African Guiding Principles on the Human Rights of All Migrants, Refugees and Asylum Seekers
Published: 23/Oct/2023
Source: African Commission on Human and Peoples' Rights
The present African Guiding Principles on the Human Rights of All Migrants, Refugees and Asylum Seekers are proposed for consideration and adoption by the African Commission on Human Rights during its 75th ordinary session in Addis Ababa (3-23 May 2023).
African Union institutions and Member States have recognized that migrants bring special contributions to their communities and to our Continent.
The Guiding Principles were conceived of and drafted after African Union institutions and its Member States had passed resolutions and put in place various mechanisms to recognize and promote the rights of all migrants – including having played a leading role for decades in issues of refugee protection – and developed a landmark framework to promote freedom of movement on the continent.
The Commission, for its part, has passed multiple resolutions addressing the rights of all migrants, including Resolution 114 of 2007, on Migration and Human Rights; Resolution 333 of 2016, on the Situation of Migrants in Africa; and Resolution 470 of 2020, on the Protection of Refugees, Asylum Seekers, Internally Displaced Persons and Migrants in the Fight Against the COVID-19 Pandemic in Africa. Finally, the Commission identified the need to study African Responses to Migration and the Protection of Migrants with a view to Developing Guidelines on the Human Rights of Migrants, Refugees and Asylum Seekers in its Resolution 481 of 2021.
Extract:
PRINCIPLE 23 – NATIONALITY
1. Every migrant has the right to a nationality. States shall eradicate statelessness of migrants.
2. Every State shall grant its nationality to a person born in its territory who would otherwise be stateless.
3. Every State shall grant its nationality to a migrant child found abandoned in its territory who would otherwise be stateless.
4. Every child of migrants has the right to acquire the nationality of either or both parents.
5. Every migrant has the right to retain their nationality or acquire the nationality of their spouse.
6. Migrants shall not be arbitrarily deprived or denied recognition of their nationality nor denied the right to change their nationality.
7. States shall provide certificate of nationality to naturalized migrants.
Explanatory Note:
See Article 1 of the 1961 Convention on the Reduction of Statelessness notes that a “State shall grant its nationality to a person born in its territory who would otherwise be stateless. Such nationality shall be granted: (a) at birth, by operation of law, or upon application being lodged with the appropriate authority, … in the manner prescribed by the national law.” See Article 6 (4) of the African Charter on the Rights and Welfare of the Child stating that “[s]tates Parties to the present Charter shall undertake to ensure that their Constitutional legislation recognize the principles according to which a child shall acquire the nationality of the State in the territory of which he has been born if, at the time of the child’s birth, he is not granted nationality by any other State in accordance with its laws.” Article 6 (g) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa guarantees married women “the right to retain her nationality or to acquire the nationality of her husband.” Furthermore, Article 6 (h) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa states parents “shall have equal rights, with respect to [the] nationality of their children.” See also Article 6(3) of the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Specific Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa states “[a] State Party shall facilitate in law the possibility of acquisition of its nationality by: (a)[t]he child of a person who has or who acquires its nationality; (b) [a] child born in the territory of the State to a non-national parent who is habitually resident there; (c) [a] person who was habitually resident in its territory as a child and who remains so resident at majority; (d) [a] child in the care of a national of the State; (e) [t]he spouse of a national; (f) [a] stateless person; [and] (g) [a] refugee.” See Article 12, the Draft Protocol to the African Charter on Human and Peoples’ Rights on the Specific Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa on issuing nationality or naturalization certificates. See Paragraph 96 of the African Committee of Experts General Comment on Article 6 of the African Charter on the Rights and Welfare of the Child noting the importance of “ensuring that children found abandoned in the territory of a State Party (foundlings) acquire the nationality of that State. Such provisions are important to ensure that children abandoned by their parents, or whose parents have died, or who are separated from their parents in case of war or natural disaster, also acquire a nationality.”
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