1

Table of Contents
Right to Nationality ....................................................................................... 3
1. Is this norm considered as a jus cogens? What are the repercussions if it were considered
as such? Explain with authorities and citations. ........................................................ 3
1.1. Right to Nationality as a Jus Cogens Norm ................................................... 3
Authority is the American Convention on Human Rights (ACHR) ................................................................. 3
1. The right to nationality is a peremptory norm of general international law. ............................... 3
2. The right to nationality is accepted and recognized by the international community.............. 4
3. The right to nationality is non-derogable................................................................................................ 4
1.2. Repercussions of the Right to Nationality as a Jus Cogens Norm .......................... 4
1. It has a significant procedural effect. .................................................................................................... 4
2. It makes all treaties annulled if those treaties are against a jus cogens norm. ........................ 5
3. It comprises a certain form of constitutional rules every state is obliged to follow............... 5
4. It is considered as obligation erga omnes. .............................................................................................. 5
2. When may a seeming sense of statelessness arise and how can the principle of Article 15 be
given force and effect to stateless individuals? ...................................................... 6
2.1. Instances When a Person/s Become/s Stateless ............................................... 6
1. Absence of any apparent nationality documents or birth registration.......................................... 6
2. Proof that he has no legal bond with any relevant country ............................................................... 6
3. Conflict of laws ................................................................................................................................................ 6
4. Conflict of laws linked to renunciation ..................................................................................................... 7
5. Laws and practices particularly affecting children.............................................................................. 7
5.1. Women are not permitted to pass their nationality. ........................................................................... 7
5.2. Foundlings often have no confirmed nationality. ................................................................................... 7
5.3. Adoption practices lead to statelessness. .............................................................................................. 7
6. Administrative practices .............................................................................................................................. 8
7. Laws and practices that particularly affect women ............................................................................ 8
8. Automatic loss of nationality....................................................................................................................... 8
9. Transfer of territory or sovereignty ....................................................................................................... 8
10. Racial Discrimination ...................................................................................................................................... 9
11. Deprivation and denial of citizenship........................................................................................................ 9
2.2. Application of the principle of Article 15, UDHR to stateless individuals ................. 10
1. The Convention relating to the Status of Stateless Persons (1954 Convention) ..................... 10
2. The Convention on the Reduction of Statelessness (1961 Convention)........................................ 10
3. How would you determine the nationality of a foundling of unknown parentage? How do they
acquire their nationality and citizenship? Explain with citations..................................... 12
3.1. Determination and acquisition of the nationality of a foundling of unknown parentage ... 12
1. Adoption ........................................................................................................................................................... 12
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2. The country of birth .................................................................................................................................... 13

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Right to Nationality
Article 15 of the Universal Declaration of Human Rights declares that
everyone has a right to a nationality. Statelessness is therefore shunned.

1. Is this norm considered as a jus cogens? What are the repercussions if it

were considered as such? Explain with authorities and citations.

Yes, the right to nationality 1 is a jus cogens norm according to a number of

authoritative sources. And in meeting this highest echelon of human rights hierarchy, it
meets the following criteria:

1. It is a peremptory norm of general international law;

2. It is accepted and recognized by the international community
3. It is non-derogable.2
4. It is modifiable only by a subsequent norm of general international law having the same
character.3

1.1. Right to Nationality as a Jus Cogens Norm

Authority is the American Convention on Human Rights (ACHR)

This treaty is cited by F. F. Martin et. al. in a Cambridge book on international human
rights, and by P. Zenovic in his research paper on human rights via peremptory norms.

