Chapter 2 The Right to Nationality and Judgment TC/0168/13 of the Constitutional Court | 101
person stateless can serve a legitimate purpose. 236 However, even in such cases, the
loss or deprivation of nationality must satisfy the principle of proportionality. The
consequences of depriving a person of his or her nationality must be carefully
weighed, taking into account the seriousness of the conduct or crime that is the
reason for the decision to withdraw nationality. In view of the serious consequences
that deprivation of nationality has when it results in statelessness, it is difficult to
justify how the loss or deprivation of nationality is proportional to the situation that
prompted it. 237
234. The Commission observes that any interference in a person’s enjoyment of
nationality has a significant impact on his or her exercise of other human rights.
Hence, any measure that leads to the loss or deprivation of nationality must satisfy
certain conditions that international law establishes, especially the provisions
pertaining to the prohibition of the arbitrary deprivation of nationality. In order for
a measure not to constitute an arbitrary deprivation of nationality, it has to serve a
legitimate end, be the least onerous measure to achieve the desired result, be
proportional to the interests to be protected and not discriminatory. The restrictions
or requirements established to obtain nationality must be subject to strict principles,
such as necessity and proportionality; in other words, the restrictions must be
geared toward satisfying a compelling public interest and must be proportional to
the interests that justify it. Furthermore, these restrictions must be prescribed by
law, must not be discriminatory and must serve a legitimate end. 238
235. In effect, the rights contained in the international human rights treaties can be
subject to regulations and restrictions, provided the formal and substantive limits
that those treaties establish are respected. In others, the legitimacy of the ends that
those restrictions are intended to accomplish must be demonstrated. 239 Here, Article
30 of the American Convention establishes the following:
The restrictions that, pursuant to this Convention, may be placed on the
enjoyment or exercise of the rights or freedoms recognized herein may not be
applied except in accordance with laws enacted for reasons of general interest
and in accordance with the purpose for which such restrictions have been
established. 240
236
237
238
239
240
1961 Convention, Art. 7, paragraphs 4 and 5, and Article 8, paragraphs 2 and 3.
European Court of Justice of the European Union, case C-135/08, Janko Rottman v. Freistaat Bayern, March 2,
2010.
IACHR, Application filed with the Inter-American Court of Human Rights in Case 12,189 (Dominican Republic) in
the case of the girls Dilcia Yean and Violeta Bosico, July 11, 2003, par. 51.
See, I/A Court H.R., Advisory Opinion OC-5/85, of November 13, 1985. Compulsory Membership in an
Association Prescribed by Law for the Practice of Journalism (Arts. 13 and 29 American Convention on Human
Rights), par. 37.
The Court has written in this regard that: “Article 30 cannot be regarded as a kind of general authorization to
establish new restrictions to the rights protected by the Convention, additional to those permitted under the
rules governing each one of these. The purpose of the article, on the contrary, is to impose an additional
requirement to legitimize individually authorized restrictions.” Advisory Opinion OC-6/86 of May 9, 1986. “The
Word ‘Laws’ in Article 30 of the American Convention on Human Rights”, par. 17.
Inter-American Commission on Human Rights | IACHR
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