“Everyone has the right to a nationality”

Why the 1961 Convention on Statelessness Matters

30 August 2011 | Sebastian Köhn

Today the 1961 Convention on the Reduction of Statelessness turns 50. A happy occasion? In many ways, yes. The 1961 convention provides a blueprint for the reduction—possibly the elimination—of statelessness globally. It’s one effort by the international community to help the more than 12 million people around the world who have no nationality anywhere. Most of them live in the shadows, with little or no access to education, health care, social services, or employment. Many are unable to move freely because they lack of identity documents, which also leaves them vulnerable to exploitation and trafficking.

But despite its 50-year history, the convention has only been ratified by 38 states—yes, that’s an average of less than one ratification per year. So why should we care about the convention when so few states have signed on?

Because it’s the best international tool we have to address what is inevitably an international problem. Statelessness is not something that one country can resolve on its own. Establishing that a person is stateless, for example, necessarily requires states to collaborate to ensure the person is not a national of another state. The 1961 convention is the only global instrument that establishes some kind of framework for such collaboration.

And while parts of the convention are outdated, it does provide a clear guide for states with respect to policies that ought to be adopted to minimize occurrence of statelessness among children. Not only do many nationality laws around the world lack such guarantees, but a great benefit of more countries acceding to the convention is that states parties would apply the same rules, minimizing the risk of creating gaps.

What exactly does the 1961 convention do? The convention contains a number of rules about acquisition and loss of nationality, especially in cases where there is a risk of statelessness.

One of the most important issues the convention deals with—one that I have addressed in quite some detail in the past—is the acquisition of nationality for children who would otherwise be stateless. The bottom line is that while a state has a lot of discretion when it comes to determining who its nationals are, it has an obligation to ensure that a child born on its territory acquires its nationality if the child would otherwise be stateless. Compliance with this principle internationally would go a long way in terms of breaking the vicious cycle of statelessness. The ways in which this rule applies under the convention are quite complicated, but this illustration helps clarify what obligations the state has.

The second core issue in the convention is renunciation, loss, and deprivation of nationality. It prevents renunciation of nationality in cases where this results in statelessness. It also prevents automatic loss of nationality unless the person has another nationality or is acquiring another nationality. There are exceptions to this rule in the 1961 convention, which is one of the shortfalls of the treaty. For example, a naturalized person may lose her nationality if she takes up long-term residence abroad, and under certain circumstances a national born abroad can have her nationality automatically withdrawn.

In addition to automaticloss of nationality, the convention deals with deprivation of nationality. This is another area where the 1961 convention contains certain gaps in terms of preventing statelessness: in most cases deprivation is not permitted, but there are exceptions. For instance, if a person conducts “himself in a manner seriously prejudicial to the vital interests of the State” he may be deprived of his nationality even in cases where this results in statelessness. This is clearly a much too broad provision, which could easily be abused.

The third and final core area of the 1961 convention is the avoidance of statelessness in situations of state succession. When states break up, or cede territory to other states, nationality is usually implicated. In fact, over the last 25 years, some of the major statelessness crises have taken place in the context of state successions—Soviet Union, Yugoslavia, and Ethiopia, to name a few. In the recent case of Sudan, it is still unclear precisely how nationality issues will be dealt with. The 1961 convention requires that any treaty which provides for transfer of territory shall include provisions to prevent statelessness. And in cases where there is no treaty, states parties who receive new territory have an obligation to grant nationality to anyone who would otherwise become stateless as a consequence of the exchange of territory.

While states can certainly employ their own safeguards against statelessness—and many do—more accessions to the 1961 convention would mean that more states apply the same kind of safeguards. The treaty clearly has a number of shortfalls, but it remains the best thing we have. Plus, human rights law corrects some of its major flaws—for example, the fact that it permits certain forms of gender discrimination.  Now that we commemorate the 50th anniversary of the Convention on the Reduction of Statelessness, it’s time for states to think about their legal and moral obligations towards the stateless and celebrate by acceding to this important instrument.


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