210 The Obligation to Grant Nationality to Stateless Children Under Treaty Law In summary, if a child who would otherwise be stateless is born in the state, then the human right to a nationality would require the birth state to extend its nationality. The birth state is the only state that asserts jurisdiction over the child, so it is the only state that has the obligation to secure the child’s right to a nationality. The refusal to permit the child to acquire nationality is potentially a violation of the right of the child to a nationality. If the child would be otherwise stateless, then it would be an arbitrary denial of nationality to block the acquisition of nationality of the birth state.54 In addition to the Statelessness Conventions and the treaties providing for the right to a nationality, otherwise stateless children are also protected by the CRC, which has near universal applicability. In terms of nationality at birth, the CRC protects the child’s right to ‘a’ nationality and obliges states to register children at birth, as a means to facilitate the acquisition of nationality.55 The right to a nationality has already been discussed above and the application of this provision will largely reflect that of other treaties with similar language. The obligation to register does not directly pertain to nationality, though it can, especially where the child should receive nationality of the birth state. One provision that makes the CRC distinct for the protection of otherwise stateless children is that the Convention requires all states to adopt the child’s best interests as the guiding principle for all decisions concerning children, including prescribing and applying nationality laws.56 Other treaty bodies interpreting similar language have concluded that becoming stateless is never in the child’s best interests,57 so states should never prescribe or apply legislation concerning children within their territory that would result in making a child stateless. It is still open for a state to argue that a child might be better off stateless, though such a situation is perhaps very difficult to imagine, and, in any event, the state would need to specifically conclude that the child would be better stateless than to have that very same state’s nationality. It is perhaps even more difficult to imagine any state concluding that its own nationality would impose that level of disadvantage on a child. A more likely scenario is for the birth state to conclude that a child’s interest is to have the nationality of its family, and to secure nationality that way.58 But, should that effort fail, the child would likely be in a better situation with the nationality of the birth state. The Committee on the Rights of the Child has concluded that the CRC is best interpreted in line with the argument of this article, that states must take all steps to ensure children born in the state acquire a nationality.59 Furthermore, the Committee has concluded that, where the state cannot secure the child’s nationality through state cooperation elsewhere,60 then the state must grant its nationality.61 This conclusion 54 55 56 57 58 59 60 61 See 1961 Statelessness Convention art 1(1); ICCPR art 24(3); CRMW art 29; CRC art 7(1); Yean & Bosico v. Dominican Republic, para 140; UN Human Rights Council, ‘Impact of the arbitrary deprivation of nationality on the enjoyment of the rights of children concerned, and existing laws and practices on accessibility for children to acquire nationality, inter alia, of the country in which they are born, if they otherwise would be stateless: Report of the Secretary-General’ (December 16 2015) UN Doc A/HRC/31/29. See CRC, art 7. See CRC, art 3; UNGA, ‘Status of the Convention of the Rights of the Child: Report of Secretary-General’ (2 August 2013) UN Doc. A/68/257, para 57 et seq. See CRC, art 3; Committee on the Rights of the Child, ‘General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1)’ (2013) UN Doc CRC /C/GC/14; UN Commission on Human Rights, ‘CCPR General Comment No. 17: Article 24 (Rights of the Child)’ (7 April 1989) para 8; Committee on the Rights of the Child, ‘Consideration of reports submitted by States parties under article 44 of the Convention. Concluding Observations: Czech Republic’ UN Doc CRC/C/CZE/CO/3-4; UNHCR, ‘Guidelines on Statelessness No. 4’ (2012) UN Doc HCR/GS/12/04, para 11; African Committee of Experts on the Rights and Welfare of the Child, ‘General Comment No. 2 on Article 6 of the ACRWC: “The Right to a Name, Registration at Birth, and to Acquire a Nationality”’ (2014) AU Doc ACERWC/GC/02 (2014), (“being stateless as a child is generally an antithesis to the best interests of children”); Nubian Children case; Mennesson v. Fr.,; UN Human Rights Council, ‘Report of the Secretary-General. Human Rights and Arbitrary Deprivation of Nationality’ (December 19 2013) UN Doc A/HRC/25/28; OHCHR ‘Fact Sheet No.10 (Rev.1), The Rights of the Child’ (1997). See UN Commission on Human Rights, ‘CCPR General Comment No. 17: Article 24 (Rights of the Child)’ (7 April 1989) para 8; Cf. Mennesson v France App no 65192/11 (ECtHR, June 24 2014) (holding that the refusal to record a child’s birth, and thus acquire French nationality from the parents, when the child was created through the banned IVF procedure, was a violation of the right to private life, not family life, because the child was not deprived of a family relationship). See UN Commission on Human Rights, ‘CCPR General Comment No. 17: Article 24 (Rights of the Child)’ (7 April 1989) para 8; CRC, art 7(2). UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families & Committee on the Rights of the Child, ‘Joint general comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the Rights of the Child on State obligations regarding the human rights of children in the context of international migration in countries of origin, transit, destination and return’ (16 November 2017) UN Docs CMW/C/GC/4, CRC/C/GC/23, para 24 (arguing that jus soli application would discharge the obligation, but so would international cooperation: “… 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 or she is born. A key measure is the conferral of nationality to a child born on the territory of the State, at birth or as early as possible after birth, if the child would otherwise be stateless.”). See Committee on the Rights of the Child, UN Docs CRC/C/NDL/CO/4, CRC/C/CHE/CO/2-4, CRC/C/TKM/CO/2-4, CRC/C/CZE/ CO/3-4. Also see Committee on the Rights of the Child, UN Docs CRC/C/FJI/CO/2-4, CRC/C/HRV/CO/3-4; Migrant Workers Con-