world with the largest percentage of the population following nomadic or transhumant lifestyles, yet
its laws take no account of this fact.
Most recent migrants or refugees will not themselves be stateless, since, even if they lack documents,
they retain the knowledge of their “home” country, its languages and other identifying features, that
would enable them to re-establish that nationality in case of need (provided they had assistance to
make the necessary applications). Yet a failure to act to provide the possibility of obtaining nationality
in the country where they now live, and especially for their children, creates the risk of multigenerational statelessness of individuals, families and communities who cannot obtain nationality in
either (or any) country where they have connections. Ethnic groups cut in two by modern borders, or
those whose nomadic lifestyles lead them to cross such borders frequently, are often distrusted for
their ability to claim to belong either side of that boundary. But they are as much at risk of having
documents of neither state as of both. Equally, most foundlings and children separated from their
parents will find a niche where they are accepted, with or without documents, even if they are not in
the country of their birth; but some will not. Failing to provide systems to document such children
creates for them the risk not only of exclusion from school, medical treatment and other needs; but
also that on adulthood they have no legal status in the society where they have made their home, and
therefore no enjoyment of their other human rights.
Of course, if a person has money, it is usually possible to sort out such problems: but it is hardly
desirable to advocate corruption as a means of avoiding statelessness. Moreover, if documents are
known to be obtained corruptly, they are mistrusted; and, in a crisis, will not be believed as proof of
nationality.
6.4. Due process and transparency are key
In societies where many people are undocumented, decisions about access to public services, voter
registration and other rights are effectively left to interpretation by low-level administrative officials.
In this context, instinctive criteria such as language or last name are often the default basis for
determining eligibility. It becomes very important for those who do not fit these criteria to have a
means of proving nationality in case of doubt. In this regard, the civil law system in which nationality
of origin is determined by the courts and not by the administrative authorities has significant
advantages over the common law countries in terms of due process and clarity. It establishes the
certificate of nationality as a single document that is definitive proof of nationality, and in the
president of the relevant tribunal nominates an impartial arbiter who, while (of course) not entirely
immune from bias or financial impropriety, is significantly more rule-bound and better informed than
in a system dependent on much more junior administrative staff responsible for processing
applications for identity documents. Nonetheless, court-based systems, perhaps even more than
those that are purely administrative, can be very burdensome in terms of process, and may require
individuals to be assisted by lawyers or other advisers in order to have effective access to the
procedures established.
Completely discretionary systems for deciding questions of nationality – such as those in place in most
West African countries for naturalisation – create major risks of statelessness, not necessarily for
reasons of ill faith, but because they have enabled a paralysis in the process for people to change their
nationality to that of the place where they have the closest connections. They also greatly favour
people with money, lawyers and connections over the poor who do not have access to such assistance
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