2022 Statelessness & Citizenship Review 4(2) to shift the burden onto another country or UNHCR instead of resolving the situation themselves. This is a valid concern. However, dismissing these cases as beyond the bounds of statelessness does not solve the problem. Moreover, the solution to these cases, once these affected people are found to be stateless, is to highlight the duty of the relevant state to grant them the citizenship to which they are entitled. The African Union’s Draft Protocol on the Specific Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa 138 moves in the right direction by expanding the international law definition of statelessness to include persons who are unable to prove their nationality. It further suggests a solution in which states are encouraged to provide a legal process to facilitate the recognition or acquisition of nationality for persons having an appropriate connection to that state and whose nationality is in doubt.139 This resolves the problem and, therefore, those who are stateless under this definition have a pathway to citizenship in the country where they have a genuine link. This unique construction, which is arguably an expansion on the traditional bases for citizenship (jus sanguinis and jus soli), is sensitive to the colonial history of Africa as a continent and the way in which African identity, belonging and nation building have been hampered by arbitrary borders and the forced removal of peoples away from their ancestral homes. Laura van Waas notes that the Statelessness Conventions’ definitions and approaches140 may not be sufficient to end statelessness and suggests a wider human rights-based approach to the right to nationality.141 Bronwen Manby emphasises that the statelessness debate as framed by UNHCR is limited because of its emphasis on the requirement of a lack of nationality, instead of a focus on the right to nationality and all the rights that stem from it. She argues that this limited scope is not necessarily helpful in the African context and suggests that persons need access to nationality in the country where they have strongest links because they are most likely to remain there and may not be able to relocate to the country where they have a claim to nationality.142 This is relevant to the South African context, particularly with regard to children who have been abandoned or orphaned and for whom repatriation is impossible. These children will remain in South Africa without the option of obtaining South African nationality and may become stateless as the links to their country of nationality weaken and proof of such nationality is lost or becomes unattainable. Regardless, the existing customary international law definition of statelessness already makes provision for those who are arbitrarily denied their citizenship.143 According to art 1 of the 1954 UN Convention relating to the Status of Stateless Persons, a stateless person is a person ‘who is not considered as a national by any State under the operation of its law’. The last part of this definition relates to the way in which the law is implemented, that is, the state’s actions. There are thus 138 African Union, Draft Protocol to the African Charter on Human and Peoples’ Rights on the 139 140 141 142 143 Specific Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa (Draft Protocol, June 2018) <https://au.int/sites/default/files/newsevents/workingdocuments/35139-wdpa22526_e_original.pdf>, archived at <https://perma.cc/ZDU8-HA4K>. ibid art 1. 1954 Statelessness Convention (n 73) art 1; 1961 Statelessness Convention (n 1) arts 5–8. van Waas (n 12) 390. Manby, Citizenship and Statelessness in Africa (n 34) 452–53. UNHCR, Guidelines on Statelessness No 5: Loss and Deprivation of Nationality under Articles 5–9 of the 1961 Convention on the Reduction of Statelessness (Guidelines, May 2020) [7]–[8]. 278