CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 A note on terminology “Nationality”, “citizenship”, and “stateless person” In international law, nationality and citizenship are now used as synonyms, to describe a particular legal relationship between the state and the individual; the terms can be used interchangeably in English, though “nationality” is more commonly used in international treaties. Neither term has any connotation of ethnic or racial content but is simply the status that gives a person certain rights and obligations in relation to a particular state. Other disciplines, such as political science or sociology, have different ways of using the terms in other contexts. And even in law, different languages have different nuances, and different legal traditions have different usages at national level. In national law, “citizenship” is the term used by lawyers in the British common law tradition to describe this legal bond, and the rules adopted at national level by which it is decided whether a person does or does not have the right to legal membership of that state and the status of a person who is a member. Nationality can be used in the same sense but tends to be more restricted to international law contexts. In the French, Belgian and Portuguese civil law traditions, meanwhile, nationalité or nacionalidade is the term used at both international and national levels to describe the legal bond between a person and a political entity, and the rules for membership of the community. This report will use citizenship and nationality according to the terms used in the national context, and (in general) nationality at the international level. The 1954 Convention relating to the Status of Stateless Persons provides the international definition of “stateless person”: “a person who is not considered as a national by any state under the operation of its law” (Article 1(1)). UNHCR notes that determining whether a person is stateless is a “mixed question of fact and law” (Handbook on the Protection of Stateless Persons, paragraph 23), and thus a person may be stateless even if they appear to be entitled to citizenship, because they cannot prove the relevant facts. In its discussions around the development of a protocol to the African Charter on Human and Peoples’ Rights on the Specific Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa, the African Commission on Human and Peoples’ Rights proposed clarifying this definition to confirm that the definition includes a person who is unable to establish a nationality in practice. Although stateless people may also be refugees, most stateless persons have never crossed a border. The terminology of nationality law Most people obtain a nationality at birth, by operation of law. Nationality attributed at birth by operation of law is termed “nationality of origin” (nationalité d’origine / nacionalidade originária) in the civil law countries of Southern Africa; while in the common law countries the term used may be citizenship by birth (if born in the country) or a citizenship by descent (if born outside the country). This dual terminology in the common law states derives from the law in place in all immediately after independence (based on the law in Britain at that time), that a person born in the country acquired citizenship at birth automatically, in most cases regardless of the citizenship of the parents. In determining the nationality of a child at birth, both the common law and the civil law models of citizenship applied in southern Africa today combine the two basic concepts known as jus soli (literally, law or right of viii UNHCR / December, 2020