Europe must not allow its children to grow up without a nationality

How do you explain statelessness to a child?

Yes, you were born here. And yes, mummy comes from here. And yes, daddy comes from here. And yes, you speak our language. And yes, you celebrate the same festivals as us. And yes, you look just like all the other children who live and play in your neighbourhood.

But no, you are not really one of us. You are not officially a member of our community. You are an outsider. You are an alien. And no, there is also no other place for you to belong. You are stateless.

That’s a tricky thing to explain, but harder still to justify. It’s a sad fact then, that of the 10 million plus stateless people worldwide, it is estimated that half are children: born and now fast growing up without a nationality. How is this even possible when as early as 1930, governments were drawing up international agreements in order to ensure that no child is left stateless? How is this possible when many decades ago, childhood statelessness was already identified as an entirely avoidable problem and the necessary preventative measures were already known (e.g. the norms found in the 1961 Convention on the Reduction of Statelessness)? And perhaps most intriguingly, why has ‘even’ Europe not succeeded in staving off this problem, despite additional regional agreements that guarantee children’s right to a nationality (e.g. the norms found in the 1997 European Convention on Nationality)?  

The truth, like it or not, is that Europe is still a ‘producer’ of statelessness. Day to day, this may no longer be on the same alarming scale as when statelessness was suddenly created by the redrawing of borders and disintegration of states in the Europe of the 1990s. Nor may it have the same shocking and condemnable undercurrent as when statelessness resulted from policies of mass denationalization in the Europe of the 1930s. Yet I cannot help but be both alarmed and shocked by the fact that it is possible to be born stateless in Europe today. Indeed, this is a significant concern both in countries which already have large stateless populations – such as Latvia and Estonia – as well as where statelessness is a relatively marginal issue. A recent ENS blog highlighted just one of the many thousands of tragic stories of people born without, and growing without, a nationality. And to offer my own country by way of example: of the approx. 2000 people who are listed in the Dutch civil registry as ‘stateless’, it is astounding to discover that 1400 (or 70%) of these individuals were born in the Netherlands.

In order to better understand how, why and where things are going wrong, the European Network on Statelessness took the initiative to compile a report on Preventing Childhood Statelessness in Europe. It draws on existing comparative nationality law research conducted by the European Union Democracy Observatory on Citizenship, existing literature on problems of implementation of nationality laws and information provided by ENS members. This report looks at how Europe is performing with respect to international and regional standards in the fields of human rights, child rights and statelessness all protect the child’s right to acquire a nationality. In light of the overall goal of preventing childhood statelessness it highlights the main issues, gaps and good practices. It is launched this week, on the eve of an important series of events that will take place in Strasbourg from 7-9 April and which will focus on the challenge of addressing statelessness in Europe. The hope is that this will inspire further recognition and understanding of, and ultimately more effective law and policy to combat, the problem of childhood statelessness in Europe.

The report concludes with a series of important recommendations:

1. Ensure that all otherwise stateless children born on the territory of a European state acquire a nationality promptly.

2. Address the inadequacy of safeguards to prevent statelessness for children born on the territory as a matter of priority in those countries with large, existing stateless populations.

3. Ensure that restrictions on the conferral of nationality jus sanguinis to children born abroad do not lead to statelessness.

4. Abolish any difference in treatment in nationality laws with regards to children born out of wedlock.

5. Simplify procedures for birth registration and confirmation of nationality in countries with a problem of intergenerational lack of documentation.

6. Review nationality laws to identify and revise any provisions that could lead to loss of nationality of children, leaving them stateless.

Click here to access the ENS report ‘Preventing Childhood Statelessness in Europe: Issues, Gaps and Good Practices’.

Dr Laura van Waas, Senior Researcher and Manager of the Statelessness Programme, Tilburg University. 

Please note that this blog post originally appeared on the website of the European Network on Statelessness, accessible via www.statelessness.eu. 

GUEST POST: An Insight into Nepalese Citizenship

As part of the course 'Nationality, Statelessness and Human Rights', taught every spring semester at Tilburg Law School, we ask students to analyse a country's nationality law against relevant international standards and then write a comment piece about it. Students who write the most compelling comments are invited to publish these here, on our blog site. Below is one of the three student pieces composed in 2013, we hope you enjoy it...

