The Americas: Poised to Take On Statelessness

Geographically, the Americas encompass North, Central, and South America as well as the Caribbean. Notwithstanding the region's racial, ethnic, socioeconomic, political, and cultural diversity, a key commonality unites the majority of countries in the region: the grant of citizenship through birth on the soil (jus soli) as well as through descent (jus sanguinis). No other region of the world boasts as many countries that grant citizenship to infants born on their territories than the Americas. Having a policy of citizenship at birth through jus soli, regardless of parental citizenship status, is an extremely important measure to prevent statelessness. Historically, newly independent states of the region granted citizenship through jus soli as a means of encouraging population growth in, and immigration to, their territories. It allowed for the legal, if not always the socioeconomic or political, inclusion of the “Other.” The legacy of legal inclusion through citizenship has made statelessness “rare in the Americas.”Footnote ⁴ In fact, the Independent Commission on International Humanitarian Issues declared that jus soli should be “the sole criterion for the acquisition of nationality,” since the Americas have “clearly demonstrated” the “advantage” of this practice when it comes to statelessness.Footnote ⁵ Of the estimated ten million stateless people globally, only around 200,000 are estimated to live in the Americas, favorably situating the region on its quest to end statelessness by 2024.Footnote ⁶

In addition to the provision of citizenship through jus soli, the region has a long history of support for the human right to a nationality from a legal and a normative perspective through the inter-American human rights system. While the United Nations Universal Declaration of Human Rights and many of its associated treaties include the human right to a nationality,Footnote ⁷ they do not treat it expressly as a nonderogable human right. The American Convention on Human Rights (ACHR), however, is clear that a state party to the ACHR cannot suspend fulfillment of this right under any circumstances. Thus, even “in time of war, public danger, or other emergency that threatens the independence or security of a State Party,”Footnote ⁸ states must not suspend recognition of this right. The Inter-American Court of Human Rights (IACtHR), the judicial body of the Organization of American States (OAS),Footnote ⁹ backed up this position in 1977 when it opined that the right to a nationality is not only sacrosanct but is “one of the most important rights of man, after the right to life itself, because all the prerogatives, guarantees, and benefits man derives from his membership in a political and social community—the State—stem from or are supported by this right.”Footnote ¹⁰

Over the years, the IACtHR has issued other rulings that support the fulfillment of the human right to a nationality and, with it, the concomitant eradication of statelessness. For example, in a particularly well-recognized ruling, The Case of the Girls Yean and Bosico v. the Dominican Republic,Footnote ¹¹ the IACtHR found that the Dominican Republic's denial of birth certificates to the plaintiffs (and other Dominican children of Haitian descent) amounted to the arbitrary deprivation of nationality and violated these children's right to an identity, an education, and other human rights. Likewise, a few years later in Expelled Dominicans and Haitians v. the Dominican Republic,Footnote ¹² the court ruled that the Dominican Republic had violated the rights to a nationality, name, identity, and juridical personality of several Dominican families of Haitian descent who had been expelled from Dominican territory.

Beyond the IACtHR's supportive rulings, the inter-American human rights system also boasts agents that defend the human right to a nationality and the consequent eradication of statelessness. For instance, the Inter-American Commission on Human Rights, an autonomous body of the OAS that monitors human rights throughout the Americas,Footnote ¹³ closely follows and reports on cases of arbitrary nationality deprivation among persons of Haitian descent in the Dominican Republic.Footnote ¹⁴ Moreover, the OAS has explicitly given its Special Rapporteur on the Rights of Migrants a statelessness mandate. While this mandate is not yet fully developed, it is an important avenue for action that does not yet exist at the UN level. Additionally, the OAS General Assembly (GA) has issued numerous resolutions on the prevention and reduction of statelessness and the protection of stateless people,Footnote ¹⁵ and has held various workshops and meetings that focus on statelessness. In 2014 the OAS GA issued a resolution that directly called on member states to draft regional guidelines on statelessness.Footnote ¹⁶ As part of the region's Cartagena evaluative process, OAS member states heeded this call and issued the Brazil Declaration and Plan of Action for the Americas, which contains a section specifically devoted to ending statelessness and protecting stateless people. The next section provides an overview of the Cartagena process and the BPA, which emanated from it.

The Regional Institutional Landscape: Cartagena +30

As a region, the Americas have been particularly progressive on a number of human rights fronts. They have set examples for the rest of the world to emulate in the areas of enforced disappearances,Footnote ¹⁷ the collective rights of indigenous peoples,Footnote ¹⁸ and nondiscrimination against migrant workers, among others. When most of the world was still using the 1950s-era understanding of “refugeehood,” with its focus on persecution as the sole ground for refugee flight, the countries of the region passed the 1984 Cartagena Declaration on Refugees, which expanded the definition of a refugee to include those “who have fled their country” due to “generalized violence, foreign aggression, internal conflicts, massive violation of human rights, or other circumstances which have seriously disturbed public order.”Footnote ¹⁹ Along with the Organization of African Unity's broader understanding of refugeehood,Footnote ²⁰ this expanded definition has served to provide increased international protection for a wider spectrum of vulnerable people who cross international borders.

Every decade since the passage of the 1984 Cartagena Declaration, the Americas have reevaluated their stance toward—and treatment of—refugees, internally displaced persons, and other vulnerable populations: Cartagena +10 took place in 1994, Cartagena +20 in 2004, and Cartagena +30 in 2014. These regional reassessments have resulted in new declarations that aim to provide durable solutions to these individuals’ predicaments via regional cooperation and solidarity. Local governments, nongovernmental organizations, institutes of higher learning, and those affected by the region's policies and practices toward vulnerable populations have taken part in these decennial evaluative processes.

