UNHCR and Issues Related to Nationality

Introduction: International Assistance to Stateless Persons [1]

Statelessness, although not a new phenomenon, has taken on new dimensions in the twenty-first century. A schematic diagram of the incidence of statelessness would reveal some striking correlations with the rise and movement of refugee flows in response to events such as World Wars I and II, political changes and related developments. Historically, refugees and stateless persons were less differentiated than today, both receiving assistance from international refugee organizations. The 1954 Convention relating to the Status of Stateless Persons[2] was originally intended as a Protocol to the 1951 Convention relating to the Status of Refugees.[3] In 1950, however, the pressing needs of refugees and the impending liquidation of the International Refugee Organization (IRO) meant that detailed consideration of the statelessness issue was postponed. The Refugee Convention was adopted, while consideration of the Protocol was deferred. In 1954, the Protocol was adopted as a Convention.

A narrow definition of stateless persons was adopted in the 1954 Convention, covering only "a person who is not considered as a national by any State under the operation of its law."[4] This defines a de jure stateless person, one who is without a nationality[5] by operation of law. De facto stateless persons, those with an ineffective nationality or those who cannot prove they are legally stateless, were dealt with by a non-binding recommendation in the Final Act, as it was assumed that they had voluntarily renounced their citizenship and were refugees. This recommendation advocates that the benefits of the Convention be extended to de facto stateless persons on humanitarian grounds wherever possible. Although no supervisory body was provided for by the Convention, there is every indication this was an oversight. There is an historical, practical and substantive link between the United Nations High Commissioner for Refugees (UNHCR), stateless persons and the 1954 Convention concerning their status.

The 1961 Convention on the Reduction of Statelessness does make provision for a mediating agency.[6] In 1975, when this Convention came into force, the General Assembly conferred on UNHCR the responsibilities under Article 11, providing for the establishment of a body to which a person claiming the benefit of this Convention may apply for the examination of his claim and for assistance in presenting it to the appropriate authority.[7] The Final Act to this Convention, like that of the 1954 Convention, includes a recommendation that the provisions be extended to de facto stateless persons wherever possible. Thus, UNHCR has an interest in both the 1954 and 1961 Conventions based on historical, legal, and practical links

In addition to these links in relation to the Conventions regarding statelessness, UNHCR is concerned with the problem of statelessness as part of its mandate for international protection and preventive action. Stateless persons may be similarly situated with refugees due to a lack of national protection. While statelessness itself does not automatically lead to dislocation or forced migration, lack of citizenship in conjunction with other factors creates instability and may, potentially, lead to flight. Refugees who are stateless are covered by the Refugee Convention, in respect of which UNHCR has supervisory authority. Stateless refugees will, therefore, be assisted as refugees under the provisions of the 1951 Convention. In many cases, the lack of nationality or being stripped of nationality and the rights generally associated with citizenship have been related to the decision to flee. The prevention of potential refugee flows is one aspect of UNHCR's mandate[8] Moreover, the realization of an effective nationality may be an ingredient in overcoming refugee status. Thus, both de jure and de facto stateless persons, many of whom are or could become refugees, are of concern to UNHCR.[9] As a result of the overlap between nationality status and other factors related to flight, many asylum seekers whose nationality is unclear or ineffective, or who gave no nationality, come to UNHCR for assistance.

Recently, the issue of citizenship, or a potential lack thereof, has become prominent due to nationality legislation adopted in the establishment of new or restored states. The initial body of citizens does not always include long-term residents and, for those who gave no claim to an alternative nationality, such exclusion results in statelessness. There are, however, a variety of other contexts in which the right to a nationality is not recognized. Discriminatory denial of citizenship for certain sectors of the population is an ongoing problem in some states, while conflicts of law result in gaps in legislation leading to statelessness in other states.

It is the right of a state to determine who are its citizens; however, this determination should accord with the relevant provisions of international law. Certain human rights principles and the existence of a link between the individual and the state act as a basis for citizenship under international law.[10] The genuine effective link, broadly derived from a presumed link between the individual and the state based upon factors of birth, residency and descent, is reflected in a majority of domestic nationality legislation.[11]

Statelessness, nonetheless, persists. While the basic human rights of stateless persons are, in principle, to be respected in their country of habitual residence, statelessness itself creates vulnerability. Stateless persons hold an unequal status in their society which, particularly when aggravated by political change, may result in complications, including displacement and flight. Initially it was assumed that all de facto stateless persons were refugees and would, therefore, benefit from the Refugee Convention. However, an individual who does not qualify as a refugee and who cannot prove s/he is de jure stateless, will not qualify for assistance under the Refugee Convention or the statelessness Conventions, although the lack of national protection may, in fact, be identical to that of a de jure stateless person. An individual who can prove s/he is de jure stateless may appeal to UNHCR for assistance under Article 11 of the 1961 Convention, but in relation to signatory states only. For the application of the 1954 Convention, however, there is no international body which an individual may turn. In situations where nationality status is unclear, as is often the case and not, as previously thought, necessarily the result of an individual's act, the supplicant will have to rely on a humanitarian plea based on the non-binding recommendations of the Final Acts of the 1954 and 1961 Conventions. With development of international law in the field of nationality, adherence to the provisions of the 1961 Convention on the Reduction of Statelessness places a minimal burden on states in relation to that already borne under current principles of equality, non-discrimination, protection of ethnic minorities, children's rights, territorial integrity vis-à-vis another state, and an underlying right to a nationality. The 1961 Convention does not require a contracting state unconditionally to grant nationality but seeks, rather, to balance factors of birth, residency and descent in an effort to avoid the creation of statelessness as well as to reflect an individual's genuine connection with the state. This approach is developing as a principle in international law outside of the context of the 1961 Convention on the Reduction of Statelessness. The work of the International Law Commission's Special Rapporteur on State Succession and Nationality, and that of the Council of Europe's Committee of Experts on Nationality, will illuminate further the current status of international law on the question of nationality.