An Insight into Nepalese Citizenship

At first glance, Nepalese nationality appears relatively straightforward to acquire. Its Citizenship Act allows for citizenship by descent - where either parent must be Nepalese, by birth for those born prior to 1990 or by naturalisation. However, a deeper analysis would reveal that the country’s citizenship is in fact not simple to obtain. Despite one section of the law stating that having either parent as Nepalese is sufficient for a child to acquire Nepalese nationality, a separate section indicates that a child wishing to acquire his/her Nepalese mother’s citizenship must in fact have permanent residence in Nepal. Not only does this place a geographical restriction on children of Nepalese women and foreign men who desire Nepalese citizenship, it is also gender discriminatory since women are not allowed to pass on citizenship in the same way as men. In addition, the law creates the possibility that a child with a Nepalese mother and stateless father may become stateless if he/she resides overseas.

Acquiring citizenship by virtue of birth on Nepal territory is also limited to those born before 1990, hence Nepali birthright citizenship by jus soli is no longer in practice, with special exception given to foundlings. This leaves naturalisation as a remaining choice for citizenship acquisition based on a connection to the territory. However, the conditions for naturalisation appear relatively difficult to fulfil as one would need to have resided in Nepal for 15 years, during which he/she must be engaged in an occupation and has renounced prior citizenship. A less demanding naturalisation process exists for foreign women married to local Nepalese men. Such women are granted a specialised and expedited naturalisation procedure.

Additionally, dual citizenship for Nepalese is strictly forbidden, and acquisition of foreign nationality automatically invalidates a person’s existing Nepali citizenship. It has been suggested that Nepal’s nationality laws intentionally make it relatively difficult for foreigners to readily take up local citizenship or hold dual nationality due to Nepal’s geographical location. Being situated near highly-populated India and China, Nepal intends to discourage high influx of immigrants as well as reduce illegal cross-border settlements. Moreover, there is a strong presence of Bhutanese and Tibetan refugees seeking asylum and Nepal is somewhat reluctant to grant Nepalese citizenship to these persons.

It is interesting to note that Nepal’s nationality law sometimes fulfils the country’s international obligations while for other situations it does not. For example, Nepal does not have any measures to safeguard against possibility of statelessness for children born in Nepal territory. This is a violation of article 7 of Convention on the Rights of the Child, a convention which Nepal has been a party to since 1990. Nepal also does not state it would facilitate naturalisation for stateless children, another recommendation that could be read into the Rights of the Child Convention. However, there are also occasions where Nepal goes beyond fulfilling its own international obligations. This can be seen from how it intends to grant citizenship to persons on territories it may acquire in the future, a provision mentioned in the Reduction of Statelessness Convention.

I believe Nepal’s inconsistency in fulfilling international obligations regarding statelessness can be attributed to the fact that its nationality laws were not drafted with any consideration regarding statelessness. There exist opinions that its Citizenship Act was hastily formulated so that Nepali residents could obtain citizenship certificates which would allow them to partake in the country’s 2006 Constituent Assembly election. This is an opinion I find myself compelled to believe, as the law is evidently brief with regards to nationality issues such as statelessness and citizenship acquisiton for children. Instead, there is a proportionately larger emphasis on citizenship certificates and how to acquire them.

However, what seems to be a strength about Nepal’s nationality law is that citizens are only deprived of nationality in two instances: when citizenship certificates are obtained by fraudulent means and when a foreign nationality is accepted. Many other countries often include clauses stating that treason, participation in foreign military or engagement in crimes deemed highly detrimental to society would result in loss of nationality. Thus, although Nepalese citizenship is not easy to acquire, it is also not readily stripped away from those who already possess it. In this regard, there is lesser chance of citizens being made stateless later in life.

Hui Kin Ng, Exchange student visiting Tilburg University from Nanyang Business School - Nanyang Technological University Singapore, second year of undergraduate studies in Accountancy

 

GUEST POST: Nationality in the Land of the Free

As part of the course 'Nationality, Statelessness and Human Rights', taught every spring semester at Tilburg Law School, we ask students to analyse a country's nationality law against relevant international standards and then write a comment piece about it. Students who write the most compelling comments are invited to publish these here, on our blog site. Below is one of the three student pieces composed in 2013, we hope you enjoy it...

Nationality in the Land of the Free

Thailand is called ‘The land of the free’ because it was not colonized by European powers. Nevertheless, it did not escape a very Western concept: nationality. Since it was introduced in Thailand in 1913, Nationality has had the principle of jus sanguinis (nationality passed through bloodlines). As long one of your parents is Thai, you are entitled to Thai nationality. Later, jus soli was introduced (acquiring nationality by birth in Thailand). Finally, Naturalization and acquiring nationality through marriage also became possible.

