Statelessness can result from a variety of circumstances. A few of the main causes of statelessness, and the practical steps States can take to avoid these circumstances, particularly when reviewing citizenship laws, are discussed below.
Conflict of laws
Problems may arise when nationality legislation in one State conflicts with that of another State, leaving an individual without the nationality of either State. Both sets of laws may be properly drafted, but problems arise when they are implemented together. For example, State A, in which the individual was born, grants nationality by descent only (jus sanguinis), but the individual’s parents are nationals of State B. State B, on the other hand, grants nationality on the basis of place of birth only (jus soli), but the individual was born in State A. The individual is thus rendered stateless.
Solutions to conflict of laws causes:
As set out in the 1930 Hague Convention, each State determines, under its own law, who its nationals are. This law, recognised by other States, must be consistent with international conventions, international custom, and the recognised principles of law applicable to questions of nationality. States should thus possess an updated collection of nationality laws and should understand their implementation in practice in order to resolve conflicts of law involving nationality.
The 1961 Convention on the Reduction of Statelessness asserts that nationality shall be granted:
– at birth, by operation of law to a person born in the State’s territory;
– by operation of law at a fixed age, to a person born in the State’s territory, subject to conditions of national law;
– upon application, to a person born in the State’s territory (the application may be made subject to one or more of the following: a fixed period in which the application may be lodged, specified residency requirements, no criminal convictions of a prescribed nature, and/or that the person has always been stateless);
– at birth, to a legitimate child whose mother has the nationality of the State in which the child is born;
– by descent, should the individual be unable to acquire nationality of the Contracting State in whose territory he/she was born due to age or residency requirements (this may be subject to one or more of the following: a fixed period in which the application may be lodged, specified residency requirements, and/or that the person has always been stateless);
– to foundlings found in the territory of a Contracting State;
– at birth, by operation of law, to a person born elsewhere if the nationality of one of the parents at the time of birth was that of the Contracting State;
– upon application, as prescribed by national law, to a person born elsewhere if the nationality of one of the parents at the time of the birth was that of the Contracting State (the application may be subject to one or more of the following: a fixed period in which the application may be lodged, specific residency requirements, no conviction of an offence against national security, and / or that the person has always been stateless).
Most States combine principles of jus soli and jus sanguinis in their citizenship legislation for determining the State’s initial body of citizens and how citizenship is granted at birth. Those States that do not accept dual citizenship should ensure that, by a certain age, an individual or the individual’s parents have the option to choose one nationality.
Conflict of laws linked to renunciation
Some States have nationality laws that allow individuals to renounce their nationality without having first acquired, or been guaranteed the acquisition of, another nationality. This often results in statelessness. Conflicts of law on this issue may arise when one State will not allow renunciation of nationality until the individual has first acquired another nationality, while the other State involved will not grant its nationality until the individual has first renounced his / her original nationality. Sometimes an individual may be required to renounce an assumed citizenship elsewhere before he/she can apply for citizenship where he / she resides, thus rendering the individual stateless until the new citizenship is granted.
Solutions to renunciation causes:
• According to the 1961 Conventions, loss or renunciation of nationality should be conditional upon the prior possession or assurance of acquiring another nationality. An exception may be made in the case of naturalised persons who, despite notification of formalities and time-limits, reside abroad for a fixed number of years and fail to express an intention to retain nationality. A naturalised person, in this instance, is a person who has acquired nationality upon applying to the Contracting State concerned, and that Contracting State could have refused the application. Loss of nationality may only take place in accordance with law and accompanied by full procedural guarantees, such as the right to a fair hearing by a court or other independent body.
• Citizenship legislation should provide that no citizen can renounce his / her citizenship without acquiring another citizenship or receiving formal and written assurances by the relevant authorities that he/she will acquire another citizenship.
• Some States have introduced provisions that allow for the re-acquisition of nationality if individuals lose or do not acquire another citizenship.
