208 The Obligation to Grant Nationality to Stateless Children Under Treaty Law including the ones discussed above are generally applicable to a state’s territory under its jurisdiction,33 a view affirmed by the Human Rights Committee,34 among others. Provided no other state asserts its jurisdiction by providing for the nationality of a child born abroad, then the child holds the right to ‘a’ nationality in regards to only one state, the state of birth. In this way, the state of birth accrues the responsibility to ensure the child has a nationality.35 Unless the state can secure the child’s nationality from another state, for example the state of parent’s nationality, then the state must take the only other measure it can to ensure the child has a nationality. Some authors, such as Carol Batchelor, understand that when there is more than one state that is potentially responsible, it may become impossible to identify which state must ensure nationality. Indeed, states have obligations to persons within their jurisdiction, and that the right to a nationality accrues to children born in their jurisdiction.36 Following from that conclusion, Batchelor would excuse the state from ensuring nationality if another state exercised jurisdiction over the child’s nationality jus sanguinis.37 This view is correct, but only partially, because it considers whether another state has exercised jurisdiction over the child’s nationality as an easily determined fact, and quickly displacing the obligations on the birth state. The truly problematic situation resulting in statelessness is when the state of birth asserts that another state has exercised its jurisdiction, yet that other state refutes that assertion. The irreconcilable disagreement between the states over which bears responsibility must be resolved for the birth state to bear responsibility. The meaning of ‘secure’ in this context is fairly demanding, requiring the state to make all efforts,38 and should not be discharged by a hypothetical application of the understanding of another state’s nationality laws. When a child is born in a state, it has only ever existed within one state’s territory. The burden is on the birth state to show that another state has definitively exercised jurisdiction, for example, by acquiring a passport in hand. The African Committee of Experts on the Rights and Welfare of the Child, in applying comparable terms in the African Charter on the Rights and Welfare of the Child, concluded that the birth state bears the primary responsibility for ensuring the right to a nationality, meaning that it must grant its nationality unless it can effectively secure another nationality.39 The Committee noted that a speculative determination that the child should acquire nationality from another state on the basis of that state’s nationality laws was not sufficient to discharge this obligation to ensure nationality.40 This conclusion accords with the views of De Groot and the Human Rights Committee above, that the state need not necessarily extend its nationality. However, those views implied that the state could abandon the child should it choose to do so, and it would not violate the ICCPR. The better conclusion for the ICCPR is that the default application is that the state must grant its nationality, unless it discharges its duty by definitively securing another nationality for the child. In addition, while the above treaties provide for a right to nationality, this right is given more content by prohibiting the arbitrary deprivation of nationality.41 For example, the Universal Declaration of Human Rights (UDHR) specifically states that, ‘[n]o one shall be arbitrarily deprived of his nationality nor denied the 33 34 35 36 37 38 39 40 41 See ICCPR, art 2(1); Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) art 1; American Convention on Human Rights 1144 UNTS 123, OASTS No 36, art 1(1). See UN Human Rights Committee, ‘General comment no. 31 [80], The nature of the general legal obligation imposed on States Parties to the Covenant’ (26 May 2004) UN Doc CCPR/C/21/Rev.1/Add.13, para 11. See UN Commission on Human Rights, ‘CCPR General Comment No. 17: Article 24 (Rights of the Child)’ (7 April 1989) para 8. See Carol Batchelor, ‘Statelessness And The Problem Of Resolving Nationality Status’ (1998) 10 International Journal of Refugee Law 156, 168–9, (‘Naturally, when States become party to treaties, they take on obligations for their own internal structure and in relation to persons subject to their jurisdiction. Thus, for example … States parties have made the commitment to ensure that children under their jurisdiction … have the right to acquire a nationality.’) (emphasis in the original). See id. (‘It could be argued that the right to acquire a nationality has no meaning unless all States, even those with legislation based upon the principle of jus sanguinis, grant their nationality to children born on their territory who would otherwise be stateless. Nonetheless, … the two systems for granting nationality based on jus soli and jus sanguinis are both fully developed and equally legitimate …’). See UN Commission on Human Rights, ‘CCPR General Comment No. 17: Article 24 (Rights of the Child)’ (7 April 1989) para 8. See Nubian Children case para 42 (interpreting right to nationality to mean right to a nationality from birth); id. paras 50–51. See Nubian Children case para 42 (interpreting right to nationality to mean right to a nationality from birth); id. paras 50–51. See UN Human Rights Council, ‘Arbitrary deprivation of nationality: report of the Secretary-General’ (26 January 2009) UN Doc A/ HRC/10/34; CRC art 8(1); 1997 European Convention of Nationality art 4(c); American Convention on Human Rights 1144 UNTS 123, OASTS No 36 (AmCHR); 2004 Revised Arab Charter on Human Rights art 29; 1995 Commonwealth of Independent States Convention on Human Rights and Fundamental Freedoms art 24(2); ILC, ‘Draft Articles Nationality in relation to the Succession of States’ at art 16.