These principles could theoretically solve most statelessness problems, but then the jus soli principle become subject to certain conditions. Now certain people born in Thailand can be stateless. For example, if none of your parents have Thai nationality and at least one of them is illegal in the country, you will not acquire Thai nationality.

Thailand has many migrants because of its location and economic growth. Most of these were not registered in their own countries, but through naturalization and residency permits Thailand can either help solve their statelessness, or give them a legal status in the country. The problem is that there are still indigenous people, immigrants, and refugees that are stateless and sometimes unregistered in Thailand, so this condition to the jus soli principle will perpetuate statelessness for their newborn children. This is not in accordance with the International norms that apply to Thailand stating that ‘all children have a right to nationality’.

Since 2005 Thailand has started the “Strategy to address the Problem of Legal Status and Right to Identity”. Many efforts are being made to at least ensure that everyone is registered, has identity documents, and inform them of their entitlement to nationality where applicable. Because of the high level of statelessness amongst children, a taskforce was made to identify stateless students and help them attain nationality. This is related to Thailand’s international responsibility to ensure that every child has an education. Children cannot receive their diplomas or certificates if they are stateless. It is also worth noting that the newest nationality act applies retroactively, so if previously you were stateless but based on new laws you should have been entitled to your Thai nationality, you may receive it if you fulfil the conditions.

These efforts are impressive and say a lot when we compare Thailand to other countries dealing with statelessness. An area in which Thailand has no obligations but still has measures in accordance with prevention of statelessness is for renunciation of nationality. It seems that a condition to renounce Thai nationality is having acquired, or being able to acquire another one, and if you lose that other nationality you can retrieve the Thai nationality.

It does have international obligations against gender and racial discrimination, but it complies with these. The only gender distinction in Thai nationality law is one where both foreign men and women can acquire Thai nationality when married to a national, but women have a privileged process. This is a great step up if we consider that at first Thailand had many reservations on the Convention on the Elimination of All Forms of Discrimination Against Women.

An area where it does not comply with its international obligations, besides the aforementioned statelessness situation upon birth, is in the context of loss or deprivation of nationality. People can be deprived of their nationality even if this results in statelessness based on certain conditions that are to the ‘discretion of the minister’. This can be considered arbitrary because of its scope of abuse, since conditions for depriving people of their nationality are ‘insulting the nation’, ‘acting against good morals’, and ‘committing acts in conflict with state interest’. Making the loss or deprivation of nationality subject to less abstract conditions, and taking statelessness into account could definitely improve this.  

Other things that can be improved are making provisions for foundlings, and informing the Thai population about nationality laws. Currently there are many stateless people that are entitled to nationality but simply do not know it.  A good example of how this could be done is by supporting or replicating UNICEF projects of legal assistance, such as ‘the stateless classroom’ project, where stateless persons are given legal assistance and are taught the law. That way people can learn how they can deal with their specific situations and help their acquaintances with their knowledge (The stateless classroom, 2009). Finally, the officials responsible should be better informed and have more structured procedures. This would reduce arbitrary decisions, and increase transparency. This way, those few trapped in statelessness, ignorance, or subject to arbitrary measures, have a better chance of enjoying the privileges of nationality, such as freedom of movement. Privileges that one should have in a place referred to as the Land of the Free.

Veronica Perozo Alberti, a second year student on Liberal Arts and Sciences at Tilburg University, majoring in European Law. Veronica was born in Venezuela, grew up in Curacao and holds naturalised Dutch nationality.

 

GUEST POST: Is Liberia’s nationality law sufficient for the 21st century?

As part of the course 'Nationality, Statelessness and Human Rights', taught every spring semester at Tilburg Law School, we ask students to analyse a country's nationality law against relevant international standards and then write a comment piece about it. Students who write the most compelling comments are invited to publish these here, on our blog site. Below is one of the three student pieces selected in 2013, we hope you enjoy it...

Is Liberia’s nationality law sufficient for the 21^st century?

The most striking thing about Liberia’s nationality law is that it is out rightly racist. The first article explicitly states that only “A person who is Negro, or of Negro descent” can be considered a citizen of Liberia at birth. Furthermore, the same eligibility criterion applies for anyone who wishes to be naturalized as a citizen of Liberia. This is a law that blatantly violates international standards on so many levels, as it strips basic human rights from adults and children alike. This despite being one of the nation states which have acceded to the International Convention on the Elimination of All Forms of Racial Discrimination(1965)

Just like its first article, the bulk of Liberia’s nationality laws fail to comply with international standards. For the most part, the laws may come off as restrictive in terms of access to nationality, rather than ensuring that it protects people. In a sense, Liberia’s nationality laws can be described as being extremely archaic, comparable to that of the early 20^th century.

