A/HRC/31/29
of both the freedom from cruel, inhuman or degrading treatment 73 and the freedom from
arbitrary deprivation of liberty.74 According to the Special Rapporteur on the human rights
of migrants, children in immigration detention will often be traumatized and have difficulty
understanding why they are being “punished” despite having committed no crime
(A/HRC/20/24, para. 38). Similarly, the Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment found that even very short periods of
detention could undermine a child’s psychological and physical well-being and
compromise cognitive development. Children deprived of liberty were at a heightened risk
of suffering depression and anxiety, and frequently exhibited symptoms consistent with
post-traumatic stress disorder (A/HRC/28/68, para. 16).
V. Conclusions and recommendations
42.
International human rights law guarantees the right of every child to acquire a
nationality and the prohibition of arbitrary deprivation of nationality. States should
ensure that their domestic laws provide safeguards in relation to the right of all
children to acquire a nationality. This includes safeguards to ensure that children
born on the territory who would otherwise be stateless and children born abroad to a
national who would otherwise be stateless are able to acquire nationality. States
should also make provisions for foundlings and children born on ships and planes to
acquire nationality in accordance with international standards. States should
furthermore ensure that these safeguards allow for the acquisition of nationality by an
otherwise stateless child as soon as possible after birth.
43.
Gaps in nationality laws, substantive or procedural conditions required to
benefit from safeguards, and discrimination are some of the main obstacles to
children who would otherwise be stateless to have access to nationality. States should
ensure that comprehensive safeguards to prevent statelessness are incorporated in
their domestic law and implemented effectively in practice, without being subject to
unreasonable conditions.
44.
While States may exercise discretion in determining the rules of access to
nationality, such rules must comply with the principles of international law, in
particular the best interests of the child and non-discrimination. Existing law and
practice demonstrate that systemic and entrenched discrimination on such grounds as
gender, race, religion, ethnicity, national origin, migration status, disability and
political opinion continues to result in the arbitrary deprivation of nationality to
children, undermining their legal identity and enjoyment of other human rights. In
this regard, States should eliminate laws and practices that deprive children of
nationality on discriminatory grounds. States should also consider the effects that
migration and refugee movements may have on access to nationality for refugee,
asylum-seeking or migrant children, and provide appropriate safeguards.
45.
Lack of birth registration can also create a risk of statelessness. States should
honour their international human rights obligation to register every child’s birth,
regardless of the child’s or child’s parents’ nationality or statelessness, or legal status.
73
74
14
The European Court of Human Rights has repeatedly held that even the short-term detention of
migrant children is a violation of the prohibition of torture and other ill-treatment; see Popov v.
France, judgement of 19 January 2012; Rahimi v. Greece, judgement of 5 April 2011; and
Mubilanzila Mayeka and Kaniki Mitunga v Belgium, judgement of 12 October 2006.
See CCPR/C/59/D/560/1993 and CCPR/C/76/D/900/1999.
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