A.

International Conventions on Nationality

Overview

The right to a nationality is of paramount importance to the

realization of other fundamental human rights. Possession of a
nationality carries with it the diplomatic protection of the country of
nationality and is also often a legal or practical requirement for the
exercise of fundamental rights. Consequently, the right to a
nationality has been described as the “right to have rights.”
Individuals who lack a nationality or an effective citizenship are
therefore among the world’s most vulnerable to human rights
violations. (Trop v. Dulles, 356 U.S. 86, 101–02, 1958).
To protect, promote and preserve rights to a nationality of every
individual, the international community of states convened in order
to come up with international conventions, pacts, declarations and
protocols, to wit:

I. United Nations Convention on Stateless Person

A. The 1954 Convention1

The 1954 Convention is designed to ensure that stateless people

enjoy a minimum set of human rights. It establishes the legal
definition of a stateless person as someone who is “not recognized
as a national by any state under the operation of its law.” Simply
put, this means that a stateless person is someone who does not
have the nationality of any country. Similarly, the 1954 Convention
establishes minimum standards of treatment for stateless people in
respect to a number of rights. These include, but are not limited to,
the right to education, employment and housing. As a salient
feature, the 1954 Convention guarantees stateless people a right to
identity, travel documents and administrative assistance.

B. The 1961 Convention2

The 1961 Convention aims to prevent statelessness and reduce

it over time. It establishes an international framework to ensure the
right of every person to a nationality. It requires that states
establish safeguards in their nationality laws to prevent

1
1954 Convention Relating to the Status of Stateless Person; Adopted on September 28,
1954; Enforced on June 6, 1960.
2
1961 Convention on the Reduction of Statelessness; Adopted on August 30, 1961;
Enforced on December 13, 1975.

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statelessness at birth and later in life. Perhaps the most important
provision of the convention establishes that children are to acquire
the nationality of the country in which they are born if they do not
acquire any other nationality. It also sets out important safeguards
to prevent statelessness due to loss or renunciation of nationality
and state succession. The convention also sets out the very limited
situations in which states can deprive a person of his or her
nationality, even if this would leave them stateless.

II. Convention on the Reduction of Cases of Multiple

Nationality and on Military Obligations in Cases of Multiple
Nationality3

The Convention aims to reduce as far as possible the number of

cases of multiple nationality, as between state parties. It lays down
rules to reduce cases of multiple nationality in the case of the
acquisition of a new nationality or the renunciation of one
nationality, and the legal consequences for persons concerned,
including minor persons. It also contains provisions on military
obligations in cases of multiple nationality.

III. Additional Protocol to the Convention on the Reduction

of Cases of Multiple Nationality and Military Obligations in
Cases of Multiple Nationality4

The Additional Protocol to the Convention (ETS No. 043)

provides that state parties are to communicate to each other any
acquisition of their nationality by an adult or a minor who is a
national of the another state party.
To this end, each state party is to designate the central
authority which has been designated to receive this communication.

IV. Protocol amending the Convention on the Reduction of

Cases of Multiple Nationality and Military Obligations in
Cases of Multiple Nationality5

The Protocol modifies certain provisions of the Convention so

that a person possessing as a matter of right more than one
nationality should be able to renounce by mere declaration of will
the nationality of a state party in whose territory he has no ordinary
residence.
3
Strasbourg, May 6, 1963.
4
Strasbourg, May 6, 1963.
5
Strasbourg, November 24, 1977.

2
 The Protocol likewise clarifies the provision of the Convention as
regards military obligations of persons possessing multiple
nationality.

V. Second Protocol amending the Convention on the

Reduction of Cases of Multiple Nationality and Military
Obligations in Cases of Multiple Nationality 6

The Second Protocol amends the Convention so as to reflect the

evolution of society and adds three new situations in which persons
can be allowed to retain their nationality of origin, namely: second-
generation migrants, spouses of different nationalities and children
whose parents have different nationalities.

