4. Regional human rights frameworksThe right to a nationality and the enjoyment of rights by stateless persons are not only protected under UN human rights instruments, but also within a multitude of regional human rights systems. Within a number of these systems, strong jurisprudence has developed on both the right to a nationality and the rights of stateless persons. Below is an overview of some of the key characteristics of these regional frameworks:
Article 6(3) of the African Charter on the Rights and Welfare of the Child provides that “Every child has the right to acquire a nationality” and 6(4) requires States Parties to grant nationality to an otherwise stateless child born in their territory. These rights have been explored in detail in a General Comment of the African Committee of Experts on the Rights and Welfare of the child, adopted in April 2014. Following its jurisprudence in The Institute for Human Rights and Development in Africa and the Open Society Justice Initiative (on behalf of children of Nubian Descent in Kenya) v. Kenya the ACERWC adopts a purposive reading of Article 6(3) stressing that the best interests of the child requires that children should acquire a nationality from birth and must not be made to wait until they turn 18.
The African Charter on Human and Peoples’ Rights does not contain a right to a nationality. However the African Commission on Human and Peoples Rights which oversees the implementation of the Charter has found that Article 5 (which provides that “[e]very individual shall have the right to the respect of the dignity inherent in a human being and to the recognition of his legal status”) includes the right to a nationality. In 2013 a resolution of the African Commission on Human and Peoples’ Rights (ACommHPR) reaffirmed this position (originally established in the ACommHPR’s case law) in general terms. The African Commission has since undertaken a study of nationality in Africa and produced a draft protocol to the African Charter on the Right to Nationality. This draft protocol was adopted by the African Commission in July 2015 and in July 2016 was approved by the Executive Committee of the African Union beginning the process of its adoption as a legal standard.
The Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa is more limited in its promotion of women’s equal right to acquire, retain and transmit nationality than the international standards, providing only that “a woman shall have the right to retain her nationality or to acquire the nationality of her husband” and “a woman and a man shall have equal rights with respect to the nationality of their children except where this is contrary to a provision in national legislation or is contrary to national security interests”. This clause permitting national law to override the principle of gender equality is unfortunate and runs counter to the general provisions on gender equality in this protocol.
In the Americas, the established regional human rights system (the Inter-American system) is composed of two bodies: the Inter-American Commission on Human Rights (IACommHR) and the Inter-American Court of Human Rights (IACtHR), created under the auspices of the Organisation of American States (OAS).
Article 20 of the American Convention on Human Rights protects the right to a nationality. This provision, the accompanying case law of the Inter-American Court and the work of the Inter-American Commission, provide a robust legal framework for the protection of the right to a nationality. Cases brought before the Inter-American Court of Human Rights, even if few, have reinforced guarantees against statelessness which establish limits to State discretion in this regard . Furthermore, a recent report by the by the Inter-American Commission on Human Rights—through its Special Rapporteurship on the Rights of Migrants—provides a detailed overview of regional standards for the protection of vulnerable groups in the Americas, including stateless persons.
ASIA AND THE PACIFIC
Unlike Africa, the Americas and Europe, the Asia and Pacific region does not have a regional human rights framework, with its own treaty, court and commission (or equivalent bodies). This lacuna means that there is a dearth of regional norms and jurisprudence which set out the rights of all persons including the stateless. In the absence of such a regional framework, the importance of the international UN framework is greater.
At sub-regional level the Association of South East Asian Nations (ASEAN) adopted its own non-binding Human Rights Declaration in 2012, which largely mirrors the Universal Declaration of Human Rights. Article 18 of the ASEAN Human Rights Declaration affirms that “Every person has the right to a nationality as prescribed by law. No person shall be arbitrarily deprived of such nationality nor denied the right to change that nationality.” Although there is no entity within ASEAN that specifically looks into nationality and statelessness matters, the mandates of two of its Commissions are relevant to statelessness. The ASEAN Intergovernmental Commission on Human Rights (AICHR) and ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC) focus their work on developing strategies for the promotion and protection of human rights.
At the core of the regional human rights system in Europe are the Council of Europe (CoE) and the European Convention on Human Rights (ECHR), adopted in 1950. The CoE has 47 member states, all of which are parties to the ECHR. The ECHR enshrines basic human rights and fundamental freedoms of everyone within the jurisdiction of any member state and offers protection of these rights to everyone within the territory of Europe, including stateless persons, before the European Court of Human Rights (ECtHR) in Strasbourg, France. There are numerous cases in which stateless persons have succeeded in appealing to the Court to address a human rights violation suffered.
While the right to a nationality is not contained as a provision in the ECHR, the Court has discussed citizenship on several occasions when the circumstances for or consequences of the denial of nationality violated a separate provision under the ECHR. The Court has recognised nationality as an element of the social identity of a person, which forms part of private life as protected by Article 8 of the ECHR. This is a developing area of jurisprudence by the Court, with cases delivered to date focusing on the application of the principles of non-discrimination and of the best interests of the child in access to nationality.
In 1997, the CoE adopted the European Convention on Nationality, consolidating in a single, regional document a variety of international legal norms on nationality. This instrument contains several important safeguards directed towards the avoidance of statelessness, along similar lines to the 1961 Convention on the Reduction of Statelessness. A separate CoE Convention relevant to statelessness is the Convention on the Avoidance of Statelessness in relation to State Succession.
MIDDLE EAST AND NORTH AFRICA
Both the Arab Charter on Human Rights and the Convention on the Rights of the Child in Islam protect the right to nationality. However, these are not binding frameworks and there is no human rights mechanism or regional court to monitor implementation or hear individual complaints under these treaties. The Arab League has recently shown some interest in statelessness-related issues.