• For States that do not accept dual or multiple nationalities, citizenship legislation must ensure that the requirement to renounce or lose another nationality as a precondition for acquiring or retaining nationality is lifted when such renunciation or loss is not possible. For example, refugees should not be expected to return to or to contact the authorities of their country of origin to renounce their citizenship.
Laws and practices that particularly affect children
As stipulated by both the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC), all children, regardless of where they were born, should be registered immediately at birth. All children have a right to acquire a nationality. The nationality of a child will be determined according to the laws of the States involved; and all States require clarification of where the child was born and to whom. Without proof of birth, that is, without a recognised birth registration, it is almost impossible for a child to establish his/her identity and thus to acquire a nationality.
Solutions to this problem:
• States should provide the necessary resources to the relevant local administration to ensure that birth registration is systematically conducted in accordance with Article 7 of the CRC and Article 24 of the ICCPR. Support from the international community, particularly through UNICEF, should be requested if necessary.
• When registering births, States should identify cases of disputed nationality and should grant citizenship if the child would otherwise be stateless. Relevant provisions of the 1961 Convention on the Reduction of Statelessness should be incorporated into national legislation following accession to the Convention. These provisions should be incorporated into domestic legislation even if the State has not acceded to the 1961 Convention.
• There should be provisions in citizenship legislation for the acquisition of nationality of the country in which the child was born. This would prevent statelessness in cases where an error was made in determining the nationality of the child at birth.
• Children born out of wedlock should, to the extent possible, be given the same access to nationality at birth as children born to married parents in accordance with national law.
In many countries, women are not permitted to pass their nationality on to their children, even when a child is born in the mother’s State of nationality and its father has no nationality. In these instances, the child is stateless.
To avoid this problem:
• According to the 1957 Convention on the Nationality of Married Women and the 1979 Convention on the Elimination of All Forms of Discrimination against Women, women should have equal rights with men concerning the nationality of their children. Applying these principles will avoid both discrimination against women and the possibility that a child will inherit the status of statelessness from his / her father if he is stateless.
• States should include provisions on non-discrimination on the grounds of sex in their national citizenship laws.
Orphaned and abandoned children often do not have a confirmed nationality. Illegitimate children may also be prevented from acquiring nationality.
To avoid this problem:
• Foundlings discovered on a state’s territory should be granted the nationality of that state. This principle is contained in the citizenship legislation of many states and in international instruments relating to nationality.
• The best interest of the child should always be a primary consideration when determining the child’s nationality.
The adoption practices of some States may lead to statelessness if, for example, children are unable to acquire the nationality of their adoptive parents.
To avoid these problems:
• States should introduce provisions in their legislation ensuring that adoptions completed abroad in conformity with international law are recognised in national law. The 1967 European Convention on the Adoption of Children encourages States to facilitate the grant of nationality to the adopted children of their nationals.
There are numerous administrative and procedural issues related to the acquisition, restoration, and loss of nationality. Even if an individual is eligible for citizenship – indeed, even if an individual has successfully applied for citizenship – excessive administrative fees, deadlines that cannot be met, and/or an inability to produce required documents because they are in the possession of the former State of nationality can all prevent the individual from acquiring nationality.
Solutions to administrative practices causes:
• Applications relating to the acquisition, retention, loss, recovery or certification of nationality should be processed within a reasonable period of time.
• The registration of automatic (ex lege) acquisition or loss of nationality, including in situations of State succession for habitual and lawful residents, should not require written affidavits, even though States are generally advised to keep written records of all decisions on nationality.
• The fees for acquiring, retaining, losing, recovering or certifying nationality and for related administrative and judicial reviews should be reasonable.
Laws and practices that particularly affect women
Some States automatically alter a woman’s nationality status when she marries a non-national. A woman may then become stateless if she does not automatically receive the nationality of her husband or if her husband has no nationality. A woman can also become stateless if, after she receives her husband’s nationality, the marriage is dissolved and she loses the nationality acquired through marriage, but her original nationality is not automatically restored.
