, in order “to eliminate the distinction established in Dominican law that prevents the children of aliens born in the Dominican Republic from acquiring this nationality”.200 The Inter-American Commission on Human Rights adopted a resolution on the right to a nationality in 2023 that reaffirmed these principles.201 Johannes M.M. Chan, “The Right to a Nationality as a Human Right: The Current Trend Towards Recognition”, Human Rights Law Journal Vol. 12, no. 1–2 (1991), pp.1–14; Mai Kaneko-Iwase, Nationality of Foundlings: Avoiding Statelessness among Children of Unknown Parents in International Law (Springer, 2021); William Thomas Worster, “Customary International Law Requiring States to Grant Nationality to Stateless Children Born in Their Territory”, Statelessness & Citizenship Review Vol. 4, no. 1 (2022), pp.113–39. 196 DZ v. The Netherlands, supra n 53, paras 8.4 & 8.5. The Human Rights Committee’s analysis of the shared burden of proof was cited by the South African High Court in the case of Khoza v Minister of Home Affairs and Another, supra n 43. 197 UNHCR, Guidelines on Statelessness No. 4, supra n 102, paras 40–43. Nonetheless, the Council of Europe Convention on Nationality provides that residence may be required to be lawful in such cases (Art 6[2][b]). See also Council of Europe, Recommendation CM/Rec.(2009)13 supra n 190, paras 2 & 5. 198 199 Case of the Girls Yean and Bosico, supra n 52. 200 Expelled Dominicans and Haitians, supra n 64, para. 464. 201 Resolution on the right to nationality, prohibition of arbitrary deprivation of nationality and statelessness, supra n 10. U N H C R | L I T I G AT I N G T H E R I G H T T O A N AT I O N A L I T Y: A G U I D E F O R P R AC T I T I O N E R S 59