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.
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