referred to is presumed, and consequently there is the need to consider the
alleged violation to determine the validity of the claim. To achieve that, the
Commission is going to clarify the meaning of the right to the recognition of
legal status under the terms of Article 5 of the Charter, and to determine
whether the Dioulas or persons considered as such have a valid claim
particularly through the right to nationality and in case the answer is in the
affirmative, whether the right derived therefrom has been violated.
96. Concerning the meaning of the right to recognition of legal status protected
by Article 5 of the Charter, the Commission notes that legal status is the
ability of an individual to have rights and obligations, and for that matter he
has a role in the legal activity. A legal person is also called a « subject of law »
even though it is necessary to make a distinction between natural persons and
corporate entities.13 Generally, with regard to a natural person who is a
human person, the legal status is acquired at birth and it expires on his/her
demise. That said, the legal status appears as a simple fiction as it is only an
ability that is likely to be realized or not according to whether it may receive
recognition from third parties, natural persons or institutions. Thus, without
recognition, the legal status remains only an unproductive attribute which
cannot bear any of its potential fruits, especially a series of fundamental
rights and obligations. The specific right protected by Article 5 of the Charter
is consequently a respondent to an obligation falling on any State Party to the
Charter to recognize an individual’s capacity to enjoy rights and to exercise
his obligations.
97. In the current circumstance, as suggested copiously by the Complainant in
his submissions, it is crucial to solve the issue as to whether there is a « right
to nationality » according to the provisions of Article 5 of the Charter. On this
point, the Commission notes that the right guaranteed by Article 5 of the
Charter is one of « recognition of the legal status » as defined above. That
said, nationality is a basic component of this right in view of the fact that it is
the legal and socio-political manifestation such as the status of a refugee or a
resident granted by a State to an individual for the enjoyment of rights and
the exercise of obligations. The Commission confirms this position by
reaffirming in its Resolution 234 on the right to a nationality that « the right to a
nationality of any human person is a fundamental right derived from the
terms of Article 5 of the Charter and essential for the enjoyment of other
fundamental rights and freedoms guaranteed by the Charter ». It appears
from these considerations that the Ivorian nationality is the component, at
least the primordial mode of realization of the right to the recognition of legal
status that the Dioulas of Côte d’Ivoire are invoking. It is necessary then to
13
Dalloz Glossary of Legal Terms (2001) 413.
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