VI. The Right to Nationality in Resolutions of the United

Nations General Assembly7

The Universal Declaration of Human Rights, which was adopted

by the General Assembly of the United Nations on 10 December
1948, has codified “nationality” as a human right. Article 15 of the
Declaration reads:

(1) Everyone has the right to a nationality.

(2) No one shall be arbitrarily deprived of his

nationality nor denied the right to change his
nationality.

In 1959, the Declaration on the Rights of the Child was

proclaimed by the U.N. General Assembly through its Resolution
1386(XIV) of 20 November 1959. It contains a more emphatic
provision on the right to nationality as applied to children as it
makes it an entitlement of a child from birth. Principle 3 of the
Declaration reads:

“The child shall be entitled from his birth to a name

and a nationality.”

Another resolution of the U.N. General Assembly,

the Declaration on Social and Legal Principles relating to the
Protection and Welfare of Children, adopted on 3 December 1986,
and published on 6 February 1987, also affirms the right to
6
Strasbourg, February 2, 1993.
7
Adopted by the United Nations General Assembly on December 10, 1948.

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nationality as applied to children. Article 8 of the said Declaration
reads:

“The child shall at all times have a name, a

nationality and a legal representative. The child should
not, as a result of foster placement, adoption or any
alternative regime, be deprived of his or her name,
nationality or legal representative unless the child
thereby acquires a new name, nationality or legal
representative.”

VII. 1995 Commonwealth of Independent States Convention

on Human Rights and Fundamental Freedoms8

Article 24 of the 1995 Commonwealth of Independent States

Convention on Human Rights and Fundamental Freedoms, which
was adopted on 26 May 1995 at Minsk, Belarus, also provides that:

1. Everyone shall have the right to citizenship.

2. No one shall be arbitrarily deprived of his

citizenship or of the right to change it.

VIII. International Covenant on Civil and Political Rights 9

Article 24(3) of the International Covenant on Civil and Political

Rights, which was adopted on 16 December 1966 in New York,
affirms that: “Every child has the right to acquire a nationality.”

IX. Convention on the Rights of the Child10

Article 7(1) of the Convention on the Rights of the Child, which

was adopted on 20 November 1989 in New York, reads:

“The child shall be registered immediately after birth

and shall have the right from birth to a name, the right
to acquire a nationality and as far as possible, the right
to know and be cared for by his or her parents.”

8
Belarus, May 26, 1995.
9
New York, December 16, 1966.
10
New York, November 20, 1989.

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 X. 1930 Hague Convention on Certain Questions Relating to
the Conflict of Nationality Laws11

The 1930 Hague Convention on Certain Questions Relating to

the Conflict of Nationality Laws provides:

“Article 14.  A child whose parents are both

unknown shall have the nationality of the country of
birth. If the child’s parentage is established, its
nationality shall be determined by the rules applicable
in cases where the parentage is known.”

A foundling is, until the contrary is proved, presumed to have

been born on the territory of the State in which it was found.

XI. Council of Europe Convention on the avoidance of

statelessness in relation to State succession12

This Convention embodies principles and rules applying to all

aspects of nationality. It is designed to make acquisition of a new
nationality and recovery of a former one easier, to ensure that
nationality is lost only for good reason and cannot be arbitrarily
withdrawn, to guarantee that the procedures governing applications
for nationality are just, fair and open to appeal, and to regulate the
situation of persons in danger of being left stateless as a result of
State succession. It also covers multiple nationality, military
obligations and co-operation between state parties.

XII. Covenant on the Rights of the Child in Islam13

The Covenant on the Rights of the Child in Islam, which was

adopted by the 32nd Islamic Conference of Foreign Ministers in
Sana’a, Republic of Yemen in June 2005, states:

Article Seven – Identity

1. A child shall, from birth, have right to a good

name, to be registered with authorities concerned,
to have his nationality determined and to know
his/her parents, all his/her relatives and foster
mother.
11
League of Nations, Treaty Series, vol. 179, p. 89, No. 4137
12
Adopted on May 19, 2006; Enforced on May 1, 2009.
13
Adopted by the 32nd Islamic Conference of Foreign Ministers in Sana'a, Republic of
Yemen, in June 2005.

