International Covenant on Civil and Political Rights

Adopted and opened for signature, ratification and accession by

General Assembly resolution 2200A (XXI) of 16 December 1966
entry into force 23 March 1976, in accordance with Article 49
Preamble

The States Parties to the present Covenant,

Considering that, in accordance with the principles proclaimed in the Charter of the United
Nations, recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the world,
Recognizing that these rights derive from the inherent dignity of the human person,

Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free
human beings enjoying civil and political freedom and freedom from fear and want can only be
achieved if conditions are created whereby everyone may enjoy his civil and political rights, as
well as his economic, social and cultural rights,

Considering the obligation of States under the Charter of the United Nations to promote universal
respect for, and observance of, human rights and freedoms,

Realizing that the individual, having duties to other individuals and to the community to which he
belongs, is under a responsibility to strive for the promotion and observance of the rights
recognized in the present Covenant,

Agree upon the following articles:

PART I

Article 1

1. All peoples have the right of self-determination. By virtue of that right they freely determine
their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources
without prejudice to any obligations arising out of international economic co-operation, based
upon the principle of mutual benefit, and international law. In no case may a people be deprived
of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the
administration of Non-Self-Governing and Trust Territories, shall promote the realization of the
right of self-determination, and shall respect that right, in conformity with the provisions of the
Charter of the United Nations.

PART II

Article 2

1. Each State Party to the present Covenant undertakes to respect and to ensure to all
individuals within its territory and subject to its jurisdiction the rights recognized in the present
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.
2. Where not already provided for by existing legislative or other measures, each State Party to
the present Covenant undertakes to take the necessary steps, in accordance with its
constitutional processes and with the provisions of the present Covenant, to adopt such laws or
other measures as may be necessary to give effect to the rights recognized in the present
Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall
have an effective remedy, notwithstanding that the violation has been committed by persons
acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by
competent judicial, administrative or legislative authorities, or by any other competent authority
provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

Article 3

The States Parties to the present Covenant undertake to ensure the equal right of men and
women to the enjoyment of all civil and political rights set forth in the present Covenant.

Article 4

1 . In time of public emergency which threatens the life of the nation and the existence of which
is officially proclaimed, the States Parties to the present Covenant may take measures
derogating from their obligations under the present Covenant to the extent strictly required by
the exigencies of the situation, provided that such measures are not inconsistent with their other
obligations under international law and do not involve discrimination solely on the ground of
race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made
under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall
immediately inform the other States Parties to the present Covenant, through the intermediary
of the Secretary-General of the United Nations, of the provisions from which it has derogated
and of the reasons by which it was actuated. A further communication shall be made, through
the same intermediary, on the date on which it terminates such derogation.

Article 5

1. Nothing in the present Covenant may be interpreted as implying for any State, group or
person any right to engage in any activity or perform any act aimed at the destruction of any of
the rights and freedoms recognized herein or at their limitation to a greater extent than is
provided for in the present Covenant.

2. There shall be no restriction upon or derogation from any of the fundamental human rights
recognized or existing in any State Party to the present Covenant pursuant to law, conventions,
regulations or custom on the pretext that the present Covenant does not recognize such rights or
that it recognizes them to a lesser extent.
PART III

Article 6

1. Every human being has the inherent right to life. This right shall be protected by law. No one
shall be arbitrarily deprived of his life.

2. In countries which have not abolished the death penalty, sentence of death may be imposed
only for the most serious crimes in accordance with the law in force at the time of the
commission of the crime and not contrary to the provisions of the present Covenant and to the
Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be
carried out pursuant to a final judgement rendered by a competent court.

3. When deprivation of life constitutes the crime of genocide, it is understood that nothing in this
article shall authorize any State Party to the present Covenant to derogate in any way from any
obligation assumed under the provisions of the Convention on the Prevention and Punishment of
the Crime of Genocide.

4. Anyone sentenced to death shall have the right to seek pardon or commutation of the
sentence. Amnesty, pardon or commutation of the sentence of death may be granted in all
cases.

5. Sentence of death shall not be imposed for crimes committed by persons below eighteen
years of age and shall not be carried out on pregnant women.

6. Nothing in this article shall be invoked to delay or to prevent the abolition of capital
punishment by any State Party to the present Covenant.
Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

In particular, no one shall be subjected without his free consent to medical or scientific
experimentation.

Article 8

1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be
prohibited.

2. No one shall be held in servitude.

3.

(a) No one shall be required to perform forced or compulsory labour;

(b) Paragraph 3 (a) shall not be held to preclude, in countries where imprisonment with hard
labour may be imposed as a punishment for a crime, the performance of hard labour in
pursuance of a sentence to such punishment by a competent court;
(c) For the purpose of this paragraph the term "forced or compulsory labour" shall not include:

(i) Any work or service, not referred to in subparagraph (b), normally required of a person who is
under detention in consequence of a lawful order of a court, or of a person during conditional
release from such detention;

(ii) Any service of a military character and, in countries where conscientious objection is
recognized, any national service required by law of conscientious objectors;

(iii) Any service exacted in cases of emergency or calamity threatening the life or well-being of
the community;

(iv) Any work or service which forms part of normal civil obligations.

Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary
arrest or detention. No one shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest
and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or
other officer authorized by law to exercise judicial power and shall be entitled to trial within a
reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be
detained in custody, but release may be subject to guarantees to appear for trial, at any other
stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings before a court, in order that that court may decide without delay on the lawfulness
of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable
right to compensation.

Article 10

1. All persons deprived of their liberty shall be treated with humanity and with respect for the
inherent dignity of the human person.

2.

(a) Accused persons shall, save in exceptional circumstances, be segregated from convicted
persons and shall be subject to separate treatment appropriate to their status as unconvicted
persons;

(b) Accused juvenile persons shall be separated from adults and brought as speedily as possible
for adjudication.

3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall
be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults
and be accorded treatment appropriate to their age and legal status.

Article 11

No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation.
Article 12

1. Everyone lawfully within the territory of a State shall, within that territory, have the right to
liberty of movement and freedom to choose his residence.

2. Everyone shall be free to leave any country, including his own.

3. The above-mentioned rights shall not be subject to any restrictions except those which are
provided by law, are necessary to protect national security, public order (ordre public), public
health or morals or the rights and freedoms of others, and are consistent with the other rights
recognized in the present Covenant.

4. No one shall be arbitrarily deprived of the right to enter his own country.

Article 13

An alien lawfully in the territory of a State Party to the present Covenant may be expelled
therefrom only in pursuance of a decision reached in accordance with law and shall, except
where compelling reasons of national security otherwise require, be allowed to submit the
reasons against his expulsion and to have his case reviewed by, and be represented for the
purpose before, the competent authority or a person or persons especially designated by the
competent authority.

Article 14

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal
charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to
a fair and public hearing by a competent, independent and impartial tribunal established by law.
The press and the public may be excluded from all or part of a trial for reasons of morals, public
order (ordre public) or national security in a democratic society, or when the interest of the
private lives of the parties so requires, or to the extent strictly necessary in the opinion of the
court in special circumstances where publicity would prejudice the interests of justice; but any
judgement rendered in a criminal case or in a suit at law shall be made public except where the
interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes
or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until
proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the
following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a
language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate
with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his
own choosing; to be informed, if he does not have legal assistance, of this right; and to have
legal assistance assigned to him, in any case where the interests of justice so require, and
without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and
examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language
used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will take account of their age
and the desirability of promoting their rehabilitation.
5. Everyone convicted of a crime shall have the right to his conviction and sentence being
reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when
subsequently his conviction has been reversed or he has been pardoned on the ground that a
new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the
person who has suffered punishment as a result of such conviction shall be compensated
according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly
or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already
been finally convicted or acquitted in accordance with the law and penal procedure of each
country.

Article 15

1 . No one shall be held guilty of any criminal offence on account of any act or omission which
did not constitute a criminal offence, under national or international law, at the time when it was
committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time
when the criminal offence was committed. If, subsequent to the commission of the offence,
provision is made by law for the imposition of the lighter penalty, the offender shall benefit
thereby.

2. Nothing in this article shall prejudice the trial and punishment of any person for any act or
omission which, at the time when it was committed, was criminal according to the general
principles of law recognized by the community of nations.
Article 16

Everyone shall have the right to recognition everywhere as a person before the law.

Article 17

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home
or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Article 18

1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall
include freedom to have or to adopt a religion or belief of his choice, and freedom, either
individually or in community with others and in public or private, to manifest his religion or belief
in worship, observance, practice and teaching.

2. No one shall be subject to coercion which would impair his freedom to have or to adopt a
religion or belief of his choice.

3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are
prescribed by law and are necessary to protect public safety, order, health, or morals or the
fundamental rights and freedoms of others.

4. The States Parties to the present Covenant undertake to have respect for the liberty of
parents and, when applicable, legal guardians to ensure the religious and moral education of
their children in conformity with their own convictions.

Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to
seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally,
in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special
duties and responsibilities. It may therefore be subject to certain restrictions, but these shall
only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or
morals.
Article 20

1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incitement to

discrimination, hostility or violence shall be prohibited by law.

Article 21

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise
of this right other than those imposed in conformity with the law and which are necessary in a
democratic society in the interests of national security or public safety, public order (ordre
public), the protection of public health or morals or the protection of the rights and freedoms of
others.

Article 22
1. Everyone shall have the right to freedom of association with others, including the right to form
and join trade unions for the protection of his interests.

2. No restrictions may be placed on the exercise of this right other than those which are
prescribed by law and which are necessary in a democratic society in the interests of national
security or public safety, public order (ordre public), the protection of public health or morals or
the protection of the rights and freedoms of others. This article shall not prevent the imposition
of lawful restrictions on members of the armed forces and of the police in their exercise of this
right.

3. Nothing in this article shall authorize States Parties to the International Labour Organisation
Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to
take legislative measures which would prejudice, or to apply the law in such a manner as to
prejudice, the guarantees provided for in that Convention.

Article 23

1. The family is the natural and fundamental group unit of society and is entitled to protection by
society and the State.

2. The right of men and women of marriageable age to marry and to found a family shall be
recognized.

3. No marriage shall be entered into without the free and full consent of the intending spouses.

4. States Parties to the present Covenant shall take appropriate steps to ensure equality of rights
and responsibilities of spouses as to marriage, during marriage and at its dissolution. In the case
of dissolution, provision shall be made for the necessary protection of any children.
Article 24

1. Every child shall have, without any discrimination as to race, colour, sex, language, religion,
national or social origin, property or birth, the right to such measures of protection as are
required by his status as a minor, on the part of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have a name.

3. Every child has the right to acquire a nationality.

Article 25

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned
in article 2 and without unreasonable restrictions:

(a) To take part in the conduct of public affairs, directly or through freely chosen
representatives;

(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal
suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the
electors;

(c) To have access, on general terms of equality, to public service in his country.

Article 26

All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to
all persons equal and effective protection against discrimination on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social origin, property, birth
or other status.
Article 27
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such
minorities shall not be denied the right, in community with the other members of their group, to
enjoy their own culture, to profess and practise their own religion, or to use their own language.

PART IV

Article 28

1. There shall be established a Human Rights Committee (hereafter referred to in the present
Covenant as the Committee). It shall consist of eighteen members and shall carry out the
functions hereinafter provided.

2. The Committee shall be composed of nationals of the States Parties to the present Covenant
who shall be persons of high moral character and recognized competence in the field of human
rights, consideration being given to the usefulness of the participation of some persons having
legal experience.

3. The members of the Committee shall be elected and shall serve in their personal capacity.

Article 29

1. The members of the Committee shall be elected by secret ballot from a list of persons
possessing the qualifications prescribed in article 28 and nominated for the purpose by the
States Parties to the present Covenant.

2. Each State Party to the present Covenant may nominate not more than two persons. These
persons shall be nationals of the nominating State.

3. A person shall be eligible for renomination.

Article 30

1. The initial election shall be held no later than six months after the date of the entry into force
of the present Covenant.

2. At least four months before the date of each election to the Committee, other than an election
to fill a vacancy declared in accordance with article 34, the Secretary-General of the United
Nations shall address a written invitation to the States Parties to the present Covenant to submit
their nominations for membership of the Committee within three months.

3. The Secretary-General of the United Nations shall prepare a list in alphabetical order of all the
persons thus nominated, with an indication of the States Parties which have nominated them,
and shall submit it to the States Parties to the present Covenant no later than one month before
the date of each election.

4. Elections of the members of the Committee shall be held at a meeting of the States Parties to
the present Covenant convened by the Secretary General of the United Nations at the
Headquarters of the United Nations. At that meeting, for which two thirds of the States Parties to
the present Covenant shall constitute a quorum, the persons elected to the Committee shall be
those nominees who obtain the largest number of votes and an absolute majority of the votes of
the representatives of States Parties present and voting.

Article 31

1. The Committee may not include more than one national of the same State.

2. In the election of the Committee, consideration shall be given to equitable geographical

distribution of membership and to the representation of the different forms of civilization and of
the principal legal systems.

Article 32
1. The members of the Committee shall be elected for a term of four years. They shall be eligible
for re-election if renominated. However, the terms of nine of the members elected at the first
election shall expire at the end of two years; immediately after the first election, the names of
these nine members shall be chosen by lot by the Chairman of the meeting referred to in article
30, paragraph 4.
2. Elections at the expiry of office shall be held in accordance with the preceding articles of this
part of the present Covenant.

Article 33

1. If, in the unanimous opinion of the other members, a member of the Committee has ceased to
carry out his functions for any cause other than absence of a temporary character, the Chairman
of the Committee shall notify the Secretary-General of the United Nations, who shall then declare
the seat of that member to be vacant.

2. In the event of the death or the resignation of a member of the Committee, the Chairman
shall immediately notify the Secretary-General of the United Nations, who shall declare the seat
vacant from the date of death or the date on which the resignation takes effect.

Article 34

1. When a vacancy is declared in accordance with article 33 and if the term of office of the
member to be replaced does not expire within six months of the declaration of the vacancy, the
Secretary-General of the United Nations shall notify each of the States Parties to the present
Covenant, which may within two months submit nominations in accordance with article 29 for
the purpose of filling the vacancy.

2. The Secretary-General of the United Nations shall prepare a list in alphabetical order of the
persons thus nominated and shall submit it to the States Parties to the present Covenant. The
election to fill the vacancy shall then take place in accordance with the relevant provisions of this
part of the present Covenant.

3. A member of the Committee elected to fill a vacancy declared in accordance with article 33
shall hold office for the remainder of the term of the member who vacated the seat on the
Committee under the provisions of that article.

Article 35

The members of the Committee shall, with the approval of the General Assembly of the United
Nations, receive emoluments from United Nations resources on such terms and conditions as the
General Assembly may decide, having regard to the importance of the Committee's
responsibilities.

Article 36

The Secretary-General of the United Nations shall provide the necessary staff and facilities for
the effective performance of the functions of the Committee under the present Covenant.

Article 37

1. The Secretary-General of the United Nations shall convene the initial meeting of the
Committee at the Headquarters of the United Nations.

2. After its initial meeting, the Committee shall meet at such times as shall be provided in its
rules of procedure.

3. The Committee shall normally meet at the Headquarters of the United Nations or at the United
Nations Office at Geneva.

