Colloquium on Nationality and Statelessness Issues in the Light of International Law
|Publisher||UN High Commissioner for Refugees (UNHCR)|
|Publication Date||1 February 1998|
|Cite as||UN High Commissioner for Refugees (UNHCR), Colloquium on Nationality and Statelessness Issues in the Light of International Law, 1 February 1998, available at: http://www.refworld.org/docid/3ae6b322c.html [accessed 28 November 2014]|
|Comments||Organised in Bucharest by the Council of Europe and the Ministry of Justice of Romania, 5-6 February 1998, in co-operation with the United Nations High Commissioner for Refugees.|
1. The colloquium was organised in co-operation by the Council of Europe, and the Ministry of Justice of Romania in co-operation with the United Nations High Commissioner for Refugees (UNHCR). See Appendix I for the programme and Appendix II for the list of participants.
2. The topic of the colloquium was nationality and statelessness issues in the light of international law. Reports were presented on general principles and rules of international law, the 1954 Convention relating to the Status of Stateless Persons, the 1961 Convention on the Reduction of Statelessness and the 1997 European Convention on Nationality, with a focus on the law on citizenship of Romania. The French citizenship law was presented as an illustration of how to implement, at national level, the principle of avoidance of statelessness. The report on the Romanian law focused on recent proposals to the Romanian Parliament of amendments of the law aiming i.a. at the avoidance of statelessness.
3. The rapporteurs from the Council of Europe (CoE) were Mr Michel AUTEM, member of the Committee of Experts on Nationality (CJ-NA) and Head of the Legal Office, Directorate of Naturalisation, France, Mr Giovanni KOJANEC, member and former Chair of the CJ-NA, professor of private international law at the University of Rome "La Sapienza", Italy, and Mr Roland SCHÄRER, Chair of the CJ-NA, Head of the Citizenship Section, Federal Office of the Police, Federal Ministry of Justice and Police, Switzerland.
4. The rapporteur from the Ministry of Justice was Ms Cristina LUZESCU, Deputy Director of the Division of International Relations and European Integration and member of the CJ-NA.
5. The rapporteur from the UNHCR was Ms Carol BATCHELOR, legal adviser and observer in the CJ-NA.
6. Ms Cristina LUZESCU opened the colloquium and informed the participants that the Romanian Parliament was examining Government proposals for amendments to the law on citizenship and was in fact close to finalising this matter.
7. In his statement on behalf of the Council of Europe Mr Magnus ENGSTRÖM underlined the fact that the prevention of statelessness should be one of the basic principles for matters of citizenship,and that, in this field of law, it was essential to take account of the legal systems of other countries. He referred to the numerous Council of Europe intergovernmental co-operation, and in particular the programmes for the newer member states, including legal and technical advice in matters concerning citizenship.
8. Mr Michael PETERSEN, Senior Regional Legal Adviser, speaking for the UNHCR, stressed the need for states to adopt measures to avoid statelessness and to ensure that stateless persons are granted a status and basic rights to enable them to lead a normal life where they reside. Statelessness can be a source of involuntary displacement. Under the 1951 Convention relating to the Status of Refugees, the UNHCR always had responsibilities for stateless refugees. Additionally, the UNHCR is requested by the UN General Assembly actively to promote accession to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, and to provide technical and advisory services in drafting legislation which avoids the creation of statelessness. The UNHCR is equally concerned with de iure and de facto statelessness.
9. The following is a very brief summary of the main elements of the reports, with a focus on the issue of statelessness.
General principles and rules of international law relating to citizenship, presentation by Mr Giovanni KOJANEC
10. With reference to the 1930 Hague Convention on certain questions relating to the conflict of nationality laws, Mr Kojanec underlined the fact that the sovereign right of states to determine who are their citizens is limited by international law as well as the operation of laws of other states. Moreover, under human rights law account should be taken both of the legitimate interests of states and those of individuals. He noted that the functioning of one citizenship law depends on the citizenship law of another state. Dual citizenship as well as statelessness occur because of the parallel functioning of two laws. International law obliges states, in the interest of the community of states and of the individuals alike, to co-ordinate their legislations with other states so as not to create statelessness. The 1997 European Convention on Nationality, which is the first comprehensive international instrument on all aspects of nationality, is based on the understanding that, even if every state is competent to decide matters relating to its own nationals, it has to implement internationally valid principles.