In 1988, the United Nations General Assembly noted:

…the close connection between the problems of refugees and of stateless persons and invite[d] States actively to explore and promote measures favourable to stateless persons in accordance with international law.[12]

Concern regarding the ongoing problem of statelessness may also be seen in the increasing interest of the Executive Committee of the High Commissioner's Programme due, in part, to a rise in the number of displaced persons for whom no state is willing to take responsibility. In 1994, the Executive Committee noted the persistent problems of stateless persons, and called upon UNHCR to:

[S]trengthen its efforts in this domain, including promoting accession to the Convention on the Reduction of Statelessness and the Convention relating to the Status of Stateless Persons, training for UNHCR staff and government officials, and a systematic gathering of information on the dimension of the problem, and to keep the Executive Committee informed of these activities.[13]

Mostly recently, the Executive Committee adopted a Conclusion on The Prevention and Reduction of Statelessness and The Protection of Stateless Persons.[14] The Conclusion requests UNHCR actively to promote accession to the 1954 and 1961 Conventions, providing relevant technical and advisory services pertaining to the preparation and implementation of nationality legislation. UNHCR is further requested:

[A]ctively to promote the prevention and reduction of statelessness through the dissemination of information, and the training of staff and government officials; and to enhance cooperated with other interested organizations.[15]

UNHCR has initiated further steps to assist stateless persons. As part of its protection activities, the Office has sought to prevent and mitigate as far as possible involuntary dislocation and hardship. UNHCR has been approached by both individuals and governments seeking advice and assistance in nationality matters. The Office has had the opportunity to provide comments on the drafting and implementation of nationality legislation. Open dialogue may assist in avoiding instances in which failure to acknowledge the genuine effective link might leave long-term habitual residents, who lack genuine ties elsewhere, without citizenship.

The United Nations High Commissioner for Refugees has observed that:

Stateless persons are another category in need of international protection, for whom UNHCR has a special responsibility. My Office has been designated as an intermediary between States and stateless persons under the 1961 Convention on the Reduction of Statelessness. Most recently, UNHCR has been requested by its Executive Committee to place the matter of statelessness on its agenda this year. We will explore promotional and preventive activities to which UNHCR can contribute in collaboration with concerned States. There is an obvious link between the loss or denial of national protection and the loss or denial of nationality. On the plane of rights, the prevention and reduction of statelessness is an important aspect of securing minority rights.[16]

UNHCR has had the opportunity to observe a variety of circumstances in which statelessness has been or could potentially be created. To ascertain by what means the reduction and prevention of statelessness might be realized, it is helpful to review some of the contexts in which statelessness appears. While the focus, of late, has been on nationality issue as they relate to state succession, statelessness as phenomenon appears regularly in a variety of locations and settings. An awareness of the extent of the problem and the numerous ways in which it appears, may facilitate a deeper understanding of potential measures necessary for the reduction and elimination of statelessness.

Profiles of Stateless Persons

There are several scenarios in which statelessness or problems related to nationality may arise. While it is not possible to report on all the contexts in which statelessness appears, some general profiles emerge.[17]

a.     Ethnic Minorities

There is a severe problem in several areas of the world, including Asia, the Middle East and in some states which have emerged from the former Soviet Bloc, for ethnic minority groups who do not receive the citizenship of the place with which they are most closely connected. In some cases, ethnic minorities have been severely uprooted from their place of habitual residence, states arguing that as those concerned are not citizens, they have no right of residency and that the state itself is not obliged to extend national protection or to apply certain of the broader human rights principles to non-citizens on its territory. Some of the minorities involved have been refused nationality, despite birth and long-term residency reflecting a genuine link with the state. Others had citizenship but have been denationalized under new legislation, although the state entity has not itself changed.[18] For some, it has proven impossible to receive recognition from any state despite linguistic, cultural or blood ties on the one hand, or habitual residence, birth or civil connection on the other. Hence, these groups live with the ever-present risk of expulsion. Often, there are additional risks of imprisonment and arbitrary determination of status by officials. "Non-citizens" are often denied access to state-run facilities such as schools and hospitals. The option to work, to own property, and other basic social rights for citizens may also be inaccessible to non-nationals. In some cases, this inability to lead a normal life has inspired movement across borders. Naturally, once those who were discriminated against have left the territory of their state of habitual residence, they are unlikely to receive permission to re-enter. In many cases, they are not recognized as former residents.

Host states signatory to the statelessness Conventions do not, in the circumstances outlined, necessarily apply the articles of the Conventions to these individuals who appear on their territory because the nationality status of the persons concerned is unclear. As the definition of one who is stateless is a narrow one and, further, as many people cannot show that they are de jure stateless, they do not receive the benefits of the Conventions.[19] International instruments aimed at providing protection are not, in this sense, comprehensive, for many of those concerned do not qualify as refugees, cannot definitively show they are de jure stateless and, therefore, fall into the de facto stateless group or de facto unprotected group[20] for whom neither the 1951 Refugee Convention nor the 1954 or 1961 statelessness Conventions apply.