Article 38
Every member of the Committee shall, before taking up his duties, make a solemn declaration in
open committee that he will perform his functions impartially and conscientiously.

Article 39

1. The Committee shall elect its officers for a term of two years. They may be re-elected.

2. The Committee shall establish its own rules of procedure, but these rules shall provide, inter
alia, that:

(a) Twelve members shall constitute a quorum;

(b) Decisions of the Committee shall be made by a majority vote of the members present.

Article 40

1. The States Parties to the present Covenant undertake to submit reports on the measures they
have adopted which give effect to the rights recognized herein and on the progress made in the
enjoyment of those rights: (a) Within one year of the entry into force of the present Covenant
for the States Parties concerned;

(b) Thereafter whenever the Committee so requests.

2. All reports shall be submitted to the Secretary-General of the United Nations, who shall
transmit them to the Committee for consideration. Reports shall indicate the factors and
difficulties, if any, affecting the implementation of the present Covenant.

3. The Secretary-General of the United Nations may, after consultation with the Committee,
transmit to the specialized agencies concerned copies of such parts of the reports as may fall
within their field of competence.

4. The Committee shall study the reports submitted by the States Parties to the present
Covenant. It shall transmit its reports, and such general comments as it may consider
appropriate, to the States Parties. The Committee may also transmit to the Economic and Social
Council these comments along with the copies of the reports it has received from States Parties
to the present Covenant.

5. The States Parties to the present Covenant may submit to the Committee observations on any
comments that may be made in accordance with paragraph 4 of this article.
Article 41

1. A State Party to the present Covenant may at any time declare under this article that it
recognizes the competence of the Committee to receive and consider communications to the
effect that a State Party claims that another State Party is not fulfilling its obligations under the
present Covenant. Communications under this article may be received and considered only if
submitted by a State Party which has made a declaration recognizing in regard to itself the
competence of the Committee. No communication shall be received by the Committee if it
concerns a State Party which has not made such a declaration. Communications received under
this article shall be dealt with in accordance with the following procedure:

(a) If a State Party to the present Covenant considers that another State Party is not giving
effect to the provisions of the present Covenant, it may, by written communication, bring the
matter to the attention of that State Party. Within three months after the receipt of the
communication the receiving State shall afford the State which sent the communication an
explanation, or any other statement in writing clarifying the matter which should include, to the
extent possible and pertinent, reference to domestic procedures and remedies taken, pending, or
available in the matter;

(b) If the matter is not adjusted to the satisfaction of both States Parties concerned within six
months after the receipt by the receiving State of the initial communication, either State shall
have the right to refer the matter to the Committee, by notice given to the Committee and to the
other State;

(c) The Committee shall deal with a matter referred to it only after it has ascertained that all
available domestic remedies have been invoked and exhausted in the matter, in conformity with
the generally recognized principles of international law. This shall not be the rule where the
application of the remedies is unreasonably prolonged;

(d) The Committee shall hold closed meetings when examining communications under this
article;

(e) Subject to the provisions of subparagraph (c), the Committee shall make available its good
offices to the States Parties concerned with a view to a friendly solution of the matter on the
basis of respect for human rights and fundamental freedoms as recognized in the present
Covenant;

(f) In any matter referred to it, the Committee may call upon the States Parties concerned,
referred to in subparagraph (b), to supply any relevant information;

(g) The States Parties concerned, referred to in subparagraph (b), shall have the right to be
represented when the matter is being considered in the Committee and to make submissions
orally and/or in writing;

(h) The Committee shall, within twelve months after the date of receipt of notice under
subparagraph (b), submit a report:

(i) If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its
report to a brief statement of the facts and of the solution reached;

(ii) If a solution within the terms of subparagraph (e) is not reached, the Committee shall confine
its report to a brief statement of the facts; the written submissions and record of the oral
submissions made by the States Parties concerned shall be attached to the report. In every
matter, the report shall be communicated to the States Parties concerned.

2. The provisions of this article shall come into force when ten States Parties to the present
Covenant have made declarations under paragraph I of this article. Such declarations shall be
deposited by the States Parties with the Secretary-General of the United Nations, who shall
transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time
by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration
of any matter which is the subject of a communication already transmitted under this article; no
further communication by any State Party shall be received after the notification of withdrawal of
the declaration has been received by the Secretary-General, unless the State Party concerned
has made a new declaration.
Article 42

1.

(a) If a matter referred to the Committee in accordance with article 41 is not resolved to the
satisfaction of the States Parties concerned, the Committee may, with the prior consent of the
States Parties concerned, appoint an ad hoc Conciliation Commission (hereinafter referred to as
the Commission). The good offices of the Commission shall be made available to the States
Parties concerned with a view to an amicable solution of the matter on the basis of respect for
the present Covenant;

(b) The Commission shall consist of five persons acceptable to the States Parties concerned. If
the States Parties concerned fail to reach agreement within three months on all or part of the
composition of the Commission, the members of the Commission concerning whom no
agreement has been reached shall be elected by secret ballot by a two-thirds majority vote of
the Committee from among its members.
2. The members of the Commission shall serve in their personal capacity. They shall not be
nationals of the States Parties concerned, or of a State not Party to the present Covenant, or of a
State Party which has not made a declaration under article 41.

3. The Commission shall elect its own Chairman and adopt its own rules of procedure.

4. The meetings of the Commission shall normally be held at the Headquarters of the United
Nations or at the United Nations Office at Geneva. However, they may be held at such other
convenient places as the Commission may determine in consultation with the Secretary-General
of the United Nations and the States Parties concerned.

5. The secretariat provided in accordance with article 36 shall also service the commissions
appointed under this article.

6. The information received and collated by the Committee shall be made available to the
Commission and the Commission may call upon the States Parties concerned to supply any other
relevant information.

7. When the Commission has fully considered the matter, but in any event not later than twelve
months after having been seized of the matter, it shall submit to the Chairman of the Committee
a report for communication to the States Parties concerned:

(a) If the Commission is unable to complete its consideration of the matter within twelve
months, it shall confine its report to a brief statement of the status of its consideration of the
matter;

(b) If an amicable solution to the matter on tie basis of respect for human rights as recognized in
the present Covenant is reached, the Commission shall confine its report to a brief statement of
the facts and of the solution reached;

(c) If a solution within the terms of subparagraph (b) is not reached, the Commission's report
shall embody its findings on all questions of fact relevant to the issues between the States
Parties concerned, and its views on the possibilities of an amicable solution of the matter. This
report shall also contain the written submissions and a record of the oral submissions made by
the States Parties concerned;

(d) If the Commission's report is submitted under subparagraph (c), the States Parties
concerned shall, within three months of the receipt of the report, notify the Chairman of the
Committee whether or not they accept the contents of the report of the Commission.

8. The provisions of this article are without prejudice to the responsibilities of the Committee
under article 41.

9. The States Parties concerned shall share equally all the expenses of the members of the
Commission in accordance with estimates to be provided by the Secretary-General of the United
Nations.

10. The Secretary-General of the United Nations shall be empowered to pay the expenses of the
members of the Commission, if necessary, before reimbursement by the States Parties
concerned, in accordance with paragraph 9 of this article.

Article 43

The members of the Committee, and of the ad hoc conciliation commissions which may be
appointed under article 42, shall be entitled to the facilities, privileges and immunities of experts
on mission for the United Nations as laid down in the relevant sections of the Convention on the
Privileges and Immunities of the United Nations.

Article 44
The provisions for the implementation of the present Covenant shall apply without prejudice to
the procedures prescribed in the field of human rights by or under the constituent instruments
and the conventions of the United Nations and of the specialized agencies and shall not prevent
the States Parties to the present Covenant from having recourse to other procedures for settling
a dispute in accordance with general or special international agreements in force between them.

Article 45

The Committee shall submit to the General Assembly of the United Nations, through the
Economic and Social Council, an annual report on its activities.

PART V

Article 46

Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of
the United Nations and of the constitutions of the specialized agencies which define the
respective responsibilities of the various organs of the United Nations and of the specialized
agencies in regard to the matters dealt with in the present Covenant.

Article 47

Nothing in the present Covenant shall be interpreted as impairing the inherent right of all
peoples to enjoy and utilize fully and freely their natural wealth and resources.

PART VI

Article 48

1. The present Covenant is open for signature by any State Member of the United Nations or
member of any of its specialized agencies, by any State Party to the Statute of the International
Court of Justice, and by any other State which has been invited by the General Assembly of the
United Nations to become a Party to the present Covenant.

2. The present Covenant is subject to ratification. Instruments of ratification shall be deposited

with the Secretary-General of the United Nations.

3. The present Covenant shall be open to accession by any State referred to in paragraph 1 of
this article.

4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-
General of the United Nations.

5. The Secretary-General of the United Nations shall inform all States which have signed this
Covenant or acceded to it of the deposit of each instrument of ratification or accession.

Article 49

1. The present Covenant shall enter into force three months after the date of the deposit with
the Secretary-General of the United Nations of the thirty-fifth instrument of ratification or
instrument of accession.

2. For each State ratifying the present Covenant or acceding to it after the deposit of the thirty-
fifth instrument of ratification or instrument of accession, the present Covenant shall enter into
force three months after the date of the deposit of its own instrument of ratification or
instrument of accession.

Article 50

The provisions of the present Covenant shall extend to all parts of federal States without any
limitations or exceptions.

Article 51
1. Any State Party to the present Covenant may propose an amendment and file it with the
Secretary-General of the United Nations. The Secretary-General of the United Nations shall
thereupon communicate any proposed amendments to the States Parties to the present
Covenant with a request that they notify him whether they favour a conference of States Parties
for the purpose of considering and voting upon the proposals. In the event that at least one third
of the States Parties favours such a conference, the Secretary-General shall convene the
conference under the auspices of the United Nations. Any amendment adopted by a majority of
the States Parties present and voting at the conference shall be submitted to the General
Assembly of the United Nations for approval.

2. Amendments shall come into force when they have been approved by the General Assembly of
the United Nations and accepted by a two-thirds majority of the States Parties to the present
Covenant in accordance with their respective constitutional processes. 3. When amendments
come into force, they shall be binding on those States Parties which have accepted them, other
States Parties still being bound by the provisions of the present Covenant and any earlier
amendment which they have accepted.

Article 52

1. Irrespective of the notifications made under article 48, paragraph 5, the Secretary-General of
the United Nations shall inform all States referred to in paragraph I of the same article of the
following particulars:

(a) Signatures, ratifications and accessions under article 48;

(b) The date of the entry into force of the present Covenant under article 49 and the date of the
entry into force of any amendments under article 51.

Article 53

1. The present Covenant, of which the Chinese, English, French, Russian and Spanish texts are
equally authentic, shall be deposited in the archives of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of the present
Covenant to all States referred to in article 48.

International Covenant on Economic, Social and

Cultural Rights

Adopted and opened for signature, ratification and accession by

General Assembly resolution 2200A (XXI) of 16 December 1966
entry into force 3 January 1976, in accordance with article 27
Preamble

The States Parties to the present Covenant,

Considering that, in accordance with the principles proclaimed in the Charter of the United
Nations, recognition of the inherent dignity and of the equal and inalienable rights of all
members of the human family is the foundation of freedom, justice and peace in the world,
Recognizing that these rights derive from the inherent dignity of the human person,

Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free
human beings enjoying freedom from fear and want can only be achieved if conditions are
created whereby everyone may enjoy his economic, social and cultural rights, as well as his civil
and political rights,

Considering the obligation of States under the Charter of the United Nations to promote universal
respect for, and observance of, human rights and freedoms,

Realizing that the individual, having duties to other individuals and to the community to which he
belongs, is under a responsibility to strive for the promotion and observance of the rights
recognized in the present Covenant,

Agree upon the following articles:

PART I

Article 1

1. All peoples have the right of self-determination. By virtue of that right they freely determine
their political status and freely pursue their economic, social and cultural development.

2. All peoples may, for their own ends, freely dispose of their natural wealth and resources
without prejudice to any obligations arising out of international economic co-operation, based
upon the principle of mutual benefit, and international law. In no case may a people be deprived
of its own means of subsistence.

3. The States Parties to the present Covenant, including those having responsibility for the
administration of Non-Self-Governing and Trust Territories, shall promote the realization of the
right of self-determination, and shall respect that right, in conformity with the provisions of the
Charter of the United Nations.

PART II

Article 2

1. Each State Party to the present Covenant undertakes to take steps, individually and through
international assistance and co-operation, especially economic and technical, to the maximum of
its available resources, with a view to achieving progressively the full realization of the rights
recognized in the present Covenant by all appropriate means, including particularly the adoption
of legislative measures.

2. The States Parties to the present Covenant undertake to guarantee that the rights enunciated
in the present Covenant will be exercised without discrimination of any kind as to race, colour,
sex, language, religion, political or other opinion, national or social origin, property, birth or
other status.

3. Developing countries, with due regard to human rights and their national economy, may
determine to what extent they would guarantee the economic rights recognized in the present
Covenant to non-nationals.

Article 3

The States Parties to the present Covenant undertake to ensure the equal right of men and
women to the enjoyment of all economic, social and cultural rights set forth in the present
Covenant.
Article 4

The States Parties to the present Covenant recognize that, in the enjoyment of those rights
provided by the State in conformity with the present Covenant, the State may subject such
rights only to such limitations as are determined by law only in so far as this may be compatible
with the nature of these rights and solely for the purpose of promoting the general welfare in a
democratic society.

Article 5

1. Nothing in the present Covenant may be interpreted as implying for any State, group or
person any right to engage in any activity or to perform any act aimed at the destruction of any
of the rights or freedoms recognized herein, or at their limitation to a greater extent than is
provided for in the present Covenant.

2. No restriction upon or derogation from any of the fundamental human rights recognized or
existing in any country in virtue of law, conventions, regulations or custom shall be admitted on
the pretext that the present Covenant does not recognize such rights or that it recognizes them
to a lesser extent.

PART III

Article 6

1. The States Parties to the present Covenant recognize the right to work, which includes the
right of everyone to the opportunity to gain his living by work which he freely chooses or
accepts, and will take appropriate steps to safeguard this right.

2. The steps to be taken by a State Party to the present Covenant to achieve the full realization
of this right shall include technical and vocational guidance and training programmes, policies
and techniques to achieve steady economic, social and cultural development and full and
productive employment under conditions safeguarding fundamental political and economic
freedoms to the individual.

Article 7

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of
just and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:

(i) Fair wages and equal remuneration for work of equal value without distinction of any kind, in
particular women being guaranteed conditions of work not inferior to those enjoyed by men, with
equal pay for equal work;

(ii) A decent living for themselves and their families in accordance with the provisions of the
present Covenant;

(b) Safe and healthy working conditions;

(c) Equal opportunity for everyone to be promoted in his employment to an appropriate higher
level, subject to no considerations other than those of seniority and competence;

(d ) Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as
well as remuneration for public holidays

Article 8

1. The States Parties to the present Covenant undertake to ensure:

(a) The right of everyone to form trade unions and join the trade union of his choice, subject
only to the rules of the organization concerned, for the promotion and protection of his economic
and social interests. No restrictions may be placed on the exercise of this right other than those
prescribed by law and which are necessary in a democratic society in the interests of national
security or public order or for the protection of the rights and freedoms of others;
(b) The right of trade unions to establish national federations or confederations and the right of
the latter to form or join international trade-union organizations;

(c) The right of trade unions to function freely subject to no limitations other than those
prescribed by law and which are necessary in a democratic society in the interests of national
security or public order or for the protection of the rights and freedoms of others;

(d) The right to strike, provided that it is exercised in conformity with the laws of the particular
country.

