“The problem of statelessness at present is one of the burning problems under International law”. Explain & Illustrate
1. Introduction
An escalating predicament is emerging among certain individuals residing in Sudan and South Sudan: the specter of statelessness. When an individual is without a state, they lack basic infrastructure which enshrines and protects many of their most fundamental human rights: the right to vote, to travel, to own property, to equality of justice.
The South Sudan Nationality Act came into force on the 9th of July, 2011 as part of the interim Constitution. Without distinguishing over place of inhabitation, the Act gave the automatic right of South Sudanese citizenship to all individuals with one parent, grandparent or great-grandparent born within the geographical arena of South Sudan, as well as to those who belong to an “indigenous or ethnic community” of South Sudan. Such nationality is required for access to employment, financial services, travel abroad, the right to own property, access to schools and healthcare, and enshrined equal justice before the law. So far, around 40,000 individuals have applied for, and obtained, the required ‘Nationality Certificate’[1] from the citizenship office in Juba.
However this process is a demanding and arduous one. All applicants require a birth or assessment of age certificate and two witnesses who are close blood relatives with full knowledge of the applicant’s clan lineage. Access to such evidentiary documentation is uncommon – pre-independence, it was estimated that only one third of Sudanese children under five were registered at birth. Furthermore, the nature of wartime displacement often means that locating applicable witnesses is an impossible task. Since the only nationality bureau is located in Juba, individuals from outlying regions face significant travel obstacles, and once at the office, a wait of several days to see an officer. For many, the process is ‘exceptionally burdensome and time consuming.’
2. Discussions in the International Law Commission
Discussions during the first meetings of the Commission confirmed how divisive the issues were. Some ILC members stressed the sovereignty and internal jurisdiction dimensions to nationality, and considered that the State could not be denied the right to deprive of their nationality anyone who had put themselves outside their national community. Other members stressed that, while deprivation should not be imposed as a penalty, nationality was nevertheless a privilege not to be accorded unless there were a real link between individual and State. In the eyes of some, the “mere fact of birth” or “mere habitual residence” in a country before the age of eighteen was not sufficient evidence of such a link. Others agreed, while noting also that approaches to the acquisition of nationality transcended purely legal principles. One member, however, thought that neither the “accident” of birth, nor the “accident” of parental citizenship was intrinsically stronger than the other, and that even nationality acquired by fraud should not be punished by deprivation. (Yearbook of the International Law Commission, 1952, vol. I, pp. 100-142, 190-191, 244, 251-252.)
At its sixth session in 1954, the Commission reviewed the observations of Governments, many of which simply reiterated their view that the proposed texts were incompatible with existing legislation. The Commission did not consider this decisive: “If Governments adopted the principle of the elimination, or at least the reduction, of statelessness in the future, they should be prepared to introduce the necessary amendments in their legislation” (Yearbook of the International Law Commission, 1954, vol. II (doc. A/2693, para. 12)) It redrafted some of the articles, however, adopted final drafts of the two conventions, and submitted them to the General Assembly (Yearbook of the International Law Commission, 1954, vol. I, pp. 3-52). The Commission indicated that it would be for the General Assembly to consider which of the two draft conventions it preferred – that on elimination, which imposed stricter obligations, or that with the more modest aim of simply reducing statelessness. In resolution 896 (IX) of 4 December 1954, the General Assembly expressed its desire that an international conference of plenipotentiaries be convened as soon as at least twenty States had communicated their willingness to participate to the Secretary-General.
Also at the sixth session, the Special Rapporteur introduced two working papers on present statelessness, one each on elimination and reduction (Yearbook of the International Law Commission, 1953, vol. II (doc. A/CN.4/75)). The Commission discussed an “Alternative Convention on the Reduction of Present Statelessness”, noting that the solution lay in the acquisition of nationality by stateless persons, which would normally be that of their country of residence. The Special Rapporteur had also proposed that stateless persons be accorded the special status of “protected person” pending acquisition of nationality, entitling them to civil rights and diplomatic protection. However, while the drafts and commentaries were duly submitted to the General Assembly as part of its final report, the Commission nonetheless acknowledged that there were “great difficulties of a non-legal nature” in the way of accepting articles on the matter, and they might better be seen as “suggestions” to Governments when attempting to solve the problem (Yearbook of the International Law Commission, 1954, vol. II.