1. The right to nationality is a peremptory norm of general international law.

According to F. F. Martin, such right is a substantive jus cogens norm4, and as such, it
is a compelling law. It is a law binding in all contexts, whether a state of emergency or not.5

1
Nationality is the political and legal bond that links a person to a given State and binds him
to it with ties of loyalty and fidelity, entitling him to diplomatic protection from that State. Castillo-
Petruzzi et al v. Peru, Judgment of May 1999, IACHR [ser.C] No. 52 1999.
2
Under international law, non-derogable means that, being absolute, it cannot be suspended.
Moreover, it cannot be compromised or taken away.
http://unterm.un.org/DGAACS/unterm.nsf/8fa942046
ff7601c85256983007ca4d8/d4dbb9694e5b40da8525751b0077e882. Accessed on December
5, 2015.
3
Petralba, P. J. Hornbook on International and Philippine Human Rights Laws. Rex Book Store:
2013, pp. 30-31.
4
F. F. Martin et. al. International Human Rights and Humanitarian Law: Treaties, Cases and
Analysis. Cambridge University Press: 2006, page 33.
5
Ibid.
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2. The right to nationality is accepted and recognized by the international

community.
In Martins book, it is asked how many states have to adopt a multilateral treaty for
its non-derogable provisions reflect jus cogens. Martin answers that, generally speaking,
these provisions do reflect jus cogens because such multilateral treaties have been widely
adopted by a majority of states within either a global or regional treaty regime
(emphasis added).6

3. The right to nationality is non-derogable.78

It is provided under under Article 20, in relation to Article 27 (2), of the ACHR.
Under Article 27 (1) and (2) of the ACHR, right to nationality is one of the 11 rights
specified that cannot be suspended "in time of war, public danger, or other emergency that
threatens the independence or security of a State Party" under the ACHR;
State Parties under the ICCPR9, the ECHR 10 and the ACHR are obliged to protect
human rights in every situation. However, in contrary to these obligations such treaties allow
derogation clauses, that is, in time of public emergency State party may derogate from its
obligation. However, according to F. F. Martin et. al. and P. Zenovic, one human right that
cannot be derogated, among others, is the right to nationality.
The ACHR has Article 27 as its derogation clause. According to Iftekhar, in dealing
with crises11, the State governments tend to violate of human rights treaties. These crises
are suspensions of basic human freedoms. Due to these crises, international protection of
human rights have become essential.

1.2. Repercussions of the Right to Nationality as a Jus Cogens Norm

Being a jus cogens norm, the right to a nationality has the following repercussions.

1. It has a significant procedural effect.

Accordingly, it should be articulated by legitimate judicial instances.
According to Zenovic12, the said list of norms, including the right to nationality, should
rather be treated as a list of human rights which might obtain compelling character by the
nature of rights and duties they contain and by the general acceptance of the treaties in
which these human rights are stipulated. Jus cogens has a significant procedural effect.
That is probably the crucial reason why these norms have to be articulated by legitimate
judicial instances (emphases added).13

6
Ibid. page 34.
7
Ibid. page 35.
8
Zenovic, Predrag. Human rights enforcement via peremptory norms a challenge to state
sovereignty. 2012.
9
International Covenant on Civil and Political Rights.
10
European Convention on Human Rights.
11
Iftekhar, Tahsin. Derogation clauses in International Human Rights Treaties: Relevance in
the post-9/11 State of Permanent Legal Emergency. April 25, 2015.
12
Zenovic, Predrag. Human rights enforcement via peremptory norms a challenge to state
sovereignty. 2012, page 35.
13
Ibid.
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2. It makes all treaties annulled if those treaties are against a jus cogens
norm.
That is the first and exemplary effect of jus cogens, according to Zenovic. 14 It
incapacitates the state (both its sovereign and proprietary character 15 16 ) to get into
contractual relations which might be disadvantageous to human rights recognized as jus
cogens.17
The power of a state to make treaties, its contractual right that derives from its
equal sovereignty, is restrained when it confronts the supercustomary norm of jus cogens.18

3. It comprises a certain form of constitutional rules every state is obliged

to follow.
This justifies the fact that jus cogens has obtained extraconventional value,
developing outside of the consensual context of Article 53, Vienna Convention on the Law of
Treaties (VCLT);
As a compelling law, it does not give a state the right to opt out, as is the case with
other international norms deriving from custom or treaty. Peremptory norms limit the
capacity of the state to change rules or create ones which would be in contradiction with jus
cogens. Any act or policy of the state contrary to jus cogens, would represent a breach of
international legal order.19

4. It is considered as obligation erga omnes.

As an obligation erga omnes, it shall be owed to all other states and the community of
states as a whole. It would represent certain human rights or human rights as a composite
body of rights, and gives a legal opportunity for human rights enforcement.20