2. This article shall not prevent the imposition of lawful restrictions on the exercise of these
rights by members of the armed forces or of the police or of the administration of the State.
3. Nothing in this article shall authorize States Parties to the International Labour Organisation
Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to
take legislative measures which would prejudice, or apply the law in such a manner as would
prejudice, the guarantees provided for in that Convention.

Article 9

The States Parties to the present Covenant recognize the right of everyone to social security,
including social insurance.

Article 10

The States Parties to the present Covenant recognize that:

1. The widest possible protection and assistance should be accorded to the family, which is the
natural and fundamental group unit of society, particularly for its establishment and while it is
responsible for the care and education of dependent children. Marriage must be entered into with
the free consent of the intending spouses.

2. Special protection should be accorded to mothers during a reasonable period before and after
childbirth. During such period working mothers should be accorded paid leave or leave with
adequate social security benefits.

3. Special measures of protection and assistance should be taken on behalf of all children and
young persons without any discrimination for reasons of parentage or other conditions. Children
and young persons should be protected from economic and social exploitation. Their employment
in work harmful to their morals or health or dangerous to life or likely to hamper their normal
development should be punishable by law. States should also set age limits below which the paid
employment of child labour should be prohibited and punishable by law.

Article 11

1. The States Parties to the present Covenant recognize the right of everyone to an adequate
standard of living for himself and his family, including adequate food, clothing and housing, and
to the continuous improvement of living conditions. The States Parties will take appropriate steps
to ensure the realization of this right, recognizing to this effect the essential importance of
international co-operation based on free consent.

2. The States Parties to the present Covenant, recognizing the fundamental right of everyone to
be free from hunger, shall take, individually and through international co-operation, the
measures, including specific programmes, which are needed:

(a) To improve methods of production, conservation and distribution of food by making full use
of technical and scientific knowledge, by disseminating knowledge of the principles of nutrition
and by developing or reforming agrarian systems in such a way as to achieve the most efficient
development and utilization of natural resources;

(b) Taking into account the problems of both food-importing and food-exporting countries, to
ensure an equitable distribution of world food supplies in relation to need.
Article 12

1. The States Parties to the present Covenant recognize the right of everyone to the enjoyment
of the highest attainable standard of physical and mental health.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full
realization of this right shall include those necessary for:

(a) The provision for the reduction of the stillbirth-rate and of infant mortality and for the healthy
development of the child;

(b) The improvement of all aspects of environmental and industrial hygiene;

(c) The prevention, treatment and control of epidemic, endemic, occupational and other
diseases;

(d) The creation of conditions which would assure to all medical service and medical attention in
the event of sickness.

Article 13

1. The States Parties to the present Covenant recognize the right of everyone to education. They
agree that education shall be directed to the full development of the human personality and the
sense of its dignity, and shall strengthen the respect for human rights and fundamental
freedoms. They further agree that education shall enable all persons to participate effectively in
a free society, promote understanding, tolerance and friendship among all nations and all racial,
ethnic or religious groups, and further the activities of the United Nations for the maintenance of
peace.

2. The States Parties to the present Covenant recognize that, with a view to achieving the full
realization of this right:

(a) Primary education shall be compulsory and available free to all;

(b) Secondary education in its different forms, including technical and vocational secondary
education, shall be made generally available and accessible to all by every appropriate means,
and in particular by the progressive introduction of free education;

(c) Higher education shall be made equally accessible to all, on the basis of capacity, by every
appropriate means, and in particular by the progressive introduction of free education;

(d) Fundamental education shall be encouraged or intensified as far as possible for those persons
who have not received or completed the whole period of their primary education;

(e) The development of a system of schools at all levels shall be actively pursued, an adequate
fellowship system shall be established, and the material conditions of teaching staff shall be
continuously improved.

3. The States Parties to the present Covenant undertake to have respect for the liberty of
parents and, when applicable, legal guardians to choose for their children schools, other than
those established by the public authorities, which conform to such minimum educational
standards as may be laid down or approved by the State and to ensure the religious and moral
education of their children in conformity with their own convictions.

4. No part of this article shall be construed so as to interfere with the liberty of individuals and
bodies to establish and direct educational institutions, subject always to the observance of the
principles set forth in paragraph I of this article and to the requirement that the education given
in such institutions shall conform to such minimum standards as may be laid down by the State.
Article 14
Each State Party to the present Covenant which, at the time of becoming a Party, has not been
able to secure in its metropolitan territory or other territories under its jurisdiction compulsory
primary education, free of charge, undertakes, within two years, to work out and adopt a
detailed plan of action for the progressive implementation, within a reasonable number of years,
to be fixed in the plan, of the principle of compulsory education free of charge for all.

Article 15

1. The States Parties to the present Covenant recognize the right of everyone:

(a) To take part in cultural life;

(b) To enjoy the benefits of scientific progress and its applications;

(c) To benefit from the protection of the moral and material interests resulting from any
scientific, literary or artistic production of which he is the author.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full
realization of this right shall include those necessary for the conservation, the development and
the diffusion of science and culture.
3. The States Parties to the present Covenant undertake to respect the freedom indispensable
for scientific research and creative activity.

4. The States Parties to the present Covenant recognize the benefits to be derived from the
encouragement and development of international contacts and co-operation in the scientific and
cultural fields.

PART IV

Article 16

1. The States Parties to the present Covenant undertake to submit in conformity with this part of
the Covenant reports on the measures which they have adopted and the progress made in
achieving the observance of the rights recognized herein.

2.

(a) All reports shall be submitted to the Secretary-General of the United Nations, who shall
transmit copies to the Economic and Social Council for consideration in accordance with the
provisions of the present Covenant;

(b) The Secretary-General of the United Nations shall also transmit to the specialized agencies
copies of the reports, or any relevant parts therefrom, from States Parties to the present
Covenant which are also members of these specialized agencies in so far as these reports, or
parts therefrom, relate to any matters which fall within the responsibilities of the said agencies in
accordance with their constitutional instruments.

Article 17

1. The States Parties to the present Covenant shall furnish their reports in stages, in accordance
with a programme to be established by the Economic and Social Council within one year of the
entry into force of the present Covenant after consultation with the States Parties and the
specialized agencies concerned.

2. Reports may indicate factors and difficulties affecting the degree of fulfilment of obligations
under the present Covenant.

3. Where relevant information has previously been furnished to the United Nations or to any
specialized agency by any State Party to the present Covenant, it will not be necessary to
reproduce that information, but a precise reference to the information so furnished will suffice.

Article 18
Pursuant to its responsibilities under the Charter of the United Nations in the field of human
rights and fundamental freedoms, the Economic and Social Council may make arrangements with
the specialized agencies in respect of their reporting to it on the progress made in achieving the
observance of the provisions of the present Covenant falling within the scope of their activities.
These reports may include particulars of decisions and recommendations on such implementation
adopted by their competent organs.

Article 19

The Economic and Social Council may transmit to the Commission on Human Rights for study
and general recommendation or, as appropriate, for information the reports concerning human
rights submitted by States in accordance with articles 16 and 17, and those concerning human
rights submitted by the specialized agencies in accordance with article 18.

Article 20

The States Parties to the present Covenant and the specialized agencies concerned may submit
comments to the Economic and Social Council on any general recommendation under article 19
or reference to such general recommendation in any report of the Commission on Human Rights
or any documentation referred to therein.

Article 21

The Economic and Social Council may submit from time to time to the General Assembly reports
with recommendations of a general nature and a summary of the information received from the
States Parties to the present Covenant and the specialized agencies on the measures taken and
the progress made in achieving general observance of the rights recognized in the present
Covenant.

Article 22

The Economic and Social Council may bring to the attention of other organs of the United
Nations, their subsidiary organs and specialized agencies concerned with furnishing technical
assistance any matters arising out of the reports referred to in this part of the present Covenant
which may assist such bodies in deciding, each within its field of competence, on the advisability
of international measures likely to contribute to the effective progressive implementation of the
present Covenant.

Article 23

The States Parties to the present Covenant agree that international action for the achievement of
the rights recognized in the present Covenant includes such methods as the conclusion of
conventions, the adoption of recommendations, the furnishing of technical assistance and the
holding of regional meetings and technical meetings for the purpose of consultation and study
organized in conjunction with the Governments concerned.

Article 24

Nothing in the present Covenant shall be interpreted as impairing the provisions of the Charter of
the United Nations and of the constitutions of the specialized agencies which define the
respective responsibilities of the various organs of the United Nations and of the specialized
agencies in regard to the matters dealt with in the present Covenant.

Article 25

Nothing in the present Covenant shall be interpreted as impairing the inherent right of all
peoples to enjoy and utilize fully and freely their natural wealth and resources.

PART V
Article 26
1. The present Covenant is open for signature by any State Member of the United Nations or
member of any of its specialized agencies, by any State Party to the Statute of the International
Court of Justice, and by any other State which has been invited by the General Assembly of the
United Nations to become a party to the present Covenant.

2. The present Covenant is subject to ratification. Instruments of ratification shall be deposited

with the Secretary-General of the United Nations.

3. The present Covenant shall be open to accession by any State referred to in paragraph 1 of
this article.

4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-
General of the United Nations.

5. The Secretary-General of the United Nations shall inform all States which have signed the
present Covenant or acceded to it of the deposit of each instrument of ratification or accession.

Article 27

1. The present Covenant shall enter into force three months after the date of the deposit with
the Secretary-General of the United Nations of the thirty-fifth instrument of ratification or
instrument of accession.

2. For each State ratifying the present Covenant or acceding to it after the deposit of the thirty-
fifth instrument of ratification or instrument of accession, the present Covenant shall enter into
force three months after the date of the deposit of its own instrument of ratification or
instrument of accession.

Article 28

The provisions of the present Covenant shall extend to all parts of federal States without any
limitations or exceptions.

Article 29

1. Any State Party to the present Covenant may propose an amendment and file it with the
Secretary-General of the United Nations. The Secretary-General shall thereupon communicate
any proposed amendments to the States Parties to the present Covenant with a request that
they notify him whether they favour a conference of States Parties for the purpose of considering
and voting upon the proposals. In the event that at least one third of the States Parties favours
such a conference, the Secretary-General shall convene the conference under the auspices of the
United Nations. Any amendment adopted by a majority of the States Parties present and voting
at the conference shall be submitted to the General Assembly of the United Nations for approval.

2. Amendments shall come into force when they have been approved by the General Assembly of
the United Nations and accepted by a two-thirds majority of the States Parties to the present
Covenant in accordance with their respective constitutional processes.

3. When amendments come into force they shall be binding on those States Parties which have
accepted them, other States Parties still being bound by the provisions of the present Covenant
and any earlier amendment which they have accepted.

Article 30

Irrespective of the notifications made under article 26, paragraph 5, the Secretary-General of the
United Nations shall inform all States referred to in paragraph I of the same article of the
following particulars:

(a) Signatures, ratifications and accessions under article 26;

(b) The date of the entry into force of the present Covenant under article 27 and the date of the
entry into force of any amendments under article 29.
Article 31

1. The present Covenant, of which the Chinese, English, French, Russian and Spanish texts are
equally authentic, shall be deposited in the archives of the United Nations.

2. The Secretary-General of the United Nations shall transmit certified copies of the present
Covenant to all States referred to in article 26.

Writ of Habeas Corpus

28 5870

In many countries, authorities may take citizens and incarcerate them for months or years
without charging them. Those imprisoned have no legal means by which they can protest or
challenge the imprisonment. The framers of the U. S. Constitution wanted to prohibit this kind of
occurrence in the new United States. Therefore, they included a clause in the Constitution
that allows courts to issue writs of habeas corpus. Many states also recognize writs of habeas
corpus in addition to the federal government. The U. S. Constitution also specifically prohibits
the government from suspending proceedings for writs of habeas corpus except under
extraordinary circumstances such as during times of war.

How Does Habeas Corpus Work?

Defendants who are considering challenging the legal basis of their imprisonment, its duration,
or certain conditions of confinement may seek relief from a court by filing an application for a
"writ of habeas corpus." A writ of habeas corpus (which literally means to "produce the body") is
a court order to a person or agency holding someone in custody (such as a warden) to deliver the
imprisoned individual to the court issuing the order and to show a valid reason for that person's
detention.

Sometimes, especially where there are disputed facts, the court may hold an evidentiary hearing
before ruling on a writ of habeas corpus. During the hearing, the parties (the prisoner and the
government) can present evidence and the court may also issue and enforce subpoenas in order
to obtain and examine evidence. If challenging the present basis for a detention, a prisoner may
include evidence that his or her sentence was miscalculated or that good time credits earned by
the prisoner were not properly awarded. If an evidentiary hearing is held, the court will usually
appoint an attorney to represent the prisoner.

If granted, a writ of habeas corpus could lead to relief such as:

Release from custody;

Reduction in a prison sentence;
An order halting illegal conditions of confinement; or
A declaration of rights.

Limitations of Habeas Corpus

While Habeas Corpus allows prisoners to challenge the fact of their present confinement, it does
have its limitations. Specifically, these writs cannot be used to challenge a finding of guilt as that
is reserved for the criminal appeal process. Also, in many cases where prisoners are challenging
the conditions of their confinement, they may be required to use the civil rights
complaint process instead of habeas corpus.

When it comes to appealing guilty verdicts, prisoners are normally required to first exhaust any
available relief in the state courts before seeking relief in federal courts. However, when seeking
to remedy violations of their constitutional rights while in confinement, prisoners can file their
complaint in either state or federal court. They can bypass state courts with these complaints
because they typically include claims under provisions of the U.S. constitution, such as the
Eighth Amendment. However, when challenging conditions of confinement through a civil rights
complaint, the Prison Litigation Reform Act requires that prisoners first exhaust all
administrative grievance procedures before filing their complaint.

