Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

106 | PRACTITIONERS GUIDE No. 6
they are not subject to any specific international law protection, are
protected by international human rights law. Of particular relevance are
obligations of non-discrimination, and the principle that rights must be
guaranteed in ways that are practical and effective. 282
The UNHCR expert meeting also recognised that “irregular migrants
who are without identity documentation may or may not be unable or
unwilling to avail themselves of the protection of the country of their
nationality.” 283 As a rule there should have been a request by the migrant
for protection and a refusal by the State of nationality, before he
or she can be declared de facto stateless. However, prolonged non-cooperation
by the country of nationality in the identification procedure or
other proceedings can also be considered a refusal of protection, thus
making the migrant de facto stateless. 284 Similarly, this condition may
also be satisfied in a situation where a country is unable to exercise
diplomatic or consular protection.
Several treaties impose obligations on States aimed at reducing statelessness,
reflecting the right to nationality, enshrined in Article 15
of the Universal Declaration of Human Rights. 285 These are the 1961
Convention on the Reduction of Statelessness, the European Convention
on Nationality, and the 2006 Council of Europe Convention on the avoidance
of statelessness in relation to State succession. 286 An important
safeguard concerning children is set out in Article 7 CRC which requires
that a child “shall be registered immediately after birth and shall have
the right from birth to a name, the right to acquire a nationality and as
far as possible, the right to know and be cared for by his or her parents
[. . .] in particular where the child would otherwise be stateless.” 287 Of
particular interest to the situation of migrants is Article 7 of the 1961
Convention on the Reduction of Statelessness, which deal with obliga-
282 See, for example, CCPR, General Comment No. 31, op. cit., fn. 46, para. 10; and Article 2.3
ICESCR, which prohibits at least developed States from discriminating between nationals
and non-nationals.
283 The Concept of Stateless Persons under International Law, op. cit., fn. 276, para. II(10).
284 See, also, an analysis of Statelessness as lack of effective nationality in the Equal Rights Trust,
Unravelling Anomaly, op. cit., fn. 281; and Hugh Massey, “UNHCR and de facto statelessness”,
in UNHCR Legal and Protection Policy Research Series, Department of International Protection,
UNHCR, UN Doc. LPPR/2010/01, April 2010.
285 See also, Article 7 CRC and Article 24.3 ICCPR.
286 The Convention on the Reduction of Statelessness, 1961, (Statelessness Convention) provides
specific obligations on States in order to prevent statelessness as a result of the circumstances
of a person’s birth (Articles 1–4); in cases of marriage, termination of marriage, legitimation
or adoption, (Article 5–6); or due to loss or renunciation of nationality, or naturalisation procedures,
departure, residence abroad, failure to register or any other similar ground (Article 7) or
in cases of transfer of State territory to another State (Article 10). It provides that no person
or group may be deprived of their nationality on racial, ethnic, religious or political grounds
(Article 9).
287 Article 7 CRC. The obligation is reflected also in Article 6 ACRWC; Article 20 ACHR, Article XIX
ADRDM, Article 2, Convention on the Reduction of Statelessness, 1961.