To avoid these problems:
• The 1957 Convention on the Nationality of Married Women and the 1979 Convention on the Elimination of All Forms of Discrimination against Women seek to grant women equal rights with men to acquire, change or retain nationality. In accordance with the principles contained in these conventions, the husband’s nationality status should not automatically change the nationality of the wife, render her stateless, nor make mandatory her acquisition of his nationality.
• In States where women do not have equal rights with men and may automatically lose their citizenship when they marry or where women have to renounce their former citizenship when they marry, those States should introduce provisions into their citizenship legislation enabling women whose marriages have been dissolved to automatically re-acquire their former citizenship through a simple declaration.
Automatic loss of nationality
Some States automatically revoke the nationality of an individual who has left his /her country or who resides abroad. Revocation of nationality, which can occur just a few months after the individual’s departure, is often associated with faulty administrative practices in which the individual concerned is not made aware that he / she risks losing his / her nationality if he/she doesn’t register regularly with the country’s authorities. If the individual is a naturalised citizen, rather than one who had been born in the State or who acquired nationality through descent, even regular registration may be insufficient to guarantee that nationality will not be revoked. Statelessness is often a direct result of these practices.
To avoid automatic loss of nationality:
• Article 7 (3) of the 1961 Convention on the Reduction of Statelessness stipulates that an individual shall not lose his/her nationality, and so become stateless, on the grounds of departure, residence abroad, failure to register or any similar ground. The Convention includes an exception to this principle concerning naturalised citizens who reside abroad for more than seven consecutive years. These individuals must express to the appropriate authority their wish to retain their nationality. States should thus adequately inform naturalised citizens of this policy both within their borders and, abroad, through their consular services.
• More recent instruments, such as the European Convention on Nationality, do not allow States to deprive a person of his/her nationality on the grounds that the individual habitually resides abroad if the individual concerned would thereby become stateless.
Causes linked to state succession
Transfer of territory or sovereignty
Although it is only partially addressed in specific international instruments and principles, the transfer of territory or of sovereignty has long been a cause of statelessness. National laws and practices will inevitably be altered when a State undergoes profound territorial changes or changes in sovereignty, such as when a State wins independence from a colonial power, after a State is dissolved, if a new State or States succeed(s) a dissolved State, or if a State is restored after a period of dissolution. Any of these events can trigger the adoption of new citizenship laws or decrees and/or new administrative procedures. Individuals may become stateless in these situations if they fail to acquire nationality under the new legislation/decrees or under new administrative procedures, or if they are denied nationality because of a reinterpretation of previously applicable laws and practices.
To avoid these problems with transfer of territory or sovereignty:
• Article 10 of the 1961 Convention on the Reduction of Statelessness stipulates that States Parties should ensure that statelessness does not occur as a result of transfer of territory. States should sign bilateral or multilateral treaties that include provisions to ensure that statelessness does not occur as a result of such a transfer. Where no treaty is signed, the State(s) concerned should grant nationality to those who would otherwise be stateless.
• In practice, populations are generally linked with territories; however some international treaties, constitutional provisions, and nationality legislation also offer the choice of nationality from among the successor States.
• Succession treaties may also incorporate provisions that focus on how the dissolution or separation of States may affect nationality.
• Responding to the need to codify and develop international law concerning nationality in relation to State succession, the International Law Commission (ILC) of the United Nations prepared draft articles on the subject that are contained in the Annex to UN General Assembly Resolution 55/153 of 2001.
The draft articles stipulate that:
– all States concerned should take appropriate measures so that persons who, on the date of the succession of States, had the nationality of the predecessor state do not become stateless as a result of the succession;
– a person whose habitual residence was located in the territory affected by the succession is presumed to acquire the nationality of the successor State on the date of the succession;
– a successor State should not attribute its nationality to persons whose habitual residence was in another State against the will of the persons concerned unless they would otherwise become stateless;
– States concerned should consider the will of persons concerned whenever those persons are qualified to acquire the nationality of two or more States. Each concerned State shall grant the right to opt for nationality of that State to persons who have appropriate connections with that State if those persons would otherwise become stateless;
– States concerned shall not deny concerned persons the right to retain or acquire a nationality or the right of option to a nationality through discrimination on any ground.