Other than being discriminatory based on race, the laws are also discriminatory against gender. In that, women do not have equal rights to nationality as men. This can be seen in article 21.31 of the nationality law, which basically says that a child can only obtain citizenship if the father is a citizen, or if the father is naturalized to become a citizen. This is so, even if the mother is a citizen. Which means that women do not have equal rights with men when it comes to the nationality of their own children. This violates many international norms which stress the importance of the equality of men and women, and in particularly article 9 of the Convention on the Elimination of All Forms of Discrimination Against Women (1979), which says “States Parties shall grant women equal rights with men with respect to the nationality of their children”.

 

Imagine a hypothetical situation where a child is born to a citizen mother and a foreign father. If the father happens to be Negro, then perhaps it is well and good because the father can then be naturalized and pass on the nationality to the child, assuming all other criterions are met. However if the father happens to be Asian (or any other race without Negro descent), and is not able to pass on his nationality due to laws in his country for various reasons, or if he is stateless, then there would be no possible way that the child would be able to obtain citizenship, except later in his life. This however would mean that the damage would have already been done and a significant part of the person’s life would have passed. Not only is the woman stripped of equal rights as a citizen, she will be burdened with the inevitable situation of having a stateless child, which could lead to many other problems, including getting education and healthcare. Even though this is a hypothetical situation, it is one that has real consequences that could possibly happen because of Liberia’s biased laws. Therefore, it effectively encapsulates the flaws that plague Liberia’s nationality laws because many people, and children in particular can easily fall through the cracks to end up stateless.

Apart from being discriminatory, it is interesting to note that despite having acceded to the Convention on the reduction of statelessness (1961) in 2004, Liberia’s nationality laws still fall extremely short in its efforts to reduce the number of stateless people in its territory. An area that could be targeted is perhaps one that ensures that children in the state are not born stateless. For example, there are currently no laws that protect children against statelessness because the country does not guarantee citizenship to children born in the territory, or laws that ensure that foundlings do not end up stateless. Furthermore, the nationality laws also seem to lack safeguards and precautions, which could possibly prevent people from ending up stateless unnecessarily.

It is now the 21^st century and the Liberia nationality laws could indeed do with a massive facelift that was due years ago. If nothing else, it should at least strive to eliminate all forms of discrimination, and in particular that of race and gender. In addition, they could also implement safeguards that would act as safety nets to protect people from becoming stateless, and children from being born stateless. There are also no laws in place that protect people from statelessness in the context of loss or renunciation of nationality. These steps in preventing the statelessness of people, and children should be put in place, as it will go a long way to ensure that the global stateless population does not continue to grow.

Noreen Mohammad, 20 years old and currently on exchange at Tilburg University from Wee Kim Wee School of Communications and Information, part of the Nanyang Technological University of Singapore, where she is majoring in Communications

Campaign for statelessness conventions gains traction, at last

The ‘statelessness conventions’, two little-known instruments that have long floated somewhere on the periphery of international law, are finally starting to command the attention that they deserve...

Closely related to, yet not really part of, either refugee law or human rights law, the Convention relating to the Status of Stateless Persons and the Convention on the Reduction of Statelessness did not initially make much of a splash after their adoption in 1954 and 1961 respectively. The 1954 Convention took twice the time to gather enough state parties to enter into force as compared to its sister instrument, the virtually identical 1951 Convention relating to the Status of Refugees. Meanwhile, the 1961 Convention on the Reduction of Statelessness took a full twelve years to gather just six ratifications and enter into force. After this less-than-promising start, both conventions continued to lag far behind other international agreements in terms of accessions and remained woefully under-appreciated. And so it was with no false modesty or irony that the instruments were still being described as “orphan conventions” into the late 1990s. Recently, however, there has been growing interest in these two international agreements which are specifically designed to help states to protect stateless people and avoid cases of statelessness.

In fact, over the past decade or so, repeated calls have been made by a variety of international and regional bodies - including on numerous occasions by the UN General Assembly - for states to embrace the statelessness conventions. With this renaissance of interest in the issue and rediscovery of the conventions, accessions have also started to pick up significantly. This trend now looks set to continue as the campaign to raise awareness of and support for the statelessness convention starts to really gain traction, especially with regard to Europe. Already at the December 2011 Ministerial Meeting convened by UNHCR, over 30 states worldwide made pledges relating to accession to one or both conventions and many, including some European countries have already acted on these promises. Then, at a similar UN high level meeting dedicated to the Rule of Law, there were further encouraging signs, in particular the pledge by the Delegation of the European Union on behalf of the EU Member States. This included the explicit and concrete statement that “the EU Member States which have not yet done so pledge to address the issue of statelessness by ratifying the 1954 UN Convention relating to the Status of Stateless Persons and by considering the ratification of the 1961 UN Convention on the Reduction of Statelessness” (pledge 4).