14
Ibid., page 18.
15
De juri imperii and de jure gestionis. Ibid.
16
De jureimperii refers o sovereign or governmental activities; while de jure gestionis refers
to commercial, private and proprietary acts. China National Machinery Equipment Corp. (Group) v.
Santamaria et. al. G.R. 185572. February 7, 2012.
17
Zenovic, Predrag. Human rights enforcement via peremptory norms a challenge to state
sovereignty. 2012.
18
Ibid.
19
Ibid. page 19.
20
Ibid. page 20.
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2. When may a seeming sense of statelessness arise and how can the principle of
Article 15 be given force and effect to stateless individuals?
Back you answer with examples and authorities.

2.1. Instances When a Person/s Become/s Stateless

Statelessness may result from a variety of causes. Among conflict of laws, the
transfer of territory, marriage laws, administrative practices, discrimination, lack of
birth registration, denationalization (when a State rescinds an individuals
nationality), and renunciation (when an individual refuses the protection of a State).

1. Absence of any apparent nationality documents or birth registration

Such is the case of the youth in Sabah, Malaysia. They roam the streets of
Malaysia. Some of them were born there (Malaysia) of Filipino parents who died or
had been deported or otherwise reverted to the Philippines and left them abroad.21
While they are Filipino citizens before Philippine laws, their lack of documents
makes it a challenge to determine their citizenship.22
And since Malaysia does not adopt the jus soli principle23, they could not be
considered Malaysian. Thus, they are stateless.

2. Proof that he has no legal bond with any relevant country

Article 1 of 1954 Convention defines a stateless person as one who is not
considered as a national by any State under the operation of its law.24
Accordingly, to be determined stateless, a person has to prove a negative--
that he/she has no legal bond with any relevant country.25

3. Conflict of laws
Conflict of laws occurs when problems may arise when nationality legislation in
one State conflicts with that of another State, leaving an individual without the
nationality of either State. Both sets of laws may be properly drafted, but problems
arise when they are implemented together.26
For example, State A, in which the individual was born, grants nationality by
descent only (jus sanguinis), but the individuals parents are nationals of State B.
State B, on the other hand, grants nationality on the basis of place of birth only (jus

21
Petralba, page 64.
22
Ibid.
23
The jus soli principle means that the child is a citizen of the place where he was born. Ibid.
page 63.
24
Achiron, Marilyn. Nationality and Statelessness: A Handbook of Parliamentarians. Inter-
Parliamentary Union: 2005, page 17.
25
Ibid.
26
Ibid., page 27.
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soli), but the individual was born in State A. The individual is thus rendered
stateless.27

4. Conflict of laws linked to renunciation

Some States have nationality laws that allow individuals to renounce their
nationality without having first acquired, or been guaranteed the acquisition of,
another nationality. This often results in statelessness.28
Conflicts of law on this issue may arise when one State will not allow
renunciation of nationality until the individual has first acquired another nationality,
while the other State involved will not grant its nationality until the individual has
first renounced his/her original nationality. Sometimes an individual may be required
to renounce an assumed citizenship elsewhere before he/she can apply for citizenship
where he/she resides, thus rendering the individual stateless until the new
citizenship is granted.29

5. Laws and practices particularly affecting children

As stipulated by both the International Covenant on Civil and Political Rights
(ICCPR) and the Convention on the Rights of the Child (CRC), all children, regardless
of where they were born, should be registered immediately at birth. All children have
a right to acquire nationality. The nationality of a child will be determined according
to the laws of the States involved; and all States require clarification of where the
child was born and to whom. Without proof of birth, that is, without a recognized
birth registration, it is almost impossible for a child to establish his/her identity and
thus to acquire a nationality;30
There are laws and practices of many countries that are affecting children.
These are:
5.1. Women are not permitted to pass their nationality.
This is so even when a child is born in the mothers State of nationality and its
father has no nationality. In these instances, the child is stateless.31
5.2. Foundlings often have no confirmed nationality.
They include orphaned, abandoned and illegitimate children.32
5.3. Adoption practices lead to statelessness.
For example, children are unable to acquire the nationality of their adoptive
parents.33

