SEPARATE OPINION OF JUDGE A.A. CANÇADO TRINDADE
1.
While voting in favor of the adoption of the judgment of the Inter-American
Court of Human Rights in the Case of Yean and Bosico children versus the Dominican
Republic, with which I am basically in agreement, in this separate opinion I wish to add
some brief personal observations on the central issue of the case, because this is the
first time in its history that the Inter-American Court is ruling on the right to nationality
under the American Convention on Human Rights when deciding a contentious case.
Therefore, allow me to focus on three key aspects of this matter – to which I attribute
particular relevance: (a) normative advances with regard to nationality and the
troubling persistence of the causes of statelessness; (b) the legal response to the
disturbing diversification of the manifestations of statelessness, and (c) the broad scope
of the general protection obligations (Articles 1(1) and 2) of the American Convention.
I.
Normative advances with regard to nationality and the troubling
persistence of the causes of statelessness
2.
Over the past three decades, I have been indicating that there is no issue that
belongs intrinsically to the sphere reserved to the State or to its exclusive national
jurisdiction. The locus classicus for examining the question continues to be the
celebrated obiter dictum of the former Permanent Court of International Justice in its
Advisory Opinion on the Nationality Decrees in Tunis and Morocco (1923). According to
this, determination of whether or not a matter falls within the jurisdiction of a State is a
relative matter, dependent on the development of international relations. 1 In fact, in
regard to the right to nationality, this development has effectively removed the matter
from exclusive national competence and, for some time, has raised it to the level of the
international juridical system.
3.
In short, the issue of nationality cannot be considered merely from the
perspective of the State’s discretional authority, because general principles of
international law are involved, such as the obligation to protect. Consequently, I
consider that certain constructs concerning nationality (original or acquired) derived
from traditional doctrine that revolves around the State have been totally surpassed;
these include the unlimited power of the State, the exclusive will of the State, the sole
interest of the State, and also the contractualist theory (a variant of voluntarism). The
emergence and impact of international human rights law has made a decisive
contribution to this advancement.
4.
Even at the level of domestic law, the acquisition of nationality is a matter of
ordre public that conditions and regulates the relationship between the individual and
the State, through the acknowledgement and observance of reciprocal rights and
obligations. The attribution of nationality, as a matter of ordre public, always involves,
at the level of domestic law, principles and obligations arising from international law,
owing to the interaction and interpenetration of the national and international juridical
systems.
1
.
A.A. Cançado Trindade, O Direito Internacional em um Mundo em Transformação, Rio de Janeiro,
Edit. Renovar, 2002, pp. 413 and 475; and cf., for a general overview, A.A. Cançado Trindade, "The Domestic
Jurisdiction of States in the Practice of the United Nations and Regional Organisations", 25 International and
Comparative Law Quarterly - London (1976) pp. 713-765.