39.
The role of consular authorities merits particular consideration. A
consulate may be the competent authority responsible for conducting
the necessary step in a non-automatic mechanism. This occurs, for
example, where a country’s laws require children born to their nationals
overseas to register with a consulate as a prerequisite for acquiring the
nationality of the parents. As such, the consulate in the country of such
a child’s birth will be the competent authority and its position on his or
her nationality will be decisive, assuming no subsequent mechanism has
also to be considered. If an individual is refused such registration or is
prevented from applying for it, he or she is not considered as a national
for the purposes of Article 1(1).
40.
Consulates might be identified as competent authorities in other respects.
Where individuals seek assistance from a consulate, for example to
renew a passport or to obtain clarification of their nationality status, a
consulate is legitimately required to take a position on that individual’s
nationality status within its powers of consular protection. In doing so, it
acts as a competent authority. This is also the case when it responds to
enquiries from other States regarding an individual’s nationality status.
Where a consulate is the only competent authority to take a position on
an individual’s nationality status, its position is typically decisive. Where
other competent authorities have also taken positions on an individual’s
nationality status, their positions must be weighed up against any taken
by consular authorities.26
37 - 41
PART ONE
(vii) Role of consular authorities
(viii) Enquiries with competent authorities
41.
In some cases an individual or a State may seek clarification of that
individual’s nationality status with competent authorities. This need
typically arises where an automatic mode of acquisition or loss is involved
or where an individual may have acquired or been deprived of nationality
through a non-automatic mechanism, but lacks any documentary proof of
this. Such enquiries may be met either with silence or a refusal to respond
from the competent authority. Conclusions regarding a lack of response
should only be drawn after a reasonable period of time. If a competent
authority has a general policy of never replying to such requests, no
inference can be drawn from this failure to respond based on the nonresponse alone. Conversely, when a State routinely responds to such
queries, a lack of response will generally provide strong confirmation that
the individual is not a national. Where a competent authority issues a pro
forma response to an enquiry and it is clear that the authority has not
examined the particular circumstances of an individual’s position, such a
26
Please see paragraph 44 on the relative weight to be given to bodies tasked with issuing
identity documents which mention nationality status.
17