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 2. States Parties to the Covenant shall
safeguard the elements of the child’s identity,
including his/her name, nationality, and family
relations in accordance with their domestic laws and
shall make every effort to resolve the issue of
statelessness for any child born on their territories
or to any of their citizens outside their territory.

XIII. The Right to Nationality in Customary International

Law14

The Charter of the United Nations acknowledges the existence of

customary international law through Article 38(1)(b) of the
International Court of Justice (ICJ) Statute, which is incorporated
into the Charter by Article 92 thereof. It states:

“The Court, whose function is to decide in

accordance with International Law such disputes as
are submitted to it, shall apply… international
custom, as evidence of a general practice accepted
as law.”

State practice in the form of having municipal laws granting

nationality on foundlings in their territories has been found in
different States which includes Unites States of America (US),
among others.

Section 301(f) of US Immigration and Nationality Act, also

known as the Foundling Statute, provides:

SEC. 301. The following shall be nationals and

citizens of the United States at birth:

(f) a person of unknown parentage found in the

United States while under the age of five years, until
shown, prior to his attaining the age of twenty-one
years, not to have been born in the United States.

B. International Conventions on Migration

Overview

14
The Right to Nationality of Foundlings in International Law, Dean Ralph Sarmiento,
December 3, 2015.

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 Migrants are generally entitled to the same human rights
protections as all individuals, although States may limit migrants’
rights in some ways, such as with regard to voting and political
participation. Many human rights treaties explicitly prohibit
discrimination on the basis of national origin and require States to
ensure that migrants’ human rights are equally protected.
Additionally, like other particularly vulnerable groups, migrants
have been given special protections under international law, to
address situations where their rights are most at risk, such as in the
workplace, in detention, or in transit. The protections afforded to a
migrant, such as access to social security, will also depend on which
treaties a State has ratified. (International Commission of
Jurists, Migration and International Human Rights Law: A
Practitioners’ Guide, 2014, 54).
Among the international conventions, pacts, declarations and
protocols relevant to migrants’ rights are as follows:

I. 1951 Refugee Convention15

The 1951 Refugee Convention, which was signed by 145 States,

is the key legal document that forms the basis of the principle of
non-refoulment which asserts that a refugee should not be returned
to a country where they face serious threats to their life and
freedom. This core principle is now considered as a rule if
customary international law.

II. International Migration Convention 16

The Convention seeks to draw the attention of the international

community to the dehumanization of migrant workers and members
of their families, many of whom being deprived of their basic human
rights. Indeed, legislation implementing other basic treaties in some
States utilizes terminology covering citizens and/or residents,
excluding many migrants, especially those in irregular situations.
The convention provides for the migrants’ and the members of
their families rights which includes, among others, basic freedom,
due process, right to privacy, equality with nationals, transfer of
earning, and right to information.

III. Migration for Employment Convension (Revised), 1949 17

15
Resolution 2198 adopted by the United Nations General Assembly.
16
United Nations Education, Scientific and Cultural Organization.
17
Adopted on July 1, 1949; Enforced on January 22, 1952.

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 It is an international labor organization convention for migrant
workers which was established in 1949 with its preamble stating
that each members of the International Labor Organization, which
the convention is in force, undertakes to make available on request
the to the international labor office and to each other,

a) information
on national policies, law and regulations
relating to emigration and immigration;

b) information on special provisions concerning migration for

employment and the conditions of work and livelihood of migrants
for employment;

c) information concerning general agreement and special

arrangements on these questions concluded by the Member.
IV. Migrant Workers Convention, 1975, or Convention
concerning Migrations in Abusive Conditions and the
Promotion of Equality of Opportunity and Treatment of
Migrant Workers18

It is an International Labour Organization Convention for the

rights of migrant workers established in 1975. However unlike
the United Nations Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families, there are
restrictions of migrant worker to be applied on Article 11.

Article 11. (1) For this Convention the term migrant

worker means a person who migrates or who has migrated from one
country to another with a view to bring employed otherwise than on
his own account and includes any person regularly admitted as a
migrant worker.
(2) It does not apply to (a) frontier workers (b) artistes and
members of liberal profession (c) seamen (d) persons coming
specially for purpose of education.

