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regard to the acquisition of nationality should be admissible under internal law as between
legitimate children and children born out of wedlock or of stateless parents or based on the
nationality status of one or both of the parents.” The Inter-American Court of Human Rights, in
the case of the Yean and Bosico children also underlined the prohibition of discrimination
regarding access to a nationality.12
64. Regardless of the general rules which govern acquisition of nationality, States should
ensure that safeguards are in place to ensure that nationality is not denied to persons with
relevant links to that State who would otherwise be stateless. This is of particular relevance in
two situations, at birth and upon State succession. As regards the right to acquire a nationality
under article 24, paragraph 3, of the International Covenant on Civil and Political Rights, the
Human Rights Committee stated that “States are required to adopt every appropriate measure …
to ensure that every child has a nationality when he is born”. In this context, birth on the territory
of a State and birth to a national are the most important criteria used to establish the legal bond
of nationality. Where there is only a link with the State on whose territory the child was born,
this State must grant nationality as the person can rely on no other State to ensure his or her right
to acquire a nationality and would otherwise be stateless. Indeed, if nationality is not granted in
such circumstances then article 24, paragraph 3, of the International Covenant as well as article 7
of the Convention on the Rights of the Child would otherwise be meaningless. In concrete terms,
the circumstance referred to above may arise, for example, where a child is born on the territory
of a State to stateless parents or with respect to foundlings. Given the consequences to the
children concerned, denial of nationality in such instances must be deemed arbitrary.
65. A child may have a link to more than one State, for instance where a child is born on the
territory of one State to parents who are nationals of another State. As States adopt diverging
rules on the acquisition of nationality, a conflict of laws between the States involved typically
will leave the child stateless if the State of birth grants nationality jus sanguinis and the State of
nationality of the parents grants nationality jus soli. The Convention on the Reduction of
Statelessness resolves such conflicts by providing in its article 1 that Contracting States must
grant nationality to a person born on their territory who would otherwise be stateless, and in
article 4 that Contracting States must grant nationality if a person is born to one of their nationals
outside of a Contracting State and would otherwise be stateless. Similar rules are also contained
in article 20 (2) of the American Convention on Human Rights and article 6 (4) of the African
Charter on the Rights and Welfare of the Child.
66. Article 1 of the Draft Articles on Nationality of Natural Persons in relation to the
Succession of States sets out that “Every individual who, on the date of the succession of States,
had the nationality of the predecessor State, irrespective of the mode of acquisition of that
nationality, has the right to the nationality of at least one of the States concerned, in accordance
with the present draft articles.” The Draft Articles establish rules for acquisition of nationality
and in particular stipulate a presumption that persons having their habitual residence in the
territory affected by succession acquire the nationality of the successor State.
12
Inter-American Court of Human Rights, 8 September 2005, para. 141.