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
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