This recent EU pledge confirms the position of the statelessness conventions at the heart of the international legal framework for tackling statelessness – EU countries pledge to address the issue by signing up to these instruments. This sends a strong signal to governments elsewhere about the value of these conventions, regardless of their somewhat chequered history. A close inspection of how this statement has been formulated suggests a slightly stronger commitment to the 1954 convention, which serves as the foundation for identifying and protecting stateless people. This is perhaps unsurprising given that the European Union has already achieved near-universal accession to this instrument, with just a handful of states still needing to take action. Still, the promise that universal acceptance of the 1954 Convention relating to the Status of Stateless Persons in the European Union will be met is significant. The instrument is pivotal to the protection of non-refugee stateless people and once all EU member states become parties, this will help to raise the profile of statelessness in the region and may provide a new avenue for instigating a Europe-wide dialogue on the implementation of states’ obligations towards the stateless.

At the same time, it is also promising that EU member states have collectively pledged to “consider” acceding to the 1961 Convention on the Reduction of Statelessness. It is true that Europe already has its own, relatively strong, regional framework for the coordination of nationality policy and the avoidance of statelessness – provided by the 1997 European Convention on Nationality, the 2006 Council of Europe Convention on the Avoidance of Statelessness in relation to State succession and a range of related recommendations. Yet, there are still numerous EU member states which have not adopted these regional standards. And even if they were embraced across Europe, the 1961 Convention remains an important counterpart for this framework at the global level. It contains highly similar safeguards for the avoidance of statelessness and even provides a stronger guarantee with regard to acquisition of nationality at birth where a child would otherwise be stateless. Therefore, by also committing to universal accession of this second instrument, EU member states send a strong message to - and set a good example for - countries elsewhere about taking and sharing responsibility for ensuring that no-one is left without a nationality in this day and age. It remains to be seen within what timeframe these pledges will become a reality.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme

This blog also appears on the website of the European Network on Statelessness

GUEST POST: Statelessness - any attention at the national level?

Different international obligations have been established in order to address the problem of statelessness, mainly by the 1954 United Nations (UN) Convention relating to the Status of Stateless Persons and the 1961 UN Convention on the Reduction of Statelessness. Even though a growing number of states is committing to these obligations by acceding to the aforementioned treaties, a question that is often raised is whether states actually follow through and adhere to their obligation to prevent and reduce statelessness, and protect stateless persons at the national level. As part of my research regarding statelessness and statelessness determination – in my view an important first step in adequately protecting stateless persons in practice at the national level – in the European Union (EU), I therefore decided to test to what extent national legislation of EU member states actually pays any attention to statelessness. I did so by undertaking a small study into references to statelessness in the main laws regarding nationality/citizenship of three randomly selected EU member states: Czech Republic, Italy and Luxembourg. Of these countries, only Czech Republic is a States Party to the 1954 and 1961 Conventions; Italy and Luxembourg have both only ratified the 1954 Convention. What furthermore should be noted is that this study is not only limited by the small number of countries included, but also in the sense that only references to statelessness in the main nationality laws of these countries are considered. This approach was chosen because statelessness is closely linked to nationality, as the lack of this is statelessness. Despite these limitations, I still think my findings give an impression of whether states actually take statelessness into account at the domestic level. This preliminary research can also uncover whether it would be of interest to undertake a more elaborate study into references to statelessness in the domestic legislation of all EU member states in order to find good and bad practices in dealing with the different aspects of statelessness. My findings were as follows:

Czech Republic

The Czech Act to regulate the Acquisition and Loss of Citizenship refers to statelessness several times. With a view to prevention of statelessness, it provides that a child born on the territory of Czech Republic shall acquire Czech citizenship if its parents are stateless and at least one of them has permanent residence on the territory. Here, a definition of a stateless person is given as well: “a natural person without citizenship”. Furthermore, the issue of statelessness is acknowledged in naturalization and application procedures in the Czech Republic. Whenever certain documents are needed to prove that someone will lose his or her current/previous nationality with the acquisition of Czech citizenship, the Act provides for an exemption with the words “unless the person is a stateless person or a person with refugee status in the territory of the Czech Republic”. 

