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statelessness involving minorities — and therefore for millions of those who are
stateless globally — there appears to be a consensus among experts, international
organizations and other interested parties that serious human rights considerations are
at play.
D.
Statelessness and human rights obligations
40. It is a long-standing rule in customary and treaty law, under article 1 of the
Convention on Certain Questions relating to the Conflict of Nationality Laws, of
1930, that “it is for each State to determine under its own law who are its nationals ”.
Nevertheless, this must be understood to be subject to a clear limit in that any national
law, policy or practice in relation to citizenship — whether it is its acquisition,
maintenance or loss — must at the same time conform to, again in accordance with
article 1, “international conventions, international custom, and the principles of law
generally recognised with regard to nationality”, including international human rights
obligations.
41. The Inter-American Court of Human Rights has ruled that “the manners in
which States regulate matters bearing on nationality cannot today be deemed within
their sole jurisdiction; those powers of the State are also circumscribed by their
obligations to ensure the full protection of human rights ”. 15
42. The denial or deprivation of citizenship is, in very limited instances, permissible
under international law, even if it results in statelessness, but only if no international
human rights obligations have been breached. To put it simply, this is highly unlikely
to be the case, in particular if the result is the exclusion or loss of citizenship affecting
a large number of individuals who are members of a min ority.
43. There are four main intersecting human rights standards that are clearly of
utmost importance in relation to statelessness:
(a)
Right to nationality;
(b)
Obligation to prevent statelessness;
(c)
Prohibition of discrimination;
(d)
Arbitrary denial or deprivation of citizenship. 16
44. All four operate differently from a legal perspective, although there have been
rulings in relation to the latter two standards to the effect that any form of
discriminatory denial or deprivation of citizenship would automatically be considered
arbitrary in international law. These four standards, which are likely to have a
significant impact on the legislation, policies or practices that result in millions of
persons belonging to minorities being stateless, will be subject to more in-depth
consideration in the final version of the present report, to be submitted in March 2019.
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15
16
12/19
Inter-American Court of Human Rights, advisory opinion OC-4/84 of 19 January 1984, para. 32.
A number of recent initiatives in Africa, for example, emphasize more this dimension, including
the Abidjan Declaration of Ministers of ECOWAS Member States on the Eradication of
Statelessness and a draft protocol to the African Charter on Human and Peoples ’ Rights on the
specific aspects of the right to a nationality and the eradication of statelessness in Africa,
adopted by the African Commission on Human and Peoples’ Rights in 2015 and formally
submitted to the African Union in May 2017. Under the protocol, minimum conditions would be
established for States to be required to recognize or grant nationality to individuals with strong
connections to their territory, recognizing also the specific challenges caused by the colonial
establishment of arbitrary borders in Africa, population and labour transfers before independence
and low levels of birth registration and the nomadic lifestyle of many on the continent.
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