• The European Convention on Nationality and the Draft Protocol on the Avoidance of Statelessness in relation to State Succession incorporate the provisions found in the 1961 Convention and many of the principles contained in the ILC draft articles. The European Convention devotes a whole chapter to State Succession and Nationality, highlighting four main principles:
– the genuine and effective link between the person concerned and the State;
– the habitual residence of the person concerned at the time of succession;
– the will of the person concerned; and
– the territorial origin of the person concerned.
In addition, the European Convention on Nationality stipulates that non-nationals of a predecessor State who are habitually resident in the territory over which sovereignty is transferred to a successor State, and who have not acquired the nationality of the successor State, should have the right to remain in that State and enjoy the same social and economic rights as nationals.
• The Draft Protocol on the Avoidance of Statelessness in relation to State Succession developed specific rules of proof (Article 8) concerning nationality in cases of State succession: “A successor State shall not insist on its standard requirements of proof necessary for the granting of its nationality where it concerns persons who have or would become stateless as a result of State succession and where it is not reasonable for such persons to meet the standard requirements. A successor State shall not require proof of non-acquisition of another nationality before granting its nationality to persons who were habitually resident on its territory at the time of the State succession and who have or would become stateless as a result of State succession.”
Paragraph one of Article 8 considers the situation in which it is impossible or very difficult for a person to fulfil the standard requirements of proof to meet the conditions for the acquisition of nationality. In some cases, it might be impossible for a person to provide full documentary proof of his/her descent if, for example, the archives of the civil registry have been destroyed. It might be impossible to provide documentary proof of the place of residence in cases where the place of residence was not registered. This provision also covers situations where it might be feasible for a person to provide proof but it would be unreasonable to demand such proof, for example, if providing proof would put the applicant’s life or health in danger. Circumstances that make it difficult to provide proof are not always directly linked to the event of State succession. They may be the consequences of an event that occurred before or after the succession, for example, when, under the regime of the predecessor state, the civil registry was destroyed or essential documents were not issued to a certain segment of the population. In all these instances, a high probability of proof and / or independent testimony shall be sufficient for fulfilling the conditions to acquire the nationality of a successor State.
Paragraph two of Article 8 is only relevant when the predecessor State has disappeared and all persons possessing the nationality of that State have lost that nationality as an automatic consequence of the State’s dissolution. If the new successor State prevents or reduces the number of multiple nationalities, the State might require proof from the person concerned that he/she has not acquired another nationality or that he/she is stateless. The requirement to prove that a person does not possess another nationality or is stateless is often impossible to fulfil, since it depends upon the cooperation of other States.
If there is a risk that the person concerned might become stateless as a result of State succession, the successor State should not require proof that the person concerned does not have another nationality or that the person is stateless before granting that person citizenship. This rule is based on the predominant view that preventing statelessness is the primary concern of the international community, while the acceptance or rejection of multiple nationalities is a matter to be decided by each individual State.
These provisions do not prevent a State that wants to reduce the number of multiple nationalities in its territory from cooperating with other States and exchanging information on the acquisition and loss of nationality. Multiple nationalities may be countered through the provision on non-recognition of another nationality found in the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws and through Article 7.1.a of the European Convention, which sets out the possibility of automatic loss of nationality when a person voluntarily acquires another nationality. A State may also ask the individual concerned to make a written statement declaring that he / she does not and will not possess another nationality. That will enable the State to annul its own citizenship if/when it is later discovered that the person concerned has made a false declaration.
