The Obligation to Grant Nationality to Stateless Children Under Customary International Law

Abstract

The problem of children being born stateless without being able to identify a state that must grant them nationality continues be a problem that begs for legal clarity. Children are some of society’s most vulnerable people, needing care, education, health developmental services and so on. Yet when they are born into situations of statelessness, it is often difficult if not impossible for them to access any of these services and meet their basic developmental needs. The international community has taken many steps to eradicate child statelessness but it still persists. This result stands despite the desperate needs for children and widespread acknowledgment that international law protects every person’s, especially child’s, right to a nationality.

This paper will reconsider the question of whether we can point to a state that bears the responsibility for granting nationality to a child born stateless. In examining this question, this paper considers whether customary international law might have evolved to offer an answer to the question of which state is responsible. First, the paper looks at the most contemporary understand of customary international law to develop a methodology. The method for determining the customary international law has been changing and the time is ripe to apply our new understanding to this problem. Second, it applies this methodology to emerging practice on child statelessness. Partly due to the increased focus on the question as a result of the current UNHCR campaign to end child stateless, state practice and opinio juris has been shifting rapidly. In this analysis, the author considers that evolving understanding of customary international law and the changes in practice have shifted so that we can now identify the state that has the obligation to grant nationality to stateless children. Specifically, customary international law requires the state where the child was born to grant nationality to it, if it would be otherwise stateless and no state has granted it nationality.

Keywords: customary international law, nationality, statelessness, child, children, human rights, jus soli, jus sanguinis, UNHCR

JEL Classification: K10, K19, K30, K33, K37, K39