CHAPTER 3: INTERNATIONAL LAW BASIS FOR THE RIGHT TO NATIONALITY
3.4. Modes of nationality attribution
Nationality is predominantly conferred in three ways. Jus sanguinis, jus soli, and through naturalisation.218 States are free to choose which methods of nationality they wish to use,219 subject to the condition the method chosen is balanced with international obligations. Such as the obligations in the CRC220 and ACRWC221 which ensures a child is provided nationality if they would otherwise be stateless.
Jus sanguinis, or law of the blood, is a mode of conferral that is based on descent or lineage. One's ancestry therefore establishes one’s genuine link to a state.222 In the migrant context, it is inherently exclusionary, because if a state decides to use jus sanguinis exclusively, migrant children would
216 Ibid para 42.
217 Ibid para 42.
218 Ibid at 32.
219 General Comment on Article 6 of the African Charter op cit note 63 at 33.
220 CRC, art 7(2).
221 ACRWC, art 6.
222 Nationality Matters op cit note 16 at 33.
by default be barred from gaining nationality in that state as they cannot establish a bloodline link.
Marginalising people from access to nationality in this way can lead to instability, conflict, and widespread public unrest.223
Jus soli establishes a genuine link with a state on the basis that one has been born on the state’s territory.224 It is therefore spatial in nature. Jus soli is advantageous for undocumented migrants because it allows a child access to nationality based on where they were born.225 The interaction between jus soli and jus sanguinis can at times result in statelessness if there are no safeguards put into place within a state’s domestic law. For example, if country A only provides nationality on the basis of jus soli, and country B only via jus sanguinis, a child who was born outside of country A would have missed the window to make use of jus soli, and cannot gain nationality in country B because nationality only passes via descent.226 This conflict of nationality laws is regarded as one of the so-called “technical” causes of statelessness.227 The 1961 Convention, as well as the ACRWC and CRC prevents this by providing a child the right to a nationality.
Naturalisation has typically been associated with high levels of discretion; however, this has slowly been changing.228 It is based on the idea that one develops a relationship with a state over time.229 It therefore opens the possibility of gaining nationality for people who have remained within the territory of a state for a number of years. For example, naturalisation in South Africa is provided to people who have been resident in the country for ten years, according to new regulations.230 It is therefore a useful avenue for reducing statelessness. However, the discretionary nature of this avenue limits its protective capacities.231 Which makes sense considering that the
223 UNHCR ‘Self-Study Module on Statelessness’ (2012) at 35, available at https://www.refworld.org/docid/50b899602.html, accessed on 30 May 2021.
224 Nationality Matters op cit note 16 at 32.
225 Katelyn A Horne ‘Navigating Nationality: The Rights to Birth Registration and Nationality in Refugee Magnet States’ (2014) 53 COLUM. J. Transnat'l L. 114 at 147.
226 Fatima Khan op cit note 36 at 11.
227 Nationality Matters op cit note 16 at 50.
228 Bronwen Manby ‘Citizenship and Statelessness in the Member States of the Southern African Development Community’
(2020) at 107.
229 Nationality Matters op cit note 16 at 33, 172.
230 Citizenship and Statelessness op cit note 228 at 76.
231 Ibid at 74.
right to a nationality does not mean a right to naturalisation.232 However this does not mean that states should not still implement or facilitate naturalisation procedures altogether.233
There is some variance regarding one’s status when it comes to habitation. For example, the European Convention on Nationality requires for naturalisation that one has lawful habitual residence.234 Lawful habitation has the outcome that one’s status in a country can determine ones access to nationality, which in the case of undocumented migrants leaves a gap in protection.235 The 1961 Convention does not have this lawful habitation requirement, as article 1(b) only requires habitual residence, which means it should be “stable” and “factual.”236 Furthermore, the UNHCR has made it a point that this should not be construed to mean lawful residence.237 In the SADC, Lesotho requires lawful residence for naturalisation, and provided the applicant has not been charged with a criminal offence.238
Residential time requirements can be lengthy. International laws generally allow for residential time period requirements, such as the 1961 Convention.239 The UNHCR appears cognizant that this can become an issue, as it noted that five to ten years is a long time, especially considering the standards set by the CRC.240 There is the further issue that the nature of migration may result in certain migrant children not being able to fulfil the habitual time frame requirement.241 However this has been partially offset by allowing people who live nomadically or who move between two states at a time, to have habitual residence in both.
232 Nationality Matters op cit note 16 at 172.
233 1954 Convention, art 34.
234 European Convention on Nationality (adopted 6 November 1997, entered into force 1 March 2000) ETS 166, art 6(2)(b), available at https://www.refworld.org/docid/3ae6b36618.html, accessed on 10 June 2021.
235 Nationality Matters op cit note 16 at 174-5.
236 Guidelines on Statelessness No. 4 op cit note 206 at 9.
237 Ibid.
238 Citizenship and Statelessness op cit note 228 at 41.
239 1961 Convention art 1(b); Laura Van Waas op cit note 4 at 172.
240 Guidelines on Statelessness No. 4 op cit note 206 at 9.
241 Nationality Matters op cit note 16 at 175.