Writ of Amparo
Recurso de amparo
From Wikipedia, the free encyclopedia
The writ of amparo (also called recurso de amparo or juicio de amparo) is a remedy for the
protection of constitutional rights, found in certain jurisdictions. In some legal systems,
predominantly those of the Spanish-speaking world, the amparo remedy or action is an effective
and inexpensive instrument for the protection of individual rights.
Amparo, generally granted by a supreme or constitutional court, serves a dual protective
purpose: it protects the citizen and his basic guarantees, and protects the constitution itself by
ensuring that its principles are not violated by statutes or actions of the state that undermine the
basic rights enshrined therein.
It resembles, in some respects, constitutional remedies such as the writ of security available in
Brazil and the constitutional complaint (Verfassungsbeschwerde) procedure found in Germany.
In many countries, an amparo action is intended to protect all rights other than physical liberty,
which may be protected instead by habeas corpus remedies. Thus, in the same way
that habeas corpus guarantees physical freedom, amparo protects other basic rights. It may
therefore be invoked by any person who believes that any of his rights, implicitly or explicitly
protected by the constitution (or by applicable international treaties), is being violated.
Habeas corpus
From Wikipedia, the free encyclopedia
Habeas corpus ; Latin: you must present the person in court) is a writ (legal action) which
requires a person under arrest to be brought before a judge or into court. This ensures that a
prisoner can be released from unlawful detention, in other words, detention lacking sufficient
cause or evidence. The remedy can be sought by the prisoner or by another person coming to
the prisoners aid. The legal right to apply for a habeas corpus is also called by the same name.
This right originated in the English legal system to assist wealthy landowners, but it is now
available in many nations. It has historically been an important legal instrument safeguarding
individual freedom of certain individuals against arbitrary state action.
A writ of habeas corpus, also known as the Great Writ, is a summons with the force of a court
order; it is addressed to the custodian (a prison official for example) and demands that a
prisoner be taken before the court, and that the custodian present proof of authority, allowing
the court to determine whether the custodian has lawful authority to detain the person. If the
custodian does not have authority to detain the prisoner, then they must be released from
custody. The prisoner, or another person acting on his or her behalf, may petition the court, or a
judge, for a writ of habeas corpus. One reason for the writ to be sought by a person other than
the prisoner is that the detainee might be held incommunicado.
Most civil law jurisdictions provide a similar remedy for those unlawfully detained, but this is not
always called habeas corpus. For example, in some Spanish-speaking nations, the equivalent
remedy for unlawful imprisonment is the amparo de libertad (protection of freedom).
Habeas corpus has certain limitations. It is technically only a procedural remedy; it is a
guarantee against any detention that is forbidden by law, but it does not necessarily protect
other rights, such as the entitlement to a fair trial. So if an imposition such as internment without
trial is permitted by the law then habeas corpus may not be a useful remedy. Furthermore, in
many countries, the process may be suspended due to a national emergency.
The right to petition for a writ of habeas corpus has nonetheless long been celebrated as the
most efficient safeguard of the liberty of the subject. The jurist Albert Venn Dicey wrote that the
British Habeas Corpus Acts declare no principle and define no rights, but they are for practical
purposes worth a hundred constitutional articles guaranteeing individual liberty.
The writ of habeas corpus is one of what are called the extraordinary, common law, or
prerogative writs, which were historically issued by the English courts in the name of the
monarch to control inferior courts and public authorities within the kingdom. The most common
of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo,
and certiorari.
The due process for such petitions is not simply civil or criminal, because they incorporate the
presumption of non-authority. The official who is the respondent has the burden to prove his
authority to do or not do something. Failing this, the court must decide for the petitioner, who
may be any person, not just an interested party. This differs from a motion in a civil process in
which the movant must have standing, and bears the burden of proof.

The Right to Nationality of Foundlings in

International Law
Posted on December 3, 2015

By Dean Ralph A. Sarmiento[1]

Contents
Introduction
Nationality
Statelessness
The Right to Nationality in International Law
The Right to Nationality in Resolutions of the United Nations General Assembly
The Right to Nationality in International Conventions
The Scope and Meaning of the Right to Nationality
International Conventions that Specifically Apply to Foundlings
The Right to Nationality in Customary International Law
The Right to Nationality as a Customary Rule of International Law Derived from Treaties
Conclusion
Introduction
This article seeks to answer the question of whether International Law sufficiently protects the right
of foundlings to a nationality. In particular, it focuses on the issue of whether International Law
affords foundlings the right to be considered nationals of the State in which they are found, and
whether States have a binding obligation to confer their nationality on foundlings found in their
territory.

As used in this article, a foundling is a child of unknown parentage found abandoned on the territory
of a State.[2] It must be an infant at the time it was found abandoned. The Blacks Law Dictionary
defines a foundling as a deserted or abandoned infant; a child without a parent or guardian, its
relatives being unknown.[3] The Oxford English Dictionary also uses the term infant in
defining foundling, thus an infant that has been abandoned by its parents and is discovered and
cared for by others.[4] The word infant, on the other hand, is defined as a very young child or
baby.[5]
This article will argue that there are gaps in International Law that result in inadequate protection and
implementation of the right of foundlings to a nationality. In particular, this article will show that the
obligation of a State to confer its nationality upon a foundling in its territory exists only as a matter of
treaty obligation in International Law.

This article is structured as follows: The first section will talk about nationality and discuss the
different principles of acquiring a nationality and the corresponding obligations of States. The second
section will talk about statelessness and the measures taken States to reduce it. The third section will
examine the rules that confer nationality on foundlings in international conventions and treaties, and
determine the scope of their coverage and their binding nature. The fourth section will determine if
the existing practices or rules that confer nationality on foundlings have attained the status of
customary international law and, therefore, binding upon all States.

For purposes of this article, the terms nationality and citizenship shall be used interchangeably and
without distinction. Most States consider citizenship, which is the term that is commonly used in
municipal or national law, as synonymous with nationality, which is the term used in International
Law. The United States (U.S.) and Russia are two of the notable exceptions. Under U.S. law, not all
U.S. nationals are U.S. citizens. For example, the inhabitants of American Samoa and Swain Island
are considered nationalsfor International Law purposes but are not considered citizens for purposes
of the U.S. Constitution and its laws.[6] Under Russian law, the term nationality is associated with
the ethnicity of a person, while the term citizenship refers to the legal bond between an individual
and the State.[7]
Nationality
Nationality is generally understood as the legal bond that connects a person to a particular State. It
constitutes his membership in the particular State. It makes him a national (or a citizen in the point of
view of municipal law) of that State.
Nationality creates reciprocal obligations between the citizen and the State. It imposes upon the
citizen the duty to render allegiance to the State and subjects him to the obligations created by the
laws of that State. Thus, it is the basis of the States exercise of jurisdiction over the person. On the
part of the State, nationality imposes the responsibility to protect the citizen. It also gives the State
the right to accord diplomatic protection to its nationals and to make claims on their behalf.

Article 15(1) of the Universal Declaration of Human Rights[8] provides that everyone has a right to
nationality and that no one shall be arbitrarily deprived of his nationality nor denied the right to
change his nationality.
International Law, however, recognizes the right of each State to determine who its citizens are, and
to establish its own standards for conferring nationality albeit only for domestic law purposes. In
the Nottebohm case,[9]the International Court of Justice (ICJ) ruled that Liechtenstein is the sole
judge of whether Nottebohm is a citizen of the State but such is for domestic law purposes only as
other nations are not obliged to recognize Nottebohms Liechtenstein citizenship especially absent a
genuine link between Nottebohm and that State.
The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality
Laws[10] (hereafter, the 1930 Hague Convention) provides the following rules in determining a
persons nationality:
It is for each State to determine under its own law who are its nationals. This law shall be
recognized by other States in so far as it is consistent with international conventions, international
custom, and the principles of law generally recognized with regard to nationality. (Article 1)
Any question as to whether a person possesses the nationality of a particular State shall be
determined in accordance with the law of that State. (Article 2)
A State may confer its nationality exclusively upon persons born within its territory or jurisdiction by
the application of the principle of jus soli (by place of birth)[11] regardless of the nationality of their
parents. A State may also confer nationality only to persons whose parents are nationals of the State
by the application of the principle of jus sanguinis (by right of blood) regardless of whether they are
born within or outside its territory. A State may also apply both principles of jus soli and jus
sanguinis. A State may also confer nationality upon persons through naturalization, which does not
require the naturalized citizen to be born within the territory of the State or to be born of parents who
are nationals of the State. A State may also consider marriage and adoption as methods of acquiring a
nationality.
The concurrent application of the principles of jus soli and jus sanguinis may result in an individual
having the nationalities of two States, i.e., dual citizenship. If a child whose parents State of
nationality applies the principle of jus sanguinis is born in the territory of another State that applies
the principle of jus soli, the child would be possessed of dual citizenship. The child acquires both the
nationality of his parents State of nationality and the nationality of the State where he was born.
Article 3 of the 1930 Hague Convention recognizes that a person having two or more nationalities
may be regarded as its national by each of the States whose nationality he possesses. However,
Article 5 of the said Convention also adds that:
Within a third State, a person having more than one nationality shall be treated as if he had only
one. Without prejudice to the application of its law in matters of personal status and of any
conventions in force, a third State shall, of the nationalities which any such person possesses,
recognise exclusively in its territory either the nationality of the country in which he is habitually and
principally resident, or the nationality of the country with which in the circumstances he appears to
be in fact most closely connected.

Statelessness
While the concurrent application of the principles of jus soli and jus sanguinismay result in a person
having dual or multiple nationalities, their conflicting application, on the other hand, may result in an
anomaly whereby an individual is not possessed of any nationality.
If a child whose parents State of nationality exclusively applies the principle of jus soli is born in the
territory of another State that exclusively applies the principle of jus sanguinis, the child would not
be considered a citizen of either State; hence, a stateless person.
Article 1 of the 1954 Convention Relating to the Status of Stateless Persons[12] defines a stateless
person as a person who is not considered as a national by any State under the operation of its laws.
Since many rights and privileges afforded by States may be exercised only by their nationals, a
stateless person, therefore, is at a big disadvantage.
While nationality is the basis of the reciprocal obligation of allegiance on the part of the citizen and
obligation of protection on the part of the State, a stateless person is not without obligations to the
State in which he finds himself. Article 2 of the 1954 Convention Relating to the Status of Stateless
Persons[13] provides that:
Every stateless person has duties to the country in which he finds himself, which require in
particular that he conform to its laws and regulations as well as to measures taken for the
maintenance of public order.

Reciprocally, although not a national of the State in which he finds himself, a stateless person is not
entirely without right and protection. Under the same Convention,[14] a stateless person shall be
accorded the same treatment at least as favorable as that accorded to the nationals of the State with
respect to freedom to practice their religion and freedom as regards the religious education of their
children.[15] A stateless person shall also be accorded the same treatment granted to a national of the
country of his habitual residence with respect to rights to artistic rights and industrial property, free
access to courts, rationing, elementary education, and public relief and assistance.[16]A stateless
person shall also be accorded the same treatment which shall be as favorable as possible and, in any
event, not less favorable than that accorded to aliens generally in the same circumstances with
respect to rights to movable and immovable property, right of association, wage-earning
employment, liberal professions, housing, and freedom of movement.[17]
Aiming to reduce statelessness by international agreement, the 1961 Convention on the Reduction of
Statelessness[18] has adopted the following measures to prevent statelessness:
A Contracting State shall grant its nationality to a person born in its territory who would otherwise
be stateless. (Article 1)
A Contracting State shall grant its nationality to a person, not born in the territory of a Contracting
State, who would otherwise be stateless, if the nationality of one of his parents at the time of the
persons birth was that of that State. (Article 4)
The Right to Nationality in International Law
Since nationality is the legal bond between a State and an individual, such bond is not possible
without the consent of the State. Such consent may be manifested by a State in several ways:

1. Expressly, through a municipal law that confers nationality upon a foundling;

2. Expressly, through an international convention or treaty where a State assumes the obligation
to confer its nationality upon foundlings in its territory; or
 3. Impliedly, through a rule of customary international law that imposes an obligation on the
State to confer its nationality upon foundlings in its territory.
This article focuses only on conferment of nationality on foundlings either by way of an obligation
assumed under an international convention or imposed by an international custom or norm. However,
the examination of municipal laws that confer nationality upon foundlings is still relevant as
evidence of a general practice accepted as law, i.e., an international custom.[19]
Hence, under International Law, the right of a foundling to nationality can be based on international
conventions or on international customs, both of which are considered to be sources of International
Law pursuant to Article 38, paragraph 1 of the Statute of the International Court of Justice (ICJ
Statute).[20]
The Right to Nationality in Resolutions of the United Nations General Assembly
The Universal Declaration of Human Rights,[21] which was adopted by the General Assembly of the
United Nations on 10 December 1948, has codified nationality as a human right.[22] 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.

As to the binding nature of resolutions of the U.N. General Assembly, Professor Ian Brownlie
expresses the view that these resolutions, in general, are not binding on member States. He adds,
however, that when the resolutions are concerned with general norms of international law, then
acceptance by a majority vote constitutes evidence of the opinions of governments in the widest
forum for the expression of such opinions.[23]
As a mere resolution of the General Assembly, the Universal Declaration of Human Rights is not per
se legally binding. There is, however, a view that since 1948 the Declaration has become binding as a
new rule of Customary International Law.[24] Paragraph 2 of the Proclamation of
Teheran,[25] which was adopted by the International Conference on Human Rights held in Iran in
1968 declares: The Universal Declaration of Human Rights states a common understanding of the
peoples of the world concerning the inalienable and inviolable rights of all members of the human
family and constitutes an obligation for the members of the international community.
In 1959, the Declaration on the Rights of the Child[26] 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,[27]adopted on 3 December 1986, and published on
6 February 1987, also affirms the right to 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.

The Right to Nationality in International Conventions

International conventions or treaties are agreements that establish rules that are expressly recognized
by the parties to them.[28] The Vienna Convention on the Law of Treaties[29] defines a treaty as an
international agreement concluded between States in written form and governed by international law,
whether embodied in a single instrument or in two or more related instruments and whatever its
particular designation.[30]
Since express consent is required for a State to be bound by the rules that international conventions
or treaties establish, States that do not become a party to a particular convention or treaty cannot be
bound by its terms. This principle was explained by the ICJ in the North Sea Continental Shelf
cases[31] where it stated that:
In principle, when a number of States, including the one whose conduct is invoked, and those
invoking it, have drawn up a convention specifically providing for a particular method by which the
intention to become bound by the rgime of the convention is to be manifested-namely by the
carrying out of certain prescribed formalities (ratification, accession), it is not lightly to be presumed
that a State which has not carried out these formalities, though at all times fully able and entitled to
do so, has nevertheless somehow become bound in another way. Indeed if it were a question not of
obligation but of rights,if, that is to say, a State which, though entitled to do so, had not ratified or
acceded, attempted to claim rights under the convention, on the basis of a declared willingness to be
bound by it, or of conduct evincing acceptance of the conventional rgime, it would simply be told
that, not having become a party to the convention it could not claim any rights under it until the
professed willingness and acceptance had been manifested in the prescribed form.[32]
The principle is also echoed in the Vienna Convention on the Law of Treaties. It states: A treaty
does not create either obligations or rights for a third State without its consent.[33] It adds further:
An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend
the provision to be the means of establishing the obligation and the third State expressly accepts that
obligation in writing.[34]
Therefore, a rule conferring nationality upon foundlings, if established pursuant to an international
convention or treaty, is only binding on States that are parties to the said convention or treaty.
Consequently, foundlings found in States that are not parties to such an international convention may
not compel said States to give them their nationalities.

Thus, the following international conventions that affirm the right of everyone to a nationality must
be understood as binding only on State which are parties to them, either by ratification, accession, or
any other means allowed by the particular convention in question.

The Council of Europe affirms the right of everyone to a nationality through the European
Convention on Nationality,[35] which it adopted on 6 November 1997 at Strasbourg. It provides:
Article 4 Principles

The rules on nationality of each State Party shall be based on the following principles:

1. everyone has the right to a nationality;

2. statelessness shall be avoided;
3. no one shall be arbitrarily deprived of his or her nationality;
The Arab States also recognize the right to a nationality. Article 29 of the Arab Charter on Human
Rights,[36] which was adopted by the Council of the League of Arab States on 22 May 2004, states:
1. Everyone has the right to nationality. No one shall be arbitrarily or unlawfully deprived of his
nationality.
 2. States parties shall take such measures as they deem appropriate, in accordance with their
domestic laws on nationality, to allow a child to acquire the mothers nationality, having due
regard, in all cases, to the best interests of the child.
3. No one shall be denied the right to acquire another nationality, having due regard for the
domestic legal procedures in his country.
The Association of Southeast Asian Nations (ASEAN) also echoes a similar declaration which
affirms the right to nationality. Article 18 of the ASEAN Human Rights Declaration,[37] which was
adopted on 18 November 2012 at Phnom Penh, Cambodia, states:
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.