In certain of these situations the problem has persisted for several generations. Ethnic minorities may originally have fled to a country which granted them asylum. In some cases, this asylum may have been granted provisionally, contingent upon the fact that the possibility of naturalization did not exist. In other cases, nationalization may have been declined by the asylum-seekers themselves who preferred, rather, to live with the hope of eventually returning to their homeland. In either case, this group remained distinct and failed to integrate.[21] Parents may have kept old documents as proof of former citizenship in their home country and this, in turn, was the status they hoped to pass along to their children. Naturally, the ties with the home country would weaken over time, particularly as the children and the grandchildren would, in most cases, not have been to the "home" country. Nonetheless, the lack of integration within the country in which the children were born coupled with the inability to reap the usual benefits forthcoming to citizens and full-fledged members of society could, and has, inspired upheaval and flight.

When flight occurs, however, the individuals concerned have, with extraordinary exceptions only, no right of entry to the country of their parents or grandparents. While some countries maintain a so-called "overseas nationality" for ethnic or political descendants, it is again with exception that this overseas nationality carries with it the right of entry or abode, making national protection a topic of theoretical discussion only. The state granting overseas nationality cannot effectively extend protection to these overseas nationals on another state's territory, especially when the individuals concerned do not hold the full and equal rights of citizenship through their "overseas nationality" including, for example, the right to enter the state of citizenship".[22] This is particularly the case when the individuals concerned are second and third generation descendants, born and resident elsewhere. Such overseas nationality is, in fact, often more detrimental than beneficial. It provides other states with a reason not to grant nationality to their habitual residents by arguing that they are already the nationals of another state.

The question goes beyond one of whether individuals and states should harbour certain sentiments of attachment based on ethnic cohesion. Often, people are more likely to feel at home in a place where they can identify closely with the culture, language, ethnicity and history. The reality is, however, that nation-states have politically and economically, more than sociologically or anthropologically, constructed borders. As can be seen from events of this century, some diversity will remain no matter how narrowly the borders are drawn. There is no legally legitimate reason to grant or deny nationality solely upon ethnic grounds, particularly in light of human rights principles, well-established in the decades following World War II Populations cannot be shifted about or mass expulsions perpetrated whenever the political winds shift. Guided by humanitarian and human rights principles, methodically developed in the course of this century, it is incumbent upon states to adopt policies reflective of a semblance of world order. With consensus on this simple, yet fundamental starting point, it may readily be acknowledged that statelessness and the lack of an effective nationality as phenomena are not facilitative of world order.

b.     Post-Colonialism

In some cases, the vestiges of colonialism linger A protectorate, pending the independence and self-determination of the territory in question, may exist for years. In one case, rather than achieving independence, the territory was invaded by another power which has held effective control of the territory in question in excess of twenty years, ousting without difficulty the ex-colonial protector. Nonetheless, it has been assumed that the protectorate remains intact until the territory attains independence and that those born under the protectorate become citizens of the former colonial power. The result is that these "citizens" are, when fleeing persecution on their territory, obliged to seek the national protection of the former colonial power with which they have no cultural, linguistic or regional ties. In cases where parents and children have been born in different states, have resided in the protectorate, and then flee persecution, the children may be obliged to seek the protection of the ex-colonial power when the parents, born elsewhere, cannot. The result may be the separation of families. Further, some question has been raised as to whether those born following the invasion have, in fact, an automatic right to the nationality of the ex-colonial power, meaning there may be a right in theory which does not materialize in practice. In the case of lingering remnants of colonialism, the genuine effective link may prove instructive when questions of nationality arise, the reference point being derived from factors of birth, residency and descent. Recognition of the invading power is not a prerequisite to acknowledgement of where there is no genuine effective link remaining vis-à-vis the former colonial power.[23]

c.     State Succession

Naturally, nationality matters in the context of state succession are of grave concern particularly as regards regional stability. Article 10 of the 1961 Convention on the Reduction of Statelessness indicates:

1.         Every treaty between Contracting States providing for the transfer of territory shall include provisions designed to secure that no person shall become stateless as a result of the transfer. A Contracting State shall use its best endeavours to secure that any such treaty made by it with a State which is not a party to this Convention includes such provisions.

2.         In the absence of such provisions a Contracting State to which territory is transferred or which otherwise acquires territory shall confer its nationality on such persons as would otherwise become stateless as result of the transfer or acquisition.[24]

International law has, since the adoption of the 1961 Convention, developed further. The International Law Commission has, for example, undertaken development of the law within the context of state succession. The Special Rapporteur on State Succession and Impact on the Nationality of Natural and Legal Persons, made the following observation in his preliminary report:

[I]t is no longer possible to maintain without any reservation the traditional opinion expressed by O'Connell, according to which,

[u]ndesirable as it may be that any persons become stateless as a result of a change of sovereignty, it cannot be asserted with any measure of confidence that international law, at least in its present stage of development, imposes any duty on the successor State to grant nationality.[25]

In other words, there may be some obligation for states to grant nationality in certain circumstances. The meaning and content of the right to a nationality in international law must be derived from international law in its current state of development. This was expressed early on in an Advisory Opinion of the Permanent Court of International Justice regarding nationality:

The question whether a certain matter is or is not solely within the domestic jurisdiction of a State is an essentially relative question; it depends on the development of international relations.[26]

The drafters of the 1930 Hague Convention intended to make the same essential point in Article 1:

It is for each State to determine under its own law who are its nationals. This law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.[27]

This definition echoes Article 38 of the Statute of the International Court of Justice which also delineates international conventions, customary international law, and general principles of law as the primary sources of international law. Nationality legislation will be recognized, therefore, in so far as it is consistent with contemporary principles relating to the acquisition or loss of nationality in international law.

