32
A.
Preliminary questions
152.
The Commission notes that since Admissibility Report No. 68/05, the State has reiterated
its allegation that the remedies under domestic law were not exhausted. The Commission considers that
this case is framed by the State’s obligations with respect to its citizens and the principles that
immigration policies must observe. Therefore, the Commission will examine the State’s allegations and
will address the States’ obligations with respect to nationality and immigration.
1.
Exhaustion of the remedies under domestic law
153.
It is worth recalling that the issues in this case that are related to the exhaustion of the
remedies under domestic law have already been examined when Admissibility Report No. 68/05 was
adopted. The Commission would again point out that the petitioners claimed the exceptions provided for
in articles 46(2)(a) and 46(2)(b) of the American Convention and the State did not duly contest the
exception to the rule requiring exhaustion of local remedies.
2.
The State’s obligations vis-à-vis its nationals and the principles that must be
observed in immigration policy
154.
The right to nationality recognized by international law must be regarded as the natural
condition and inherent right of all human beings; it is the very basis for the exercise of political rights and
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has an important bearing on the individual's civil capacity.
Nationality is the legal link between an
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individual and a given State.
According to the practice of States, to arbitral and judicial
decisions and to the opinions of writers, nationality is a legal bond having a s its basis a social
fact of attachment, a genuine connection of existence, interests and sentiments, together with the
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existence of reciprocal rights and duties.
155.
The decision of a State to confer nationality must not be an arbitrary act.
Inter-American Court has written that:
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Here, the
[a]lthough it has traditionally been accepted that the determination and regulation of nationality are
the competence of each State, […] the evolution in this matter shows that international law imposes
certain limits on a State’s discretionality and that, in the regulation of nationality, it is not only the
competence of States, but also the requirements of the integral protection of human rights that
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intervene.
138
I/A Court H.R., Proposed Amendment to the Naturalization Provision of the Constitution of Costa Rica. Advisory
Opinion OC-4/84 of January 19, 1984. Series A No. 4, paragraph 32.
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See, inter alia, Brownlie Ian, Principles of Public International Law, Clarendon Press, Oxford, 1979. pp. 554-559;
Nguyen Quoc Dinh, Patrick Daillier, Alain Pellet, Droit International Public, L.G.D.J., Paris, 1980, pp. 413-415; Max Sorensen,
Manual de Derecho Internacional Público, Fondo de Cultura Económica, Mexico, 1973, pp. 453-456. See also I/A Court H.R., Case
of Ivcher Bronstein v. Peru. Merits, Reparations and Costs. Judgment of February 6, 2001. Series C No. 74, paragraph 86; I/A
Court H.R., Proposed Amendment to the Naturalization Provision of the Constitution of Costa Rica. Advisory Opinion OC=4/84 of
January 19, 1984. Series A No. 4, paragraph 32.
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IACHR, Application filed with the Inter-American Court of Human Rights, Case of Dilcia Yean and Violeta Bosico Cofi
v. Dominican Republic, July 11, 2003, paragraph 46, citing the ICJ, Case of Nottebohm (Liechtenstein v. Guatemala). Judgment of
November 18, 1953. Recueil des Cours 1955, p. 23.
141
142
Nguyen Quoc Dinh, Patrick Daillier, Alain Pellet, Droit International Public, L.G.D.J., Paris, 1980, p. 414.
I/A Court H.R., Case of Ivcher Bronstein v. Peru. Merits, Reparations and Costs. Judgment of February 6, 2001.
Series C No. 74, paragraph 88; Case of Castillo Petruzzi et al. v. Peru. Merits, Reparations and Costs. Judgment of May 30, 1999.
Series C No. 52, paragraph 101.