4.3.1 Avoidance of statelessness at birth 4.3.1.1 BIRTH ON THE STATE’S TERRITORY Article 1(1) of the 1961 Convention provides, “A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless.” Article 1(1) allows a State Party to provide for the grant of its nationality to such a person either a) “at birth, by operation of law,” or b) by way of an application procedure.314 Article 1(2) lists the four enumerated conditions that a State Party can permissibly impose on a person who comes under Article 1(1). Importantly, this list is exhaustive. The four conditions a state may permissibly impose on an Article 1 applicant for nationality are a fixed period for application within certain rules set forth by Article 1(2)(a);315 a requirement of habitual residence within the rules set forth by Article 1(2)(b);316 certain exceptions for certain criminal offenses, as described by Article 1(2)(c);317 and that the person concerned has always been stateless, as provided by Article 1(2)(d).318 As agreed by experts convened in 2011 by UNHCR, if a state is to grant its nationality to a stateless person born in its territory pursuant to an application, as contemplated by Article 1(1)(b) of the 1961 Convention – rather than by operation of law – the state is obligated to grant the applicant nationality, provided that he or she meet the conditions permitted to be imposed pursuant to Article 1(2). The use of the mandatory “shall” (“Such nationality shall be granted…”), indicates that a Contracting State must grant its nationality to otherwise stateless children born in their territory where the conditions set forth in Article 1(2) and incorporated in their application procedure are met. The exhaustive nature of the list of possible requirements means that States cannot establish conditions for the grant of nationality additional to those stipulated in the Convention. As a result, providing for a discretionary naturalization procedure for otherwise stateless children is not permissible under the 1961 Convention. A State may choose not to apply any of the permitted conditions and simply grant nationality upon submission of an application.319 The importance of a child’s obtaining a nationality is reiterated by Article 7 of the CRC and Article 24 of the ICCPR, the latter of which has been described in the UN Human Rights Committee General Comment No. 17 as follows: “States are required to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he is born.”320 It follows from these articles and 72 314 Article 1(b) provides for the grant of nationality “upon an application being lodged with the appropriate authority, by or on behalf of the person concerned, in the manner prescribed by the national law. Subject to the provisions of paragraph 2 of this Article, no such application may be rejected.” Note that the final paragraph of Article 1(1) further provides: “A Contracting State which provides for the grant of its nationality in accordance with sub-paragraph (b) of this paragraph may also provide for the grant of its nationality by operation of law at such age and subject to such conditions as may be prescribed by the national law” (emphasis added). Any such conditions must be within the limitations of Article 1(2). 315 Article 1(2)(a) provides: “that the application is lodged during a period, fixed by the Contracting State, beginning not later than at the age of eighteen years and ending not earlier than at the age of twenty-one years, so, however, that the person concerned shall be allowed at least one year during which he may himself make the application without having to obtain legal authorization to do so.” 316 Article 1(2)(b) provides: “that the person concerned has habitually resided in the territory of the Contracting State for such period as may be fixed by that State, not exceeding five years immediately preceding the lodging of the application nor ten years in all.” 317 Article 1(2)(c) provides: “that the person concerned has neither been convicted of an offence against national security nor has been sentenced to imprisonment for a term of five years or more on a criminal charge.” 318 Article 1(2)(d) provides: “that the person concerned has always been stateless.” 319 UN High Commissioner for Refugees (UNHCR), Interpreting the 1961 Statelessness Convention and Preventing Statelessness among Children: (“Dakar Conclusions”), para 26 Dakar Conclusions (interpreting Art 1 of the 1961 Convention), September 2011, available at: http://www.refworld.org/docid/4e8423a72.html. 320 UN Human Rights Committee (HRC), CCPR General Comment No. 17: Article 24 (Rights of the Child), 7 April 1989, para 8, available at: http://www.refworld.org/docid/45139b464.html. M A P P I N G S TAT E L E S S N E S S I N L I T H UA N I A