Article 15 of the Universal Declaration of Human Rights (UDHR) says “[e]veryone has the right to a nationality” and that “[n]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”. Most articles of the UDHR are considered customary international human rights law. The right to citizenship/nationality is clearly stated. So why is there a global, and particularly African, problem with statelessness?
A key weakness of the right to citizenship is that Article 15 is stated in terms of the rights of individuals without indicating what state is responsible for implementing the right. Protection of most human rights is, quite logically, the responsibility of the state in which individuals reside, or the state that is violating the right. When a person is detained arbitrarily, it is usually clear what state is detaining her. Yet states generally do not give citizenship to individuals just because they are residents, or even because they are born there, and international law doesn’t require them to. So the question of which state is violating the right of any particular stateless person (and by implication, responsible for giving her citizenship) isn’t clear from the Universal Declaration.
Another basic problem is that the right to nationality is not well-defined in international law, and not intuitively understood. What does it really mean? To have the right to political participation? To have documentation proving that one is a citizen? In practice, it depends on the context and country. In absolute monarchies, all may be citizens but no one has the right to political participation. In other countries, which have no national id cards, citizens and non-citizens are indistinguishable by documentation. In contrast, the right to freedom from arbitrary detention is much easier to intuitively understand—plus there is lots of international law and jurisprudence, developed over decades, defining it.
The lack of a clear definition of citizenship means that it is hard to separate the idea of a right to citizenship/nationality in the abstract from state recognition of that citizenship in practice. If a person is tortured, we don’t believe that he has no right not to be tortured, but that his right not to be tortured is being violated. But because the right to citizenship is so poorly defined in law that it’s hard to say when someone has it; thus, when that person is denied or deprived of citizenship, or proof of citizenship, by a state, the victim herself may conclude that she is stateless, rather than that her right to citizenship has violated. But many of the world’s stateless people would not be stateless at all if their country’s laws were non-discriminatory or properly implemented.
Although many of the rights contained in the Universal Declaration have been elaborated into binding international human rights instruments, some with treaty bodies to interpret them, international law has made little progress in developing the right to citizenship/nationality relative to other rights. This is understandable if one considers that for decades, human rights were so imperfectly defined and poorly respected that most people didn’t have their rights whether they were citizens or not.
As the international human rights regime has grown stronger and stronger and the culture of respecting rights has grown, lack of citizenship has become one of the few grounds upon which states can deny individuals their rights and not be called to account. When violating or failing to protect the rights of non-citizens, states may claim that they do respect human rights, but are simply not responsible for non-citizens who live within their borders. To a certain extent, they are right—it is permissible to make distinctions between the rights of citizens and the rights of non-citizens. But many of the world’s ‘non-citizens’ may in fact be citizens whose right to citizenship is being violated by not being recognized by their state. Because the right to citizenship is poorly defined, we should be suspicious of states’ claims as to who the non-citizens are.
Despite these weaknesses, international human rights law does constrain states in granting and withholding citizenship in some ways. For example, international antidiscrimination norms make it clear that denying citizenship to individuals on the basis of their gender, ethnicity, religion or other status is impermissible. But in practice, lots of citizenship laws discriminate in violation of these norms.
The problem that international law does not indicate which state is responsible in any given instance of statelessness, has been addressed by two international treaties on children—the UN Convention on the Rights of the Child (CRC) and the African Charter on the Rights and Welfare of the Child. Both of these treaties address a specific population, children who are born on the territory of a state who would otherwise be stateless. Both are very widely ratified (only the US and Somalia have yet to ratify the CRC, and in Africa 45 of 53 states have ratified the African Children’s Charter). Although the provision deals only with children, if states respected this obligation it would seem to ensure that the problem of statelessness would be solved within a generation.
However, the problem that citizenship (and conversely, statelessness) is poorly defined undermines the implementation of this positive obligation of states to grant citizenship to children. In practice, states never admit that the children they deny citizenship to are stateless. States prefer to pretend to believe that the children born on their territory and denied citizenship are citizens of another state, so the obligation in the CRC and the African Children’s Charter doesn’t apply. For an individual to counter this assertion—to prove that she or he is not a citizen of any other state—is extremely difficult, especially when, as in Zimbabwe in recent years, ‘citizenship’ has been taken to mean any possible claim to another citizenship, rather than one that a person actually holds.
These two areas—the lack of states’ positive obligation to grant citizenship and the fact that citizenship is poorly defined—are two areas of international law that urgently require greater elaboration of the right to citizenship is to become meaningful.
*Julia Harrington is senior legal officer for equality and citizenship, Open Society Justice Initiative