international law and customary international law, and are therefore also applicable in
Myanmar. General rule of law principles, including the principle of non-arbitrariness
and the principle of non-discrimination, are also fully binding on Myanmar.
3.2
The right to citizenship/nationality
The right to citizenship/nationality is clearly recognized in international law.
International jurisprudence has consistently reaffirmed that the regulation of
citizenship under domestic law is subject to States’ human rights obligations under
international law, including with respect to the right to nationality, and the prohibition
on arbitrary deprivation of nationality.34 Under national law, being a national of one’s
State generally entitles the individual concerned to citizenship of that State.
Article 15 of the UDHR affirms that: “(1) Everyone has the right to a nationality; and
(2) No one shall be arbitrarily deprived of his nationality nor denied the right to
change his nationality.” Article 15 of the UDHR entails the right of everyone to
acquire, change and retain a nationality.35 While under international law States may
determine criteria to establish who their nationals are, such discretion is not absolute.
Several provisions of the UDHR, for example, affirm the principle of nondiscrimination, including article 7, which codifies the equality of all before the law and
their entitlement, without any discrimination, to equal protection of the law.
Under the CRC, the right to nationality is provided for in articles 7 and 8, while article
3(1) of the Convention require States parties to take the best interests of the child as
a primary consideration in all actions concerning children.36 Article 7 states that: “(1)
The child shall be registered immediately after birth and shall have the right from
birth to a name, the right to acquire a nationality and as far as possible, the right to
know and be cared for by his or her parents; and (2) States Parties shall ensure the
implementation of these rights… in particular where the child would otherwise be
stateless.” There is no hierarchy of rights within article 7; all are fully applicable to
States parties to the CRC. States must respect the rights in the Convention “without
discrimination of any kind, irrespective of the child's or his or her parent's or legal
guardian's race, colour, sex, language, religion, political or other opinion, national,
ethnic or social origin, property, disability, birth or other status.”37 General comments
of the Committee on the Rights of the Child further define State obligations with
respect to the right to nationality and the principle of making the best interests of the
child a primary consideration.38
Under international human rights law, States have obligations regarding the
acquisition, renunciation and loss of nationality, including, in particular, obligations
arising from the principle of non-discrimination, the right to equality before the law
and equal protection of the law without discrimination on the grounds of race, color,
religion, citizenship, nationality or migration status, national, social or ethnic origin,
descent, language, political or other opinion, sexual orientation or gender identity,
age, gender, health, disability, property, socio-economic, birth or other status.39
States do have some scope in prescribing under their domestic legal framework how
nationality may be acquired. States’ laws and practice typically recognize three ways
in which individuals acquire nationality. The first is through the operation of the jus
soli doctrine, that is, by virtue of being born on a State’s territory. The second is
through the jus sanguinis doctrine, namely, by virtue of being a descendant (e.g.,
through parentage) of a State’s own national; and the third is through naturalization.
Each State determines through their legal framework whether it recognizes and
applies jus soli or jus sanguinis or both, as well as setting out the legal criteria for
naturalization. The latter are ordinarily premised on factors such as having an
established relationship with the State, through, for example, long-term residence.
In addition to the UDHR, three of the international human rights treaties by which
Myanmar is bound, namely, the CEDAW, the CRC and the CRPD, are among the
international instruments recognizing and guaranteeing the right to a nationality.
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