discrimination on any ground such as race, colour, sex, language, religion, political
or other opinion, national or social origin, property, birth or other status. 37
20. Article 26 explicitly extends beyond the rights otherwise granted in the ICCPR, so that
although the right to nationality is not explicitly set out in the ICCPR (other than in relation
to children), Article 26 prohibits discrimination in the context of nationality law. The
Human Rights Committee has found that the right to equality and non-discrimination
applies to the context of naturalisation. 38
21. Not every distinction or differentiation amounts to unlawful discrimination. Rather, in
order to assess if a distinction amounts to discrimination, we must consider 1) the ground
on which the distinction is made, 2) whether the measure has a legitimate objective and 3)
whether the means chosen to pursue the objective are proportional. 39
V ARBITRARY DEPRIVATION OF NATIONALITY
22. In addition to the treaty obligations outlined above, there is strong international consensus
that the prohibition of arbitrary deprivation of nationality, is a fundamental principle of
international law. 40
37
ICCPR (n 8) art 26.
Human Rights Committee, Views: Communication No. 2001/2010, 113th sess, UN Doc
CCPR/C/113/D/2001/2010 (19 March 2015) 11–12 [7.2]–[7.3]. In the context of a discriminatory refusal of an
exemption from language requirements in an application for naturalization, it was stated that
38
The Committee recalls that article 26 provides an autonomous right prohibiting discrimination in law
or in fact in any field regulated and protected by public authorities and that the application of the
principle of non-discrimination contained in article 26 is not limited to those rights which are provided
for in the Covenant. When legislation is adopted by a State party, it must comply with the requirement
of article 26 that its content should not be discriminatory…
The Committee recalls that neither the Covenant nor international law in general spells out specific
criteria for the granting of citizenship through naturalization and that States are free to decide on such
criteria. 8 However, when adopting and implementing legislation, States parties’ authorities must
respect the applicants’ rights enshrined in article 26. The Committee recalls in this respect that article
26 requires reasonable and objective justification and a legitimate aim for distinctions that relate to an
individual’s characteristics enumerated in article 26, 9 including ‘other status’ such as disability.
See also Human Rights Committee, Views: Communication No. 172/1984, UN Doc CCPR/C/OP/2 (1990)
[12.4.].
39
See Human Rights Committee, General Comment No. 18: Non-Discrimination, UN Doc HRI/GEN/1/Rev.9
(Vol.1) (10 November 1989) [7], [13] (‘General Comment No 18’).
40
This status is supported by the UN Human Rights Council and the UNHCR: Human Rights Council, Human
Rights and Arbitrary Deprivation of Nationality: Report of the Secretary-General, UN Doc A/HRC/13/34 (14
December 2009) [21]–[22] (‘Human Rights Council 2009’); UN Human Rights Council, Human Rights and
Arbitrary Deprivation of Nationality: Report of the Secretary-General, UN Doc A/HRC/25/28 (19 December
2013) [38] (‘Human Rights Council 2013’); UNHCR, Guidelines on Statelessness No 5: Loss and Deprivation
of Nationality under Articles 5-9 of the 1962 Convention on the Reduction of Statelessness, UN Doc
HCR/GS/20/05 (May 2020) [85] (‘Guidelines No 5’). Further, a number of decisions by regional and
international courts have referred to fundamental or customary position of the prohibition on arbitrary
deprivation of nationality: Anudo Ochieng Anudo v Republic of Tanzania (Judgment) (African Court on Human
8