The Latin American States also uphold the right to nationality of every person. The American
Convention on Human Rights, Pact of San Jose, Costa Rica,[38] which was adopted by the
Organization of American States (OAS) on 22 November 1969, states:
Article 20. Right to Nationality

1. Every person has the right to a nationality.

2. Every person has the right to the nationality of the state in whose territory he was born if he
does not have the right to any other nationality.
3. No one shall be arbitrarily deprived of his nationality or of the right to change it.
The 1995 Commonwealth of Independent States Convention on Human Rights and Fundamental
Freedoms,[39] which was adopted on 26 May 1995 at Minsk, Belarus, also provides that:
Article 24

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.
In other international conventions, this right to a nationality is guaranteed in a clearer language, i.e.,
as the right to acquire a nationality, especially in the case of children.
Article 24(3) of the International Covenant on Civil and Political Rights,[40]which was adopted on
16 December 1966 in New York, affirms that: Every child has the right to acquire a nationality.
Article 7(1) of the Convention on the Rights of the Child,[41] 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.

Article 7(2) of the same Convention[42] imposes the further obligation upon States Parties to ensure
the implementation of these rights in accordance with their national law and their obligations under
the relevant international instruments in this field, in particular where the child would otherwise be
stateless.
The African States also assert the right of every child to acquire a nationality. The African Charter
on the Rights and Welfare of the Child,[43] which was adopted by the Organization of African Unity
on 11 July 1990 at Addis Ababa, Ethiopia, states:
Article 6: Name and Nationality

1. Every child shall have the right from his birth to a name.
 2. Every child shall be registered immediately after birth.
3. Every child has the right to acquire a nationality.
4. States Parties to the present Charter shall undertake to ensure that their Constitutional
legislation recognize the principles according to which a child shall acquire the nationality of
the State in the territory of which he has been born if, at the time of the childs birth, he is not
granted nationality by any other State in accordance with its laws.
The Scope and Meaning of the Right to Nationality
While there is no question about the binding nature of the provisions of international conventions
protecting the right of everyone to a nationality and to acquire a nationality, the question, however, is
the scope of the said provisions and the nature of the obligation they impose upon the states which
are parties to them. Are the said general rights to a nationality and to acquire a nationality sufficient
to impose a binding obligation upon a state party to confer its nationality upon a foundling in its
territory?

In General Comments No. 17: Article 24 (Rights of the Child),[44] the Human Rights Committee has
made the following observations:
Special attention should also be paid, in the context of the protection to be granted to children, to the
right of every child to acquire a nationality, as provided for in article 24, paragraph 3. While the
purpose of this provision is to prevent a child from being afforded less protection by society and the
State because he is stateless, it does not necessarily make it an obligation for States to give their
nationality to every child born in their territory.

In his Guide to the Travaux Prparatoires of the International Covenant on Civil and Political
Rights,[45] Marc Bossuyt made the following observations with respect to the adoption of the
wording of Article 24, paragraph 3 of the ICCPR.
During the ensuing debate, the word acquire was inserted in draft Article 24(3), and the words
from his birth were deleted. Accordingly, the word acquire would infer that naturalization was not
to be considered as a right of the individual but was accorded by the State at its discretion.[46]
Hence, the general right of everyone to nationality and of every child to acquire a nationality does
not impose an unqualified obligation on the part of a State party to give its nationality on every child
born on its territory.

The same interpretation would apply to all the other international conventions that protect the right of
everyone to nationality and the more specific right of a child to acquire a nationality, including
the Convention on the Rights of the Child which was adopted after the ICCPR. In fact, Article 7(2) of
the Convention on the Rights of the Child provides: States parties shall ensure the implementation
of these rights in accordance with their national law and their obligations under the relevant
international instruments in this field, in particular where the child would otherwise be stateless.
Article 7(2) of the Convention on the Rights of the Child underscores the equal importance of a
States national law and its obligations under the relevant international instruments in ensuring
its implementation of the right of a child to acquire a nationality, in particular where the child would
otherwise be stateless. This obligation is explained by the Human Rights Committee in paragraph 8
of General Comments No. 17,[47] which reads:
States are required to adopt every appropriate measure, both internally and in cooperation with other
States, to ensure that every child has a nationality when he is born. In this connection, 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 of the parents. The measures adopted to ensure that children have a
nationality should always be referred to in reports by States parties.

International Conventions that Specifically Apply to Foundlings

While the international conventions cited above deal with the right to nationality as applied to anyone
or any person, or to children in general, there are several international conventions that contain
specific provisions that apply to foundlings and their right to a nationality.

The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality
Laws[48] provides:
Article 14. A child whose parents are both unknown shall have the nationality of the country of
birth. If the childs 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.

Article 15. Where the nationality of a State is not acquired automatically by reason of birth on its
territory, a child born on the territory of that State of parents having no nationality, or of unknown
nationality, may obtain the nationality of the said State. The law of that State shall determine the
conditions governing the acquisition of its nationality in such cases.

The 1961 Convention on the Reduction of Statelessness,[49] on the other hand, contains the
following provisions:
Article 1
1. A Contracting State shall grant its nationality to a person born in its territory who would
otherwise be stateless. Such nationality shall be granted:
(a) at birth, by operation of law, or
(b) upon an application being lodged with the appropriate authority, by or on behalf of the person
concerned, in the manner prescribed by the national law. Subject to the provisions of paragraph 2 of
this article, no such application may be rejected.
A Contracting State which provides for the grant of its nationality in accordance with subparagraph
(b) of this paragraph may also provide for the grant of its nationality by operation of law at such age
and subject to such conditions as may be prescribed by the national law.
Article 2
A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary,
be considered to have been born within that territory of parents possessing the nationality of that
State.

Article 12
1. In relation to a Contracting State which does not, in accordance with the provisions of
paragraph 1 of article 1 or of article 4 of this Convention, grant its nationality at birth by
operation of law, the provisions of paragraph 1 of article 1 or of article 4, as the case may be,
shall apply to persons born before as well as to persons born after the entry into force of this
Convention.
 2. The provisions of paragraph 4 of article 1 of this Convention shall apply to persons born
before as well as to persons born after its entry into force.
3. The provisions of article 2 of this Convention shall apply only to foundlings found in the
territory of a Contracting State after the entry into force of the Convention for that State.
The European Convention on Nationality[50] also provides:
Article 6 Acquisition of Nationality

1 Each State Party shall provide in its internal law for its nationality to be acquired ex lege by the
following persons:
1. children one of whose parents possesses, at the time of the birth of these children, the
nationality of that State Party, subject to any exceptions which may be provided for by its
internal law as regards children born abroad. With respect to children whose parenthood is
established by recognition, court order or similar procedures, each State Party may provide
that the child acquires its nationality following the procedure determined by its internal law;
2. foundlings found in its territory who would otherwise be stateless.
The Covenant on the Rights of the Child in Islam,[51] which was adopted by the 32nd Islamic
Conference of Foreign Ministers in Sanaa, 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.
2. States Parties to the Covenant shall safeguard the elements of the childs 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.
3. The child of unknown descent or who is legally assimilated to this status shall have the right to
guardianship and care but without adoption. He shall have a right to a name, title and
nationality.
The Right to Nationality in Customary International Law
The Charter of the United Nations[52] acknowledges the existence of customary international law
through Article 38(1)(b) of the 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.[53]
Being a general practice accepted as law, a rule of customary international Law requires the presence
of a State practice (usus) and the belief that such practice is obligatory as a matter of law or juridical
necessity (opinio juris sive necesitatis). Opinio juris was described by Professor Brownlie as a sense
of legal obligation, as opposed to motives of courtesy, fairness, or morality.
We will now turn to examine if there is evidence of practice that States adhere to, out of a sense of
legal obligation (opinio juris), that is sufficient to maintain that the obligation of a State to give its
nationality upon a foundling born or found on its territory has crystallized into a rule of customary
international law.
State practice in the form of having municipal laws granting nationality on foundlings in their
territories has been found in the following States:

1. United States of America Section 301(f) of its Immigration and Nationality Act,[54] 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;

1. Canada The Citizenship Act[55] provides:

Section 3, Par. 4. (1) For the purposes of paragraph 3(1) (a), every person who, before apparently
attaining the age of seven years, was found as a deserted child in Canada shall be deemed to have
been born in Canada, unless the contrary is proved within seven years from the date the person was
found.

1. Austria The Nationality Act of 1985[56] provides that:

Article 8. (1) Until proof to the contrary, a person under the age of six months found on the territory
of the Republic is regarded as national by descent.

1. Bulgaria The Law for the Bulgarian Citizenship[57] provides:

Art. 11. Considered born on the territory of the Republic of Bulgaria is a child found on this territory,
whose parents are unknown.

1. Croatia The Law on Croatian Citizenship[58] provides:

Article 7. A child who was born or found on the territory of the Republic of Croatia shall acquire
Croatian citizenship if both of his or her parents are unknown or are persons whose citizenship is
unknown or are stateless persons. The child shall lose Croatian citizenship if by time he or she is
fourteen it shall be determined that both of his or her parents are foreign citizens.

1. Denmark The Danish Nationality Act[59] provides:

Article 1(2) A child found abandoned in Denmark will, in the absence of evidence to the contrary, be
considered a Danish national.

1. Finland Section 12 of its Nationality Act of 2003[60] provides:

Section 12. Foundlings and children of parents with unknown citizenship

A foundling who is found in Finland is considered to be a Finnish citizen as long as he or she has not
been established as a citizen of a foreign State. If the child has been established as a citizen of a
foreign State only after he or she has reached the age of five, the child retains Finnish citizenship,
however.

1. Greece The Greek Nationality Code[61] states:

Article 1(2). A person born on Greek territory shall acquire the Greek nationality by birth, provided
that such person does not acquire any foreign nationality by birth or is of unknown nationality.

1. Hungary The ACT LV of 1993 on Hungarian Citizenship[62] states:

Section 3(3) Until proven to the contrary, the following persons shall be recognized as Hungarian
citizens:
 1. b) children born of unknown parents and found in Hungary.
2. Italy The Law No. 91 of 1992[63] provides:
Article 1(2). The child of unknown parents who is found abandoned in the territory of the Republic
shall, unless possession of another citizenship is proved, be deemed citizen by birth.

1. Spain The Spanish Civil Code[64] provides that:

Article 17. The following persons are Spaniards by birth:

1. d) Those born in Spain of uncertain filiation. For these purposes, minors whose first known
place of existence is in Spanish territory shall be presumed born within Spanish territory.
2. Sweden The Act on Swedish Citizenship[65] provides:
Section 2 Any foundling discovered in Sweden shall be considered to be a Swedish citizen until any
indication to the contrary is discovered.

1. United Kingdom The British Nationality Act of 1981[66] states:

(2) A new-born infant who, after commencement, is found abandoned in the United
Kingdom shall, unless the contrary is shown, be deemed for the purposes of subsection (1)-

(a) to have been born in the United Kingdom after commencement; and

(b) to have been born to a parent who at the time of the birth was a British citizen or settled in the
United Kingdom.

1. India Section 3(1) of its Citizenship Act of 1955[67] states:

2. Citizenship by birth
(1) Except as provided in sub-section (2), every person born in India,

(a) on or after the 26th day of January, 1950.

Mere birth in India, even if both the parents are unknown, is sufficient.[68]
1. Sri Lanka Its Citizenship Act of 1948[69] provides:
2. Foundlings
Every person first found in Ceylon as a newly born deserted infant of unknown and unascertainable
parentage shall, until the contrary is proved, be deemed to have the status of a citizen of Ceylon by
descent.

1. South Korea Article 2, paragraph 2 of its Nationality Law[70] reads:

Article 2. Attainment of Nationality by Birth

(1) A person falling under any of the following subparagraphs shall be a national of the Republic of
Korea at birth:
 3. A person who was born in the Republic of Korea, if both of the persons parents are unknown
or have no identity.
(2) An abandoned child found in the Republic of Korea shall be recognized as born in the Republic
of Korea.

1. Egypt Its Law No. 26 of 1975 Concerning Egyptian Nationality[71]provides:

Article 2: Shall be considered Egyptians:

4. Those who were born in Egypt of unknown parents. A foundling in Egypt shall be considered
as born in it, unless otherwise proved.
5. Iraq Its Law No. (46) of 1963[72] provides:
Article 4: Shall hereby deemed to be an Iraqi National:

3. Every person in Iraq of unknown parents. The foundling who is found in Iraq, shall be deemed
to be born there unless there shall be an evidence against it.
4. Kuwait Its Nationality Law of 1959[73] provides:
Article 3. Kuwaiti nationality is acquired by any person born in Kuwait whose parents are unknown.
A foundling is deemed to have been born in Kuwait unless the contrary is proved.

1. Mozambique Its Nationality Act of 1975[74] states:

Article 1

1. The following shall be Mozambican nationals, provided they are born in Mozambique:
(b) Persons born of stateless parents or parents of unknown nationality or of unknown parents;

1. Algeria The Nationality Law of 1970[75] states that:

Article 7. The following are of Algerian nationality by birth in Algeria:

(1) the child born in Algeria of unknown parents;

However, the child born in Algeria of unknown parents shall not be considered to have ever been
Algerian if, before he comes of age, it is established that he is also of foreign descent and if he
possesses the nationality of his foreign parent in accordance with the law of that country.

Any foundling found in Algeria is considered to be born in Algeria until the contrary has been
proved.

1. Belize The Nationality Act of 1981[76] provides:

2. Foundlings.
Every person first found in Belize as a newly born deserted infant of unknown and unascertainable
parentage shall, until the contrary is proved, be deemed to have the status of a citizen of Belize by
descent.
 1. The following post-Communist States in Europe also grant exceptional jus soli citizenship for
children of unknown parents, found in the territory, particularly: Albania, Bosnia H., Czech
Republic, Estonia, FRY/Serbia, Latvia, Lithuania, Macedonia, Moldova, Poland, Romania,
Slovakia, and Slovenia.[77]
The above shows that there is a big corpus of domestic statutes granting citizenship on foundlings.
However, whether it satisfies the state practice requirement of customary international law is an
entirely different question.

