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Introduction
Every individual is entitled to human rights simply because he is a
human being. No matter how special a circumstances would be, no one is
excluded from this rule. Among these rights, the right to nationality is the most
elementary, yet the most encompassing of all human rights. Article 15(1) 1 of
the Universal Declaration of Human Rights 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. 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. 2
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.3
Determining a person's citizenship ensures that he or she may be able to enjoy all
the rights a citizen of a country could. These involve their rights to life, liberty and property
such as civil and political rights covered by the country they are citizens therein.4
But who are considered nationals or citizens of a State? And if one is not but wants
to be one, is there any mean for him to be considered as such?
International Law, 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. The 1930 Hague Convention on Certain Questions Relating to the Conflict
of Nationality Laws5 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)
International Court of Justice (ICJ) ruled in the Nottebohm Case6 that Liechtenstein
is the sole judge of whether Nottebohm is a citizen of the State, but such is for domestic
1
law purposes only as other nations are not obliged to recognize Nottebohms Liechtenstein
citizenship especially absent a genuine link between Nottebohm and that State.7
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) 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.
While the concurrent application of the principles of jus soli and jus sanguinis may
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.8 A question will arise then: how can a foundling be considered a citizen of a
certain State? If that State strictly follows the principle of jus soli, then without doubt the
foundling would be a stateless being absent any showing of blood-relation to any citizen of
that State. How about on the other hand, if that State strictly follows the principle of jus
sanguinis? Should there be need of any proof that the poor child was indeed born in its
territory, and not just thrown there after being born in another land?
The Blacks Law Dictionary defines a foundling as a deserted or abandoned infant;
a child without a parent or guardian, its relatives being unknown.9 The Oxford English
Dictionary on the other hand 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.
A foundling then is a child of unknown parentage found abandoned on the territory of a
State.
Does a foundling then, possessed all the rights being enjoyed by other ordinary
citizens, born of known parentage? Does international laws accorded him rights as laid
down in the Declaration on Human Rights, just like those conferred to other citizens? Is
there any international convention or treaties protecting the rights of foundlings? Or if
theres none, is there any international customary law afforded foundlings the right to
enjoy their human rights just for simply being a human being?
See Note 2.
See Note 2
9
H.C. Black, Blacks Law Dictionary (5th ed. 1979)
10
Supra
8
11
Supra
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A
(III)
12
13
27
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.
1995 Commonwealth of Independent States Convention on Human
Rights and Fundamental Freedoms
The 1995 Commonwealth of Independent States Convention on Human
Rights and Fundamental Freedoms,34 which was adopted on 26 May 1995 at
Minsk, Belarus, also provides that:
Article 24
1.
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.
The African Charter on the Rights and Welfare of the Child
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, 35 which
was adopted by the Organization of African Unity on 11 July 1990 at Addis
Ababa, Ethiopia, states:
Article 6: Name and Nationality
1.
32
Every child shall have the right from his birth to a name.
2.
3.
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
See Note 4
ICJ, North Sea Continental Shelf cases, supra., at par. 74
Conclusion
Determining who the citizens of State are, is the exclusive prerogative of
the State, which may be limited only by international obligations that the State
itself has assumed in International Law. While the right to nationality is
declared as a fundamental human right by various international conventions
specifically the Universal Declaration of Human Rights, its specific application
on foundlings is still a matter of State prerogative and discretion.
Various States have already give their nationality to foundlings found in
their territory. 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
38
Canada: Citizenship Act [Canada], R.S., 1985, c. C-29, 10 July 1985, supra.
Title III, Chapter 1, 301, 8 U.S.C. 1401
40
Canada: Citizenship Act [Canada], R.S., 1985, c. C-29, 10 July 1985, supra.
41
Austria: Federal Law Concerning the Austrian Nationality (Nationality Act 1985), supra.
42
British Nationality Act 1981, 1981 Chapter 61, 30 October 1981, available at:
http://www.refworld.org/docid/3ae6b5b08.html %5Baccessed 13 March 2016]
43
See Note 2
39
44
45
Ibid
Supra