The Special Rapporteur for the International Law Commission is pointing out that international law has developed. While it remains to be seen what recommendations will be adopted by the International Law Commission upon completion of the study in 1996, it is clear that the Special Rapporteur wishes to incorporate advancements made in the area of the right to a nationality.

The issue of nationality in relation to state succession is most visible in Central and Eastern Europe, the former Yugoslavia, and states which have emerged from the disintegration of the former Soviet Union State practice internationally reinforces the rule that, in principle, the population goes with the territory and, therefore, receives nationality corresponding with residency. It has been suggested that in certain new and restored states, proposed and adopted nationality legislation has, in some cases, been discriminatory on its face. However, in the majority of cases in which exception might be taken with the legislation, rather than discrimination on its face, a combination of selective criteria and administrative procedures have been incorporated which adversely impact select groups resident in the state. In some instances, the genuine effective link and the presumption against statelessness in transfer of territory are not acknowledged. Stringent criteria are adopted regarding language, length and type of residency or housing. Instances of arbitrarily or retroactively applied measures in relation to conviction of a crime, which are then used as a basis for denial of nationality, may also be seen. An individual may be required to renounce an assumed citizenship elsewhere prior to application for citizenship where he or she resides, this despite the fact that the application would be made in the territory where one was born, is habitually resident and has all ties.

An additional problem has been the use of former, internal ethnic designations to determine the initial body of citizens. This occurs in disregard of birth, residency, effective links or the ability of those concerned to actually obtain the other citizenship they purportedly have. In some cases, while authorities may say that an individual is entitled to citizenship, this entitlement must be established. There are those who cannot produce the necessary documents or meet the administrative requirements and, therefore, cannot pass through the administrative process. This may be as simple as the inability to afford prohibitively expensive processing fees. Ironically, situations have arisen in which individuals, born and resident in one of the states in question, have been assumed, due to the internal ethnic designation, to have the nationality of the other new state in which they have never actually resided. In order to apply for citizenship where they reside, they must first prove their "existing" citizenship, formally renounce it, then begin the application process for citizenship where they have always lived. In some cases, individuals who formally renounced their ascribed citizenship have become de jure stateless when they failed to acquire the citizenship of their country of residence. Those who cannot establish their right to the ascribed citizenship vis-à-vis one state may be, nonetheless, assumed by the state of residence to have the other state's nationality. As such, these individuals become de facto stateless persons, persons who cannot definitively prove they have or do not have a nationality.

Regional organizations have made efforts to carry on open dialogue in cases such as these. The Council of Europe, the Organization for Security and Cooperation in Europe, the European Union, other interested government and non-governmental organizations (NGOs), and UNHCR have cooperated in this effort to encourage effective dialogue on the question of nationality. The OSCE High Commissioner on National Minorities stated:

In no case should new citizenship laws be drafted and implemented in such a way as to discriminate against legitimate claimants for citizenship, or even to withhold citizenship from possibly tens of thousands of life-long and long-term inhabitants of the state… As a result, the status of these persons [would be] essentially that "foreigner" in their own country. This would greatly undermine what I would consider to be in the long-term interest of the state. I would strongly urge that the clearly negative impact of such legislation be considered and that appropriate changes be made.[28]

UNHCR has undertaken studies in various regions where changes in nationality legislation might have an impact on ethnic minorities. Dialogue has taken place with representatives of newly formed and restored states. The link between nationality status and displacement is an obvious one. However, nationality status is not always ascertainable. There are those who are de facto unprotected persons, have no claim to refugee status, and remain resident within the newly formed state of the territory in which they are life-long residents. Neither the 1951 Refugee Convention nor the statelessness Conventions apply to these persons unless, of course, the governments concerned are willing to extend to them on humanitarian grounds the recommendations included in the Final Act of either the 1954 or the 1961 Conventions.

Under human rights standards, there are certain obligations incumbent on governments to those resident within their territory regardless of their nationality status. It should equally be borne in mind, that the recommendations in the Final Acts of the statelessness Conventions were intended for the benefit of refugees who had fled their country of habitual residence due to a lack of national protection. Hence, the humanitarian gesture was envisaged as one extended by a foreign state to those in flight, not as a discretionary one from a state to its own residents, as the state already bears an obligation to those habitually resident within its borders. The principle of the genuine effective link is instructive on this point. If an individual has a significant point of connection with the state, as interpreted in international law through factors of birth, long-term residency, or descent, this should be acknowledged as indicative of the right to a nationality.

d.     Descent

There are certain legal system which further complicate the matter. In general, most states apply some combination of the principles of jus sanguinis (nationality based upon descent), jus soli (nationality based upon place of birth), and residency in determining who receives citizenship. In this manner, citizenship may be extended to those who might not fit exclusively into one category or the other the net result being a lower incidence of statelessness. Some states, however, adhere exclusively to a strict form of jus sanguinis. Jus sanguinis, when applied without modifications based on residency, place of birth or other factors, extends to children the status of their parents. The result is that statelessness is inherited, passed from generation to generation regardless of place of birth, number of years of residency, cultural ties, or the fact that in some cases the individuals concerned have neither entered nor resided in another state.

