Prevention and reduction of statelessness in the Americas

Committee on Juridical and Political Affairs, Organization of American States

February 23, 2012

Legal bases for action to prevent and reduce statelessness

• UN General Assembly, Resolutions 50/152, 61/137States: Emphasizes that prevention and reduction of statelessness are

primarily the responsibility of States, in appropriate cooperation with the international community;

UNHCR: Requests the Office of the High Commissioner […] to provide relevant technical and advisory services pertaining to the preparation and implementation of nationality legislation to interested States;

• OAS General Assembly, Resolution 2665 of 2011States: To urge those member states that have not yet done so, in accordance with the international instruments on statelessness to which they are party, to review their national legislation with a view to preventing and reducing statelessness

• 1961 Convention on the Reduction of Statelessness• UNHCR Executive Committee

Prevention and reduction: Good practices and gaps in the Americas• Context: increased migration, marriages between people of different

nationalities• International standard: Prevention of statelessness at birth for children

born in the territory– Tradition of jus soli in the region means that statelessness rarely transferred

from one generation to another• 1961 Convention does not require jus soli, only that nationality be granted to the limited

number of children born in territory who do not acquire any other nationality

• Some limitation on just soli acceptable (eg. residence requirements for parents) as long as children born stateless acquire nationality – ex. Colombia

• Compare to states with no jus soli and no safeguards to prevent statelessness among children: if parents are stateless, their children are also stateless

– Childhood statelessness in the Americas generally flows from questions of proof identity, not from gaps in legislation

Good practices and gaps – prevention for children born to nationals abroad• International standard: Prevention of statelessness at birth for

children born to a national abroad– 1961 Convention allows for some limitations

• Registration requirement (ie. at consulate)• Residence requirement - ensures that some children will remain stateless

because parents cannot return to take up residence

but …– Trend toward eliminating limits on jus sanguinis transmission of

nationality to children born abroad – maintain ties with migrant communities• Elimination of residence requirements – Argentina, Chile, Brazil • Elimination of registration requirement (pure jus soli) - Ecuador and Bolivia

Good practices and gaps - foundlings

• International standard: Foundlings – presumed to be nationals under 1961 Convention

• One of most common provisions in nationality laws globally• A number of States grant nationality to foundlings in

nationality legislation – Honduras. Nicaragua, Paraguay, Peru• Many States lack provision in nationality law

– How are foundlings dealt with?

Good practices and gaps – voluntary renunciation

• International standard: Renunciation of nationality – safeguard necessary to ensure that individuals cannot voluntarily renounce nationality unless they have or will acquire another– Potentially a problem for other States, eg. Romania in early 1990s

• A number of States have good safeguards – Colombia, Mexico, Venezuela

• Other States allow renunciation ….– Are individuals required in practice to show they have or will acquire

another nationality for renunciation to take effect

Good practices and gaps – loss of nationality for residence abroad

• International standard: Loss of nationality for naturalized citizens – no loss of nationality for residence abroad of less than seven years if the person would become stateless– Only affects the very small number of people who have emigrated

and have not acquired another nationality– Potentially a problem for other States as migrants become stateless

• Most States in the Americas have good legislation • Small number of States provide for loss of nationality by

people who have naturalized after 3 years, 5 years– If state has monist legal tradition and is party to the 1961 Convention, would the

provision that is more beneficial to the individual prevail, avoiding need for constitutional reform?

50th Anniversary of the 1961 Convention – pledges to address statelessness

• Pledges made at Ministerial Meeting to take action on refugee protection and statelessness

• Pledges to accede to 1954 and/or 1961 Conventions– Argentina (1961 Convention, subject to congressional approval)– Colombia (bill for accession to 1961 Convention before Congress) – Ecuador (1961)– Haiti (1954, 1961) – Honduras (1954, 1961 before Congress) – Peru (1954, 1961)– Paraguay (1954 before Congress, 1961 pending deposit of instrument before UN)

• Pledge to reform nationality law and/or regulations– Haiti– Peru

50th Anniversary of the 1961 Convention – pledges to address statelessness (cont.)

• Pledges to accede to establish statelessness determination procedures under 1954 Convention– Brazil – Costa Rica– Uruguay – USA (work with Congress to establish a procedure)

Calls upon States to accede to 1954 and 1961 Conventions

• UN General AssemblyNotes that sixty-two States are now parties to the 1954 Convention relating to the

Status of Stateless Persons and that thirty-three States are parties to the 1961 Convention on the Reduction of Statelessness, encourages States that have not done so to give consideration to acceding to these instruments (Res. 61/137 and subsequent resolutions)

• UNHCR Executive Committee– Encourages States to give consideration to acceding to the 1961 Convention on the

Reduction of Statelessness– Encourages States to give consideration to acceding to the 1954 Convention relating to

the Status of Stateless Persons

• UN Human Rights Council

UNHCR’s role

UN General Assembly

• Requests the Office of the High Commissioner, in view of the limited number of States party to these instruments, actively to promote accession to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the reduction of statelessness, as well as to provide relevant technical and advisory services pertaining to the preparation and implementation of nationality legislation to interested States; (Res 50/152)

• Notes the work of the High Commissioner in regard to identifying stateless persons, preventing and reducing statelessness, and protecting stateless persons, and urges the Office of the High Commissioner to continue to work in this area in accordance with relevant General Assembly resolutions and Executive Committee conclusions;

• Emphasizes that prevention and reduction of statelessness are primarily the responsibility of States, in appropriate cooperation with the international community;

(Res. 61/137 and subsequent resolutions)