'Soft law' entrepreneurship and the right of the child to a nationality in an era of migration.

Author:Kohn, Sebastian

Nationality and statelessness continue to be contested areas of international human rights law. While the right to acquire a nationality is firmly established in several international instruments, it is still not clear precisely how this right operates. Which state has an obligation to grant its nationality? To whom? And when? This lack of specificity is a consequence of the fact that the right to determine who is national and who is not has been at the core of state sovereignty for centuries. In fact, it is only in the last half century or so that states have begun to acknowledge that nationality determination is subject to certain limitations. (1)

At the same time, the need to establish clearer norms is greater than ever. Today, 3.1 percent of the world's population are migrants. While the percentage of migrants has remained fairly stable over the last decade, the total number has increased from 150 million in 2000 to 214 million in 2010, according to the International Organization for Migration. (2) Most migrants have a nationality somewhere, although a relatively small number does not: they are stateless. However, for all migrants access to nationality--whether in their state of origin or in the country of residence--is important to ensure access to a host of other rights and services including identity documentation, diplomatic protection, consular services, health care, social security, education, and work.

In the particular fields of nationality and statelessness, the problem is not so much the lack of an international regime, but rather that the existing regime is very weak. Basic norms exist, and to the extent that these norms deal with reduction, prevention, and avoidance of statelessness, UNHCR has a clear international mandate. The weakness stems from the lack of specificity as to the operation of existing norms, as alluded to above. Because of this, activists and policymakers have turned to subsidiary sources of international law as well as "soft law" in order to strengthen the legal framework and achieve law and policy reform. In this short essay the role of strategic litigation, resolutions by the UN Human Rights Council, and international expert consultations will be highlighted.

Treaty law, and to a lesser extent customary international law, provides some fundamental norms in this field. With respect to the particular right of the child to a nationality, the Convention on the Rights of the Child (CRC) stipulates in Article...

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