The State practice, to establish a rule of customary international law, must be extensive, virtually
uniform, and show a general recognition that a rule of law or legal obligation is involved. As stated
by the International Court of Justice in the North Sea Continental Shelf cases:
Although the passage of only a short period of time is not necessarily, or of itself, a bar to the
formation of a new rule of customary international law on the basis of what was originally a purely
conventional rule, an indispensable requirement would be that within the period in question, short
though it might be, State practice, including that of States whose interests are specially affected,
should have been both extensive and virtually uniform in the sense of the provision invoked; and
should moreover have occurred in such a way as to show a general recognition that a rule of law or
legal obligation is involved.[78]
However, perfect uniformity in the application of the practice is not really necessary. In the Case
Concerning Military and Paramilitary Activities in and against Nicaragua[79] when it examined the
customary nature of the principles of non-use of force and non-intervention, the ICJ stated that:
It is not to be expected that in the practice of States the application of the rules in question should
have been perfect, in the sense that States should have refrained, with complete consistency, from the
use of force or from intervention in each others internal affairs. The Court does not consider that, for
a rule to be established as customary, the corresponding practice must be in absolutely rigorous
conformity with the rule. In order to deduce the existence of customary rules, the Court deems it
sufficient that the conduct of States should, in general, be consistent with such rules, and that
instances of State conduct inconsistent with a given rule should generally have been treated as
breaches of that rule, not as indications of the recognition of a new rule. If a State acts in a way prima
facie incompatible with a recognized rule, but defends its conduct by appealing to exceptions or
justifications contained within the rule itself, then whether or not the States conduct is in fact
justifiable on that basis, the significance of that attitude is to confirm rather than to weaken the
rule.[80]
The ICJ also emphasized the necessity of opinio juris in several decisions. In the North Sea
Continental Shelf cases, it observed:
Not only must the acts concerned amount to a settled practice, but they must also be such, or be
carried out in such a way, as to be evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it. The need for such a belief, i.e., the existence of a subjective
element, is implicit in the very notion of the opinio juris sive necessitatis. The States concerned must
therefore feel that they are conforming to what amounts to a legal obligation. The frequency, or even
habitua1 character of the acts is not in itself enough. There are many international acts, e.g., in the
field of ceremonial and protocol, which are performed almost invariably, but which are motivated
only by considerations of courtesy, convenience or tradition, and not by any sense of legal duty.[81]
While the State practice of conferring nationality on foundlings is sufficiently dense and extensive, it
does not appear to be virtually uniform.

A number of States give their citizenship on foundlings found in their territory without requiring that
the foundling must have been born in their territory. Some States, on the other hand, require that a
foundling be born in their territory in strict application of the principle of jus soli. But some States
implement a presumption that foundlings are deemed to have been born in their territory unless the
contrary is proved.
Other States implementing such presumption impose a period within which such presumption can be
rebutted, and that after such period and there is no evidence against it, then the presumption becomes
conclusive. An example of this is Finland, where a foundling retains Finnish citizenship if
established as a citizen of another State only after he or she has reached the age of five.[82] Another
example is Canada that considers a deserted child to have been born in Canada, unless the contrary is
proved within seven years from the date the person was found.[83]
Some States also implement an age requirement on foundlings as a condition for giving its
citizenship. For example, the United States requires that foundlings were under the age of five years
at the time they were found.[84] Canada requires that the foundling be found before apparently
reaching the age of seven years.[85] Austria requires that a foundling be found under the age of six
months.[86] The United Kingdom, on the other hand, requires that the foundling was a new-born
infant at the time it was found.[87] This reflects the understanding of some States that a foundling
must be an infant or a very young child.
Therefore, the practice of States of giving nationality to foundlings found in their territory is not
sufficiently uniform and consistent enough to constitute a rule of customary international law. There
is also no clear evidence of opinio juris that States feel a sense of legal obligation to confer their
nationality on foundlings found in their territory.
The Right to Nationality as a Customary Rule of International Law Derived from Treaties
Some treaties known as law-making treaties (trait-loi) may also establish norms which, when
coupled with opinio juris, result to rules of customary international law that become binding not only
on the parties to the treaty, but also on non-parties. Article 38 of the Vienna Convention provides:
Nothing in articles 34 to 37 precludes a rule set forth in a treaty from becoming binding upon a
third State as a customary rule of international law, recognized as such.
In the ILA Report (London Principles),[88] the International Law Association summarized the case
law on the role of treaties in the formation of customary international law:
1. A treaty may provide evidence of existing (lex lata) customary law;[89]
2. Multilateral treaties can provide the impulse or model for the formation of new customary
rules through State practice.[90]
3. Multilateral treaties can assist in the crystallization of emerging rules of customary
international law.[91]
4. A multilateral treaty may give rise to new customary rules (or to assist in their creation) of its
own impact if it is widely adopted by States and it is the clear intention of the parties to create
new customary law.[92]
Treaties can, therefore, play an important role in the crystallization of emerging norms as binding
international customs or at least to affirm their existence. In the North Sea Continental Shelf cases,
the ICJ also recognized the norm-creating nature of treaties, as one of the recognized methods of
establishing international customs, holding that:
There is no doubt that this process is a perfectly possible one and does from time to time occur: it
constitutes indeed one of the recognized methods by which new rules of customary international law
may be formed.[93]
The ICJ, however, also declared that in order to become an international custom, the provision of a
treaty in question must be:

a norm-creating provision which has constituted the foundation of, or has generated a rule which,
while only conventional or contractual in its origin, has since passed into the general corpus of
international law, and is now accepted as such by the opinio juris, so as to have become binding even
for countries which have never, and do not, become parties to the Convention.[94]
The relevant treaty provisions that specifically give foundlings the right to the nationality of the State
where they are found state provide the following:

1. A child whose parents are both unknown shall have the nationality of the country of birth.
(Art. 14, 1930 Hague Convention)[95];
2. A foundling is, until the contrary is proved, presumed to have been born on the territory of the
State in which it was found. (Art. 14, 1930 Hague Convention)[96];
3. A foundling found in the territory of a Contracting State shall, in the absence of proof to the
contrary, be considered to have been born within that territory of parents possessing the
nationality of that State. (Art. 2, 1961 Convention on the Reduction of Statelessness)[97];
4. Each State Party shall provide in its internal law for its nationality to be acquired ex lege by
foundlings found in its territory who would otherwise be stateless. ( 6, European Convention
on Nationality)[98]
For the said treaty provisions to be binding on States, which are not parties to said conventions as
norms of customary international law, said provisions must fulfill the said standards set by the ICJ.

The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws
entered into force on 1 July 1937 by virtue of the ratification or accessions of ten States.[99] As of
this writing, only twenty-two States are parties to the Convention, namely Australia, Belgium, Brazil,
Burma (Myanmar), China, Cyprus, Fiji, Great Britain, India, Kiribati, Lesotho, Liberia, Malta,
Mauritius, Monaco, Netherlands, Norway, Pakistan, Poland, Swaziland, Sweden, and
Zimbabwe.[100] Canada previously ratified the Convention in 1934 but subsequently denounced it 15
May 1996.[101]
The 1961 Convention on the Reduction of Statelessness entered into force on 13 December 1975 and
has sixty-four States parties as of this writing.[102] However, while it has more parties, its provision
on foundlings (Article 2) cannot be said to reflect existing rules of customary law. Article 12(3) of
the Convention states that the provisions of Article 2 shall apply only to foundlings found in the
territory of a Contracting State after the entry into force of the Convention for that State. That being
the case, the provision on foundlings contained in Article 2 of the Convention neither provides
evidence of existing customary law nor assists in the crystallization of rules of customary
international law. The said provision creates a purely conventional or treaty obligation that is
referable only to the Convention.
Moreover, not having been widely adopted by States, the said provision cannot give rise to a new
rule (lex ferenda) of customary international law or assist in its creation of its own impact.
The same things can be said of the provision on the nationality of foundlings in Article 6 of the
European Convention on Nationality, which entered into force on 1 March 2000. While the
Convention is also open to non-members of the Council of Europe, the Convention, as of this
writing, has been signed by twenty-nine States, but has been ratified by only twenty of those
States.[103] From the very wordings of Article 6, the obligation of a State Party to give its nationality
to foundlings found in its territory who would otherwise be stateless shall be provided in its internal
law. Evidently, it is an obligation that a State assumes within the context of the Convention, and not
arising from a belief that it is rendered obligatory by the existence of a rule of customary
international law requiring it.
Conclusion
While the right to nationality is declared as a fundamental human right by the Universal Declaration
of Human Rights and some international conventions, its specific application on foundlings is still a
matter of State prerogative and discretion. A State has the exclusive prerogative to determine who its
citizens are, which may be limited only by international obligations that the State itself has assumed
in International Law.

Some States already give their nationality to foundlings found in their territory ex lege. However,
there is no indication that such practice is done out of a sense of legal obligation, or in recognition of
what States believe to be a rule of customary international law.
The 1961 Convention on the Reduction of Statelessness has implemented provisions to secure the
right of foundlings to a nationality, and impose an obligation on States to ensure its observance by
giving their nationality on foundlings found on their territory. However, being a mere treaty or
conventional obligation, the same is binding only upon States which are parties to the Convention.
Furthermore, not having been generally accepted by States, it cannot be lightly assumed that its
provisions on foundlings have crystallized into the establishment of an obligation that exists outside
of the Convention as a matter of general practice accepted as law.
Absent a national law or an international convention where a State has agreed to assume an
obligation to confer its nationality on a foundling found in its territory, the right of a foundling to
nationality cannot be enforced by an action against the State. It is not a right that enforces itself by its
own inherent value.

Thus, the right of foundlings to a nationality will just be an empty rhetoric unless States accord it due
respect and take measures, internally and internationally, to implement the right. Foundlings in States
that have no national laws, and which are not parties to international conventions, that give
foundlings their nationality may, therefore, find themselves stateless, and International Law affords
no remedy.

Right to a Nationality and Statelessness

The Right to a Nationality

The right to a nationality is a fundamental human right. It implies the right of each individual to
acquire, change and retain a nationality.

International human rights law provides that the right of States to decide who their nationals are
is not absolute and, in particular, States must comply with their human rights obligations
concerning the granting and loss of nationality.

Arbitrary Deprivation of Nationality

The right to retain a nationality corresponds to the prohibition of arbitrary deprivation of
nationality. Arbitrary deprivation of nationality, therefore, effectively places the affected persons
in a more disadvantaged situation concerning the enjoyment of their human rights because some
of these rights may be subjected to lawful limitations that otherwise would not apply, but also
because these persons are placed in a situation of increased vulnerability to human rights
violations.
 International Legal Framework
The right to a nationality is recognized in a series of international legal instruments, including the
Universal Declaration of Human Rights, the International Convention on the Elimination of All
Forms of Racial Discrimination, the International Covenant on Civil and Political Rights, the
Convention on the Rights of the Child, the Convention on the Elimination of All Forms of
Discrimination against Women, the Convention on the Nationality of Married Women, the
Convention on the Rights of Persons with Disabilities and the International Convention on the
Protection of the Rights of All Migrant Workers and Members of Their Families. The issue of
nationality is also regulated in the Convention on the Reduction of Statelessness, the Convention
relating to the Status of Stateless Persons and the Convention relating to the Status of Refugees.

An explicit and general prohibition of arbitrary deprivation of nationality can be found in

numerous international instruments. In particular, it is worth noting that article 15 of the
Universal Declaration of Human Rights explicitly provides that no one should be arbitrarily
deprived of his or her nationality. The General Assembly, in its resolution 50/152, also
recognized the fundamental nature of the prohibition of arbitrary deprivation of nationality.

Statelessness
The 1954 Convention relating to the Status of Stateless Persons defines "stateless person" as a
person who is not considered as a national by any State under the operation of its law. The
exact number of stateless people is not known, but UNHCR estimates that there are at least 10
million globally. In addition to violations of their right to a nationality, stateless persons are
subject to several other human rights violations. States shall introduce safeguards to prevent
statelessness by granting their nationality to persons who would otherwise be stateless and are
either born in their territory or are born abroad to one of their nationals.States shall also prevent
statelessness upon loss or deprivation of nationality.

CITIZENSHIP & NATIONALITY

N.B.: Although the terms nationality and citizenship technically have two distinct meanings,
international human rights courts and advocates at times use the two terms interchangeably.
Contents
OVERVIEW
o Legal Protections
o Acquisition of Nationality
o De Jure vs. De Facto Statelessness
o Causes of Statelessness
o Consequences of Statelessness
ENFORCEMENT
o Enforcement at the International Level
o Enforcement at the National Level
SELECTED CASELAW
o Access to Nationality
o Detention and Removal of Stateless Persons
o Arbitrary Deprivation of Nationality
o Equal Access to Nationality
o Effective Nationality
ADDITIONAL RESOURCES
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. See Trop v. Dulles, 356 U.S. 86, 101-102 (1958). Individuals who lack a nationality or
an effective citizenship are therefore among the worlds most vulnerable to human rights
violations.
In recognition of the importance of having a nationality, a number of regional and international
human rights instruments include the right to a nationality. Article 15 of the Universal
Declaration of Human Rights states that everyone has the right to a nationality and that no
one shall be arbitrarily deprived of his nationality nor denied the right to change his
nationality. See also American Convention on Human Rights, art. 20. The right to a nationality
is often articulated through protection of the rights of children and the principle of non-
discrimination. For example, Article 7 of the Convention on the Rights of the Childstates that
every child has the right to acquire a nationality, while Article 5 of the Convention on the
Elimination of all Forms of Racial Discrimination requires States to prohibit and to eliminate
racial discrimination in all its forms and to guarantee the right of everyone, without distinction as
to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment
of the following rightsthe right to nationality.
Despite recognition of the right to a nationality, there are currently an estimated twelve million
people who do not have a nationality and are therefore stateless. UNHCR, Stateless People.
While statelessness is a global problem, it is particularly prevalent in South East Asia, Central
Asia, Eastern Europe, the Middle East, and several countries in Africa. UNHCR & Asylum
Aid, Mapping Statelessness in The United Kingdom 22 (2011). Estimates show that the countries
with the greatest number of stateless persons residing within their borders are Iraq, Kenya,
Myanmar, Nepal, Syria, Thailand, Estonia, and Latvia. Id.
The 1954 Convention relating to the Status of Stateless Persons (1954 Statelessness Convention)
was drafted in order to guarantee the protection of these individuals fundamental rights. Article
1(1) of the 1954 Statelessness Convention defines a stateless person as a person who is not
recognized as a national by any State under operation of its law. This definition has
subsequently become a part of customary international law. See UNHCR, Expert Meeting The
Concept of Stateless Persons Under International Law (Summary Conclusions) 2 (2010)
(commonly referred to as the UNHCR Prato Summary Conclusions).
The 1954 Statelessness Convention is similar in structure to the 1951 Convention relating to the
Status of Refugees. This is because the 1954 Statelessness Convention was originally intended to
be a Protocol to the 1951 Refugee Convention. See, e.g., Equal Rights Trust, The Protection of
Stateless Persons in Detention under International Law (Jan. 2009) 19 (Working Paper). It is not
surprising, therefore, that the 1954 Statelessness Convention addresses the same rights as those
covered in the 1951 Refugee Convention, with a few distinctions. The 1954 Statelessness
Convention applies some of the same exclusion clauses as those found in the 1951 Refugee
Convention. For example, the 1954 Statelessness Convention does not apply to persons who are
at present receiving from organs or agencies of the United Nations other than the United Nations
High Commissioner for Refugees protection or assistance so long as they are receiving such
protection or assistance. 1954 Statelessness Convention, art. 2(i).
The 1954 Statelessness Convention also recognizes the rights of stateless persons to education,
housing, access to the courts, employment, and public relief, among other rights. In some cases,
such as in access to the courts and access to public relief and primary education, stateless persons
are to be treated in the same way as nationals. See id., arts. 16, 23 and 22. In other areas,
including wage-earning employment and housing, stateless persons are to be given the same
treatment as non-citizens in the same circumstances. See id., art. 17 and 21 Recognizing that
many stateless persons lack documentation, Article 27requires States to issue identity documents
to stateless persons on their territory, while Article 28 obliges States to issue travel documents to
stateless persons unless there are compelling reasons for national security or public order for not
doing so. See id., arts. 27 and 28.
A major limitation of the 1954 Statelessness Convention, and where it departs significantly from
the 1951 Refugee Convention, is the protection afforded in Article 31. Article 31prohibits the
expulsion of stateless persons lawfully in the territory of a State Party save for grounds of
national security or public order. See id. art. 31(1). Article 31 also requires that the expulsion of
stateless persons on these grounds be in pursuance of a decision reached in due process of
law. Id. art. 31(2). The issue with Article 31 is that it limits its protection to stateless
persons lawfully on the States territory. Because many stateless persons lack identity and travel
documents, they have no means of gaining lawful entry into a State and thus are ineligible for
protection from expulsion. This is in sharp contrast to Article 31 of the 1951 Refugee
Convention, which recognizes the difficulties refugees often face in acquiring valid travel
documents and prohibits States from penalizing refugees who enter their territories
illegally. See 1951 Refugee Convention, art. 31(1).
Article 32 of the 1954 Statelessness Convention requires States to as far as possible facilitate
the assimilation and naturalization of stateless persons. More detailed provisions for the
acquisition of nationality as well as the prevention of statelessness in the first place are found in
the 1961 Convention on the Reduction of Statelessness (1961 Statelessness Convention). Article
1(2) of the 1961 Statelessness Convention describes the conditions a State may place on granting
nationality and stipulates that a State may require a period of habitual residence but it may not
exceed five years. The 1961 Statelessness Convention also provides that children should acquire
the nationality of the State in which they are born if they would otherwise be stateless and that a
State may not deprive an individual of their nationality if doing so would render the individual
stateless. See 1961 Statelessness Convention, arts. 1 and 8.