27
Ibid., page 28.
28
Ibid.,
29
Ibid.
30
Ibid., page 31.
31
Ibid., page 32.
32
Ibid.
33
Ibid.
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6. Administrative practices
There are numerous administrative and procedural issues related to the
acquisition, restoration, and loss of nationality.34
Even if an individual is eligible for citizenship indeed, even if an individual has
successfully applied for citizenship excessive administrative fees, deadlines that
cannot be met, and/or an inability to produce required documents because they are in
the possession of the former State of nationality can all prevent the individual from
acquiring nationality.35

7. Laws and practices that particularly affect women

Some States automatically alter a womans nationality status when she marries
a non-national. A woman may then become stateless if she does not automatically
receive the nationality of her husband or if her husband has no nationality;36
A woman can also become stateless if, after she receives her husbands
nationality, the marriage is dissolved and she loses the nationality acquired through
marriage, but her original nationality is not automatically restored.37

8. Automatic loss of nationality

Some States automatically revoke the nationality of an individual who has left
his/her country or who resides abroad.38
Revocation of nationality, which can occur just a few months after the
individuals departure, is often associated with faulty administrative practices in
which the individual concerned is not made aware that he/she risks losing his/her
nationality if he/she doesnt register regularly with the countrys authorities.39
If the individual is a naturalized citizen, rather than one who had been born in
the State or who acquired nationality through descent, even regular registration may
be insufficient to guarantee that nationality will not be revoked. Statelessness is
often a direct result of these practices.40

9. Transfer of territory or sovereignty

Although it is only partially addressed in specific international instruments and
principles, it has long been a cause of statelessness.41
National laws and practices will inevitably be altered when a State undergoes
profound territorial changes or changes in sovereignty, such as when a State wins
independence from a colonial power, after a State is dissolved, if a new State or

34
Ibid.
35
Ibid.
36
Ibid. page 33.
37
Ibid.
38
Ibid.
39
Ibid.
40
Ibid.
41
Ibid. page 34.
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States succeed(s) a dissolved State, or if a State is restored after a period of

dissolution. Any of these events can trigger the adoption of new citizenship laws or
decrees and/or new administrative procedures. Individuals may become stateless in
these situations if they fail to acquire nationality under the new legislation/decrees
or under new administrative procedures, or if they are denied nationality because of
a reinterpretation of previously applicable laws and practices.42

10. Racial Discrimination

One of the principal constraints on State discretion to grant or deny
nationality is the proscription against racial discrimination.43
This principle is reflected in the Convention on the Elimination of all Forms of
Racial Discrimination and in many other instruments. In its General Recommendation
on Discrimination against Non-citizens of 1 October 2004, the United Nations
Committee on the Elimination of Racial Discrimination stated that deprivation of
citizenship on the basis of race, colour, descent, or national or ethnic origin is a
breach of States obligations to ensure non-discriminatory enjoyment of the right to
nationality.44
However, sometimes individuals are unable to acquire the nationality of a
particular State despite having strong ties to that State ties that, for other
persons, would be sufficient to trigger the granting of citizenship. Discrimination
based on race, colour, ethnicity, religion, gender, political opinion, or other factors
can be either overt or created inadvertently in the laws or as they are implemented.
Laws may be said to be discriminatory if they contain prejudicial language or if the
result of their application is discrimination.45

11. Deprivation and denial of citizenship

The Universal Declaration of Human Rights stipulates that no one shall be
arbitrarily deprived of nationality. The 1961 Convention and the 1997 European
Convention on Nationality strictly limit the possibilities for States to initiate the loss
of citizenship. Any such loss of nationality must be accompanied by full procedural
guarantees and should not result in statelessness.46
Denationalization occurs when a State deprives an individual of citizenship,
usually because the State is engaging in discriminatory practices. Expulsion of the
individual usually follows.47

42
Ibid.
43
Ibid. page 38.
44
Ibid.
45
Ibid.
46
Ibid. page 39.
47
Ibid.
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2.2. Application of the principle of Article 15, UDHR to stateless individuals

According to the Office of the High Commissioner of Human Rights of the

United Nations, stateless individuals are persons who have no nationality. As such,
they are not accorded with the same rights and benefits given to the nationals of a
State. And this statelessness has become a problem because, recently, all over the
world, there are at least 10 million stateless people.
However, pursuant to this problem of statelessness has already been
addressed by the United Nations as early as the 19th century. The United Nations
convened in 1954 and 19 61 as regards this problem. These conventions are about the
status of stateless persons and the reduction of statelessness. They are
complemented by international human rights treaties and provisions relevant to the
right to a nationality.48
Notably, the right to nationality is universal, under Article 15, UDHR. Thus,
stateless persons do have this right as well.