3. The United Nations Conference on the Elimination or Reduction of Future Statelessness
The United Nations Conference on the Elimination or Reduction of Future Statelessness met first in Geneva from 24 March to 18 April 1959, and again in New York from 15 to 28 August 1961. The Conference decided to use the draft convention on the reduction of statelessness as the basis for discussion, and focused on provisions aimed at reducing statelessness at birth. Once again, fundamental differences were revealed between States which favored the principle of jus soil, and those which opted for jus sanguinis. Whereas endorsement and acceptance of the former would have stopped many instances of original statelessness at source, consensus was missing and the final compromise combined elements of both principles. Equally divisive was the issue of deprivation of nationality, a facility defended by many States as essential to their vital interests (Note by the Secretary-General with Annex containing observations by Governments on deprivation of nationalist; the lack of agreement necessitated the second session, at which the final text of the Convention on the Reduction of Statelessness was duly adopted. In accordance with article 18, the Convention entered into force on 13 December 1975.
4. The 1961 Convention on the Reduction of Statelessness
One of the most significant elements in the 1961 Convention is the fact that it imposes positive obligations on States to grant nationality in certain circumstances, by contrast with the essentially negative obligations contained in the Convention on Certain Questions relating to the Conflict of Nationality Laws, adopted in the Hague in 1930 (hereinafter referred to as “the 1930 Hague Convention”).
Article 1, for example, obliges a Contracting State to grant its nationality to a person born in its territory who would otherwise be stateless, although the State may attach conditions to the grant, such as age of application, habitual residence, not having been convicted for an offence against national security, or sentenced on any criminal charge to imprisonment for five years. The limiting conditions do not apply, however, in the case of a child born in wedlock in the territory of a Contracting State, where the mother has the nationality of that State; in such cases, the child shall acquire that nationality at birth, if otherwise he or she would be stateless.
The 1961 Convention also attempts to settle a variety of incidental problems, such as the nationality of foundlings (article 2: continuing the principle of jus soli already established in the 1930 Hague Convention); and of those born on board ships or aircraft (article 3). It seeks to minimize the possibility of loss of nationality resulting in statelessness on the occasion of change of civil status, including marriage, termination of marriage, legitimating or adoption (articles 5 and 6). In other circumstances, loss of nationality is to be conditional on the possession or acquisition of another nationality, both where that may otherwise occur by operation of law (article 6), or by reason of the voluntary acts of the individual, such as renunciation (article 7).
In principle, deprivation of nationality resulting in statelessness is now prohibited by article 8, but subject to a variety of exceptions, including, in the case of naturalized individuals, residence abroad for seven years or more, misrepresentation or fraud in acquisition; or, if the Contracting State has made the appropriate declaration at the time of signature, accession or ratification, where the person concerned has been disloyal or otherwise conducted him- or herself in a manner prejudicial to the vital interests of the State. Deprivation of nationality on racial, ethnic, religious or political grounds, however, is prohibited without exception (article 9).
Article 10 expressly provides that every treaty between Contracting States for the transfer of territory is to include provisions designed “to secure that no person shall become stateless as a result of the transfer”, and in the absence of such provisions, a Contracting State acquiring territory shall confer its nationality on such persons as would otherwise become stateless as a result.
5. Implications and Later Developments
Important as are the principles set out in the 1961 Convention, what finally counts is the practice of States; at 23 August 2011 the 1961 Convention had attracted just thirty-eight ratifications. However, the content of this Convention clearly reflects and consolidates basic human rights principles, such as the right to a nationality and the right not to be arbitrarily deprived thereof, which are found in article 15 of the 1948 Universal Declaration of Human Rights, article 5 of the 1965 International Convention on the Elimination of All Forms of Racial Discrimination, article 24, paragraph 3, of the 1966 International Covenant on Civil and Political Rights,
6. Fact and Reality
Finally, the Conference recommended “that persons who are stateless de facto should as far as possible be treated as stateless de jure, to enable them to acquire an effective nationality” (United Nations Conference on the Elimination or Reduction of Future Statelessness, Resolution I, United Nations, Treaty Series, vol. 989, p. 279).