Select groups are, in certain regions, adversely impacted by this policy. In some cases, mass expulsion of stateless persons has taken place, while in other instances, stateless persons have been permitted on a state's territory provided no obligation is incurred on the part of the state to grant them nationality. While the latter may seem reasonable under certain circumstances in the case of the first generation, it becomes less tenable as a policy when maintained in perpetuity for third, fourth and following generations of descendants who no longer have a genuine link elsewhere.

Promotion of the statelessness Conventions in states with a strict system of jus sanguinis is a challenge, for the domestic legal structure requires significant modification in order for the state to undertake obligations inherent in the Conventions. Dialogue concerning the principles of non-discrimination and the right to a nationality can lead to negotiation for improvement of the status of distinct groups and this, in turn, may reduce the incidence of statelessness while increasing the possibility for successful implementation of the Conventions regarding nationality.

e.     Women

A related problem, which highlights difficulties inherent in conflicts of law, is the loss of citizenship through marriage to someone with another nationality. In countries where it is assumed that the wife will acquire the foreign nationality of her husband, statelessness may occur when the wife's nationality is withdrawn and the husband's nationality is not extended to the wife by virtue of the marriage. If the automatic acquisition of the husband's nationality takes effect, some legal systems require the wife to relinquish her citizenship. This runs counter to principles of equality and non-discrimination based on gender. Moreover, it obliges the wife to distance herself from her home and country. The problem may be further complicated in cases of dissolution or termination of marriage. The woman may wish to return to her country of origin and regain her nationality. There is the possibility of providing, in municipal law, for an accelerated and simplified process for reacquisition of nationality to former nationals. This provision was introduced into the nationality legislation of some countries as a means of assisting those who had, at some point, to choose another nationality, because their current country of residence did not permit dual nationality or instances where former nationality was lost due to a transfer of territory. An accelerated process for former nationals recognizes the possibility that a former national may lose ties elsewhere and wish to return, or to take up residence, in the country of original nationality.

The wife's nationality should not, however, automatically be affected by virtue of marriage. An accelerated process for reacquisition of nationality is useful for women who have chosen to relinquish nationality. Nonetheless, the choice of nationality should be left to the woman to make in cases where only one nationality is permitted, thereby recognizing the nationality of both spouses. Dual or multiple nationality may, in many cases, be an easy means of recognizing the wife's original ties as well as her newly acquired ties.

Recognition of the wife's nationality is important for the wife and impacts the children as well. By stripping the wife of her nationality, the children lose their legal link with the nationality and original ties of the mother. In some countries, this may be the case even if the family resides in the country of the wife's former nationality. It is an extreme form of jus sanguinis in which nationality is derived only from the father, despite birth and residency in the mother's country of origin. It may mean inheritance of the father's statelessness rather than acquisition of the mother's nationality, in instances where the mother is able to maintain her nationality. These scenarios represent a failure to recognize principles of equality and non-discrimination. Conventions adopted in promotion of the rights of women have made efforts to address this problem.[29] Nonetheless, the problem persists in some regions. Marriage, change of nationality during marriage, or dissolution of marriage should not automatically affect the nationality of the spouse.

e.     Birth

In some regions, the predominance of jus soli and the measures taken by governments to ensure citizenship foreclose the occurrence of large-scale de jure statelessness. Article 20 of the American Convention on Human Rights places the obligation on the state in whose territory an individuals is born to grant citizenship should no other nationality be granted. With this as the underlying concept, negotiation of treaties concerning transfer of territory, and resolution of conflicts of law or gaps in the administration of the law, are more likely to reflect the principle that everyone has a right to a nationality. As may be seen in several cases in Central America, the question is more often one of choosing between two possible nationalities than of being stateless. In this case, an individual may opt for the nationality of the state with which he or she is most closely connected. While certain administrative problems have arisen, such as the need to renounce former nationality in order to apply for nationality in the place of residence, these administrative complications can easily be overcome when the underlying principle is that the individual's right to the nationality of the state with which he or she is most closely connected or, failing all else, the nationality of the state of birth.

To exercise the rights to nationality, children must be registered at birth and clear documentation provided concerning the child's identity, the identity of the parents, and the place of birth. Without documentation to this effect, an individual may be unable to prove his or her right to a nationality later in life, particularly in instances where the parents have been forced to flee and were outside of their country of origin when the child was born.[30]

Article 15 of the Universal Declaration of Human Rights lays the foundation by declaring "Everyone had the right to a nationality".[31] In the case of children, this is followed up in the Covenant to Civil and Political Rights, Article 24. "Every child has the right to acquire a nationality."[32] The Convention on the Rights of the Child indicates that children shall have the right to acquire a nationality from birth and that states parties shall ensure the implementation of this right, in particular where the child would otherwise be stateless.[33] Under Principle 3 of the United Nations' Declaration of the Rights of the Child, every child is entitled from birth to a name and a nationality.[34] The 1961 Convention on the Reduction of Statelessness requires the state to extend citizenship to those born on its territory who would otherwise be stateless.

Despite these clearly outlined principles, in some regions of the world, a child inherits the status of the parents. If the father is stateless, the child will be stateless, a situation which may be perpetuated for generations. While citizenship based upon descent is one component of the nationality laws of many countries, it is generally tempered with an acknowledgement of place of birth and with which country the child is most closely connected. Such a combination avoids the creation of statelessness. In order for states to meet the criteria outlined in the conventions mentioned above, children should be granted a citizenship at birth. Should no other citizenship be available, many factors indicate there is a legal presumption in favour of the place of birth. These measures will benefit children not only in the realization of an effective nationality, but also in receiving the benefits generally inherent in citizenship, such as national protection, education and health care.

