IACHR calls on States to guarantee full enjoyment of the right to nationality

September 7, 2023

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Washington, D.C. - On occasion of the anniversary of the adoption of the Convention on the Reduction of Statelessness, the Inter-American Commission on Human Rights (IACHR) calls on the States of the region to continue adopting measures to ensure equal protection of the non-derogable right to nationality. It also urges States to refrain from adopting measures that arbitrarily deprive persons of their nationality and place certain groups at risk of statelessness.

The Commission has noted with concern the persistence of laws that discriminate between fathers and mothers with respect to the granting of nationality to their children; the existence of procedures for arbitrary deprivation of nationality; and the generation of risks of statelessness due to the prohibition of return to the countries of origin and the refusal to issue identity documents.

Regarding the transmission of nationality, the IACHR notes that the current wording of section 5(1) of the Constitution of Barbados establishes a situation of formal discrimination against women regarding the transmission of nationality, which can generate risks of statelessness. A similar situation occurs in The Bahamas, where, despite recent advances, a child born abroad to a Bahamian mother who is married to a non-citizen father can only acquire Bahamian nationality upon application. The Commission recalls that the obligation to adapt provisions of domestic law, in accordance with inter-American standards, requires not only the issuance and development of norms conducive to the effective observance of human rights, but also the suppression of norms and practices that entail violations of those rights.

Concerning the arbitrary deprivation of nationality, on February 9, 2023, the State of Nicaragua arbitrarily deprived 222 Nicaraguan political detainees of their nationality, all of whom were afterward "deported" to the United States. These measures were adopted without being stipulated in domestic law and in breach of the principle of legality and non-retroactivity of penalties. On February 17, the Managua Court of Appeals delivered a decision concerning the deprivation of nationality, political rights and property to 94 persons identified as political opponents, without trial, and in application of Law 1145 which regulates the loss of nationality.

In addition, the IACHR's Special Follow-up Mechanism for Nicaragua (MESENI) has received information on cases of Nicaraguans being prohibited from returning to the country. Faced with a situation of forced displacement and risk of statelessness, these people are compelled to seek to regularize their migratory situation or access international protection mechanisms in other countries. In addition, they have been unable to renew expired passports or access other identity documents because they are outside of the territory and the State's refusal to issue such documentation.

On the other hand, according to information from civil society, the Cuban government has implemented measures to deny entry into the national territory to Cuban activists and human rights defenders who are dissidents or critics of the government, despite the fact that they have residency and the necessary travel documents to return to the country. This situation forces them to stay in other countries involuntarily, where their stay may lead to irregular migratory status. This was registered by the IACHR in its 2022 annual report, in which it warned that the denial of return of persons to their country of nationality is a serious violation of the rights linked to the exercise of nationality.

In this regard, and in the framework of the obligations deriving from the various applicable international and inter-American instruments, the Commission recalls that every person has the non-derogable right to have a nationality and not to be stateless. As well as to retain their nationality, not being arbitrarily refused, lost or deprived. In particular, deprivation of nationality resulting in statelessness is considered arbitrary. Therefore, it urges States in the region to refrain from adopting arbitrary measures of deprivation of nationality.

According to the Inter-American Court of Human Rights, in order for the deprivation of nationality not to be arbitrary, any administrative or judicial act regarding the conditions for acquisition, maintenance and, especially, the loss of nationality must: a) respect the principle of legality; b) ensure the right to equality and the prohibition of discrimination; c) prevent statelessness; d) be proportional; and, e) respect the guarantees of due process, providing special guarantees for the protection of children.

Likewise, in accordance with Resolution No. 04/19 adopting the Inter-American Principles, the Commission emphasizes that States should implement the necessary administrative, legislative and judicial measures to eradicate statelessness, including measures for prevention, identification, protection and reduction, ensuring equality between women and men regarding transmitting nationality to their children, especially if they would otherwise be stateless.

Finally, although there is a growing interest of the countries of the region to adhere to the Conventions on statelessness, which is an excellent practice, the IACHR reiterates its call to sign and ratify the international instruments for the protection of stateless persons and the reduction of statelessness factors, such as the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. Finally, it calls for ensuring access to protection mechanisms for stateless persons, as well as ongoing assessments of regulatory frameworks and practices in order to prevent risks leading to statelessness.

The IACHR is a principal and autonomous organ of the Organization of American States (OAS), whose mandate arises from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission is mandated to promote the observance and defense of human rights in the region and acts as a consultative body to the OAS in this area. The IACHR is composed of seven independent members who are elected by the OAS General Assembly in their personal capacity and do not represent their countries of origin or residence.

No. 212/23

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