need to consider regional treaties. Europe,55 the Americas56 and Africa57 have concluded treaties that
provide a right to nationality and, again, many of these focus on children.58
Turing to domestic legislation as practice, again we see a wide degree of concordant practice.
Approximately half of the states in the world practice jus soli, and solve statelessness by granting
nationality to all children born in their territories, albeit under certain conditions. 59 Some of these
conditions include residency of the parents, 60 a period of residence after birth, 61 or an administrative
process. 62 Other states require that the parents also be stateless. 63 Notwithstanding these burdens, the
fundamental principle is affirmed in broadly concordant practice: that states will solve child
statelessness by granting their nationality. However, an even larger number of states that do not
practice jus soli normally, but will make an exception expressly for cases of statelessness.64
Combining the states that will practice jus soli, under conditions, with the states that will also practice
jus soli for stateless children, we find a significant number of states around the world that adhere to
the principle that a stateless child should have his or her status resolved by receiving the nationality of
the birth state. At this point, it suffices to observe that this concordant practice creates a promotion
that granting nationality to children is required under customary international law.
In addition to this concordant practice, the prohibition of statelessness and its solutions also qualify
for this presumption in favor of customary international law because it has been consistently viewed
as a matter of concern for the international community,65 as expressed in UNGA resolutions.
54
See CRPD, at art. 18(2); ICCPR, supra note 41 at art. 24(3); Migrant Workers Convention, supra at art. 29; International
Convention for the Protection of All Persons from Enforced Disappearance, art. 25(4); UNGA Res. 50/152, supra note 66;
HRC Res. 26/14, supra note 76; HRC Res. 20/5, supra note 76; HRC Res. 13/2, supra note 76; HRC Res. 10/13, supra note
76; HRC Res. 7/10, supra note 76; HRC & UNSG, Human rights and arbitrary deprivation of nationality (Dec. 19, 2012),
supra note 43; Comm. Protect. Rts All Migrant Workers & Members of Their Families & Comm. Rts Child, Joint Gen.
Comm. [Draft] Nos. 3 [Migrant Workers] & 21 [Children] Human Rights of Children in the Context of International
Migration,
UN
Doc.
INT/CRC/INF/81/E
para
61-62
(Apr.
24,
2017)
available
at
http://tbinternet.ohchr.org/Treaties/CRC/Shared%20Documents/1_Global/INT_CRC_INF_8181_E.docx;
Sustainable
Development Goals – Target 16.9: By 2030, provide legal identity for all, including birth registration.
55
See European Convention on Nationality (ETS No. 166), arts. 3, 4, 6; Convention on the Avoidance of Statelessness in
relation to State Succession, 19 May 2006, CETS No. 200; Declaration on the Consequences of State Succession for the
Nationality of Natural Persons, adopted by the European Commission for Democracy through Law (Venice Commission) at
its 28th plenary meeting, Venice, 13-14 September 1996.
56
See Am. Decl., supra note 41 at art. XIX;
57
See ACHPR, Decision on the Report of the Activities, supra note 83 at para. 5
58
See AmCHR, supra note 41 at art. 20(2); African Charter on the Rights and Welfare of the Child, July 11, 1990, art. 6,
OAU Doc CAB/LEG/24.9/49; Covenant on the Rights of the Child in Islam (art. 7); Am. Decl., supra note 41 at art. XIX
(“Every person has the right to the nationality to which he is entitled by law and to change it, if he so wishes, for the
nationality of any other country that is willing to grant it to him.”)
59
See UNGA, UN Sec’y-Gen., UN High Comm’r Hum Rts., Annual report: Human rights and arbitrary deprivation
of nationality, supra note 47
60
See European Network on Statelessness, No child should be stateless (“ENE, No child”) 16; HRC & UNSG, Human rights
and arbitrary deprivation of nationality (Dec. 19, 2012), supra note 43 at para. 22.
61
See e.g. Germany: Nationality Act of 22 July 1913 (as amended February 2009) 22 July 1913, as amended in 2009 s 4
(3).1, Citizenship Act, Staatsangehörigkeitsgesetz, July 22, 1913, Reichsgesetzblatt 583, as amended, § 4(3),
http://www.gesetze-im-internet.de/rustag/BJNR005830913.html. Reich Law Gazette I 583, Federal Law Gazette III 102-1);
Mozambique: Mozambique Law of Nationality, of 1975, amended November 1990. title II
62
See HRC & UNSG, Human rights and arbitrary deprivation of nationality (Dec. 19, 2012), supra note 43 at para. 23.
63
See Bronwen Manby, Nationality, Migration and Statelessness in West Africa. A study for UNHCR and IOM (June 2015);
HRC & UNSG, Human rights and arbitrary deprivation of nationality (Dec. 19, 2012), supra note 43 at para. 21; ENE, No
child, supra note 60 at 15, fn. 31 (Submissions from Kazakhstan and the Republic of Korea).
64
See UNGA, UN Sec’y-Gen., UN High Comm’r Hum Rts., Annual report: Human rights and arbitrary deprivation
of nationality, supra note 47 at para 28.
See UN Ofc High Comm’r Refugees, Dep’t Int’l Protection, Final Report Concerning the Questionnaire on Statelessness
Pursuant to the Agenda for Protection: Steps taken by States to Reduce Statelessness and to Meet the Protection Needs of
Stateless Persons (March 2004), para. 36
65
See Case C-135/08, Janko Rottmann v. Freistaat Bayern (Ct. Just. EU, Gr. Ch., Mar. 2, 2010); Proposed
Amends Const. C. Rica adv. op., supra note 43 at para. 32; Yean & Bosico v. Dom. Rep., supra note 43 at para.
136; Nubian Children case, supra note 43; UN doc. A/CONF.9/SR.1 at 2 (Apr. 24, 1961) (Acting President, rep.
Sec’y-Gen.)
9
Electronic copy available at: https://ssrn.com/abstract=3091912
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