CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 The 1961 UN Convention on the Reduction of Statelessness, which entered into force in 1975, makes it a duty of states to prevent statelessness in nationality laws and practices. Article 1 mandates that “A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless”. Such nationality may be granted either at birth, by operation of law, or upon application, including at a date after birth (for example, at majority). The greatly preferred option, enshrined in Article 6(4) the African Charter on the Rights and Welfare of the Child (see below), is for nationality to be granted at birth by operation of law. Nationality on Succession of States State succession, when sovereignty over a territory is transferred from one state to another, creates wellrecognised challenges in relation to determination of the legal membership of the successor states. Whether in the context of decolonisation in Africa, the break-up of federal territories, or the secession of a part of a state to form its own new country, the transfer of legal authority creates multiple opportunities for people caught between different rules to find themselves stateless.465 The basic presumption in customary international law on nationality in the context of state succession has usually been that nationality should follow habitual residence, “subject to a right in the new State to delimit more particularly who it will regard as its nationals”.466 This presumption is restated and strengthened by the comprehensive Draft Articles on Nationality of Natural Persons in Relation to the Succession of States adopted in 1999 by the International Law Commission.467 The Draft Articles state that: Subject to the provisions of the present draft articles, persons concerned having their habitual residence in the territory affected by the succession of States are presumed to acquire the nationality of the successor State on the date of such succession. (Article 5) Further articles provide that states must take “all appropriate measures” to prevent statelessness arising from state succession (Article 4), and that persons shall not be denied the right to retain or acquire a nationality through discrimination “on any ground” (Article 15). The presumption is that the nationality of a successor state will be attributed to persons on the basis of habitual residence in that state. But in addition, states “shall give consideration to the will of persons concerned whenever those persons are qualified to acquire the nationality of two or more States concerned.” In particular, a state shall grant a right to opt for its nationality to persons who have an “appropriate connection” with that state — especially, but not only, if they would otherwise be stateless.468 465 Paul Weis, Nationality and Statelessness in International Law, 2nd ed. (Leiden: Brill, 1979), chap. 11; Ruth Donner, The Regulation of Nationality in International Law (Irvington-on-Hudson, N.Y: Transnational Publishers Inc., 1994), chap. V; Laura van Waas, Nationality Matters: Statelessness under International Law (Antwerp ; Portland: Intersentia, 2008), chap. VI; Francesco Costamagna, “Statelessness in the Context of State Succession: An Appraisal under International Law”, in The Changing Role of Nationality in International Law, ed. Alessandra Annoni and Serena Forlati (Basingstoke: Routledge, 2013); Ineta Ziemele, “State succession and issues of nationality and statelessness”, in Nationality and Statelessness under International Law, ed. Alice Edwards and Laura van Waas (Cambridge: Cambridge University Press, 2014). 466 James Crawford, The Creation of States in International Law, 2. ed (Oxford: Clarendon Press, 2007), 53. 467 International Law Commission, Draft Articles on Nationality of Natural Persons in relation to the Succession of States, with commentaries, 1999 (Annex to UNGA Res. 55/153, 12 Dec. 2000). 468 Ibid., Art. 11, commentary paragraph 10; Arts. 23 and 26. These principles also influenced the drafting of the 1997 European Convention on Nationality (Art.18) and the 2006 Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession. UNHCR / December, 2020 105