GUEST POST: The Compatibility of Nationality Laws in Vietnam and Relevant International Standards

Strengths in Vietnam’s Nationality Laws

Due to a lack of ratification of international treaties relating to nationality laws, Vietnam has few obligations under international law. There are three situations in which Vietnam meets, or exceeds, such obligations.

1. Children born in Vietnam, if otherwise stateless

The Law on Vietnamese Nationality (LVN) regarding children born in Vietnam are certainly flawed. Nevertheless, they ultimately safeguard against statelessness. That is, the LVN does allow for a situation to arise where a child is rendered stateless: where a child is born in Vietnam and has one or two parents who are not stateless, but the child is for some reason unable to obtain their parent’s nationality, then the child will be stateless. However, LVN expresses as a general principle the right to a nationality for a child born in Vietnam if otherwise stateless (Article 8), and thus appears to provide protection against statelessness that is consistent with Vietnam’s obligations under CRC. It should be noted that the extra complexity in having to read these two sections together weakens the ultimate effectiveness of the safeguard and incorporating the words ‘unless otherwise stateless’ into the active provisions of LVN is recommended to provide stronger protection against statelessness.

2.      Renunciation of nationality

Under LVN, Vietnamese nationality can be renounced upon proof that the citizen is applying for foreign nationality. There is no requirement that the application for a foreign nationality is successful. Consequently, if a citizen renounces Vietnamese citizenship but fails to obtain foreign nationality, then they will become stateless.  Nevertheless, in this situation, Vietnamese citizenship will then be restored. Therefore, the LVN ultimately provides a sufficient safeguarded against continuing statelessness, despite the unusual situation where a person momentarily slips into a state of statelessness. However, it is likely this is the only possible solution; if the LVN provided that effective renunciation would depend on the application for foreign citizenship being successful, then the application may never be allowed, as the second nationality might only be awarded once the original nationality is fully renounced. Therefore, Vietnam cannot be too heavily criticised for its protection against statelessness where citizens seek to renounce nationality. Regardless, Vietnam has not breached international obligations, as they are not a party to the 1961 Convention on the Reduction of Statelessness (CRS).

3.      Racial Discrimination

LVN does not contain any racial discrimination and Vietnam is in compliance with international norms and obligations under CERD, CRS, CRC and UDHR.

Weaknesses in Vietnam’s Nationality Laws

1.      Acquisition of Nationality by a Child Born Abroad, to a Parent who is a Vietnamese National, if otherwise Stateless

Under Article 16, a child born outside Vietnamese territory will receive Vietnamese nationality if one parent is a Vietnamese citizens and the other is stateless at the time of his/her birth. Alternatively, if the child’s mother is a Vietnamese national and the father is unknown, then a child born abroad will receive Vietnamese nationality. However, the LVN fails to account for a situation where one parent is Vietnamese, and the other parent has a nationality, but the child is for some reason unable to obtain the second nationality. In this situation, the child could not get Vietnamese nationality and would be rendered stateless. Therefore, the LVN does not appear to be in line with Vietnam’s obligations under the CRC, or the CRS.

2.      Acquisition of Nationality by Foundlings

The LVN regarding foundlings is in breach of Vietnam’s obligations under CRC. Whilst newborns and children found in Vietnamese territory whose parents are unknown are given Vietnamese nationality, a child could lose their Vietnamese nationality because their parent is discovered, even though they might not be eligible for their parent’s nationality. Thus, the child would be left stateless.

3.      Loss and Deprivation of Nationality

The LVN for loss and deprivation of nationality meets obligations under the Universal Declaration of Human Rights (UDHR); loss/deprivation of nationality should not be arbitrary under the law as the grounds for loss and deprivation are clearly and systematically set out (Article 26 and 31 of LVN). However, the laws are not inline with international norms under the CRS. LVN states grounds for loss and deprivation (Article 23(1)(f), LVN), but fails to make loss/deprivation dependent on possession/acquisition of another nationality, thus LVN does not safeguard against statelessness. LVN only protects against statelessness arising from loss of nationality due to renunciation, as outlined above, and therefore allows for a number of ways for alternative methods of loss/deprivation to result in statelessness.

4.      Gender Discrimination

LVN is largely inline with Vietnam’s international obligations under CEDAW: men and women have equal rights to nationality, the nationality of the woman shall not be altered according to marriage, and both men and women equal rights with regards to the nationality of their children. However, gender discrimination is present. Article 16(1) does not allow for a child to receive Vietnamese nationality in situation where the mother is unknown and the father is a Vietnamese national. Thus, the father does not have equal rights with respect to the nationality of their children, and it could be argued Vietnam is not complying with its international obligation.

5.      Facilitated Naturalisation of Stateless Persons

Prima facie, LVN is consistent with Vietnam’s obligations under UDHR to facilitate naturalisation of stateless persons: stateless persons can naturalise, and stateless persons can naturalise without personal identification papers when they have resided in the Vietnamese territory for 20 years or more. However, on closer inspection, this “facilitation” is flawed for two reasons. Firstly, it could be argued that 20 years is too long a time to have to reside in Vietnam to be eligible for facilitated naturalization,although it is unclear whether a specific international norm governs this time period. Secondly, the prescribed 20-year residency time period must have been met at the time the law entered into force. Therefore, naturalization under the LVN will only ever be beneficial for a particular group and not for cases of statelessness arising after the law’s entry into force.

