CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 The General Assembly’s 2011 resolution on the ILC Draft Articles, “Emphasized the value of the articles in providing guidance to the States dealing with issues of nationality of natural persons in relation to the succession of States, in particular concerning the avoidance of statelessness”.469 This would apply as much retrospectively, to the situation of those resident on the territory at the departure of the European powers, as to more recent state successions. In many cases, these legal frameworks did not provide protection against statelessness for those resident in the country at independence (see above: Transition to independence and initial frameworks of law). Loss and deprivation of nationality Under international law, nationality cannot be lost (by operation of law) or deprived (by executive action) except in restricted circumstances, and in accordance with due process of law. The foundation of these rules is Article 15 of the Universal Declaration of Human Rights, which provides that everyone has the right to a nationality, and that no one may be arbitrarily deprived of nationality. Well established principles, as expressed in Article 9 of the 1961 Convention on the Reduction of Statelessness, forbid deprivation of nationality on racial, ethnic, religious, political or other discriminatory grounds and require that the individual affected should have the right to challenge such decisions through the regular courts. The Convention on the Reduction of Statelessness also establishes more detailed rules. Article 8 states as a first principle that “A Contracting State shall not deprive a person of his nationality if such deprivation would render him stateless.” The Convention does go on to provide some exceptions, including that deprivation of nationality may be permissible in case of misrepresentation or fraud, acts of disloyalty (which entail rendering services to or receiving emoluments from another State and conduct in a manner “seriously prejudicial to the vital interests of the State”) and oaths and declarations of allegiance to another State. Later human rights treaties and interpretations of these exceptions indicate that they should be restrictively interpreted, in particular by the application of rules of proportionality — the harm done by deprivation of citizenship balanced against the seriousness of the transgression alleged — and the requirement of due process. These requirements are summarised and emphasised by UNHCR’s Guidelines on Statelessness No.5, on loss and deprivation of nationality, published in 2020.470 Only Lesotho and Mauritius provide complete protection in law against statelessness in case of deprivation of nationality, whereas Eswatini, Namibia, Seychelles, South Africa, and Zimbabwe provide partial protection (see above: Table 7: Loss or deprivation of citizenship). Due process protection against deprivation of nationality – or retroactive refusal to recognise nationality – is weak in many countries (see above: Judicial and other oversight of administrative decisions). 469 UN General Assembly Resolution 66/92, “Nationality of natural persons in relation to the succession of States”, of 9 December 2011, “Decided that, upon the request of any State, it will revert to the question of nationality of natural persons in relation to the succession of States at an appropriate time, in the light of the development of State practice in those matters”. 470 UNHCR, “Guidelines on Statelessness No. 5”. UNHCR / December, 2020 106