A/HRC/13/34
by misrepresentation or fraud. Certain additional exceptions are provided for in paragraph
3, but they may only be applied if the State expressly indicates its intention to retain them
in its national law at the time of signature, ratification or accession. However, as exceptions
to a general principle, they should be narrowly construed.
28.
Concerning regional instruments, it should be noted that article 7 (3) of the 1997
European Convention on Nationality allows for deprivation of nationality resulting in
statelessness only in cases of misrepresentation and fraud. In its recommendation R (1999)
18 on the avoidance and reduction of statelessness, the Council of Ministers of the Council
of Europe recommended that “a State should not necessarily deprive of its nationality
persons who have acquired its nationality by fraudulent conduct, false information or
concealment of any relevant fact. To this effect, the gravity of the facts, as well as other
relevant circumstances, such as the genuine and effective link of these persons with the
State concerned, should be taken into account”.
29.
Concerning the right of a person to acquire a nationality, it should be recalled the
general principle established in article 15 of the Universal Declaration of Human Rights
that everyone has the right to a nationality. It is generally recognized that acquisition of
nationality can take place at birth through the application of the principles of jus soli or of
jus sanguinis, or by naturalization. Nationality can be acquired automatically by operation
of law, at birth or at a later stage, or as a result of an act of the administrative authorities.
States enjoy a degree of discretion with regard to the criteria governing acquisition of
nationality, but these criteria must not be arbitrary. In order not to be arbitrary, denial of
access to a nationality must be in conformity with domestic law and standards of
international law, in particular the principle of proportionality.
30.
As stated earlier, the Convention on the Rights of the Child provides that children
should have the right from birth to, inter alia, acquire a nationality. Similar guarantees can
be found in the International Covenant on Civil and Political Rights and other international
and regional instruments; for example, the Committee on the Rights of the Child reiterates
in its general comment No. 11 that States parties are obliged to ensure that all children are
registered immediately after birth and that they acquire a nationality. The Committee has
further emphasized this position in a number of concluding observations, in which it stated,
inter alia, that articles 2 and 7 of the Convention require that all children within the State
party’s jurisdiction have the right to be registered and acquire a nationality, irrespective of
the child’s or his or her parents’ or legal guardians’ sex, race, religion or ethnic origin.
31.
Article 2 (1) of the International Covenant on Civil and Political Rights provides
that States parties undertake to respect and to ensure to all individuals within their territory
and subject to their jurisdiction the rights recognized in the Covenant, without distinction of
any kind, such as race, colour, sex, language, religion, political or other opinion, national or
social origin, property, birth or other status. Furthermore, article 26 prohibits discrimination
on these grounds. In its general comment No. 18, the Human Rights Committee indicates
that article 26 prohibits discrimination in law or in fact in any field regulated and protected
by public authorities; it is therefore concerned with the obligations imposed on States
parties with regard to their legislation thereof. This would include nationality legislation
and its application. Moreover, in application of the principle of non-discrimination, the
Committee, in its general comment No. 24, states that no discrimination with regard to the
acquisition of nationality should be admissible under internal law as between legitimate
children and children born out of wedlock or of stateless parents, or based on the nationality
status of one or both parents.
32.
The principle of non-discrimination is clearly recognized in article 9 of the
Convention on the Elimination of All Forms of Discrimination against Women, which
prohibits distinctions between men and women with regard to acquisition of nationality and
in relation to acquisition of nationality by their children. Such discrimination against
8
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