66
it must adopt all appropriate measures to guarantee them (positive obligation),106
owing to the situation of extreme vulnerability in which the State placed the Yean
and Bosico children, because it denied them their right to nationality for
discriminatory reasons, and placed them in the impossibility of receiving protection
from the State and having access to the benefits due to them, and since they lived in
fear of being expelled by the State of which they were nationals and separated from
their families owing the absence of a birth certificate.
174. The Court finds that for discriminatory reasons, and contrary to the pertinent
domestic norms, the State failed to grant nationality to the children, which
constituted an arbitrary deprivation of their nationality, and left them stateless for
more than four years and four months, in violation of Articles 20 and 24 of the
American Convention, in relation to Article 19 thereof, and also in relation to Article
1(1) of the Convention, to the detriment of the children Dilcia Yean and Violeta
Bosico.
*
*
*
175. The situation of extreme vulnerability of the children Dilcia Yean and Violeta
Bosico, owing to lack of nationality and the condition of statelessness, had
consequences on their rights to juridical personality and to a name.
176. Article 3 of the American Convention, as well as other international
instruments,107 embodies the right to juridical personality, regarding which the InterAmerican Courts has stated that:
Every person has the right to be recognized everywhere as a person having rights and
obligations, and to enjoy the basic civil rights. The right to the recognition of juridical
personality implies the capacity to be the holder of rights (capacity and exercise) and
obligations; the violation of this recognition presumes an absolute disavowal of the
possibility of being a holder of such rights and obligations.108
177. Regarding exercise of the entitlement to human rights, the Court has
indicated that:
Adulthood brings with it the possibility of fully exercising rights, also known as the
capacity to act. This means that a person can exercise his or her subjective rights
personally and directly, as well as fully undertake legal obligations and conduct other
personal or patrimonial acts. Children do not have this capacity, or lack this capacity to a
large extent. Those who are legally disqualified are subject to parental authority, or in
its absence, to that of guardians or representatives. But they are all subjects of rights,
entitled to inalienable and inherent rights of the human person.109
178.
A stateless person, ex definitione, does not have recognized juridical
106
Cf. the Case of “Children’s Rehabilitation Institute.” Judgment of September 2, 2004. Series C
No. 112, para. 158; the Case of Gómez Paquiyauri Brothers, supra note 85, para. 129, and the Case of
the 19 Tradesmen. Judgment of July 5 2004. Series C. No. 109, para. 153.
107
Cf. among others, the Universal Declaration of Human Rights, Article 6; the International
Covenant on Civil and Political Rights, Article 16; the American Declaration on the Rights and Duties of
Man, Article XVII, and the African Charter of Human’s and People’s Rights, Article 5.
108
Cf. Case of Bámaca Velásquez. Judgment of November 25, 2000, Series C No. 70, para. 179.
109
Cf. Juridical Status and Human Rights of the Child, supra note 84, para. 41.
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