A  Assignment Topic, Purpose and Background Information

1  Topic and Instructions

(a) Part A:

You work for an international non-governmental organisation that advocates for equality in
the enjoyment of all human rights.  Your job is to monitor and report on discriminatory State
practices.

Your current assignment is to review the nationality law of a country called Arcadia and to
identify any of its provisions that are discriminatory or may lead to a discriminatory
application of the law.  Your supervisor has asked you to comment on each of the provisions,
explaining:

(a)  whether and how the provision reflects the principle of jus sanguinis or jus soli;

(b) in what way (on which ground) the provision is discriminatory or how the application of
the provision may lead to indirect discrimination;

(c)  how such discrimination may contribute to creating or prolonging statelessness; and

(d) which international standards are applicable and whether the provision violates these
standards.

To do this, you will need to read and consider the international standards set out in the two
UN treaties addressing statelessness which you can find at the website of the UN High
Commissioner for Refugees (‘UNHCR’):

   Convention on the Reduction of Statelessness (1961); and

   Convention relating to the Status of Stateless Persons (1954).

You will also need to consider the provisions of some international human rights treaties.
You can find the core international human rights treaties at the website of the UN Office of
the High Commissioner for Human Rights.

Here are the relevant extracts from the Nationality Act 1967 of Arcadia:

Nationality Act 1967 (Arcadia)

[…]

Section 3

Every person born in Arcadia after independence shall become a citizen of Arcadia on the date of his birth if one of his parents is a citizen and is a person of African race.

Section 4

A person born outside Arcadia after independence shall become a citizen of Arcadia on the date of his birth if his father is a citizen by birth and is a person of African race.

[…]

¹ This topic is based on an exercise published by the United Nations High Commissioner for Refugees (‘UNHCR’).

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Section 9

The marriage of a foreign woman to a citizen of Arcadia shall not entitle her to acquire the

nationality of her husband, unless she informs the Ministry of the Interior of her wish to become a national, provided that the marriage has lasted for three years as from the date of expressing such wish and on the condition that she has revoked her original nationality.  […]  However, in all
cases a foreign husband may not enjoy the nationality of his wife.

Section 10

A wife who acquires Arcadian nationality by dependence to her husband, under the previous article, shall retain the nationality of Arcadia if her husband dies.  Citizenship may not be withdrawn from her except in the two following cases:

(a) If she marries a foreign national.

(b) If she restores her original nationality or acquires another nationality.
[…]

Section 17

Arcadian nationality may be granted by Decree by the Minister of the Interior to any person of full age satisfying the following conditions:

(a) That he has lawfully resided in Arcadia for at least 20 consecutive years or for at least 10
consecutive years if he is of African race belonging to an African country.  The requirement of
consecutive residence shall not be affected if the applicant leaves Arcadia on official business;

(b) That he has lawful means of earning his living;

(c) That he is of good character and has not been convicted of an honour-related crime or of an honesty-related crime;

(d) That he is fluent in the language and familiar with the customs of Arcadia;

(e) That he adheres to the State religion, and, if he has converted to the State religion according to the prescribed rules and procedures, that a period of at least 5 years has passed before the grant of naturalisation.  Nationality thus acquired is lost and the Decree of naturalisation rendered void if the naturalised person renounces the State religion or behaves in such a way as clearly indicates his intention to abandon the State religion.

[…]

Section 22

The Minister shall not be required to assign any reason for the grant or refusal of any application under this Act and the decision of the Minister on any such application shall not be subject to appeal or review in any court.

(b) Part B: Nationality in Australian law and policy

Now your services have been engaged closer to home to advise on recent amendments to the Australian Citizenship Act 2007 (Cth).

First of all, how is citizenship currently determined under Australian law?

Next, read ‘Division 3 – Cessation of Australian citizenship’ in this Act, in particular the

provisions which apply to citizens who engage in various kinds of conduct inconsistent with allegiance to Australia.

In what ways are these loss of citizenship provisions in accordance with or contrary to international law?  Cite relevant legislative and treaty provisions in your answer.

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2  Purpose of Assignment

This assignment gives students the opportunity to

   consider and identify ways in which the specified nationality provisions may
discriminate between individuals;

   consider and explain ways in which the specified nationality provisions may lead to
statelessness, particularly for women and children;

   review the approach and content of the UN Convention on the Reduction of Statelessness
(1961);

   review and consider the provisions of core international human rights treaties;

   identify and discuss some of the strengths and weaknesses of international standards for
the avoidance of statelessness, particularly statelessness resulting from discriminatory
nationality laws and statelessness among children; and

   appreciate the tension that exists between the freedom of States to regulate nationality
and the need to avoid statelessness and ensure the right to a nationality.

3  Background Information on Statelessness

Nationality is a legal bond between a person and a State.  People’s nationality provides them with a sense of identity but, more importantly, enables them to exercise a wide range of
rights.  Without a nationality, stateless people are often denied the rights and services that countries normally offer their citizens.  Statelessness can therefore be harmful and, in some cases, devastating to the lives of the individuals concerned.²

Most situations of statelessness are a direct consequence of discrimination based on ethnicity,
religion or gender.  According to the UNHCR in 2014, 27 countries deny women the right to
pass their nationality on to their children on an equal basis with men, a situation that can
create chains of statelessness that span generations.  There is also a very real link between
statelessness, displacement and regional stability, and new risks of statelessness are emerging
with the growing number of major conflicts.  For example, the wars in the Central African
Republic and Syria have forced millions of people into internal displacement or becoming
refugees.³

In 2014, the UNHCR marked the 60^th anniversary of the Convention relating to the Status of Stateless Persons (1954) which, alongside the Convention on the Reduction of Statelessness (1961), provides the international legal basis for ending statelessness.

According to the UNHCR, tackling statelessness still poses a major challenge in the 21^st

century.  At least 10 million people worldwide are currently stateless and a baby is born

stateless every 10 minutes: ‘Statelessness can mean a life without education, without medical
care or legal employment… a life without the ability to move freely, without prospects or
hope.’⁴

The issue of statelessness is also topical here in Australia, and in other developed countries
such as the United Kingdom and Canada, in view of Australian citizenship law and policy
which provide for loss of Australian citizenship for dual nationals who act ‘inconsistently with their allegiance to Australia ‘by engaging in terror-related conduct or fighting with terrorist groups’.

² UNHCR, Preventing and Reducing Statelessness: The 1961 Convention on the Reduction of Statelessness (UNHCR, 2014) 1-2.

³ UNHCR, ‘UNHCR announces push to end statelessness by end-2024’ (Press Release, 4 November 2014).

⁴ Ibid.

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