Presentation on Statelessness Parliamentary Portfolio Committee on Home Affairs 11 November 2014 UNHCR Regional Representation for Southern Africa

Content UNHCR Statelessness Mandate The Legal Framework Definition Case Studies of Statelessness ( Video 1) Accession UNHCR’s role Activities Observations and recommendations Role of Parliamentarians Campaign Video “ I Belong”

UNHCR’s Statelessness Mandate UNHCR Mandate on Statelessness is derived from: 1995 UN General Assembly Res 50/152 requested UNHCR to undertake activities to identify, prevent and reduce statelessness and to protect the rights of stateless persons 2006 UNHCR Executive Committee conclusion on identification, prevention and reduction of statelessness and protection of stateless persons High Commissioner’s Global Strategic Objectives : “Ensuring… the adoption of nationality laws that prevent and/or reduce statelessness” UNGA through Resolution 50/152 of 21 Dec 1995 requested UNHCR to (1) Promote State Accession to the 1954 & 1961 conventions relating to statelessness; (2) Provide technical & Advisory Services to interested states pertaining nationality and (3) to provide appropriate training to government officials. This resolution was re-affirmed by the UNHCR Executive Committee vide Conclusion 78 of 1995.

International Legal Framework There are two International Conventions on Statelessness, the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness : The 1954 Convention aims to regulate and improve the status of stateless persons and to ensure that stateless persons enjoy the widest possible exercise of their human rights. The 1961 Convention elaborates clear, detailed and concrete safeguards to ensure a fair and appropriate response to the threat of statelessness and establishes specific obligations relating to prevention and reduction of statelessness.

Importance of the 1954 Convention The 1954 Convention relating to the Status of Stateless Persons (1954 Convention) provides for ; The definition of ‘stateless persons’ Ensures that stateless persons enjoy the widest possible exercise of their rights. Prescribes basic standards of treatment for stateless persons Guarantees stateless persons access to the protection of the State they find themselves in Provides a framework to identify stateless persons Promotes recognition of the international legal status of “stateless persons” and the common international framework for protection Gives UNHCR the mandate to mobilize international support for the protection of stateless persons The 1954 Convention relating to the Status of Stateless Persons (1954 Convention) is the cornerstone for the international protection regime for stateless persons It is the only international treaty aimed specifically at regulating the standard of treatment for stateless persons. It aims to ensure that stateless persons enjoy the widest possible exercise of their human rights

Definitions- What is Statelessness Article 1(1) of the 1954 Convention defines a stateless person as: “…… a person who is not considered as a national by any State under the operation of its law” To be stateless is to be without nationality or citizenship either De jure - by operation of law or Defacto - where a person formally posses a nationality but is unable, for valid reasons, to avail themselves of the protection of the State, i.e. their nationality is not effective Art. 1 of the 1954 Convention on Stateless Persons Provides that : " stateless person " means a person who is not considered as a national by any State under the operation of its law . Persons who fall within this definition are referred to as “de jure” Stateless persons. By contrast, there is no legal definition of “de facto” stateless persons in any instrument Traditionally the term “Statelessness” was used to describe a person who, outside his/her country of nationality, is denied diplomatic and consular protection or assistance of his/her country. An enquiry as to whether one is stateless is limited to states where one enjoys a relevant link. Nationality is the legal bond between a state and the individual. When the link is broken, statelessness (i.e) lack of nationality arises. Some stateless persons may also be refugees

Importance of the of the 1961 Convention The 1961 Convention on the Reduction of Statelessness (1961 Convention) Is concerned with reduction of statelessness through safeguards in national laws Equips States to avoid and resolve nationality-related disputes Provides the legal framework for preventing statelessness at birth and later in life by:- Granting nationality to children within their territory who would otherwise be stateless Requiring prior possession of or assurance of acquiring another nationality before a nationality can be lost or renounced Prohibiting deprivation of nationality that results in statelessness except on certain grounds Addresses statelessness in the context of State succession The 1961 Convention on the Reduction of Statelessness is the primary international legal instrument adopted to date to deal with the means of avoiding statelessness thereby reducing the phenomenon over time. It establishes specific obligations relating to prevention and reduction of statelessness. It requires that states establish safeguards in legislation to address statelessness at birth and later in life Establishes obligations in the event of state succession Art 1-4: Promotes prevention of statelessness among children by granting status to children who would otherwise be stateless and have ties with the country by birth or decent; Art 5-7: Promotes prevention of statelessness due to loss or renunciation of nationality by requiring prior possession of or assurance of acquiring another nationality before a nationality can be lost or renounced; Art 8 & 9:Prohibts deprivation of nationality that results in statelessness except of certain grounds; Art 10: Addresses statelessness in the context of state succession;

