Questions:

Article 15 of the UDHR declares that everyone has a right to a

nationality. Statelessness is therefore shunned.
A. Is this norm considered a jus cogens? What are the repercussions if
it were considered as such?
B. When may a seeming sense of statelessness arise and how can the
principle in Article 15 be given force and effect to stateless
individuals?
C. How would you determine the nationality of a foundling of unknown
parentage? How do they acquire their nationality and citizenship?
ANSWERS:
A.
There is an almost intrinsic relationship between jus cogens and
human rights. Peremptory human rights norms, as projections of the
individual and collective conscience, materialize as powerful collective
beliefs. As such, they inherently possess an extraordinary force of social
attraction.
Jus Cogens or peremptory norm pursuant to Article 53 of the Vienna
Convention on the Laws on Treaties is a norm accepted and recognized in the
international community of states as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general
international law having the same character.
Based on the definition of Jus Cogens or peremptory norm under
Vienna Convention, the right to nationality can be considered as Jus Cogens
because the international community of states recognized such right
pursuant to Article 15 of Universal Declaration of Human Rights which states
that Everyone has the right to Nationality.
One of the repercussions of the right to nationality as a Jus Cogens
pursuant to the Vienna Convention is that such right cannot be derogated,
and it can only be modified by subsequent norm of general international law
having the same character.
Jus cogens, as stipulated in the Vienna Convention, makes all treaties
annulled if those are contrary to a norm considered to be jus cogens. 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. That is the first and paradigmatic effect of jus cogens it
disables the state (both de jure imperii and de jure gestionis) to get into
contractual relations which might be detrimental to human rights recognized
as jus cogens.

Therefore, if the right to Nationality is considered as jus cogens, it

cannot be derogated and the state will be obliged to recognize the rights of
stateless persons.

B.
A stateless person is a person who is not considered as a nationality by
any state under the operation of law. Therefore, there can be a seemingly
sense of stateless in case of dissolution of a state like in the case of South
Vietnam who loss during the Vietnam War and its citizen losses their
nationality making them stateless person; or in case of the stateless children
in Sabbah, Malaysia where many children of Filipino parents who roam the
streets of Sabbah without any apparent nationality document or birth
registration. While they are legally citizens of the Philippines under the
Constitution, their lack of documents makes it a challenge to determine their
citizenship, for Malaysia does not adopt the jus soli principle which could
have considered them to be Malaysian citizen. In effect the circumstance
gave them the appearance of statelessness.
The principle in Article 15 be given force and effect in such case by
way of providing rights of a stateless person laid down under the Convention
relating to the status of stateless person and Convention on the reduction of
statelessness. Such rights are:
a) They are entitled to basic right such as right to life, liberty and
security
b) To be issued an identity paper
c) Equal rights as to property
d) Right to education
e) Freedom of movement
f) Not to be expelled from the country of his residence except on
grounds of national security and public order.
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.

Naturalization as one of the mode of acquiring nationality is not a

matter of right of a stateless person for it is a political privilege given by the
state. Hence, naturalization is still subject to the discretion of the state
whether to grant it or not.

C.
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 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, 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 also provides:
Article 6 Acquisition of Nationality
1 Each State Party shall provide in its internal law for its nationality to be
acquired ex legeby 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, 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.

REFERENCES:
1. Atty. Pepita A. Petralba, Hornbook on International and Philippine
Human Rights Laws, 2013 edition
2. Predrag Zenovi, Riga Graduate School of Law (RSGLs Research
Paper), Human Rights enforcement via peremptory norms a
challenge to state sovereignty , 2012
3. https://books.google.com.ph/books?id=FmuoBBlMvEC&pg=PA308&lpg=PA308&dq=repercussions+if+the+righ
t+to+nationality+is+considered+as+jus+cogens&source=bl&ot
s=A7AntKfP3M&sig=c_cmSIXho3hzdtqIkqLXF4knWvI&hl=en&sa
=X&ved=0ahUKEwiqisz0pMzJAhXDYaYKHWmABAsQ6AEIRDAH#v
=onepage&q=repercussions%20if%20the%20right%20to
%20nationality%20is%20considered%20as%20jus
%20cogens&f=false
4. http://www.un.org/en/universal-declaration-human-rights/
5. http://attyralph.com/tag/right-to-nationality/#_Toc436863786