Nationality can be a contentious issue, however, as the acquisition and deprivation of nationality
implicates other areas of the law including a States sovereign right to determine who may enter
and remain within its territory. Consequently neither the 1954 nor the 1961 Statelessness
Conventions are widely ratified and a large number of States have domestic laws that deprive
individuals access to a nationality on a discriminatory basis and/or do not adequately protect the
human rights of stateless persons on their territory.

Legal Protections
The following instruments address the right to a nationality:

1954 Convention relating to the Status of Stateless Persons

1961 Convention on the Reduction of Statelessness
1951 Convention relating to the Status of Refugees and 1967 Optional Protocol relating to the Status
of Refugees
Universal Declaration of Human Rights (art. 15)
International Covenant on Civil and Political Rights (art. 24(3))
Convention on the Elimination of all Forms of Racial Discrimination (art. 5(d)(iii))
Convention on the Rights of the Child (arts. 7 and 8)
1997 European Convention on Nationality
Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession
American Declaration of the Rights and Duties of Man: art. 19
 American Convention on Human Rights (art. 20)
Convention on the Elimination of All Forms of Discrimination against Women (art. 9)
African Charter on the Rights and Welfare of the Child (art. 6)
Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in
Africa (Maputo Protocol) (art. 6(g) and 6(h))
Arab Charter on Human Rights (art. 24)
Convention on the Rights of Persons with Disabilities (art. 18)
Acquisition of Nationality
Nationality can be acquired through one of three ways: by birth on a States territory (jus soli),
by descent from a States national (jus sanguinis), or by naturalization. The citizenship laws of
each State dictate whether the State applies jus soli or jus sanguinis and explain the requirements
for naturalization. In States that apply pure jus soli, an individual acquires the citizenship of that
State if they are born on the States territory, regardless of the citizenship or immigration status
of their parents. See, e.g., 8 U.S.C. 1401. In other States, such as the United Kingdom, an
individual acquires citizenship by birth on the territory provided his/her parents were legally
settled in the U.K. at the time of his/her birth. See British Nationality Act, 1981, c. 61, 1. In
States that apply jus sanguinis, it does not matter where an individual is born; if one or both of
his/her parents is a citizen of the country, citizenship will pass from the parent to the
child. See Act of 15 February 1962 on Polish Citizenship 2. A number of States, however,
provide that only the father may pass his nationality on to his children. (See Discussion
in Causes of Statelessness below.) Finally, States such as the United States, apply both jus
soli and jus sanguinis; that is, children born on U.S. territory are automatically U.S. citizens, as
are children born abroad to U.S. citizen parents. See 8 U.S.C. 1401.
De Jure vs. De Facto Statelessness
The definition of a stateless person provided in the 1954 Statelessness Convention a person
who is not considered a national by any State under operation of its law describes the situation
of the de jure stateless. 1954 Statelessness Convention, art. 1(1) Thus, the obligations imposed
on States by the 1954 Statelessness Convention apply only to de jurestateless persons, although
the Final Act included a non-binding recommendation that States take measures to protect the
rights of de facto stateless persons. UN Conference of Plenipotentiaries on the Status of
Refugees and Stateless Persons, Final Act of the United Nations Conference of Plenipotentiaries
on the Status of Refugees and Stateless Persons, 25 July 1951, A/CONF.2/108/Rev.1
There has been much debate within the international community concerning the definition of de
facto statelessness. A generally applied definition of a de facto stateless person has been a
person unable to demonstrate that he/she is de jure stateless, yet he/she has no effective
nationality and does not enjoy national protection. See, e.g., Gbor Gyulai, Hungarian Helsinki
Comm., Forgotten Without Reason: Protection of Non-Refugee Stateless Persons in Central
Europe 8 (2007). Thus, de facto stateless persons technically have a nationality, but for a variety
of reasons they do not enjoy the rights and protections persons holding their nationality normally
enjoy.
The issue with this definition has been determining the meaning of the term effective
nationality. Traditionally, the divide has been over whether a persons nationality could be
ineffective inside as well as outside their country of nationality. This debate unfolded during the
2010 UNHCR Expert Meeting on the Concept of Statelessness under International Law, where
participants ultimately concluded that the term de facto statelessness should refer to persons
outside the country of their nationality who are unable or, for valid reasons, are unwilling to
avail themselves of the protection of that country. UNHCR, Expert Meeting The Concept of
Stateless Persons Under International Law (Summary Conclusions) 6 (2010) (commonly referred
to as the UNHCR Prato Summary Conclusions).
In the above context, protection refers to the right of diplomatic protection exercised by a
State of nationality in order to remedy an internationally wrongful act against one of its
nationals, as well as diplomatic and consular protection and assistance generally, including in
relation to return to the State of nationality. Id. A persons inability or unwillingness to seek the
protection of the country of his/her nationality is often the result of a well-founded fear of
persecution, meaning that refugees are considered de facto stateless. It is important to note,
however, that not all de facto stateless persons are refugees. Id.
Causes of Statelessness
There are a variety of reasons why a person may be or become stateless. The most commonly
discussed causes of statelessness are: state succession, conflict of laws and other technical or
administrative matters, discrimination against certain racial or ethnic minority groups, and
gender-based discrimination in nationality laws. See, e.g., UNHCR & Asylum Aid, Mapping
Statelessness in The United Kingdom 23-24 (2011).
STATE SUCCESSION
The dissolution of the former Soviet Union and Yugoslav Federation as well as post-colonial
state formation in Africa and Asia have contributed to large populations of stateless persons in
Africa, Eastern Europe, and Asia. Id at 23. For example, when Estonia regained its independence
in 1991, following over forty years of Soviet occupation, the government restricted the automatic
conferral of Estonian citizenship to persons who had been Estonian citizens prior to the Soviet
occupation and their descendants. Refugees International, Left Behind: Stateless Russians Search
for Equality in Estonia. As a result of this policy, hundreds of thousands of ethnic Russians
living in Estonia many of whom had been forcibly relocated to Estonia during the occupation
were left stateless. Id. Although the Estonian government has taken steps to encourage such
individuals to apply for Estonian or Russian citizenship, the naturalization requirements for
Estonian citizenship, such as the language requirement and civics exam, remain challenging for
many ethnic Russians who live isolated from the ethnic Estonian population. Id.
The risk of statelessness in cases of state succession has led to the adoption of legal protections
that specifically address nationality and state succession. Article 10(1) of the 1961 Statelessness
Convention requires any treaty contracted between States concerning the transfer of territory to
include specific provisions addressing the nationality of the citizens of the territory at
issue. See 1961 Statelessness Convention, art. 10(1). In the absence of such provisions, a State is
required to confer its nationality on residents of the transferred territory if they would otherwise
become stateless. See 1961 Convention, art. 10(2). The Council of Europe has also drafted
a Convention on the Avoidance of Statelessness in Relation to State Succession.
A future issue for the international community is the status of nationals of sinking states, that
is, States that are at danger of physically disappearing as the result of climate change. This issue
is without precedent and is currently being studied by relevant stakeholders within the
international community. See, e.g., Jane McAdam, Disappearing States, Statelessness and The
Boundaries of International Law (2010).
CONFLICT OF LAWS AND ADMINISTRATIVE PRACTICES
Statelessness cases in this context are the result of a variety of legal and administrative factors.
The fact that some States apply jus soli while others apply jus sanguinis in their citizenship laws
is one such factor. A person may be at risk of statelessness if they are born in a State that
applies jus sanguinis while his/her parents were born in a State that applies jus soli, leaving the
person ineligible for citizenship in both States due to conflicting laws. See UNHCR & Asylum
Aid, Mapping Statelessness in The United Kingdom 23 (2011). Additionally, some States state in
their nationality laws that a citizen will automatically lose their nationality after a specified
period of absence from the State. Id. Because of the risk of statelessness these laws create, the
1961 Statelessness Convention provides that, with some limited exceptions, a person shall not be
deprived of their nationality unless they have acquired or possess another nationality. See 1961
Statelessness Convention, arts. 6-8.
Lack of registration at birth, which is a serious issue in developing countries, also places children
at risk of statelessness. Although not having a birth certificate does not automatically make a
child stateless, children who have no legal proof of where they were born, the identity of their
parents, or the birthplace of their parents, are at a heightened risk of statelessness. UNHCR &
Asylum Aid, Mapping Statelessness in The United Kingdom 23 (2011). The importance of birth
registration can be seen in various international and regional human rights instruments that
guarantee the right of every child to be registered at birth. See International Covenant on Civil
and Political Rights, art. 24(2); Convention on the Rights of the Child, art. 7(1); African Charter
on the Rights and Welfare of the Child, art. 6(2).
DISCRIMINATION AGAINST MINORITY GROUPS
In some cases, minority groups have either been prevented from acquiring the nationality of the
country in which they reside or have been arbitrarily deprived of their nationality. A
contemporary example of this problem can be seen in Sudan, where the government has
been urged to ensure that Sudanese of southern origin are not stripped of their Sudanese
citizenship if they do not become citizens of the new country of South Sudan. Similar concerns
of statelessness have arisen in Burma, Syria, Iraq and Kuwait in recent decades.
In 1982, the Rohingya, an ethnic minority group of Burma, were stripped of their Burmese
citizenship. Refugees International, Bangladesh: The Silent Crisis. The Rohingya still residing in
Burma have been consistently denied access to citizenship over the last several decades and have
been subjected to violence as well as restrictions on their rights to marry and freedom of
movement, among other severe human rights abuses. Id.
The Kurdish populations of Syria and Iraq have experienced a similar fate. In 1962, the Syrian
government issued Decree No. 93 which announced a one-day census in the al-Hasakeh
province, home to a large population of Syrian Kurds. Human Rights Watch, Syria: The Silenced
Kurds (1996). Residents were required to prove residence in Syria since 1945 or lose citizenship
but residents were given insufficient notice of the census. Id. As a result, 120,000 Kurds were
denaturalized, a figure accounting for 20 percent of Syrias Kurdish population at the time. Id. In
1980, Falil Kurds in Iraq were stripped of their citizenship following a decree issued by then-
President Saddam Hussein. UNHCR & Asylum Aid, Mapping Statelessness in The United
Kingdom 24 (2011).
In other cases, certain ethnic groups within a country were deemed ineligible for citizenship
following independence. In Kuwait, Article 1 of the 1959 Nationality Act states that any person
or their descendants who settled in Kuwait prior to 1920 and maintained their residence there
until enactment of the law is a Kuwaiti national. Nationality Law, art. 1 (1959) (Kuwait).
Through the application of this law, about one-third of Kuwaits population at the time of its
independence was classified as Bidoon Jinsiya (without nationality). Refugees International,
Kuwait. It should be noted that some were in fact eligible for citizenship, but did not register
during the relevant period because of a misunderstanding of the importance of acquiring Kuwaiti
citizenship. Id. Since the 1980s, the Bidoon in Kuwait have been treated, as illegal residents and
have experienced discrimination in the employment and education sectors as well as in their
ability to obtain legal documentation, including birth and marriage certificates. Open Society
Institute & Refugees International, Without Citizenship: Statelessness, discrimination and
repression in Kuwait 5-6 (2009). While the government has recently issued decrees allowing
small numbers of Bidoon to naturalize, the majority of Bidoon remain stateless. Id at 7-8.
Palestinians throughout the Middle East and North Africa have also been regularly denied access
to citizenship. The 1965 Casablanca Protocol provides that Arab States hosting Palestinian
refugees are to treat them the same as citizens, while Palestinians retain their
nationality. Consequently, Palestinians cannot attain nationality in many States in North Africa
and the Middle East. See Laura van Waas, The Situation of Stateless Persons in the Middle East
and North Africa 42 (2010). The exception is Jordan, which granted citizenship to a large
number of Palestinians through Article 3(2) of its Law No. 6 of 1954 on Nationality (last
amended 1987). However, the Jordanian government has since restricted access to citizenship for
Palestinians living within its borders. Between 2004 and 2008, the Jordanian government had
denaturalized 2700 Jordanians of Palestinian origin and that thousands more were at risk of being
denaturalized. See Human Rights Watch, Stateless again: Palestinian-Origin Jordanians Deprived
of Their Nationality (2010).
The 5712-1952 Nationality Law of Israel grants citizenship to Palestinians residing in Israel on
the basis of residency within the State, though the International Crisis Group has reported that
Arab-Israelis experience discrimination and marginalization. Nationality Law, 5712-1952,
(Isr.); see Intl Crisis Group, Back to Basics: Israels Arab Minority and the Israeli-Palestinian
Conflict ii (2012). In 2006, the controversial 2003 Nationality and Entry into Israel (Temporary
Order) Law which, among other provisions, bars the Palestinian spouses of Israelis from access
to citizenship and residency in Israel was upheld by the High Court of Justice in 2006. See High
Court rejects petition against citizenship law, Jerusalem Post, Jan. 11, 2012.
Statelessness has had a profound effect on the lives of Palestinians. Unable to acquire citizenship
and exercise the rights associated with it, many Palestinians live in poverty in refugee camps.
The situation of Palestinians in Lebanon where Lebanese law places serious restrictions on their
ability to work and own property is considered particularly dire. See, e.g., Human Rights Watch,
World Report 2011: Lebanon (2011). Meanwhile, the Palestinian populations of Kuwait and
Libya were forcibly expelled in 1991 and 1995 respectively. See, e.g., Abbas Shiblak, Stateless
Palestinians, 26 Forced Migration Review 8 (2006).
GENDER-BASED DISCRIMINATION
In a large number of States that apply jus sanguinis, only men are able to pass their nationality
on to their children. See, e.g., Decree No. 15 on Lebanese Nationality, art. 1 (1925). Although
many of these States provide that a child may acquire the nationality of his/her mother when the
father is unknown or paternity has not been legally established, the children of citizen mothers
and foreign fathers are at risk of statelessness if the father is stateless or is unwilling to complete
the necessary steps to apply for citizenship for his child within the fathers own country. See,
e.g., Nationality Law, art. 3 (1959) (Kuwait).
Article 9 of the Convention on the Elimination of All Forms of Discrimination against
Women(CEDAW) recognizes the right of women to pass their nationality on to their children, as
well as to their husbands. CEDAW, art. 9. This provision has been weakened, however, by a
significant number of States that have made reservations to this particular article. SeeDivision for
the Advancement of Women, Declarations, Reservations and Objections to CEDAW (listing
reservations to specific articles by country). Further, this right is restricted within Africas
