1961 Convention: History, Evolution and Relevance
by other norms. However, it is noteworthy that it has had, and continues to have,
an influence on both regional and international standards.
In terms of regional standards, art 1 of the 1961 Convention has been taken up
in the 1969 American Convention on Human Rights38 and the 1997 European
Convention on Nationality.39
In terms of international standards, it continues to provide the most robust
protection against statelessness at birth and, as such, is increasingly being relied
upon by other treaty bodies in their articulation of the content of right to
nationality. Benyam Dawit Mezmur considers its relevance to and interaction with
the Convention on the Rights of the Child;40 I will thus conclude by reflecting on
its recent invocation by the Human Rights Committee (‘HRC’).
In Zhao v The Netherlands, decided in January 2021, the HRC imposed, for the
first time, positive duties on a state to grant nationality to a child born within its
territory who would otherwise be stateless. 41 The case involved the interpretation
of art 24(3) of the International Covenant on Civil and Political Rights (‘ICCPR’),
which provides that ‘[e]very child has the right to acquire a nationality’. 42
The Netherlands had refused to determine whether or not the applicant was
stateless, finding instead that he was of ‘unknown nationality’ and, therefore, not
entitled to citizenship in the Netherlands, the country in which he was born. 43 In
finding the Netherlands in breach of art 24(3), the HRC relied on the 1961
Convention and, specifically, on UNHCR’s detailed guidance on its interpretation
to inform the HRC’s articulation of what constitutes ‘appropriate measure[s]’ for
ensuring that every child has the right to acquire a nationality pursuant to the
ICCPR.44
In the Netherlands alone, it has been estimated that 13,000 children are of
‘“unknown” nationality’, so the potential impact is highly significant in the
specific context.45 If this same reasoning is applied to the other 172 state parties
to the ICCPR, its reach would be very broad indeed.
The 1961 Convention is an imperfect but essential tool in the quest to reduce
and, ultimately, eliminate statelessness. It uses antiquated language in parts and
has clear gaps. Yet, it is remarkably robust in significant ways and, as the
collection of commentaries on the occasion of its 60th anniversary reveals, it
remains instrumental and highly relevant to the ongoing quest to reduce
statelessness.
38
39
40
41
42
43
44
45
American Convention on Human Rights, opened for signature 22 November 1969, 1144
UNTS 123 (entered into force 18 July 1978) art 20(2).
European Convention on Nationality, opened for signature 6 November 1997, ETS No 166
(entered into force 1 March 2000).
See Mezmur (n 24).
Human Rights Committee, Views Adopted by the Committee under Article 5(4) of the
Optional Protocol, concerning Communication No 2918/2016, UN Doc
CCPR/C/130/D/2918/2016 (20 January 2021) (‘Zhao v Netherlands’).
ICCPR (n 29) art 24(3).
Zhao v Netherlands (n 41) 2 [2.3], 3 [2.5].
ibid 7 [8.2]–[8.3].
ibid 2–3 [2.4].
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