While the 1961 Convention on the Reduction of Statelessness requires the signatory state to extend citizenship to those born on its territory who would otherwise be stateless, a child is not in a position to prove that he or she would, in fact, be stateless otherwise. This requires a negative declaration from the state or states with which the child may have a claim to citizenship. Without this negative declaration, the state of birth has, in some instances, refused to grant citizenship on the grounds that the child should have the citizenship of the country in which the parents formerly resided or may have their nationality.

Problems in this approach are that the parents may not have the nationality of their former place of habitual residence or that the state of former residence may have domestic legislation which does not extend citizenship to children born outside the state's territory.

This situation may be resolved by reference to international instruments which indicate that children have a right to a nationality from birth and should receive that of the state of birth should no other nationality be forthcoming. In order for these measures to be realized, children and their parents may be in need of advice and assistance in establishing which state or states may grant nationality. It is also important that administrative procedures be clear and well-documented. If a child's birth has not been clearly recorded, there may be confusion later, particularly in cases of state dissolution or change of territory. In order to establish a claim to maintain citizenship or to acquire the new citizenship when the territory one resides in changes hands, it is imperative that an individual be able to trace his or her claim in official records. In some cases, statelessness has been created because those born and permanently resident on a territory, which then became a new or restored state, could not establish their place of birth. The result may be refusal, on the part of the state, to grant citizenship.

Systems of nationality based upon descent should be tempered with nationality based upon place of birth or long-term residency in cases where statelessness would otherwise result. If the parents are stateless or cannot prove their nationality, this situation should not be inherited by their children. Further, in some countries, although a child is born to a mother whose nationality is clearly established, the child nonetheless inherits the status of the stateless father. The nationality of the mother should not be overlooked, nor should the place of birth be disregarded, when a child is born to a stateless father. Similarly, the place of birth should be acknowledged when a child is born to an unwed stateless mother.

In essence, it is not a difficult task to identify a country with which a child has some connection, either through the nationality or residency of the parents, or through place of birth. As there is a presumption in international law against statelessness in relation to children, efforts should be made to assist children in receiving a clearly documented nationality at birth.

f.      Displacement

In this case, the problems associated with a long period of displacement are highlighted. Historians and politicians will, naturally, approach issues related to occupation or long-term control of territory from a particular vantage point. From the point of view of questions relating to nationality, the "status" of the territory does not, of itself, determine the status of those who have fled the territory in a narrow but important sense. To say that a particular group may be stateless is not to say that their state no longer exists. Statelessness is simply the result of a lack of nationality legislation defining the group in question as citizens by operation of law.

A case in point might be the Palestinians. As a result of events in the Middle East, Palestinians have been forced to seek refuge in many countries over many years. Some hoped their position as refugees would be temporary, others have applied for citizenship in their new countries of residence. Given the number of years of displacement, many of these individuals have never been to Palestine but were born of a Palestinian parent or parents in exile. The realization of a State of Palestine may not automatically mean that all those of Palestinian descent will hold the state's citizenship accompanied by a right of residency in Palestine. The drafters of the nationality legislation will have to determine the criteria for acquisition of nationality. This is a question which the Palestinian Authority must decide once it operates independently.

In cases of long-term displacement, the definition of a stateless person as one who cannot be shown to be a national by operation of any state's law should be borne in mind. Integration and citizenship might be facilitated for individuals where they have firmly established ties and express their wish to have this genuine link recognized. This is not to say that in cases of lengthy occupation or inability to operate the state independently, that individuals who have fled no longer have links with the territory in question. In the case of the Palestinians, links have been continuously reinforced over the past decades. The state, however, must establish criteria for attainment of citizenship by operation of law. Until nationality law is promulgated, assumptions cannot be made about what the criteria will be. Further, the question of nationality is not one for the state only, it is also one for the individual. Those individuals who have established a genuine effective link elsewhere through, for example, birth and long-term residency, might be extended the option to have this link acknowledged through citizenship of the country concerned.[35]

g.     Long-Term Residency

The problem of those forced into exile is particularly acute in some regions. In many instances, the temporary dislocation becomes permanent with no option of returning home. The originally displaced group and later generations may technically still carry the citizenship of their former place of habitual residence. While in practice there is no longer a link. They cannot return and are left without an effective nationality. Acquisition of the nationality of their country of asylum becomes a more viable option in the search for a durable solution, although political considerations sometimes preclude this. There remains, then, the problem of de facto stateless persons, unable to obtain citizenship in their new country of residence, whose precarious position may lead to renewed displacement.

The matter of long-term residency is significant in other contexts as well, however. It is one of the fundamental means of ascertaining how significant a link is between an individual and the state in question. After generations of residency, the link is clear. For individuals, the number of years of residency necessary to establish a link will vary depending on circumstances of birth, reason for residency and level of integration. Nonetheless, under the law of many jurisdictions, a specific number of years is fixed as a precursor to applying for citizenship. The length of time may be shortened through marriage to a national service for the state, or a variety of other criteria. In general, an individual who is lawfully and habitually resident on a territory will be able to apply for citizenship after a fixed number of years has passed. There are some recent precedents in which citizenship was granted to several groups with long-term residency, which had previously been denied the option of applying for nationality. These developments provide weight for the recognition of a genuine effective link derived from long-term, habitual residence.

