subjective right.30 The Commission is of the view that following the
application of this doctrine, the disputed law itself becomes a source of
violation of rights. Thus, as illustrated clearly by the Modise case, the lack of
precision of a law on nationality may promote the imputation of an
alternative nationality, which could be addressed within the context of
violating not only the provisions of Article 5 of the Charter but also of the
relevant international law.
113. It is at this turning point of practical application of the right to recognition
of the legal personality that a bridge needs to be built between the provisions
of the Charter and the provisions of the thematic international Conventions
relating to nationality.31 Based on the provisions of Articles 60 and 61 of the
Charter, the Commission notes that a judicious consideration of the case in
point requires recourse to specialised international standards in view of the
general nature of the recognition of the legal status laid down in Article 5 of
the Charter. In the interpretation of these provisions of the Charter, the
standards with much relevance and precision in this matter are indisputably
the 1954 United Nations Conventions on the Status of Stateless Persons and
the 1961 Convention on the Reduction of Cases of Statelessness.32 This
relevance is justified by the fact that one of the most dramatic consequences
of the vagueness of legislation on nationality is statelessness which is defined
as the situation of a person to whom no State has granted the right of
recognition of nationality for the enjoyment of a legal status.
114. Under the terms of the provisions of Article 1 of the 1954 Convention on
the Status of Stateless Persons, being stateless is defined as « a person that no
State considers as a citizen in the implementation of its legislation ». With
regard to the Convention on the reduction of stateless persons, it enacts in
Article 8(1) that « The Contracting States shall not deprive any individual of
their nationality where this deprivation will make the subject stateless ». In a
more precise and complementary approach, the African Charter on the Rights
and Welfare of the Child compels States Parties, in Article 6(4), to « ensure
that their legislations recognize the principle according to which a child
enjoys the right to acquire the nationality of the State on whose territory
he/she was born at the time of his/her birth, he/she cannot claim the
nationality of any State in accordance with its laws ».
See in general Rekvényi v. Hungary, CEDH, Decision of 20 May 1999; South African Liquor Traders
Association and Others, op. cit.
31 See Articles 60 and 61 of the Charter.
32
United Nations Convention on the Status of Stateless Persons, 28 September 1954
http://www.unhcr.org/3bbb25729.html ; United Nations Convention on the Reduction of Cases of
Statelessness, 30 August 1961 http://www.unhcr.org/3bbb286d8.html.
30
33