Conclusion

There are a number of gaps in the Law on Vietnamese Nationality that fail to provide sufficient protection against statelessness. Particularly concerning are the provisions in clear breach of Vietnam’s obligations under CRC. Laws relating to loss and deprivation are also troubling; as Vietnam is not bound by CRS, it is recommended that they ratify the convention and implement greater protection against statelessness. Furthermore, renewed consideration should be given to the period of 20 years for facilitated naturalization of stateless persons. 

Magda Hughes, Student of the course 'Nationality, Statelessness and Human Rights' offered by the Statelessness Programme at Tilburg University

GUEST POST: Statelessness Prevention in Indonesia - Strengthening the Nationality Legislation

Statelessness remains a global problem which is in need of a global solution. One way in which countries can contribute to this challenge is by developing their nationality legislation in such a way that it contains safeguards against statelessness. In this respect, Indonesia is an interesting example, as in 2006 new legislation on nationality was passed, which includes certain of such safeguards. As explained in the law itself, the previous legislation needed replacement, since it “was philosophically, juridically, and sociologically no longer compatible to the development of the people and the civic administration of the Republic of Indonesia”. The question which immediately comes to mind is whether Indonesia’s nationality legislation is completely attuned to the current demands in regards to statelessness prevention or that it is in need of further amendment. Therefore, it is insightful to consider the main positive and negative aspects of Indonesian nationality legislation in regards to the prevention of statelessness.

The main positive aspects of Indonesian nationality legislation can primarily be found in the inclusion of three principles, namely, ius sanguinis, ius soli, and non-discrimination. When considering the first two principles, it must be understood that persons born from Indonesian parents and those born on Indonesian territory are considered to be Indonesian citizens. However, it must be understood that the principle of ius soli does not apply in all cases; it applies to foundlings, children born from parents with undetermined citizenship, children born from parents with undetermined whereabouts and children from stateless parents. Nevertheless, by recognising both principles instead of one, Indonesian legislation prevents the previously mentioned groups from ending up without having a nationality and thus provides a safeguard against statelessness in these cases – although some gaps remain. Furthermore, the legislation acts against discrimination. Remarkable is however, that the legislation does not include specific provisions which state that discrimination must be excluded from the processes of acquiring, changing, renouncing, or passing on nationality. Rather, the general explanatory part of the legislation acknowledges the principle of non-discrimination and one can find provisions which result in persons not being discriminated against on for instance the basis of gender. Such provisions include for example the right of women to pass their nationality on to their children. As a result, statelessness caused by gender discrimination is prevented. Important to consider is that Indonesia hereby acts in accordance with its international obligations under the 1966 International Covenant on Civil and Political Rights (“ICCPR”) and the 1979 Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”). But perhaps even more significant is that Indonesia hereby acts in accordance with international norms which are not ratified, such as the 1961 Convention on the Reduction of Statelessness (“CRS”) and Article 7 of the 1989 Convention on the Rights of the Child (“CRC”). In this respect, Indonesia may be understood to go beyond its international obligations and its legislation may appear to be in line with the international standards regarding statelessness prevention.

However, Indonesia’s nationality legislation has negative aspects as well. Especially the fact that Indonesia has not yet ratified the CRS must be understood as a negative aspect; it suggests that the country does not intend to act in accordance with all the Convention’s provisions, and this raises serious questions about Indonesia’s willingness to prevent statelessness. When taking a closer look at the legislation, one indeed finds aspects which are not in line with this Convention and Indonesia’s other international obligations, such as the 2006 Convention on the Rights of Persons with Disabilities, the ICCPR, and the CRC. Especially, but not exclusively, in respect to the naturalization procedure amendments are wished for; the current legal requirements for naturalization might make it problematic for some persons who are already stateless to acquire a nationality, thereby prolonging cases of statelessness. The requirements for naturalization for instance result in discrimination on the basis of religion due to the fact that one must recognise Pancasila, the belief in One God, and in discrimination of persons with disabilities, as applicants must be “sound in health and mind”. Moreover, the procedure requires persons to relinquish any other nationality, as Indonesia does not recognize double nationality. This requirement must be understood to have the possibility to exclude stateless persons and refugees from gaining Indonesian nationality, as they are often unable to provide proof of renunciation of nationality or to give up their nationality.

           

Thus, while Indonesia’s current nationality legislation can definitely be understood to be a step in the right direction, since it contains certain safeguards against statelessness, it is evident that the legislation is in need of amendment in order to better align the nationality laws with Indonesia’s international obligations and the current expectations regarding the prevention of statelessness. And perhaps the first next step should be one of the biggest ones a nation can take: acceding to the 1961 CRS. 

Sylvia Hazenbroek, Student of the course 'Nationality, Statelessness and Human Rights' offered by the Statelessness Programme at Tilburg University

GUEST POST: Myanmar - State of Statelessness

Nationality is a legal bond between a state, while statelessness refers to the condition of an individual who is not considered as a national by any state.

