statelessness.96 The UNHCR’s special role addressing statelessness has been acknowledged by
domestic courts and its handbook on the subject is considered persuasive. 97 With statelessness now
within its mandate, the UNHCR has been very active in attempting to eradicate statelessness, 98
including major efforts to prevent statelessness at birth in particular, and is currently in the midst of
global action plan to eradicate statelessness.99 This action plan explicitly advises states to provide
nationality to stateless children born in their territory.100 In addition to the action plan, the UNHCR
has expressly recommended in an Executive Committee conclusion that states grant nationality to all
children born in their territory where the child would otherwise be stateless.101 This conclusion has
been endorsed by a number of states.102
Lastly, the ILC has also opined on several occasions that states should grant nationality to otherwise
stateless children born in their territory. As noted above, the UNGA has authorized the ILC to study
statelessness as a matter of concern. In pursuing tits studies of customary international law, the ILC
has concluded on several instances that international law provides for a right to a nationality103 and
recommended that children born stateless should receive the nationality of the birth state.104 The ILC
proposed two alternative conventions for either the elimination of statelessness or mere reduction of
statelessness.105 The ILC wisely concluded that statelessness was “undesirable”, but was not confident
to conclude in the early 1950s that customary international law provides for nationality of the
territorial state at birth. 106 However, in other areas, the ILC has acknowledged that stateless persons
can be regarded as having a special link to the state where they are habitually resident.107 The ILC
also proposed draft articles on the nationality of natural persons in relation to the succession of states,
based on its analysis of customary international law.108 In that study, the ILC concluded that states
must give a right of option to acquire the successor nationality to all current nationals as “persons
concerned”.109 However, in the commentary, the ILC explained that “persons concerned” included not
only nationals but also resident stateless persons.110 This obligation was linked to the larger duty to
96
See UNHCR, Exec. Comm. Concl. No. 106 (LVII) (2006), supra note 74; UN High Comm’r Refs., Exec.
Comm. Concl. No. 112 (LXVII) (2016); UN High Comm’r Refs., Exec. Comm. Concl. No. 113 (LXVII) (2016).
97
See Pham v Sec’y St., at paras. 22-24.
98
See UNGA Res. 3274, supra note 74; 31/36, supra note 74; 50/152, supra note 66; 61/137 (2006); UN Sec’y-Gen.,
Arbitrary deprivation of nationality, supra note 5 at para. 27; UNHCR, Exec. Comm. Concl. 78 (XLVI); UNHCR, Exec.
Comm. Concl. No. 106 (LVII), supra note 74; UNHCR, A Campaign to End Statelessness Launched on the 60th
Anniversary of the 1954 Convention relating to the Status of Stateless Persons, UN Doc. A/HRC/28/72; UNHCR, Exec.
Comm. of the High Comm’r’s Programme Standing Committee, 63rd mtg., Update on statelessness, UN Doc.
EC/66/SC/CRP.11 (June 3, 2015); UNHCR, Guidelines on Statelessness No. 1: The definition of “Stateless Person” in
Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons, UN Doc. HCR/GS/12/01 (Feb. 20, 2012)
99
See UNHCR, Global Action Plan to End Statelessness (Nov. 4, 2014) available at
http://www.refworld.org/docid/545b47d64.html; UNHCR, Campaign Update, April 2016 (Apr. 2016) available at
http://www.refworld.org/docid/571e23fb7.html.
100
See UNHCR, Global Action Plan to End Statelessness (Nov. 4, 2014), supra note 99 at para. 17 (Under Action 2, “One of
the goals of the UNHCR Global Action Plan to End Statelessness, to be achieved by 2024, is that all States have a provision
in their nationality laws to grant nationality to stateless children born in their territory.”)
101
See UNHCR, Exec. Comm. Concl. No. 106 (LVII) (2006), para. (i), supra note 74; Hum. Rts. Council, Gay
McDougall, Report of the independent expert on minority issues, UN Doc. A/HRC/7/23, para. 85 (Feb. 28, 2008)
102
See UNHCR, Regional Rd Tbl on Statelessness in W. Afr., Banjul Appeal on Statelessness (Dec. 6, 2013) available at
http://www.refworld.org/docid/52f9d6fe4.html (specifically recommending that states provide nationality to stateless
children born in their territories notwithstanding accession status to the statelessness conventions)
103
See e.g. ILC, Draft Articles Nationality in relation to the Succession of States, supra note 73; Int’l L. Comm’n, Draft
articles on the expulsion of aliens, art. 9.
104
See Int’l L. Comm’n, Draft Convention on the Elimination of Future Statelessness, art. 1, II YB INT’L L. COMM’N (1954);
Int’l L. Comm’n, Draft Convention on the Reduction of Future Statelessness, II YB INT’L L. COMM’N (1954); ILC, Draft
Articles Nationality in relation to the Succession of States, supra note 73 at art. 13.
105
See Int’l L. Comm’n, Draft Convention on the Elimination of Future Statelessness, art. 1, II YB INT’L L. COMM’N (1954);
Int’l L. Comm’n, Draft Convention on the Reduction of Future Statelessness, II YB INT’L L. COMM’N (1954)
106
See Summary records of the fourth session, 4 June - 8 August 1952, I YB INT’L L. COMM’N (1952); Int’l L. Comm’n,
Manley O. Hudson, Spec. Rapp., Report on Nationality, Including Statelessness, UN Doc. A/CN.4/50.
107
See Int’l L. Comm’n, Draft Articles on Diplomatic Protection, art. 8, II YB INT’L L. COMM’N 65, UN Doc. A/61/10.
108
See ILC, Draft Articles Nationality in relation to the Succession of States, supra note 73.
109
See id. at art. 26.
110
See id. at art. 2(f), cmty (5)
14
Electronic copy available at: https://ssrn.com/abstract=3091912
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