11. Mr Kojanec also treated the concept of a citizenship of the European Union (EU). He indicated that citizenship, or nationality, remains the legal bond between individuals and the state. The EU citizenship is conferred on the basis of nationality of a EU member state. It releases legal effects within the EU framework, such as the rights of free movement and residence, of diplomatic protection in third countries and of the exercise of certain political rights in the Union.
12. Following the report by Mr Kojanec there was some discussion about the difference in meaning between the terms "citizenship" and "nationality". Participants agreed that for legal purposes the use of either word to label the legal bond between the individual and a state is a terminological choice based on legal traditions. It was confirmed that the word "nationality" used in the 1997 Convention in the Romanian version had been translated into the legal term corresponding to "citizenship".
The 1997 European Convention on Nationality, presentation by Mr Roland SCHÄRER
13. Mr Schärer gave an overview of the provisions of the 1997 European Convention on Nationality. Romania, which participated in its elaboration, signed the Convention on 6 November 1997, the very day of its opening for signature.
14. The Convention is the first comprehensive international instrument on nationality or citizenship. It sets out in its Preamble, as one of the new main elements, that State Parties recognise "that in matters concerning nationality account should be taken both of the legitimate interests of States and those of individuals."
15. With regard to the issue of statelessness, Mr Schärer underlined that avoidance of statelessness is a fundamental principle of this Convention (Article 4), reflected in several articles.
16. Chapter IV of the Convention, which deals with situations of state succession, addresses the risk of statelessness, which must be avoided. Furthermore, the provisions of this chapter recognises a right for habitual residents, who have not acquired the nationality of the successor state, to remain and to enjoy equality of treatment with nationals of that state in relation to economic and social rights.
17. Loss of nationality at the initiative if the state is permitted only in certain given cases, and under no circumstances, if the person concerned would thereby become stateless (Article 7), except when the nationality was acquired by fraud or similar. But even in this latter, exceptional, case the State is obliged to take account of the situation of the individual.
18. A State shall permit the renunciation of its nationality, subject to one fundamental condition: that the persons concerned do not thereby become stateless (Article 8).
19. A State shall facilitate the acquisition of its nationality by naturalisation for certain enumerated categories of individuals. One of them is stateless persons and recognised refugees lawfully and habitually resident on its territory (Article 6, paragraph 4).
Implementation of the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, presentation by Ms Carol BATCHELOR
20. Ms Batchelor reminded the participants of the fact that the UNHCR has a mandate in relation to both Conventions and therefore a very active programme on citizenship, in order to ascertain future cases of statelessness, take measures to avoid them and assist those persons who are stateless.
21. The 1954 Convention was adopted to regulate and improve the status of stateless persons and to ensure their fundamental rights and freedoms. Many of its principles are now reflected in the new European Convention on Nationality. One of them is that States shall facilitate the naturalisation of stateless persons.
22. The primary international instrument addressing the problem of statelessness is the 1961 Convention. Its main purpose is to facilitate the acquisition or the retention of citizenship by those who would otherwise be stateless and who have an effective link with the State through birth, decent or naturalisation. Residence is recognised in the 1997 Convention as an element of this link. In order to avoid statelessness, loss or renunciation should not be allowed, if the person concerned does not possess or has not been guaranteed that he or she could acquire another citizenship. Furthermore, deprivation of citizenship should not take place, if it will result in statelessness.
23. The principles contained in these two conventions are basic international legal principles pertaining to statelessness. They are reflected also in the new European Convention, where they are further developed and therefore contain yet another example of the limits of State sovereignty in the field of citizenship.