At one time, the ILC had favored the idea of both a protecting agency for stateless persons, and a tribunal to decide upon their claims. Neither suggestion found much favor with States, which opted instead for the establishment of a body within the framework of the United Nations, “to which a person claiming the benefit of Convention may apply for the examination of [the] claim and for assistance in presenting it to the appropriate authority” (articles 11 and 20, paragraph 2). On the eve of the entry into force of the 1961 Convention in December 1975, the General Assembly requested the United Nations High Commissioner for Refugees (hereinafter referred to as “UNHCR”) to undertake the functions foreseen in article 11 on a provisional basis (General Assembly resolution 3274 of 10 December 1974 (Question of the establishment, in accordance with the Convention on the Reduction of Statelessness, of a body to which persons claiming the benefit of the Convention may apply)). Two years later, the General Assembly asked UNHCR to continue to perform these functions, which it noted were carried out “without any financial implications for the United Nations” (General Assembly resolution 31/36 of 30 November 1976).
7. Conclusion
He Special Rapporteur introduced two working papers on present statelessness, one each on elimination and reduction (Yearbook of the International Law Commission, 1953, vol. II. The Commission discussed an “Alternative Convention on the Reduction of Present Statelessness”, noting that the solution lay in the acquisition of nationality by stateless persons, which would normally be that of their country of residence. The Special Reporter had also proposed that stateless persons be accorded the special status of “protected person” pending acquisition of nationality, entitling them to civil rights and diplomatic protection. However, while the drafts and commentaries were duly submitted to the General Assembly as part of its final report, the Commission nonetheless acknowledged that there were “great difficulties of a non-legal nature” in the way of accepting articles on the matter, and they might better be seen as “suggestions” to Governments when attempting to solve the problem.
8. Bibliography:
1. C. Batchelor, “Transforming International Legal Principles into National Law: The Right to a Nationality and the Avoidance of Statelessness”, Refugee Survey Quarterly, vol. 25, No. 3, 2006, pp. 8-25., 2008.
2. M. Manly, “The Spirit of Geneva – Traditional and New Actors in the Field of Statelessness”, Refugee Survey Quarterly, vol. 26, No. 4, 2007, pp. 255-261.
3. L. van Waas, Nationality Matters: Statelessness under International Law, Intersentia, Mortsel, 2008.
4. P. Weis, “The United Nations Convention on the Reduction of Statelessness, 1961”, International and Comparative Law Quarterly, vol. 11, No. 4, 1962, pp. 1073-1096.
5. P. Weis, Nationality and Statelessness in International Law, Sijthoff and Noordhoff, Leiden, 2nd ed., 1979.
6. A Study of Statelessness, United Nations, August 1949, Lake Success – New York (E/1112, 1 Feb. 1949; E/1112/Add.1, 19 May 1949).
7. Report of the Ad Hoc Committee on Statelessness and Related Problems, 16 January to 16 February 1950 (E/1618 (E/AC.32/5)).
8. Economic and Social Council resolutions 319 A and B (XI) of 11 and 16 August 1950 (Refugees and stateless persons).
9. Elimination of statelessness – Note prepared by the Secretariat (A/CN.4/47, 31 May 1951, reproduced in Yearbook of the International Law Commission, 1951, vol. II).
10. Yearbook of the International Law Commission, 1951, vol. I, Summary records of the third 11. Yearbook of the International Law Commission, 1952, vol. I, Summary records of the fourth session, 4 June – 8 August 1952.
12. Inter-Parliamentary Union & United Nations High Commissioner for Refugees, Nationality and Statelessness: A Handbook for Parliamentarians, IPU, Geneva, 2005.
13. United Nations High Commissioner for Refugees, Statelessness: An Analytical Framework for Prevention, Reduction and Protection
[1] See page 49 of the International Law Commission, Articles on Diplomatic Protection with commentaries, 2006,
which states that the Article 1 definition can “no doubt be considered as having acquired a customary nature”.