Italy

The Italian Citizenship Law No. 91 of 5 February 1992 (Law No. 91/92) elaborates on Italian citizenship and mentions statelessness. Again a preventive clause regarding statelessness is provided for, as any person who was born in Italian territory, of whom either both parents are unknown or stateless, or where he or she does not acquire his or her parents’ citizenship according to the law of the state to which the latter belong shall be considered an Italian citizen by birth. There are also some more specific provisions regarding stateless persons with Italian ancestors, and for spouses. A more general reference to statelessness concerns stateless persons who are legally resident in Italy – establishing that they shall be subject to Italian law insofar as the exercise of civil rights and the performance of military duties are concerned. This means that legally resident stateless persons can enjoy civil rights and be protected in this sense. From this, it can also be assumed that there is some way to be legally resident in Italy as a stateless person. Both protection and prevention thus seem to be covered in some way by the Italian law regarding citizenship.

Luxembourg

The Law on Luxembourg Nationality is active in the prevention of statelessness by providing that all children born in Luxembourg who have no nationality because their parents are stateless shall acquire Luxembourg nationality through birth. This kind of attention to statelessness can also been seen when the lineage of a child to a Luxembourg parent has not been established prior to him or her reaching the age of 18 years. Normally, a child would lose Luxembourg nationality in this case, unless the other parent possesses the status of Luxembourger or when the child would become stateless. Statelessness is also considered in the context of withdrawing Luxembourg nationality where it was obtained through fraudulent procedures: withdrawal is impossible if this would render the person concerned stateless. In the provisions regarding naturalization, however, no reference to statelessness is to be found. Still, Luxembourg laws clearly try to prevent statelessness, which should be commended.

Though this is only a limited study of references to statelessness in domestic laws of EU member states, some conclusions can be drawn. First of all, it is clear that there definitely are such references to be found – at least in the three countries studied – and that states do pay attention to statelessness at the domestic level. Secondly, the laws studied take statelessness into account in different ways, but certainly all have an interest in preventing statelessness. This could be expected because the rules studied are those dealing with access to nationality. Yet this might imply that in other laws, for example regarding aliens or refugees, references regarding the protection of stateless persons are also included. Overall I think this little piece of research shows that the implementation of the international obligations regarding statelessness at the national level is in need of further inquiry. Also, it demonstrates that states have already taken an interest in the issue of statelessness and sought to address certain problems through their laws. States should therefore be encouraged to join the international treaties on statelessness, and for States Parties to the conventions, guidelines, such as the Guidelines that are being issued by the Office of the United Nations High Commissioner for Refugees (UNHCR), that clarify the commitments and provide guidance in designing the appropriate domestic legislation are important for adequate implementation. Greater attention for the issue and more research will remain key in this process.

Caia Vlieks, Research Master Student, Tilburg Law School

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

Rottmann and Genovese: How will Europe’s nationality laws stand up to the scrutiny of its regional courts?

For such a core area of domestic law, that goes to the very heart of the question of who we are and who belongs within our community, it is somewhat surprising how often the rules relating to nationality are held up for review. Just in the past week or so, nationality policy has been in the news again in the Netherlands. The latest proposal centres upon an apparent desire to limit the incidence of dual nationality – i.e. to make it more difficult for people to hold both Dutch and a foreign citizenship simultaneously. The suggested legal reform would result in people automatically losing their Dutch nationality if they were to naturalise abroad, while would-be Dutch nationals will also be expected to forfeit their original citizenship once they have been approved for naturalisation. In itself, such a reform would not necessarily raise any difficulties in terms of the Netherlands’ international legal obligations with regard to nationality policy, since it neither looks to be discriminatory nor should it immediately lead to cases of statelessness. However the further tightening of naturalisation requirements that is also part of this reform proposal will inevitably make access to Dutch nationality more complicated, potentially also for vulnerable groups such as stateless people or refugees for whom facilitated access to naturalisation is of vital importance.

Moreover, the debate surrounding this newest proposal to amend the Dutch nationality act does not address an existing area of discrepancy between the law and the state’s international commitments. As pointed out by numerous actors, most recently in a December2011 UNHCR report, the Dutch nationality act requires a period of “lawful stay” for a child who is born stateless on Dutch territory to acquire citizenship under the requisite safeguard. This is not in conformity with the Netherlands’ obligations under the 1961 Convention on the Reduction of Statelessness, to which it has been a party since 1985. It is unfortunate that the latest debate on Dutch nationality rules concentrates on a fascination with dual nationality – a phenomenon that in reality has both pros and cons for the state, and is not currently a major international concern – rather than a desire to fully implement key international standards relating to the prevention and reduction of statelessness.