24. With regard to the Romanian law on citizenship, Ms Batchelor said that the provisions relating to acquisition of nationality were generally very satisfactory. However, some additional steps for facilitated naturalisation of refugees and of stateless persons could be reviewed, as could the acquisition of citizenship four foundlings and stateless persons born on Romanian territory. Rules relating to adoption should avoid the possibility of statelessness. The provisions relating to loss were particularly of concern, as numerous cases of statelessness had been created under them. UNHCR and the Romanian authorities have, on various occasions, discussed amendments to the law to prevent deprivation, release and renunciation of Romanian citizenship, when the individual concerned does not or will not have another citizenship, while including provisions which allow individuals to change their citizenship.
25. Does there exist a right to be stateless? Confronted with this question members of the International Law Commission has taken the position that there is no such right. The right to a citizenship is, however, absolute.
Nationality legislation in France, presentation by Mr Michel AUTEM
26. French law on citizenship matters sets out to prevent the occurrence of statelessness and provides many possibilities for statelessness persons to acquire French citizenship without great difficulty.
27. The French legislation takes into account the interest of the state as well as the will and the rights of the individuals.
28. For the acquisition of citizenship at birth either the principle of "ius sanguinis" is applied, or a combination of this principle and the one of "ius soli": a child is French, if he or she was born in France and one of his or her foreign parents, although a foreigner, was also born in France. These combined rules avoid statelessness. It should be noted that France accepts multiple citizenship.
29. Children born in France of unknown or stateless parents, or children who cannot obtain the citizenship of their parents, become French.
30. Following full adoption, the child acquires retroactively from birth French citizenship, if one of the adoptants is French.
31. Loss of citizenship, at the initiative of the state, is limited by strict conditions indicated in the law. The procedure takes account of individual rights.
32. In order to avoid statelessness, renunciation of citizenship is not allowed unless the person concerned possesses another citizenship. Difficulties arise, when a foreign state requires the loss of citizenship without giving an assurance that the person will be granted the citizenship of that foreign State. Mr Autem suggested that the temporary acceptance of dual citizenship by the other state or a provision, which makes the loss not final but subject to future acquisition of the new citizenship, would prevent cases of statelessness.
Nationality legislation in Romania, presentation by Ms Cristina LUZESCU
33. Amendments of the Romanian law have been prepared and considered by various bodies during the last two years. Some changes were introduced following the signing of the 1997 Convention. Ms Luzescu informed the participants about the proposals recently given by the Government to the Parliament. Some of them (underlined) are highlighted below.
34. Romanian citizenship can be granted, subject to the compliance with the following conditions for naturalisation: loyalty to the country; clean criminal record, to a previous citizen while preserving the foreign citizenship and maintaining domicile abroad or establishing domicile in Romania. Parents may decide, if minor children should be included in their reacquisition; if they do not agree, a court shall decide, in the best interest of the child. The reacquisition does not affect the citizenship of a foreign spouse.
35. The residence requirement for naturalisation is increased from 5 to 7 years, and for a spouse of a citizen from 3 to 5 years.
36. A minor child adopted by a foreign citizen loses Romanian citizenship, on the same date as the child acquires a foreign citizenship on the request of the adoptant or adoptants.
37. Romanian citizenship cannot be withdrawn from a person who acquired it by birth.
38. Renunciation is permitted only if the applicant has acquired or has been assured that he shall acquire another citizenship.
39. A minor child, who has been entrusted to the parent who renounces his or her Romanian citizenship and is domiciled abroad, loses the citizenship when this parent loses it, subject to agreement of the other, Romanian, parent.
Remarks and proposals with regard to draft amendment to the Romanian law
40. While welcoming several of the proposed changes of the law, in particular the new condition for renunciation, which should prevent cases of statelessness, the international experts and rapporteurs made the following remarks and proposals.