Conclusion

It is clear that there are a number of settings in which statelessness arises or has the potential to occur. The concept of obligations of a state towards its population and the promulgation of human rights are relatively new developments, themselves largely an outgrowth of the international community's desire to show a concerted and strong reaction to the actions of states during the World Wars.

Roberto Cordova, Special Rapporteur for the International Law Commission, argued in 1953 that the state was not a private club which could selectively expel certain members. He expressed his view on the status of international law at the time:

Whereas formerly it was held that sovereignty was absolute, at present it is recognized that there are limitations to which the States must submit by reason of their being members of the international community and in order to make possible an orderly and peaceful society of nations.[36]

International law is developing which continues to strengthen the right to a nationality and presumption against statelessness. Work has been undertaken by a number of NGO's and governmental organizations on development of this issue. The Council of Europe Committee of Experts on Nationality is drafting a European Convention on Nationality in which basic principles, including the right to a nationality, avoidance of statelessness, inadmissibility of arbitrary deprivation of nationality, non-discrimination, and equality, will be reflected. Council of Europe positions on issues such as state succession, and loss or acquisition of nationality, will also be embodied in the Convention. The International Law Commission's Special Rapporteur on State Succession and its Impact on the Nationality of Natural and Legal Persons, is working on codification of basic principles in the field of nationality. In the Americas, where the concept of jus soli prevails, many of the principles discussed have been successfully implemented and are supported by the Inter-American Convention on Human Rights and the jurisprudence of the Inter-American Court. While the Court has confirmed that the conditions under which nationality will be conferred remain within the domestic jurisdiction of the state, the Court stated in an Advisory Opinion:

[D]espite the fact that it is traditionally accepted that the conferral and recognition of nationality are matters for each State to decide, contemporary developments indicate that international law does impose certain limits on the broad powers enjoyed by the States in that area and that the manner in which States regulate matters bearing on nationality cannot today be deemed to be within their sole jurisdiction.[37]

Ultimately, the question of jurisdiction becomes a significant one only in instances in which states do not abide by their obligations under international law. State practice is itself one of the means of ascertaining the current content of international law. The majority of states provide for acquisition of nationality to individuals with an established link with their territory. International law has developed further the content and meaning to be attributed to the right to a nationality and to the process of acquisition of a nationality. It is not difficult to ascertain with which state or states an individual may have a genuine effective link. The difficulty lies in the legislation, administrative practices and political decisions which fail to recognize basic principles pertaining to the right to a nationality.

Manley Hudson observed that any attempt to eliminate statelessness would only be fruitful if it resulted in,

[N]ot only…the attribution of nationality to individuals, but also in an improvement of their status. As a rule, such an improvement will be achieved only if the nationality of the individuals is the nationality of that State with which he is, in fact, most closely connected, his "effective nationality", if it ensures for the nationals the enjoyment of those rights which are attributed to nationality under international law, and the enjoyment of that status which results from nationality under municipal law.[38]

Hudson went on to say that the principle of jus connectionis, or right of attachment, was in this sense superior to jus soli or jus sanguinis, for it advocates the nationality of the state to which the individual is proved to be most closely attached in conditions of life. An analysis based on attachment would more readily weigh in the balance factors of birth, residency and descent. Perhaps, in this sense, a right of attachment might more accurately reflect an individual's genuine effective link than any one factor on its own can successfully portray.

The position of a de jure or de facto stateless person, one whose jus connectionis has not been recognized, creates vulnerability and may, ultimately, lead to flight. UNHCR has been involved in instances where this vulnerability is felt. This is particularly so where the individual or group concerned is seeking assistance and has been, or may be, forced to cross a border. As part of its role in the prevention of potential refugee flows, as well as its function under Article 11 of the 1961 Convention on the Reduction of Statelessness, UNHCR has the opportunity to observe under what conditions people are made stateless, may risk becoming stateless, or cannot establish nationality. This information, coupled with the advances made in international law on basic principles pertaining to the right to a nationality, may be helpful in constructing nationality legislation and safeguards to avoid the creation of statelessness and to promote the realization of an effective nationality.

[1] This paper was prepared in October 1995 by Carol A. Batchelor, a Consultant in the Division of International Protection of UNHCR. The views expressed are those of the author and do not necessarily reflect those of the United Nations or UNHCR.

[2] 360 United Nations Treaty Series, 117; text in UNHCR, Collection of International Instruments Concerning Refugees (Geneva: UNHCR, 1988), p. 59.

[3] 189 UNTS 137; text in UNHCR, Collection, p. 10.

[4] Ibid.; 360 UNTS 117, 1954 Convention relating to the Status of Stateless Persons, Article 1.

[5] The terms nationality and citizenship are used synonymously throughout this paper unless otherwise indicated.

[6] 989 UNTS 175; text in UNHCR, Collection, p. 82.

[7] Ibid., p. 87. See United Nations, General Assembly Resolution 3274 (XXIX) 10 December 1974 for provisional appointment and UN General Assembly Resolution 31/36.30 November 1976 requesting UNHCR to continue its function as the Article 11 agency.

[8] See UN General Assembly Resolution 38/120 Preamble, 42/109. 43/117. 43/154, 44/137, 48/116,47/105 and Executive Committee Conclusions No. 50(d) and No. 56.

[9] Carol A. Batchelor, "Stateless Persons: Some Gaps in International Protection", International Journal of Refugee Law, Vol. 7, No. 2 (1995) for a discussion of the law and history surrounding UNHCR's involvement with stateless persons.

