e)
Nationality legislation may be unclear or be misinterpreted or misapplied by the
Executive. This type of problem frequently may impact upon a particular group in
society, for example in the context of post-colonialism or of State succession. Its
resolution may require a ruling by the Courts, confirming that persons belonging to the
group are indeed nationals.156 Up until such time as the ruling is made, which may take
several years or even several decades, the group may not be considered as nationals by
the Executive, or may not even consider themselves to be nationals, even though they
in fact fulfil the requirements for nationality. In other cases, ambiguity may be
resolved only by a change in government policy or by the adoption of new nationality
legislation with retroactive effect.157
f)
A State may consider that a person has the nationality of another State, and therefore
that the person has not acquired its own nationality. For example, State A may be a
party to the 1961 Convention on the Reduction of Statelessness and provide in its
nationality legislation that a person born on its territory acquires its nationality at birth
by operation of law if that person would otherwise be stateless. State A may determine
that a person born on its territory acquired at the birth the nationality of State B, and
therefore did not acquire its own nationality at birth. However, the person may in fact
not have acquired the nationality of State B, and thus actually be a national of State A
even though not yet recognized as such.158
156
See, for example, Eric Paulsen, “The Citizenship Status of the Urdu-Speakers/Biharis in Bangladesh” in
“Refugee Survey Quarterly”, Vol. 25, No. 3, 2006, pp. 54 - 69; Case of the Yean and Bosico Children v.
The Dominican Republic, footnote 144 above.
See Paul White, “Reducing de facto statelessness in Nepal” in “Forced Migration Review”, Issue 32, April
2009, pp. 28 - 29. See also Nini Gurung and Eric Paulsen, “Nepal Moves Mountains” in UNHCR,
“Refugees”, No. 147, Issue 3, 2007, p. 16:
157
“Birash is one of a reported 2.6 million Nepalese people who received citizenship certificates during a
massive government campaign to regularize their situation in the first few months of 2007. Hundreds of
mobile teams criss-crossed Nepal’s 75 districts, visiting even the remotest of mountain villages, to ensure
that citizenship certificates were issued to as many stateless people as possible.
This extraordinary logistical feat stemmed from the Nepal Citizenship Act of November 2006, which
tackled the country’s longstanding ‘citizenship problem’ – the estimated 3.4 million people who did not
have citizenship certificates, and as a result suffered from a heavily truncated set of civil, social and
economic rights. One of the main aims of the Act was to ensure that all eligible Nepalese can vote in
forthcoming elections.”
158
Scenarios such as this were one of the reasons for the inclusion of Article 11 in the Convention. By
providing for the establishment of an agency that can examine claims under the Convention and assist the
individuals concerned in presenting them to the appropriate authorities, Article 11 gives individuals a
degree of standing under the Convention, which is important because disputes in the application of the
Convention are frequently more likely to arise between individuals and States than between States
themselves. Note that Article 11 of the 1961 Convention went through various evolutions before it ended
up in its final form. For the initial discussions and rationale in the International Law Commission, see:
A/CN.4/SR.218, A/CN.4/SR.219, A/CN.4/SR.220, A/CN.4/SR.223, A/CN.4/SR.224, A/CN.4/SR.231 and
A/CN.4/SR.232. UNHCR itself submitted written observations to the Conference on the Elimination or
Reduction of Future Statelessness: see A/CONF.9/11, “Observations transmitted by the United Nations
High Commissioner for Refugees”, 30 June 1961:
“1. The draft Convention on the Reduction of Future Statelessness, as adopted by the Conference held in
Geneva in March/April 1959 [prior to the reconvening of the Conference in New York in 1961], makes
the grant of nationality according to Articles 1 and 4 dependent, inter alia, on the fact that the person
concerned ‘would otherwise be stateless’. The application of these provisions would, therefore, make it
necessary for Contracting States to ascertain whether the person concerned possesses or does not possess
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