Both the Committee on the Elimination of Racial Discrimination and the Committee on the Rights of the Child have commented unfavourably on discriminatory provisions in national laws on acquisition of nationality by children.269 In 2021, UNHCR issued a background note on discrimination in nationality laws which included a general call to remove discriminatory provisions.270 Both the Inter-American and the African human rights mechanisms have taken a robust approach in condemning discrimination in nationality provisions, linking non-discrimination to the principle of equality before the law. In its advisory opinion on Judicial Conditions and the Rights of Undocumented Migrants adopted in 2003, the InterAmerican Court of Human Rights stated that “the fundamental principle of equality and non-discrimination has entered the realm of jus cogens.” Accordingly: Nowadays, no legal act that is in conflict with this fundamental principle is acceptable, and discriminatory treatment of any person, owing to gender, race, color, language, religion or belief, political or other opinion, national, ethnic or social origin, nationality, age, economic situation, property, civil status, birth or any other status is unacceptable.271 The Draft Conclusions on peremptory norms of general international law (or jus cogens) adopted by the International Law Commission in 2022 propose that the prohibition of racial discrimination should be included within the list of norms considered to reach that level.272 The understanding of prohibited discrimination continues to develop and now may be said to include “indirect” discrimination, that is, discrimination based upon ostensibly race-neutral provisions that have a disproportionate effect on specific ethnic groups.273 This understanding has been adopted by the Inter-American Court of Human Rights in nationality cases. In the Yean and Bosico case against the Dominican Republic, the Court stated that: [T]he peremptory legal principle of the equal and effective protection of the law and non-discrimination determines that, when regulating mechanisms for granting nationality, States must abstain from producing regulations that are discriminatory or have discriminatory effects on certain groups of population when exercising their rights. Moreover, States must combat discriminatory practices at all levels, particularly in public bodies and, finally, must adopt the affirmative measures needed to ensure the effective right to equal protection for all individuals.274 Similarly, in the later case of the Dominicans and Haitians expelled from the Dominican Republic, the Court stated that: [T]he jus cogens principle of equal and effective protection of the law and non-discrimination requires States, when regulating the mechanisms for granting nationality, to abstain from establishing discriminatory regulations or regulations that have discriminatory effects on different groups of a population when they exercise their rights.275 This opinion was cited by the African Commission in Open Society Justice Initiative v. Côte d’Ivoire, considering that when the right to non-discrimination is violated, the right to equal protection of the law is necessarily also violated.276 The African human rights treaty bodies have made strong statements about the inadmissibility of discrimination based on factors that are the result of colonisation. In the case brought on behalf of former Zambian president Kenneth Kaunda, who had been prevented from running for office again on the grounds that he was actually Malawian, the Commission found that retroactive non-recognition of citizenship, in this case extending decades into the past, For example: Committee on the Elimination of Racial Discrimination, Concluding Observations: Combined twelfth to sixteenth periodic reports of Sudan, CERD/C/SDN/CO/12-16, 15 May 2015; Committee on the Rights of the Child, Concluding Observations: Democratic Republic of the Congo, CRC/C/15/ Add.153, 9 July 2001, para. 28; Committee on the Rights of the Child, Concluding Observations: Syria, CRC/C/SYR/CO/3-4, 9 February 2012, para. 42; Committee on the Rights of the Child, Concluding Observations: Liberia, CRC/C/LBR/CO/2-4, 13 December 2012, para. 41; Committee on the Rights of the Child, Concluding Observations: Croatia, CRC/C/HRV/CO/3-4, 13 October 2014, para. 27; Committee on the Rights of the Child, Concluding Observations: Dominican Republic, CRC/C/DOM/CO/3-5, 6 March 2015, para. 28; Committee on the Rights of the Child, Concluding Observations: Bhutan, CRC/C/BTN/ CO/3-5, 5 July 2017, para. 15. 269 270 Background Note on Discrimination in Nationality Laws and Statelessness, UNHCR, October 2021, https://www.refworld.org/docid/616fda104.html. Judicial Condition and Rights of Undocumented Migrants, Advisory Opinion OC-18/03, Inter-American Court of Human Rights, Judgment of 17 September 2003, para. 101. 271 Draft conclusions on identification and legal consequences of peremptory norms of general international law (jus cogens) with commentaries, International Law Commission, 2022, https://legal.un.org/ilc/texts/1_14.shtml. 272 See the leading decision of the European Court on Human Rights in the case D.H. and Others v. The Czech Republic, ECtHR Grand Chamber (application no. 57325/00), 13 November 2007, at para. 175, in which it reiterated that “a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group.” Discussed in Jain, “Manufacturing Statelessness”, supra n 15, pp.279–81. 273 274 Case of the Girls Yean and Bosico, supra n 52, para. 141. 275 Expelled Dominicans and Haitians, supra n 64, para. 264. 276 OSJI v. Côte d’Ivoire, supra n 166, paras 154-155. 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 69