1. The Convention relating to the Status of Stateless Persons (1954

Convention)

The 1954 Convention is intended that stateless people enjoy a minimum set of
human rights. It also establishes the legal definition of a stateless person;49
It also establishes minimum standards of treatment for stateless people in
respect to a number of rights. These include, but are not limited to, the right to
education, employment and housing. Importantly, it also guarantees stateless people a
right to identity, travel documents and administrative assistance.

2. The Convention on the Reduction of Statelessness (1961 Convention)

The 1961 Convention aims to prevent statelessness and thereby reduce it over
50
time;
It establishes an international framework to ensure the right of every person
to a nationality. It requires that states establish safeguards in their nationality laws
to prevent statelessness at birth and later in life. Perhaps the most important
provision of the convention establishes that children are to acquire the nationality of
the country in which they are born if they do not acquire any other nationality.51
It also sets out important safeguards to prevent statelessness due to loss or
renunciation of nationality and in the context of state succession. 52

48
http://www.unhcr.org/pages/4a2535c3d.html. Accessed on December 8, 2015.
49
Ibid.
50
Ibid.
51
Ibid.
52
Ibid.
 11

It also sets out the very limited situations in which states can deprive a person
of his or her nationality, even if this would leave them stateless. 53

53
Ibid.
 12

3. How would you determine the nationality of a foundling of unknown parentage?

How do they acquire their nationality and citizenship? Explain with citations.

3.1. Determination and acquisition of the nationality of a foundling of unknown

parentage

1. Adoption

The foundling ipso jure acquires the citizenship of his adopting parents.
Atty. Harry Roque asserted that a foundling, though, does not enjoy a
presumption of being a natural-born citizen. The Convention on Statelessness does
guarantee a foundling the citizenship of the foundlings parents;
This is not the same as the natural-born Filipino citizenship required of all
candidates for President, Vice-President and Congress. Filipinos who are not natural-
born can run for local posts but not for Congress and the Presidency (emphasis
added).54
There is the case of Grace Poe. She is an adopted daughter of the late movie
actor Fernando Poe Jr. and actress Susan Roces, was abandoned in a church in Jaro,
Iloilo province. An abandoned child is also known as a foundling.55
In the case of Poe, Atty. Romulo Macalintal, a noted election lawyer, said Poe
is a natural-born Filipino being the adopted daughter of Filipino parents (emphasis
added).56
Atty. Macalintal said:
The trend under international law has been for the implementation of
measures and legislation toward the reduction of statelessness.
Pioneering this trend would be Article 15 of the 1949 United Nations
Universal Declaration of Human Rights (UN Declaration) which
provides 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.
The rights contained under the UDHR, including the right to a
nationality, are highly considered as peremptory norms or
universally accepted principles. Thus, local legislation on citizenship
should always be interpreted in such a way as to promote a persons
right to a nationality, and should be interpreted against the
57
existence of statelessness (emphases added).

54
http://newsinfo.inquirer.net/696458/what-is-the-citizenship-of-a-foundling-2-lawyers-
share-their-views. Accessed on December 8, 2015.
55
Ibid.
56
Ibid.
57
Ibid.
 13

In other words, the right to nationality being a peremptory norm applies to Poe.
Being stateless, she is accorded a nationality as her right.

2. The country of birth

Article 14 of the Convention on Certain Questions Relating to the Conflict of

Nationality Laws provides:

A child whose parents are both unknown shall have the nationality of
the country of birth. If the child's 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.

In view of the foregoing, if he is not adopted, a foundling acquires his

nationality by considering the State where he is found.