The foregoing is somewhat remarkable given that overall legal developments within Europe demonstrate increased scrutiny of domestic nationality policy, precisely with a view to combating statelessness and discrimination. There are, indeed, regional instruments dedicated specifically to steering states’ regulation of nationality in which these principles play a guiding role, including the innovative European Convention on Nationality adopted in 1997. Moreover, the development of jurisprudence by the European Court of Human Rights and the Court of Justice of the European Union and culminating, respectively, in the Genovese and Rottmann rulings demonstrate just how closely examined European states may expect their nationality policy to be in future. Each marks the culmination of developments over a 15-20 year period, during which the respective courts progress from a largely theoretical acknowledgement that they are empowered to scrutinise states’ nationality laws to an actual ruling on the lawfulness of a particular nationality policy. It would therefore seem wise for European governments, including that of the Netherlands, to take this into account if they are considering amendments to the nationality law and keep a keen eye on their international obligations in this field.

In Rottmann, the case centred on the question as to whether a decision to revoke citizenship acquired through fraudulent naturalisation raised problems under EU law, given that it would result in the concomitant loss of EU citizenship and indeed statelessness. The Court of Justice reasserted its position that regulating access to nationality was, in principle, a sovereign matter for each state, but that EU member states must have due regard for EU law when setting the conditions for the acquisition and loss of nationality. As such, it was possible for nationality issues to fall within the jurisdiction of the court and the potential loss of EU citizenship was enough reason for the court to proceed in assessing the legitimacy of such a decision in this case. The court decided that responding to fraud could be legitimate reason for withdrawing nationality, but that the decision to do so in an individual case must weigh the facts of the fraudulent act against the ultimate consequences of loss of citizenship. In other words, a proportionality test needs to be met, taking the person’s overall legal situation into account. Elsewhere in the Rottmann ruling, the court also ponders the question as to whether the influence of EU law – and the reach of the court’s own jurisdiction – also stretches to decisions relating to acquisition of nationality. The circumstances of the case allow the court to defer this question for the time being, but the wording of its assessment suggests that such matters could also be held up for scrutiny in the future. Thanks to the link to EU citizenship, it appears that there is now every scope for the Court of Justice to test EU states’ nationality policy against core EU principles such as proportionality and non-discrimination. Nor is the court afraid to seek further inspiration for its rulings in other areas of international law, such as the 1961 Convention on the Reduction of Statelessness and the European Convention on Nationality, both cited as part of the court’s assessment in the Rottmann case.

Similarly, the Genovese case illustrates how the European Court of Human Rights now deems questions relating to the regulation of nationality to be firmly within its jurisdiction, despite the absence of the right to a nationality in the European Convention on Human Rights. Here, the court determined that even though Malta had gone “beyond its obligations” under the European Convention on Human Rights in creating an entitlement to citizenship by descent within its law, this did not put the law itself beyond scrutiny and it must, as such, meet the non-discrimination test. Maltese legislation failed this test because it discriminated both on the basis of gender (different rights in terms of transmission of nationality to children for men and women) and on the basis of illegitimacy (different rights in terms of acquisition of nationality from a parent for children born in and out of wedlock). Central to the court’s assertion that the Maltese nationality law could be scrutinised in this manner was its recognition of citizenship as a part of a person’s social identity, thereby bringing this issue generally within the scope of the protection offered by article 8 of the European Convention on Human Rights as an element of private life. This broad statement on the meaning of nationality and the link to the European Convention on Human Rights will allow the court a wide margin in the exercise of its jurisdiction over questions of nationality policy in future – on top of which previous jurisprudence already indicated that other articles of the Convention could potentially also be invoked.

The clear recognition of the regulation of nationality as an area over which, given the right circumstances, jurisdiction can be exercised by both these two regional courts should make European states give more careful consideration to this area of policy in future. The inconsistency of Dutch nationality law with its obligations under the 1961 Convention on the Reduction of Statelessness is just one example of the many difficulties that can still be encountered in Europe. Across the region, there is evidence that legislative safeguards that should protect people from statelessness are being implemented inadequately – as seen, for instance, in the citizenship scandal in Denmark that hit the media in 2011. There are also other pockets of evidently discriminatory nationality law or practice, like that of Malta, which was found to violate the state’s obligations under the European Convention on Human Rights in Genovese. Again, Denmark can be cited here, but also Austria and several others. Following the Rottmann and Genovese rulings, there is increased scope for such policy to be brought to the attention of – and struck down by – Europe’s regional courts. So, as nationality law reform is contemplated by any European government in the coming years, this should be informed not only by changes in popular sentiment or notions of public interest, but also clearly guided by the state’s international commitments to the avoidance of statelessness and to a non-discriminatory nationality policy.

