Statelessness & Citizenship Review
2021
3(1)
She argued that the decline of the nation-state in international relations has created
new forms of social contracts and sense of belonging at sub-national and supranational levels, which undermine nationality. 99 Barzoo Eliassi explains that
statelessness is a product of the hegemonic international system based on
sovereign nation-states, which have the right to grant rights to include and exclude
groups of people who are not viewed as ‘core’ members of the nation. 100 The
authority given to states by the international system to exclude persons or
communities from belonging has led to discriminatory nationality laws and a high
risk of group statelessness in Africa.
The African Union’s perspective on the right to nationality became clearer
when the African Commission on Human and Peoples’ Rights (‘ACHPR’)
requested its Special Rapporteur on Refugees, Asylum Seekers, Migrants, and
Internally Displaced Persons in Africa in its Resolution 234 of April 2013 to carry
out an in-depth study on the right to nationality in Africa. This was later followed
by Resolution 277 of the 55th Ordinary Session of April-May 2014, where the
ACHPR adopted the Study of its Rapporteur, The Right to a Nationality in Africa,
which changed the narrative on the protection of stateless persons on the continent.
It is against this background that a Draft Protocol to the Banjul Charter on the
right to nationality and the eradication of statelessness, adopted in 2015 by the
ACPHR and in July 2016 by the AU Kigali Summit, was subjected to the AU
review process. 101 On 17 October 2017, the Pan African Parliament also held a
workshop on the right to nationality, which among other things, recommended that
members should adopt the Draft Protocol of 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 and include provisions on this right in their
national legislation.
Between 2018 and 2020, the AU Commission organised meetings of experts to
review the instrument in Johannesburg (South Africa) on 13–16 March 2018 and
Abidjan (Cote D’Ivoire) on 7–11 May 2018. In February 2019, the Executive
Council approved the draft Protocol and forwarded it to the Specialised Technical
Committee on Justice and Legal Affairs for validation. Furthermore, during the
High-Level Development Segment meeting (‘HLS’) of 7 October 2019 organised
by UNHCR, the African Union Commission pledged that:
No later than the end of 2020, the African Union Commission commits to submit
the draft Protocol to the African Charter on Human and Peoples’ Rights on Specific
Aspects of the Right to Nationality and Eradication of Statelessness in Africa for
adoption by the AU Assembly. 102
The clamour for an African solution to the problem of nationality and the
eradication of statelessness has also been prevalent within the RECs, which are
the building blocks of the AU human rights system. In North Africa, the countries
of the AMU ascribe to the Arab Human Rights instruments, where the right to
nationality is essentially an individual right and not a group or collective peoples’
99 See Hannah Arendt, The Origins of Totalitarianism (Harcourt, Brace & Co 1951) 267–302.
100 Barzoo Eliassi, ‘Statelessness in a World of Nation-States: The Cases of Kurdish Diasporas
in Sweden and the UK’ (2016) 42(9) Journal of Ethics and Migration Studies 1403.
101 See 40th Report of the Activities of the African Commission on Human and People’s Rights
(African Union, Executive Council, Doc No EX.CL/968(XXIX), 15 July 2016).
102 See The World's Stateless: Deprivation of Nationality (Institute on Statelessness and Inclusion
2020) 44.
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