regional human rights system. Article 6(h) of the Protocol to the African Charter on Human and
Peoples Rights on the Rights of the Women in Africa (Maputo Protocol) provides that women
have equal rights with men to pass their nationality on to their children except where this is
contrary to a provision in national legislation or is contrary to national security interests. This is
problematic because a number of countries in Africa have clauses in their national legislation
that only permit men to pass their nationality on to their children. See, e.g., Law No. 61-70 of 7
March 1961 determining Senegalese Nationality, and subsequent amendments, Article 5.
In recent years, some States have taken steps to grant women equal rights in respect to
nationality. In 2011, Tunisias interim government announced it was withdrawing all of its
reservations to CEDAW, which included a reservation to Article 9. Human Rights Watch,
Tunisia: Government Lifts Restrictions on Womens Rights Treaty. In 2007, Morocco amended
its nationality laws to enable women married to foreigners to pass their nationality on to their
children. Laura van Waas, The Situation of Stateless Persons in the Middle East and North
Africa 14 (2010). Egypt adopted similar measures in 2004 when it amended its Nationality Act
to entitle children born to Egyptian mothers and foreign fathers to Egyptian citizenship. Id. at 13.
However, in Egypt, women married to Palestinian men were still prevented from passing their
nationality on to their children. Id. In May 2011, however, the Ministry of the Interior announced
that these children would also be eligible for citizenship. Womens Learning Partnership,
Womens Rights in the Arab Spring, Middle East/North Africa Overview and Fact Sheet.
Consequences of Statelessness
Stateless persons live in an extremely precarious and vulnerable situation. Although humans
have rights under international human rights law, individuals without citizenship lack the legal
recognition necessary to exercise many rights, and have no expectation of diplomatic protection
from any government. Statelessness affects a persons ability to enjoy fundamental privileges
such as marriage, wage-earning employment, education, health, and freedom of movement.
Consequently, poverty becomes an integral part of stateless life. UNHCR & Asylum Aid,
Mapping Statelessness in The United Kingdom 25 (2011). Stateless persons are also particularly
vulnerable to expulsion from their country of habitual residence because they lack a legal status
and are at risk of prolonged detention, particularly in the context of pre-deportation detention,
because there is often no State that will admit them. See Equal Rights Trust, The Protection of
Stateless Persons in Detention under International Law (Jan. 2009) 36-7 (Working Paper).
ENFORCEMENT
Enforcement at the International Level
The United Nations High Commissioner for Refugees (UNHCR) mandate includes protection of
stateless persons, in addition to its duties to protect and assist refugees. UNHCR, Stateless
UNHCR Actions. This is in accordance with a series of General Assembly Resolutions
delegating UNHCR as the UN body to which stateless persons claiming the benefits of the
Statelessness Conventions should apply. See United Nations, General Assembly, Question of the
Establishment, in accordance with the Convention on the Reduction of Statelessness, of a body
to which persons claiming the benefit of the Convention may apply, A/RES/3274 (XXIX), 10
December 1974; United Nations, General Assembly, Question of the Establishment, in
accordance with the Convention on the Reduction of Statelessness, of a body to which persons
claiming the benefit of the Convention may apply, A/RES/49/169, 30 November 1976.
UNHCRs duties with regard to statelessness include identifying cases of statelessness, reducing
statelessness, preventing statelessness, and providing assistance to stateless persons. Id. During
the fiftieth anniversary year of the 1961 Statelessness Convention, the UNHCR lead a campaign
to increase protection of stateless persons by encouraging more countries to ratify the two
Statelessness Conventions and by holding a series of expert meetings on their key provisions. As
a result of UNHCRs efforts, seventeen more countries acceded to the 1954 Statelessness
Convention and/or the 1961 Statelessness Convention between 2011and 2012. UNHCR, UN
Conventions on Statelessness. The UNHCR also drew from the summary conclusions of its
expert meetings and drafted a series of guidelines on issues such as the definition of statelessness
in Article 1(1) of the 1954 Statelessness Convention, statelessness identification procedures, and
the status of stateless persons at the national level.
Enforcement at the National Level
The 1954 Statelessness Convention does not include procedures for States to use in identifying
stateless persons on their territory. Thus, in addition to the low number of States that have
ratified the Statelessness Conventions, a major factor limiting protection of stateless persons at
the national level is the general lack of statelessness identification procedures. See, eg., UNHCR
& Asylum Aid, Mapping Statelessness in The United Kingdom 64. (2011). Statelessness
identification procedures are necessary because it is only once an individual has been recognized
as being stateless that he or she is entitled to the protections of the 1954 Statelessness
Convention and the relevant national legislation incorporating those protections. In the absence
of statelessness status determination procedures, many stateless individuals apply for asylum in
an attempt to access some form of legal protection. See id. at 39. This is problematic, as many
stateless persons do not have a well-founded fear of persecution and consequently do not qualify
as refugees. Ineligible for protection as refugees and without access to recognition as a stateless
person, these individuals often find themselves in legal limbo. See id. at 59.
A lack of statelessness determination procedures does not necessarily mean a lack of protection
for stateless persons, however. Some States without formal statelessness determination
procedures offer stateless persons a form of subsidiary protection. See, e.g., Gbor Gyulai,
Hungarian Helsinki Comm., Forgotten Without Reason: Protection of Non-Refugee Stateless
Persons in Central Europe (2007). This generally consists of a renewable residence permit and
travel documents. Id. Persons who qualify for subsidiary protection may also have access to
education, employment, and social services, although such access is often subject to the same
restrictions as are applied to foreign nationals within the States territory and in some cases
amounts to a lesser form of protection than that granted to refugees. Id.
States have also implemented measures for reducing statelessness in their nationality laws, even
in the case of States not party to the 1961 Statelessness Convention. A large number of States
consider abandoned children found within their territory to be nationals absent evidence to the
contrary. See, e.g., Act of 15 February 1962 on Polish Citizenship 5. Some States provide
access to nationality to children born on their territory to stateless parents. See, e.g., id. A number
of States also provide more lenient naturalization requirements for stateless persons. For
example, Hungary reduces its continuous residence requirement from eight years to five years
for stateless persons. See Gbor Gyulai, Hungarian Helsinki Comm., Forgotten Without Reason:
Protection of Non-Refugee Stateless Persons in Central Europe 30 (2007).
SELECTED CASELAW
Access to Nationality
The European Convention on Human Rights does not address the right to a nationality. Nonetheless,
the European Court of Human Rights (ECtHR) has recognized that in some cases, lack of access to a
nationality or the removal of stateless persons may infringe on an individuals right to respect for
his/her private and/or family life, rights recognized in Article 8 of the European Convention. In
ECtHR, Kuri and Others v. Slovenia [GC], no. 26828/06, Judgment of 13 July 2010, former
citizens of the Socialist Federalist Republic were erased from Slovenias registry of permanent
residents and rendered stateless when they failed to register as permanent residents or citizens
during a prescribed period. The Court held that Slovenia violated the applicants rights under Article
8 because the registration procedures were arbitrary and unlawful, and pointed to a Constitutional
Court ruling holding the procedures were unconstitutional as well as to the fact that the purpose of
registering particularly when the applicants were already included in a registry of permanent
residents was not adequately explained. Cf ECtHR, Karassev and Family v. Finland [GC], no.
31414/96, Judgment of 12 January 1999 (acknowledging Article 8 right, but finding no violation
where Finlands determination that the applicant was a Russian citizen was based on a legitimate
interpretation of Russian law, despite conflicting reports on his citizenship from the Russian
consulate, and where the applicant and his family were eligible for Finish residency and under no
risk of deportation).
The African Charter on the Rights and Welfare of the Child (African Childrens Charter) does
explicitly recognize the right to a nationality. See African Childrens Charter, art. 6. In
ACERWC, Institute for Human Rights & Development in Africa & Open Society Justice Initiative
 on Behalf of Children of Nubian Descent in Kenya v. Kenya, Communication No. Comm/002/2009,
17th Session, March 2011, the African Committee of Experts on the Rights and Welfare of the Child
(ACERWC) found that Kenya had violated the rights of children of Nubian descent under the
African Childrens Charter. Many children of Nubian descent in Kenya had been left stateless when
they were neither registered nor given access to Kenyan citizenship upon being born in Kenya, thus
violating their right to a nationality. The Committee also found that the rigorous vetting process
Nubian children were required to undergo to obtain identity documents amounted to discriminatory
treatment for which there was no justification. Finally, the Committee held that the consequences of
statelessness, namely limited access to education, employment, and health services, also constituted
a violation of the childrens rights under the African Childrens Charter.
Detention and Removal of Stateless Persons
In Al-Kateb v. Godwin, [2004] HCA 37, the High Court of Australia upheld the indefinite detention
of a stateless Palestinian from Kuwait. The High Court held that indefinite detention of an unlawful
non-citizen subject to removal from Australia was permitted under the Migration Act and that such
detention did not violate Article III of the Australian Constitution. The decision was met with strong
criticism and resulted in the issuance of Bridging Visas to individuals who, like Al-Kateb, have no
country willing to accept them. See Equal Rights Trust, The Protection of Stateless Persons in
Detention under International Law (Jan. 2009) 38. (Working Paper).
The U.S. Supreme Court, by contrast, has taken a different approach. In Zadvydas v. Davis, 533 U.S.
678 (2001), the Supreme Court held that in order to hold a non-citizen in detention pending removal
beyond six months, the U.S. must show removal is likely in the foreseeable future or special
circumstances warrant continued detention. Zadvydasconcerned two former permanent residents
unable to be returned to their country of origin: Zadvydas who was of Lithuanian descent but who
was de jure stateless and Kim who was a Cambodian national but whom the Cambodian government
refused to re-admit. The Supreme Court later held in Clark v. Martinez, 543 U.S. 371 (2005), that
the reasonable time limit also applied to inadmissible aliens.
Kelzani v. Secretary of State for the Home Department [1978] Imm AR 193 (U.K.): The
Immigration Appellate Authority of the U.K. held that the deportation of Kelzani, a stateless
Palestinian who had violated the terms of his visa by engaging in unauthorized employment and
subsequently overstayed his visa, did not violate Article 31 of the 1954 Statelessness Convention
because the control of immigration was necessary for maintenance of the public order and his
deportation order had been issued in accordance with the principles of due process. The tribunal also
held that it was irrelevant that the travel document that had been issued to Kelzani by the Egyptian
 government did not entitle Kelzani to permanent residence in Egypt, as there was evidence that he
would be admitted to Egypt and have access to employment there. The case has been widely
criticized and there is some speculation that if a similar case were to be brought today it would come
out differently. See UNHCR & Asylum Aid, Mapping Statelessness in The United Kingdom 67
(2011).
Arbitrary Deprivation of Nationality
In I/A Court H.R., Case of the Yean and Bosico Children v. The Dominican Republic, Judgment of
September 8, 2005, Series C No. 130, the Inter-American Court of Human Rights held that the
Dominican Republic violated multiple articles of the American Convention on Human Rights when
it refused to issue birth certificates to Yean and Bosico, children born in the Dominican Republic to
parents of Haitian descent. The Inter-American Court held that the Dominican Republics
interpretation of in transit in its migration and citizenship laws excluded ethnic Haitians born in
the Dominican Republic from acquiring citizenship and that its treatment of ethnic Haitians in the
Dominican Republic was arbitrary and discriminatory. The Inter-American Court also found a
violation of Yean and Bosicos right to an education, since the girls were unable to attend school as
a result of not being issued birth certificates.
In ACommHPR, John K. Modise v. Botswana, Communication No. 97/93, 28thOrdinary Session,
November 2000, the African Commission on Human and Peoples Rights held that Modise was a
citizen of Botswana by birth, as he had been born in South Africa to a father who was a British
Protected Person and therefore considered a citizen of Botswana following its independence. The
Court held Botswana had violated Modises rights under the African Charter on Human and
Peoples Rights by not recognizing him as a citizen and by deporting him from Botswana, which
resulted in him living in poverty. The Court held that Modises living conditions while he was
stateless amounted to a violation of his right to respect for dignity. The Court further noted that
Botswanas grant of registered citizenship to Modise was inadequate because registered citizens did
not have the same rights as citizens by birth.
Equal Access to Nationality
In I/A Court H.R., Proposed Amendments to the Naturalization Provisions of the Constitution of
Costa Rica, Advisory Opinion OC 4/84, 19 January 1984, the Inter-American Court found that the
proposed constitutional amendments granting preferential naturalization requirements to women
married to Costa Rican men but not to men married to Costa Rican women would amount to
discrimination under the American Convention on Human Rights. The Court also held that the
provisions giving preferential treatment to non-citizens from Central American or other Spanish-
 speaking cultures did not amount to discrimination. A proposed revision requiring foreign women
who lost their nationality upon marriage to a Costa Rican man to wait two years before they could
acquire Costa Rican nationality did not violate the right to a nationality under Article 20 of the
Convention because it did not amount to an arbitrary deprivation of nationality on the part of Costa
Rica, but the Court cautioned that some of the women affected by the provision could be left
stateless during the two-year period.
At the domestic level, the Court of Appeal of Botswana held in Attorney-General v. Dow (2001)
AHRLR 99 (BwCA 1992), that the Citizenship Act of 1984, which granted citizenship to the
children of a Botswanan father and to children born out of wedlock to a Botswanan mother, violated
the Constitutional guarantees of freedom from discrimination and freedom of movement and liberty
since the children of the plaintiff, a Botswanan woman married to a foreign national, could face
removal from Botswana as non-citizens and because the law discouraged marriage between citizen
women and non-citizen men.
Effective Nationality
Nottebohm Case (Liechtenstein v. Guatemala), Second Phase, 6 April 1955, ICJ Reports 1955:
Although Nottebohm does not specifically address statelessness, it has frequently been cited in
statelessness studies because of its discussion of a real and effective nationality. The International
Court of Justice in Nottebohm considered the deportation and seizure of property by the Guatemalan
government of Nottebohm, a former German national who naturalized as a citizen of Liechtenstein
shortly after the beginning of World War II. The ICJ held that Liechtensteins claim on behalf of
Nottebohm was inadmissible because Nottebohm had no real ties to Liechtenstein since he did not
reside there, conducted business in Guatemala, and appeared to only have become a citizen of
Liechtenstein so that he could be listed as a citizen of a neutral country during the War.