Causes linked to discrimination or arbitrary deprivation of nationality
One of the principal constraints on State discretion to grant or deny nationality is the proscription against racial discrimination. This principle is reflected in the Convention on the Elimination of all Forms of Racial Discrimination and in many other instruments. In its General Recommendation on Discrimination against Non-citizens of 1 October 2004, the United Nations Committee on the Elimination of Racial Discrimination stated that “deprivation of citizenship on the basis of race, colour, descent, or national or ethnic origin is a breach of States’ obligations to ensure non-discriminatory enjoyment of the right to nationality.”
However, sometimes individuals are unable to acquire the nationality of a particular State despite having strong ties to that State – ties that, for other persons, would be sufficient to trigger the granting of citizenship. Discrimination based on race, colour, ethnicity, religion, gender, political opinion, or other factors can be either overt or created inadvertently in the laws or as they are implemented. Laws may be said to be discriminatory if they contain prejudicial language or if the result of their application is discrimination.
Solutions to avoid discrimination:
• Ensure that the principle of non-discrimination relating to nationality is enshrined in the constitution and in laws relating to nationality and ensure, through administrative and judicial decisions, that the principle is implemented.
• States are required to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he / she is born. Therefore, children born to married parents, children born out of wedlock, and children born to stateless parents all have an equal right to nationality under international law.
• The 1957 Convention on the Nationality of Married Women and the 1979 Convention on the Elimination of All Forms of Discrimination against Women seek to grant women equal rights with men to acquire, change or retain nationality. In accordance with the principles contained in these Conventions, the husband’s nationality status should not automatically change the nationality of the wife, render her stateless, nor make mandatory her acquisition of his nationality. Deprivation and denial of citizenship The Universal Declaration of Human Rights stipulates that no one shall be arbitrarily deprived of nationality. The 1961 Convention and the 1997 European Convention on Nationality strictly limit the possibilities for States to initiate the loss of citizenship. Any such loss of nationality must be accompanied by full procedural guarantees and should not result in statelessness.
Denationalisation occurs when a State deprives an individual of citizenship, usually because the State is engaging in discriminatory practices. Expulsion of the individual usually follows.
Solutions to denationalisation:
• The basic principle of international law is that no one should be deprived of nationality if such deprivation results in statelessness.
• The 1961 Convention on the Reduction of Statelessness makes the following exceptions to this principle:
– Nationality obtained by misrepresentation or fraud;
– Loss of nationality following residence abroad (see above);
– Acts inconsistent with a duty of loyalty, either in violation of an express prohibition to render service to another State, or by personal conduct seriously prejudicial to the vital interests of the State (only if these are specified in law at the time the Convention was signed); or
– Oath or formal declaration of allegiance to another State or repudiation of allegiance to the State (only if specified in law at the time the Convention was signed).
A State Party to the 1961 Convention can only deprive an individual of its nationality on the previous grounds if stated specifically at the time of signature, ratification or accession and if in accordance with law and accompanied by full procedural guarantees, such as the right to a fair hearing. A Contracting State may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds.
• The 1997 European Convention on Nationality limits even further the capacity of States to deprive persons of their citizenship if it results in statelessness. According to that Convention, deprivation of citizenship is only justified in cases of acquisition of nationality by fraud or misrepresentation. However, if deprivation of citizenship does not result in statelessness, the State can deprive a national of its citizenship because of:
– Voluntary acquisition of another nationality;
– Voluntary service in a foreign military force;
– Conduct seriously prejudicial to the vital interests of the State;
– lack of a genuine link between the State and a national who habitually resides abroad;
– Preconditions leading to the automatic acquisition of the nationality of the State, as set out in domestic law, were not fulfilled (this is applicable only to minors); or
– An adopted child acquires or possesses the foreign nationality of one or both of the adoptive parents.
IMAGE CREDIT: Wikimedia Commons / DFID - UK Department for International Development [CC BY-SA 2.0 (https://creativecommons.org/licenses/by-sa/2.0)]