How does UNHCR help stateless persons (3/4)?

We have previously explained that UNHCR takes a multipronged approach to helping stateless persons and combating statelessness, consisting of protection, identification, prevention and reduction. Having discussed protection and identification in earlier episodes, we move to UNHCR’s activities regarding the prevention of statelessness. Here UNHCR relies on its expertise in the area of nationality law in order to provide legal advice to governments on how to ensure that their nationality laws are in line with international standards – in particular the 1961 Convention on the Reduction of Statelessness as well as other human rights treaties such the 1965 International Convention on the Elimination of All Forms of Racial Discrimination and the 1979 Convention on the Elimination of All Forms of Discrimination against Women, the latter drafted to secure gender equality in nationality law.

In trying to prevent statelessness from arising, however, UNHCR needs to go beyond matters of nationality and concern itself with strengthening civil registration systems, promoting the importance of documenting a population, and training and advising authorities to make decisions in a non-discriminatory manner.

The governmental solution to declare and record citizens’ details is commonly referred to as CRVS (Civil Registration and Vital Statistics). Different organisations study this phenomenon on different continents, for example in Africa and the Asia-Pacific region. The United Nations Statistics Division has noted that the interest in strengthening CRVS systems has increased over time because of the growing recognition of the value of these systems to “human rights, good governance, and development planning, monitoring and evaluation”.

The UNHCR regime on statelessness is somewhat complicated. Starting point of any discussion on statelessness is the legal framework as laid down in the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. However, given the far-reaching developments in the field of international and human rights law over the last decades, UNHCR decided it was time to issue explanatory guidelines on how to interpret these conventions in the 20th century. This resulted in three separate guidelines which in 2014 would be bundled in the Handbook on Protection of Stateless Persons. The focus of the Handbook is on the interpretation of the 1954 Convention.

A fourth guideline was issued in 2012 to ensure every child’s right to acquire a nationality under the 1961 Convention. This guideline, in other words, is concerned with the prevention and reduction of statelessness (Articles 1-4 of the Convention). A fifth guideline, which has been pending for years, will deal with statelessness resulting from loss of nationality (Articles 5-8 of the Convention). It is expected that this guideline will build on the conclusions from an expert meeting held in 2014, which are available online as the “Tunis Conclusions”.

Guideline no. 4 explains that “the cornerstone of efforts to prevent statelessness among children is the safeguard contained in Article 1 of the 1961 Convention. Article 1 gives a child who would otherwise be stateless the right to acquire the nationality of his or her State of birth through one of two means. A State may grant its nationality automatically, by operation of law (ex lege) to children born in its territory who would otherwise be stateless. Alternatively, a State may grant nationality to such individuals later upon application”.

Loss of nationality (ex lege) is, in principle, prohibited by the 1961 Convention, if this would cause statelessness. A few exceptions are expressly allowed. First, the 1961 Convention permits loss of nationality for naturalized persons who reside abroad for a period not less than seven consecutive years if the individual fails to declare to the appropriate authority an intention to retain the nationality. Second, the Convention allows for the loss of nationality for nationals born abroad, if they do not take residence in the territory of the State before the expiration of one year after attaining the age of majority or do not register before the expiration of that period. Finally, deprivation of nationality (i.e. not loss ex lege but on initiative of the authorities) is allowed even if a person would be rendered stateless, if “the nationality has been obtained by misrepresentation or fraud”. We previously saw in the Rottmann case that the Court of Justice of the European Union indeed concluded that Janko Rottmann’s loss of German nationality and his subsequent statelessness was legitimate under international law because he had committed fraud during the naturalisation procedure.

Author: Dr. Olivier Vonk