58
exercise rights and obligations inherent in membership in a political community. As
such, nationality is a requirement for the exercise of specific rights.
138.
The Court has established that:
It is generally accepted today that nationality is an inherent right of all human beings.
Not only is nationality the basic requirement for the exercise of political rights, it also
has an important bearing on the individual's legal capacity. Thus, despite the fact that it
is traditionally accepted that the conferral and regulation of nationality are matters for
each state to decide, contemporary developments indicate that international law does
impose certain limits on the broad powers enjoyed by the states in that area, and that
the manners in which states regulate matters bearing on nationality cannot today be
deemed within their sole jurisdiction; those powers of the state are also circumscribed
by their obligations to ensure the full protection of human rights. [...]
The classic doctrinal position, which viewed nationality as an attribute granted by the
State to its subjects, has gradually evolved to a conception of nationality which, in
addition to being the competence of the State, is a human right.92
139. The American Convention recognizes both aspects of the right to nationality:
the right to have a nationality from the perspective of granting the individual a
“minimal measure of legal protection in international relations through the link his
nationality establishes between him and the State in question; and second the
protection accorded the individual against the arbitrary deprivation of his nationality,
without that are tied to the nationality of the individual.”93
140. The determination of who has a right to be a national continues to fall within
a State’s domestic jurisdiction. However, its discretional authority in this regard is
gradually being restricted with the evolution of international law, in order to ensure a
better protection of the individual in the face of arbitrary acts of States. Thus, at the
current stage of the development of international human rights law, this authority of
the States is limited, on the one hand, by their obligation to provide individuals with
the equal and effective protection of the law and, on the other hand, by their
obligation to prevent, avoid and reduce statelessness.94
141. The Court considers that the peremptory legal principle of the equal and
effective protection of the law and non-discrimination determines that, when
regulating mechanisms for granting nationality, States must abstain from producing
regulations that are discriminatory or have discriminatory effects on certain groups
of population when exercising their rights.95 Moreover, States must combat
discriminatory practices at all levels, particularly in public bodies and, finally, must
adopt the affirmative measures needed to ensure the effective right to equal
92
Cf. Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica, supra
note 91, paras. 32 and 33.
93
Cf. Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica, supra
note 91, para. 34.
94
Cf. inter alia, Convention on the Reduction of Statelessness, Article 1(1); International Convention
on the Protection of the Rights of all Migrant Workers and Members of their Families, Article 29, and
Convention on the Rights of the Child, Article 7(1), and International Covenant on Civil and Political
Rights, Article 24(3).
95
Cf. Case of Yatama, supra note 13, para. 185; Juridical Status and Rights of Undocumented
Migrants. Advisory Opinion OC-18/03 de September 17, 2003, Series A No. 18, para. 88, and Juridical
Status and Human Rights of the Child, supra note 84, para. 44.
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