V. International Convention on the Protection of the

Rights of All Migrant Workers and Members of Their
Families19

This international convention was agreed upon by the

international community of states bearing in mind that:

18
Adopted on June 24, 1975; Enforced on December 9, 1978.
19
Adopted by General Assembly Resolution 45/158, December 18, 1990.

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 1. One of the objectives of the International Labour
Organization, as stated in its Constitution, is the protection of the
interests of workers when employed in countries other than their
own, and bearing in mind the expertise and experience of that
organization in matters related to migrant workers and members of
their families;

2. Considering that workers who are non-documented or in an

irregular situation are frequently employed under less favourable
conditions of work than other workers and that certain employers
find this an inducement to seek such labour in order to reap the
benefits of unfair competition; and,

3. Convinced of the need to bring about the international

protection of the rights of all migrant workers and members of their
families, reaffirming and establishing basic norms in a
comprehensive convention which could be applied universally.

VI. European Convention on the Legal Status of Migrant

Workers20

Considering that the aim of the Council of Europe is to achieve a

greater unity between its members for the purpose of safeguarding
and realizing the ideals and principles which are their common
heritage and facilitating their economic and social progress while
respecting human rights and fundamental freedoms; Considering
further that the legal status of migrant workers who are nationals of
Council of Europe member States should be regulated so as to
ensure that as far as possible they are treated no less favorably
than workers who are nationals of the receiving State in all aspects
of living and working conditions, the European Convention on the
Legal Status of Migrant Workers was convened.

VII. General Assembly Resolution on on International

Migration; Protection of Migrants21

It encourages States to protect migrant victims of national and

transnational organized crime, including kidnapping and trafficking
and, in some instances, smuggling, including through the
implementation of programs and policies that guarantee protection
and access to medical, psycho-social and legal assistance, where
appropriate.

20
European Treaty Series - No. 93, Strasbourg, November 24, 1977.
21
Resolution adopted by the General Assembly on 18 December 2014.

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 VIII. New York Declaration for Refugees and Migrants 22

The Declaration is committed, among others, to protect the

safety, dignity and human rights and fundamental freedoms of all
migrants, regardless of their migratory status, at all times. It
cooperates closely to facilitate and ensure safe, orderly and regular
migration, including return and readmission, taking into account
national legislation.

Further, it commits to safeguarding the rights of, protecting the

interests of and assisting our migrant communities abroad,
including through consular protection, assistance and cooperation,
in accordance with relevant international law. Likewise, it reaffirms
that everyone has the right to leave any country, including his or
her own, and to return to his or her country.

IX. Protocol of 2014 to the Forced Labour Convention, 193023

In giving effect to its obligations under the Convention to

suppress forced or compulsory labour, each Member shall take
effective measures to prevent and eliminate its use, to provide to
victims protection and access to appropriate and effective remedies,
such as compensation, and to sanction the perpetrators of forced or
compulsory labour.

Each Member shall develop a national policy and plan of action

for the effective and sustained suppression of forced or compulsory
labour in consultation with employers’ and workers’ organizations,
which shall involve systematic action by the competent authorities
and, as appropriate, in coordination with employers’ and workers’
organizations, as well as with other groups concerned.

X. Protocol against the Smuggling of Migrants by Land,

Sea and Air24

It was adopted by General Assembly resolution 55/25, entered

into force on 28 January 2004. It deals with the growing problem of
organized criminal groups who smuggle migrants, often at high risk
to the migrants and at great profit for the offenders. A major
achievement of the Protocol was that, for the first time in a global

22
Resolution adopted by the General Assembly on 19 September 2016.
23
Geneva, June 11, 2014.
24
New York, November 15, 2000.

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international instrument, a definition of smuggling of migrants was
developed and agreed upon. The Protocol aims at preventing and
combating the smuggling of migrants, as well as promoting
cooperation among States parties, while protecting the rights of
smuggled migrants and preventing the worst forms of their
exploitation which often characterize the smuggling process.

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