Myanmar (Burma) has one of the world’s largest populations of stateless people and this is a massive problem because statelessness has a terrible impact on individuals by depriving them of enjoyment of the full range human rights, i.e. individuals are generally blocked from obtaining employment, education, health care services and so forth. This problem of statelessness in Myanmar (Burma) and in the rest part of the world emerges due discriminatory and inadequate nationality laws. The leading approach in the fight against statelessness is ratification and implementation of various international norms related with nationality and statelessness provided by United Nations and other international organizations, e.g. Convention on the Reduction of Statelessness and Convention Relating to the Status of Stateless Persons, as well as others such as European Convention on Nationality or Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws.

The legal analysis of Myanmar’s (Burma) domestic nationality law enables to conclude that this county is very distant from the international standards in nationality field, because it has not ratified either of aforementioned statelessness Conventions which are vital to the battle against statelessness and which regulate many severely vulnerable areas.

Myanmar (Burma) has only acceded to the Convention on the Rights of the Child and Convention on the Elimination of All Forms of Discrimination against Women. However, norms of these Conventions are very laconic and regulate just very specific aspects of statelessness problem, thus, providing far less benefit than the ratification of, for instance, Convention on the Reduction of Statelessness would. What is more, Myanmar (Burma) even fails to implement those several international obligations which it has undertaken: Article 7 of Convention on the Rights of the Child prescribes that a child has the right to acquire a nationality and States Parties are obliged to ensure the implementation of this right under the relevant international instruments, in particular where the child would otherwise be stateless. However, Myanmar (Burma) has not adopted any measures or mechanisms for this.

So, if Myanmar (Burma) fails to implement its own obligations, it is meaningless to expect that this country could take into account other international principles and standards which are not applicable within its territory. The legal analysis confirms that. For instance, Burma’s Citizenship Law does not ensure nationality under Article 1 and 4 of Convention on the Reduction of Statelessness to a child born outside or inside the country, if otherwise stateless, and does not at all regulate the question of abandoned children under Article 2 of Convention on the Reduction of Statelessness or Article 14 of Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws. Sadly, Burma’s Citizenship Law does not provide facilitated naturalization for stateless persons as it is required by Article 32 of Convention Relating to the Status of Stateless Persons, as well. The possibility to naturalize as a citizen of Myanmar (Burma) is not even vested for foreigners.

The worst part of the Myanmar’s (Burma) nationality laws is racial discrimination. According to Burma’s Citizenship Law provisions, the citizenship of Myanmar (Burma) is granted only to certain ethnic groups that have settled within the State in a certain period. Moreover, the Council of State may decide independently whether to grant citizenship to any ethnic group or not. These provisions apparently contradict international norms which forbid  to deprive any person or group of persons of nationality on racial, ethnic, religious or political grounds.

Notwithstanding, there are aspects in which Myanmar (Burma) does better. For instance, its nationality laws provide some safeguards against statelessness in the context of loss of nationality. One of the most significant norms is Article 15(a) which ensures that citizen would not automatically lose his citizenship merely by marriage to a foreigner. This norm accords with international standard that any change in personal status (like marriage) should not affect a person’s nationality and if it nonetheless does, such change should be conditional upon not rendering the person stateless. A noticeable achievement of Myanmar’s (Burma) nationality law is non gender-sensitive norms, as well.

Taking everything into consideration, it is obvious that Myanmar’s (Burma) nationality law lacks attention to international principles and standards related with nationality and statelessness and is more incompatible with them than consistent. Therefore, United Nations and other international organizations have to work with Myanmar’s (Burma) government and persuade it to ratify more international Conventions on nationality and statelessness. 

Simante Tomkeviciute, Student of the course 'Nationality, Statelessness and Human Rights' offered by the Statelessness Programme at Tilburg University

Tilburg University students on Statelessness

This semester, the Statelessness Programme is piloting a course entitled 'Nationality, Statelessness and Human Rights'. During 14 weeks of interactive classes, students explore the phenomenon of statelessness and the role that nationality plays in the contemporary human rights environment. Some of the themes that are looked at in detail include: the prevention of childhood statelessness; discrimination in states' nationality policy; the links between statelessness, displacement and detention; and national and international stakeholders in the field of statelessness. The participating students - over 40 in all - come from a diverse range of backgrounds, both in terms of the main studies (law, liberal arts, psychology - bachelor and masters levels) and countries of origin. This makes for a lively and inspiring learning environment.


Inspired by the Statelessness Programme's own involvement in a brand new project to establish a Global Nationality Law Database, we set our students a special challenge for their mid-term course assignment... Conduct a legal analysis of the nationality law of one of eight pre-selected countries, based on a number of core standards of international law. Having filled in an assessment template, the students were asked to put together all of their findings and present them in a comment piece aimed at a wider, non-technical audience. The students who wrote the best three analyses were invited to review their comment piece in order to prepare it for publication online. The result: three guest posts that we are proud to offer here on our Statelessness Programme Blog. We hope that you enjoy reading them!