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current domestic law that caters for children born in South Africa who would
otherwise be stateless, and explore how the law addresses their rights. In
addition, this article will assess what administrative systems should be
established to assist such children.
3 What is statelessness?
It is evident that all forms of membership in the state system, such as
citizenship, permanent residence, temporary residence, a refugee or
asylum-seeker permit, are determined through an individual's relationship
with the state.25 A stateless person is not recognised by any state as a
national. In the case of citizens there is full recognition based on the laws of
citizenship acquisition. Such citizenship acquisition clearly demonstrates
the strongest bond between the state and an individual.26 On the other hand,
for a person that has unlawfully entered a territory the bond is extremely
limited, because he or she has not formally garnered permission from the
state to be present, notwithstanding the citizenship or bond such a foreigner
maintains with another country.27 Statelessness is not something caused or
deserved by the individual affected, especially in the case of children.
Children do not have a choice when it comes to the place of birth, the actions
of their parents, the identity of their parents, or the actions of states.
The two international conventions dealing with statelessness are the 1954
Convention on the Status of Stateless Persons (1954 Convention)28 and the
1961 Convention on the Reduction of Statelessness (1961 Convention).29
The 1954 Convention was adopted pursuant to the events of the Second
World War, when many persons lost their right to live as citizens in the
territories that they had once considered home.30 The purpose of the 1954
Convention was to increase international awareness of the plight of
stateless people who were not refugees, and to provide for their rights in the
absence of formal state affiliation. Such rights include the freedom to
practise religion,31 freedom of association,32 free access to courts,33 and
freedom of movement,34 to name just a few. The obligations of the stateless
25
26
27
28
29
30
31
32
33
34
Manby Citizenship Law in Africa.
Manby Citizenship Law in Africa.
Manby Citizenship Law in Africa.
Convention Relating to the Status of Stateless Persons (1954) 360 UNTS 117
(hereafter the 1954 Convention).
Convention on the Reduction of Statelessness (1961) 989 UNTS 175 (hereafter the
1961 Convention).
Van Waas "UN Statelessness Conventions".
Article 4 of the 1954 Convention.
Article 13 of the 1954 Convention.
Article 16 of the 1954 Convention.
Article 26 of the 1954 Convention.