ON THE ISSUE OF DETERMINING A CHILD'S NATIONALITY: NATIONAL, INTERNATIONAL, AND FOREIGN LEGAL REGULATORY MECHANISMS

Abstract

This article is devoted to a comprehensive study of the legal mechanism for determining a child's nationality in light of constitutional guarantees and international human rights standards. The purpose of the study is to identify problems and systemic contradictions between the current norms of the national legislation of the Republic of Kazakhstan and the international obligations of the state in the area of ensuring the child's right to ethnic self-identification. The analysis is based on the provisions of the Constitution, regulatory decisions of the Constitutional Court, the Code of the Republic of Kazakhstan «On Marriage (Matrimony) and Family», and international treaties ratified by the Republic of Kazakhstan. To ensure completeness and objectivity, the experience of the CIS countries and non-CIS countries was analysed, in particular, the legal consolidation of national identity in Israel and Bosnia and Herzegovina - countries in which constitutions formalize the special status of «titular» nations. The experience of Canada and Belgium was considered, whose legislative practice allows us to assess the risks of applying a similar model in multinational states, including Kazakhstan. The study found that the automatic determination of nationality based on the origin of parents creates the preconditions for discrimination, especially in relation to orphans and stateless persons, and substantiated that the existing regulatory model requires revision in order to ensure the voluntary nature of ethnic self-identification and prevent confusion between the concepts of nationality and citizenship.

The study is based on a combination of general scientific and specialized methods: deduction, historical, comparative legal, and systemic analysis, case studies, and a doctrinal approach. The empirical basis was formed by the normative legal acts of the Republic of Kazakhstan, international legal documents (including the Convention on the Rights of the Child and the Convention on the Reduction of Statelessness), as well as decisions of the European Court of Human Rights and materials of law enforcement practice of the CIS states.

The results of the study can be used for further reform of family and marriage legislation of the Republic of Kazakhstan. The results of the conducted research may be useful for the scientific community, legislative bodies, and human rights organizations.