An article looking in detail at the Rottmann and Genovese rulings and their position among overall legal developments within the EU and Council of Europe with regards to the regulation of nationality by states has been submitted for publication in the European Journal of Migration and Law. If accepted, the piece will appear in a special edition of this Journal, featuring a series of reflections on the issue of statelessness.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme

GUEST BLOG: Mapping Statelessness in the United Kingdom

For too long, the situation facing stateless people in the UK has been little understood.  In light of this in November 2011, and on the 50^th anniversary of the 1961 Convention on the Reduction of Statelessness, Asylum Aid and the UN Refugee Agency (UNHCR) published a joint research report Mapping Statelessness in the United Kingdom.

This year-long research was motivated by a desire to shed light on this hidden issue – basically to better understand the situation and to see what government could do to improve the way it treats stateless persons in the UK.  There were three main goals. Firstly to evaluate available data sources in order to map the number and profile of stateless persons in the UK. Secondly to gain an in-depth understanding of the situation faced by stateless persons by carrying out 37 semi-structured interviews in 10 cities across the UK. Thirdly to analyse national law, policy and practice in light of the UK’s international obligations.

It is to the UK’s credit that it is one of only 37 states that have ratified both the 1961 Convention on the Reduction of Statelessness and the 1954 Convention on the Status of Stateless Persons. Yet at the same time the report findings bring home the reality that ratification without proper implementation is not enough to adequately protect the rights of stateless persons. While British nationality law is generally effective at preventing statelessness among children born in the UK, there remains significant scope for improvement in the way the UK treats stateless migrants. Many of the key findings from the research relate to problems flowing from the fact that at present the UK does not have a dedicated or accessible statelessness determination procedure. This limits the ability of the UK authorities to identify which individuals are stateless in order to confer the rights owing to them under the 1954 Statelessness Convention and international human rights law.

We identified several key recommendations. Firstly the UK needs to reform its data management systems in order to more accurately record the size of the stateless population. Secondly improved guidance and training is required to enable decision-makers to better identify stateless persons who come into contact with immigration control. Thirdly the UK should follow the example of other European states by introducing a dedicated statelessness determination procedure. Fourthly this should be combined with a grant of lawful immigration status for those individuals recognised as stateless and who lack a right of residence in any other country.

Otherwise, and without any means to regularise their immigration status, stateless persons will continue to be left in limbo and at risk of destitution, arbitrary detention and other human rights infringements. Of the 37 persons interviewed for the research 12 had been detained and 28 had experienced destitution (11 of whom had spent periods sleeping rough on the streets). The vast majority had been compelled to claim asylum because that was the only route open to them but if refused found themselves left in a nightmarish legal limbo with no solution in sight. A robust statelessness determination procedure would not only reduce the risk of human rights infringements but would also help relieve pressure on an already over-stretched asylum system. Asylum Aid will be advocating that any new determination procedure should be based on forthcoming UNHCR Guidelines on the proper identification of statelessness.

As well as seeking to continue a constructive dialogue with the UK authorities about how to implement the report’s key recommendations, Asylum Aid will continue its awareness-raising and capacity-building work to help equip civil society organisations to better identify and respond to the needs of stateless persons. We will also continue to engage at the pan-European level, including through involvement with the European Network on Statelessness (ENS) bringing together non-governmental organisations, academic initiatives, and individual experts committed to address statelessness in Europe by conducting and supporting legal and policy, awareness-raising and capacity-building activities. The setting up of this network is testament to an increased understanding of the need for European governments and civil society to be better able to pick out stateless persons from their caseloads or populations of concern. The UK statelessness research, along with the recently published UNHCR mapping study in the Netherlands, also point to the critical importance of and provide a possible model for similar research in other European countries in order to raise awareness about this important but hidden issue.

Mapping Statelessness is, hopefully, the start if a much-needed conversation about statelessness in the UK and beyond – and one that concludes in a lasting and fair solution for those devastated by its effects.

Chris Nash, Asylum Aid

The full UNHCR/Asylum Aid report Mapping Statelessness in the United Kingdom is available at http://www.asylumaid.org.uk/data/files/publications/mapping_statelessness.pdf

For further information about the report or Asylum Aid’s work on statelessness contact Chris Nash at chrisn@asylumaid.org.uk