[10] Ibid., for a brief analysis of international law and the right to a nationality.

[11] The doctrine of the genuine effective link was enunciated in the Nottebohm Case in which the International Court of Justice stated, "According to the practice of States, to arbitral and judicial decisions and to the opinion of writers, nationality is existence, interest and sentiments, together with the existence of reciprocal rights and duties". ICJ, Reports, 1955, p. 23.

[12] UN General Assembly Resolution 43/117, 1988.

[13] A/AC.96/839, para. 19(ee)(1994). See also Executive Committee Conclusions No. 50(IX1998), 65 (1991) and 68 (y)(1992).

[14] Conclusion on the Prevention and Reduction of Statelessness and the Production of Stateless Persons. A/AC.96/860,23 Octover 1995, para. 20.

[15] Ibid., para.20 (d).

[16] Statement by Sadako Ogata, United Nations High Commissioner for Refugees, at the 51st session of the Commission for Human Rights, 1995.

[17] This paper does not attempt to address the scenarios presented with a comprehensive analysis of international law or of efforts made by international organizations on behalf of stateless and potentially stateless persons. There is, moreover, overlap between sections which has not been analyzed. The paper is, simply, a brief apercu of settings in which nationality issues recurrently appear.

[18] J.M.M. Chan, "Nationality as a Human Right", Human Rights Law Journal, Vol. 12 (1991), p. 11 for a presentation of the right to a nationality and the limited circumstances under which deprivation of nationality may occur Chan argues that deprivation must be prescribed by law and accompanied by full legal proceedings. Review or appeal should be available, and no deprivation should result in statelessness.

[19] The individual is not able to prove a negative without the concurring voice of a State regarding her/his nationality. In other words, an individual cannot prove loss of nationality, or, indeed, that the nationality of the State of habitual residence was not acquired, without a statement from the concerned authorities confirming this. The converse is also true, one cannot prove one has citizenship without the recognitio nof the authorities who have the capacity to grant nationality.

[20] Manley Hudson, Special Rapporteur for the International Law Commission on the subjects of nationality and statelessness commented. The so-called stateless persons de facto are nationals of a State who are outside of its territory and devoid of its protection; they are, therefore, not stateless: it might be better to speak of 'unprotected persons' and to call this group 'de facto unprotected persons', in distinction to 'de jure unprotected persons', i.e., stateless persons". Manley O.Hudson, Report on Nationality, Including Statelessness, International Law Commission, 4th session, A/AC.4/50, 21 February 1952, pp. 40-41.

[21] This is not to say that the grant of nationality is always followed by integration, but non-citizens or "second-class" citizens who did not have the full rights of citizenship are kept legally distinct, even if they attempt integration. This distinction reinforces the failure to integrate and fosters the sentiment that their residence is permitted rather than accepted.

[22] According to Hudson, "Nationality is usually defined in terms of municipal law… Distinctions made by municipal law between various classes of nationals are, as a rule, immaterial from the point of view of international law…. They become, however, relevant if a State creates a class of nationals in regard to whom it does not assume the rights and obligations inherent in the … concept of nationality for the purpose of international law". Hudson, p. 11.

[23] See the Nottebohm Case. ICJ, Reports, 1955.

[24] UNHCR, Collection, pp. 86-87.

[25] Václav Mikulka, Special Rapporteur International Law Commission. "First Report on State Succession and its Impact on Nationality of Natural and Legal Persons". A/CN.4/467, 17 April 1995, p. 31.

[26] Permanent Court of International Justice, Advisory Opinion on the Tunis and Morocco Nationality Decrees, Ser, B. No. 4, 1923, p. 23.

[27] 179 League of Nations Treaty Series 89.99.

[28] OSCE High Commissioner on National Minorities, September 1994 Warsaw Conference on Romas, organized by the OSCE Office for Democratic Institutions and Human Rights.

[29] See the 1957 Convention on the Nationality of Married Women and the 1979 Convention on the Elimination of All Forms of Discrimination against Women for development of principles regarding the rights of women in the area of nationality.

[30] Article 7 of the Convention on the Rights of the Child requires that children be registered immediately after birth. UN General Assembly Resolution 44/25, 20 November 1989: text in Human Rights: A Compilation of International Instruments. Vol. 1 (First Part). 1994, p. 174.

[31] UN General Assembly Resolution 217 A (III), 10 December 1948; text in Human Rights: A Compilation., p. 1.

[32] UN General Assembly Resolution 2200 A (XXI), 16 December 1966; text in Human Rights: A Compilation, p. 20.

[33] UN General Assembly Resolution 44/25, 20 November 1989, Articles 2 and 7; text in Human Rights: A Compilation, p. 174.

[34] United Nations Declaration of the Right of the Child. Principle 3. UN General Assembly Resolution 1386 (XIV). 20 Nov. 1959.

[35] Special consideration should be given in cases where the mother has the nationality of another state but the children, despite birth and residency in the state of the mother's nationality, may inherit the nationality of the father only. In these circumstances, the children are unable to reside as citizens in their mother's country.

[36] R. Cordova. Report on the Elimination or Reduction of Statelessness, A/CN.4/64, 1953, p. 6.

[37] Inter-American Court on Human Rights, Advisory Opinion, "Amendments to the Naturalization Provision of the Constitution of Costa Rica", paras. 32-34; text in 5 HRLJ 1984.

[38] Hudson, p. 49.