Other International Instruments Human rights treaties recognize the right to nationality and establish minimum standards for treatment of stateless persons, they include: Universal Declaration of Human Rights (UDHR) International Covenant on Civil and Political Rights (ICCPR) International Convention on Elimination of All Forms of Discrimination against Women (CEDAW) Convention on the Elimination of All forms of Racial Discrimination (CERD) Convention on the Rights of the Child (CRC) Convention on the Rights of Persons with Disabilities ( CRPD) Convention on the Rights of Protection of the Rights of All Migrant Workers and Members of Their Families Regional Treaty - African Charter on the Rights and Welfare of the of the Child ( Art 6) recognizes the right to birth registration and the right to nationality Human rights treaties complement Statelessness Conventions Some human rights norms form part of customary international law and therefore apply to all states - for example the prohibition of racial discrimination

South African Citizenship Act of 1995 National Legislation Current nationality laws in force that regulate citizenship in South Africa are: South African Citizenship Act of 1995 South African Citizenship Amendment Act of 2004 South African Citizenship Amendment Act of 2010 Provides for granting of South African nationality to children born in South Africa who would otherwise be stateless Provides women and men equal rights regarding acquisition of nationality by their children at birth and later in life Provides women and men equal treatment as regards acquisition and retention of nationality linked to marriage , termination of marriage or change of nationality No provisions relating to foundlings ‘children found on the territory without parents/guardians and their relatives are unknown’ National legislation has several provisions in line with the International Standards The legislation should be reformed to incorporate safeguards granting South African citizenship to foundlings

Case Examples of Statelessness Members of ethnic minority groups who due to their foreign ethnic descent are not eligible to claim citizenship in their country. (e.g Karanas in Madagascar) Undocumented descendants of illegal economic migrants (e,g undocumented descendants of mine workers and farm workers in RSA) Children born to foreigners who themselves do not have nationality in the country of residence. Statelessness may arise from a variety of contexts e.g from migration, birth in a State that does not grant women rights to confer citizenship from, renunciation, loss of citizenship by birth or even conferment/denial of citizenship based on ethnic lines.

VIDEO 2. Stateless Case Study ( Lebanon)

Accessions 83 states are party to the 1954 or 1961 Conventions 42 accessions since 2011 (24 to 1961 Convention, 18 to 1954 Convention)Latest :Mozambique on 1 Oct ‘14 Since 2011, 40 states have acceded to either the 1954 or 1961 Convention African States that ratified 1954 Conv. include:- Mozambique, , Nigeria, Benin, Burkina Faso, Cote D’ Ivore, Gambia. African states that ratified 1961 Conv. include :- Mozambique, Benin, Gambia, Ivory Coast & Guinea. Reforms of nationality laws in Cote d’Ivoire (2013), Senegal (‘13), Russian Federation (2012 ), Turkmenistan (2012) Madagascar (2014) Determination procedures adopted in UK, Georgia, Moldova, Philippines (discussions in Brazil, Costa Rica, Panama, Uruguay, US…) 30% of pledges implemented, 2 from Southern Africa including Mozambique and South Africa.

As at 1 Nov 2014, 83 States are party to the 1954 Convention  and 60 States are party to the 1961 Convention At least 10 million people world-wide are stateless. They are fighting for the same basic human rights that most of us take for granted such as :- a legal identity when they are born, access to education, health care, marriage and job the dignity of an official burial and a death certificate Many pass on statelessness on to their children, who then pass it on to the next generation

As at 30th Sep 2014 Generally, there is a very low accession of both convention in the African continent. Approx. 26 states in Africa are not signatories to either convention.