41. It is important for states to co-ordinate legislation and practice. Statelessness, for instance, is the result of incompatible operation of two national laws. An example of incompatible practice is the reinstatement of citizenship allowing the retention of the previous citizenship, if this was granted on the condition of renunciation of the former one. Such practice might give rise to serious concern by the other state, which attempts to avoid dual citizenship.
42. Applications regarding citizenship should be processed within reasonable time.
43. Stateless children should be given Romanian citizenship at birth or at least after a residence period of not more than 5 years, independently of the acquisition of this citizenship by their parents. However, foundlings found in Romania, who would otherwise be stateless, should be granted Romanian citizenship automatically. In no case should children, who have Romanian citizenship, lose their citizenship because of change of status of their parents or the annulment of an adoption, if this would make them stateless.
44. Express provisions should be introduced to facilitate the naturalisation of refugees and stateless persons.
45. Withdrawal of citizenship should be possible only if the persons concerned do not become stateless, with the exception of cases of acquisition by fraud directly attributable to the applicant.
46. Decisions on citizenship matters should be open to an administrative or judicial review.
47. Mr SCHÄRER presented the following conclusions of the discussions of the colloquium:
- the competence of States in matters of citizenship or nationality is limited by international law,
- as stated in i.a. the Universal Declaration of Human Rights, everyone has the right to a nationality and no one shall be arbitrarily deprived of his or her nationality nor denied the right to change his or her nationality; hence, statelessness shall be prevented,
- States should provide in their internal law for the possibility of naturalisation and States should not require a period of residence exceeding ten years before the lodging of an application,
- the principles mentioned above are particularly significant in situations of state succession,
- in the field of citizenship law the terms "nationality" and "citizenship" both mean the legal bond between a person and a State,
- the law on citizenship of Romania together with the proposed amendments generally respect the principles in this field,
- the proposed amendments of the Romanian law are welcome improvements of the law and take into account the important provisions of the 1997 European Convention on Nationality,
- however, since the Romanian authorities are in a process of reforming the law on citizenship, they might consider the proposals made during the Colloquium for additional improvements with a view to prevent statelessness.
Thursday, 5 February 1998
9:30 Opening of the Colloquium
by Ms Cristina LUZESCU, Ministry of Justice of Romania
Mr Magnus ENGSTRÖM, Council of Europe
Mr Mikael PETERSEN,United Nations High Commissioner for Refugees
Chair: Ms Cristina LUZESCU
Session 1:International Law
10:00 General principles and rules of international law relating to nationality
Presentation by Mr Giovanni KOJANEC, Member and former Chair of the Council of Europe Committee of Experts on Nationality (CJ-NA), Professor of International Private Law, University of Rome "La Sapienza", Italy
Questions and discussion
11:30 The European Convention on Nationality
Presentation by Mr Roland SCHÄRER, Chair of the CJ-NA, Head of the Nationality Section, Federal Office of the Police, Federal Ministry of Justice and Police, Berne, Switzerland
Questions and discussion
14:30 Implementation of the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness
Presentation by Ms Carol BATCHELOR, Legal Adviser, Standards and Legal Advice, Division of International Protection, United Nations High Commissioner for Refugees, Geneva, Switzerland