Status of Accessions in Southern Africa States Parties to both 1954 and 1961 Conventions: Mozambique, Lesotho; and Swaziland; States Parties to the 1954 Convention only: Botswana; Malawi; Zambia; and Zimbabwe; States Parties to none of the above Conventions: Angola; Comoros; Madagascar; Mauritius; Namibia; South Africa; Seychelles and Tanzania; In Southern Africa, :- only Mozambique, Lesotho and Swaziland have ratified both the 1954 & 1961 Conventions while RSA, Angola , Madagascar, Namibia have not ratified either conventions. Madagascar was a party to the 1954 Convention but denounced it in 1966. Mozambique acceded to both Conventions in October 2014

What States should do In order to realize the objects of the Conventions, States should: Accede to the Statelessness Conventions as well as relevant international / regional treaties Institute safeguards against statelessness, regardless of whether they are parties to the 1961 Convention or not; Review multilateral and bi-lateral agreements with other states to reduce statelessness related disputes. Undertake population profiling / census to establish nationality gaps Promote Universal Birth Registration Establish status determination procedures granting protection status to stateless persons and to facilitate their naturalization Generally, states bear the primary responsibility for preventing and reducing statelessness South Africa should review its national legislation in line with its obligations under international and regional instruments to establish gaps within the legislation States (RSA) should ensure adoption and use of safeguards to avoid statelessness due to renunciation, deprivation and loss of nationality. States may also wish to undertake population profiling / census to establish nationality gaps

Why States should accede to the 1954 and 1961 Conventions At the national level, acceding ; Is a way to demonstrate their commitment to treat stateless persons in accordance with internationally recognized human rights and humanitarian standards, including a right to a nationality; Ensures a stateless person has access to the protection of a State so that they are able to live with security and dignity; Provides a framework to identify stateless persons within their territory and ensure enjoyment of their rights including through issuance of identity and travel documents; Enables States to address gaps that results from different approaches to the acquisition of nationality through the recognition of common safeguards for the avoidance of statelessness; Enhances security and stability by avoiding exclusion and marginalization of stateless persons; At the international level, acceding ; Demonstrates a commitment to cooperate with the international community in reducing and eliminating statelessness; Promotes recognition of the international legal status of “stateless persons” and the common international framework for protection; Improves international relations and stability; Helps to resolve nationality disputes ; Helps UNHCR to mobilize international support for adhering to international principles contained in the conventions.

UNHCR’s Role To support States in addressing statelessness, UNHCR and partners will: Promote accessions to the 1954 Convention relating to Statelessness and the 1961 Convention on the Reduction of Statelessness by states; Mobilize international support for the prevention and reduction of statelessness; Examine statelessness claims and partner with states to address statelessness; Providing technical advice and where necessary ,resources to support governments and stateless populations; Promote the exchange of good practices in resolving statelessness Work with states to provide training and workshops on prevention and reduction of statelessness; Report on the implementation of Actions. Art. 11 of the 1961 convention empowers UNHCR to receive claims by persons claiming to benefit from the convention and present them to relevant authorities. UNHCR can advise states on the development of statelessness determination procedures as well as act as an information resource on nationality laws and procedures

Activities Identification - Mapping stateless populations and their situation Prevention - Addressing causes of statelessness Reduction - Seeking solutions for stateless populations Protection - Ensuring fundamental rights for stateless persons

Observations and Recommendations South Africa should consider signing the 1954 Convention on Stateless persons as well as the 1961 Convention on Reduction of Statelessness In 2011, South Africa pledged to consider accession to the 1954 Convention on Stateless persons as well as the 1961 Convention on Reduction of stateless persons South Africa is already a party to the African Charter on the Rights and Welfare of the Child, which in Article 6(4) contains a key safeguard against statelessness amongst children, similar to Article 1(1) of the 1961 Convention on the Reduction of Statelessness. National Legislation has several provisions already in line with international standards contained in the 1954 and 1961 Conventions

Practical steps that parliamentarians can take to encourage the Government to accede to the conventions. Among other activities, the parliament can; Consider pausing a written or oral question to the government or adopting a private members bill; If a request for ratification has been introduced before parliament, vote in favor of the accessions; If the government fails to bring the matter before parliament - use parliamentary procedures to ask the government to explain why and to encourage the government to begin the process of ratification/accession; Advocate with your constituents to advance the course of ratification; After ratification, make sure that parliament adopts legislation that corresponds to the provision contained in the statelessness conventions; Consult the UNHCR office for advice and assistance on the processes.

Campaign to End Statelessness in 10 years - Open Letter This open letter was signed by amongst others Emeritus Archbishop of Cape Town, Desmond Tutu and the United Nations High Commssioner for Refugees, Antonio Guterres. On 4 November 2014, UNHCR launched a Campaign to End Statelessness in 10 years. Statelessness is an entirely a man-made problem and is relatively easy to resolve and prevent. With political will and public support, millions of people around the world could acquire a nationality and prevent their children from being born stateless.

Video 3. I BELONG

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