Questions and discussion
15:45 Discussion in the light of the reports of the first day
17:00 End of first day
Friday, 6 February 1998
Chair: Mr Magnus ENGSTRÖM
Session 2:The French Experience
10:00 Nationality legislation in France
Presentation by Mr Michel AUTEM, member of the CJ-NA, Magistrat, Head of the Legal Office, Directorate of Naturalisation, France
Questions and discussion
Session 3:The Romanian Experience
11:00 Nationality legislation in Romania
Presentation by Ms Cristina LUZESCU, Deputy Director, Department for International Relations and European Integration, Ministry of Justice, Romania
Questions and discussion
12:30 Round Table - reconciling principles and practice
14:00 Summing up by Mr Roland SCHÄRER, Chair of the Council of Europe Committee of Experts on Nationality (CJ-NA)
14:30 Closing of the Colloquium
LIST OF PARTICIPANTS
Ms Rodica Mihaela St_noiu, President, Human Rights Commission, Senate
Mr R_svan Dobrescu, President, Juridical Commission, Senate
Mr Marius Oprescu, Expert, Legal Department
Ministry of Foreign Affairs
Mr Petre Catrinciuc, Director, Consular Directorate
Mr Gheorghe Jug_naru, Deputy Director, Consular Director
Ms Mihaela Babuska, Third Secretary, Human Rights Department
Ministry of Interior
Mr Ovidius P_un, Director General, General Directorate of Frontier, Police, Foreigners, Immigration Issues and Passports
Mr Dan Pârvulescu, Director
Mr Ion Vergu, Deputy Director, General Directorate of Frontier, Police, Foreigners, Immigration Issues and Passports
Mr Nicolae Rebegeanu, Deputy Director, Passports Directorate
Ms Ilinca Bran, Legal Adviser
Ms Irina Simon, Legal Adviser
General Prosecutor's Office
Ms Andreiana Constantinescu, Public Prosecutor
Mr Paul Mitroi, Ombudsman
Mr Mircea Moldovan, Deputy Ombudsman
Mr Florin Negoi__, Head of Department
Supreme Court of Justice
Ms Maria Coca-Cosma, Judge, President of the Romanian Association of Magistrates
Ms Rozalia Laz_r, Chief Assistant Magistrate
Mr Cristian Jipa, Judge, President of the Citizenship Commission
Ms Viorica Costiniu, Judge, Secretary General of the Romanian Association of Magistrates
Ms Maura Olaru, Judge, Vice-president of the Bucharest Tribunal
Mr Iulian Dragomir, Judge
Ms Carmen Frumu_elu, Judge
Ms Daniela Br_g_u, Judge
Ms Daniela Yanak, Judge
Court of First Instance of 1st Sector of Bucharest
Ms Cristina Ciobanu-Dordea, Judge
Ministry of Labour and Social Protection
Ms Daniela Niculescu, expert, General Directorate of International Relations and European Integration
Ministry of Justice
Mr Dinu Ianculescu, Secretary of State
Mr Constantin Doldur, Secretary General
Ms Cristina Luzescu, Deputy Director, Department of International Relations and European Integration
Ms Ileana Cioplea, Counsellor, Commission for Romanian Citizenship
Ms Camelia Toader, Counsellor, Head of the International Relations Office
Ms Viviana Onaca, Counsellor
Ms Roxana Te_iu, Counsellor
Ms Ileana Vi_oiu, Counsellor
Romanian Academy - Legal Research Institute
Ms Durnitra Popescu, Researcher Professor of Public International Law
Ms C_t_lin Vlad, Attorney at Law
Ms Cornelia Trifanov, Attorney at Law
Ms Mihaela Lupu, Attorney at Law
Ms Daniela Margina, Attorney at Law
Ms Dana Bivolaru, Attorney at Law
Refugees Consultancy and Assistance Centre
Ms Alia Bran_scu, Legal Counsellor
Ms Florentina Covaliu, Legal Counsellor
Documentation Centre of the Council of Europe
Ms Mirella Hagiopol, Director
Human rights Defense League
Ms Ruxandra R_ducanu, Attorney at Law
Romanian Institute for Human Rights
Ms Irina Moroianu-Zlatesc, Director
Ms Ana Maria Bojian, Researcher
Council of Europe rapporteurs
Mr Michel Autem, National Expert
Mr Roland Schärer, National Expert
Mr Giovanni Kojanec, National Expert
Mr Yoichiro Tsuchida, Head of UNHCR Mission in Bucharest
Mr Michael Petersen, Senior Regional Legal Adviser
Ms Carol Batchelor, Legal Adviser
Mr Mihai Delcea, National Legal Officer
Council of Europe Secretariat
Mr Magnus Engström, Counsellor