The most recent Cartagena round in 2014, Cartagena +30, consisted of two important “firsts.” For one, it marked the first time that Caribbean countries were included in the evaluative process as a subregional bloc with its own priorities and concerns.Footnote ²¹ For another, the resultant Brazil Declaration and Plan of Action directly incorporated the issue of regional statelessness. Previous post-Cartagena regional declarations, such as the San José Declaration on Refugees and Displaced Persons (1994) and the Mexico Declaration and Plan of Action to Strengthen the International Protection of Refugees in Latin America (2004), had focused on refugees and the internally displaced. Despite its title, the Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas (2010), which was not a formal product of the Cartagena consultative process,Footnote ²² only cursorily mentioned the stateless. In fact, the only statelessness-specific recommendation of the latter was to “urge” states in the region “to consider acceding to the international instruments on statelessness, reviewing their national legislation to prevent and reduce situations of statelessness, and strengthening national mechanisms for comprehensive birth registration.”Footnote ²³

The 2014 Brazil Declaration and its associated BPA, however, devote an entire chapter to resolving the problem of statelessness. Specifically, and in keeping with the #IBelong Campaign's Global Action Plan to End Statelessness by 2024, twenty-eight countries of the region committed to the eradication of statelessness within the decade, declaring that “at the end of the next ten years, we hope to be in the position to affirm that the countries of Latin America and the Caribbean succeeded in eradicating statelessness.”Footnote ²⁴ Akin to the GAP, the eight recommendations set forth in the BPA's chapter on statelessness fall within UNHCR's four-pronged approach of preventing and resolving statelessness and identifying and protecting stateless persons.

Specifically, the Brazil Plan of Action reiterates the Brasilia Declaration's call for states to become party to the two statelessness conventions and to enhance birth registration processes. The BPA goes further than the 2010 declaration, however, in that it addresses the vital element of documentation and the need for community outreach as part of an effective birth registration system. Like the GAP, the BPA also asks states to create Statelessness Status Determination procedures. Other recommended actions include facilitating stateless persons’ naturalization, restoring nationality in cases where individuals have been arbitrarily deprived of it, and confirming nationality in those cases where it is unclear to which country a person formally belongs.

The Brazil Plan of Action takes into account the lack of statelessness-specific legislation throughout much of the region by asking countries to modify (“harmonize”) their laws to meet international standards of protection regarding stateless persons and to “adopt legal protection frameworks that guarantee the rights of stateless persons.”Footnote ²⁵ The latter recommendation is both a call to action, urging countries to accede to the statelessness conventions, and a reminder to OAS member states that protection can be formally extended to the stateless even when a state is not a party to those conventions. There is thus no excuse for not adopting measures to “guarantee the rights of stateless persons” under the BPA.

Given the Americas’ commitment to end statelessness through a plan of action, supported by the well-developed inter-American human rights system and the region's jus soli provisions, it appears favorable (at least from a regional, institutional perspective) that the Americas can fulfill UNHCR's clarion call to end statelessness by 2024. As the next section demonstrates, however, disconnects exist between the GAP and the BPA, as well as between the region's institutional progress on statelessness and country-level movement toward fulfilling each person's human right to a nationality.

Current Practical Challenges to Eradicating Statelessness

From the perspective of a statelessness agenda, there are important differences between the GAP and the BPA that present limitations for the region in reaching the #IBelong Campaign's goal of ending statelessness by 2024. First, whereas the GAP focuses solely on resolving statelessness and protecting stateless people, the BPA is much broader in scope. The BPA encompasses an assessment of, as well as recommendations for addressing, the situation not only of the region's stateless but also of internally displaced persons, refugees, and migrants. Due to this wide-ranging scope, the BPA's recommendations for addressing statelessness in the Americas are not as detailed as those found within the GAP.

Second, whereas the GAP sets targets for achieving specified statelessness eradication goals for nearly every one of its ten recommended actions, the Brazil Plan of Action neither incorporates a time frame for the evaluation of progress (as the GAP does with “milestones”) nor establishes specific numerical goals that parties need to reach in order for the human right to a nationality to be fulfilled in the Americas. Thus, the BPA's incorporation of statelessness is more of an effort by OAS countries and cooperating civil society organizations to place the issue on the region's agenda going forward, as opposed to a defined, strategic plan to address statelessness like the GAP. A more defined statelessness agenda will need to be issued during the Cartagena +40 round of evaluation, if not sooner.

With regard to country-level implementation of the BPA, both progress and setbacks exist. The Brazil Plan of Action's chapter on statelessness begins with the recommendation that states accede to the two statelessness conventions. Of the thirty-five OAS member states, only eighteen have ratified the 1954 Convention Relating to the Status of Stateless Persons, and only sixteen have ratified the 1961 Convention on the Reduction of Statelessness. While the rate of ratification appears low for a region that aims to be the first in the world to eradicate statelessness, it is important to note that the total number of convention ratifications has been steadily increasing in the region since the turn of the century. At the end of the 1990s, only nine states in the Americas had ratified the 1954 convention and only three had ratified the 1961 convention. But sixteen years later, ratifications of the two conventions have doubled and more than quintupled, respectively.

If this momentum continues, it is possible that the Americas could be close to converting their regional proclamation to end statelessness into an international legal commitment by 2024. As it stands, Central America is well on its way, leading the region in ratifications (all six Central American states have ratified the 1954 convention and only El Salvador has not yet ratified the 1961 convention). The subregions of the Caribbean and North America are lagging, however. Only four of the thirteen Caribbean countries are party to the 1954 convention, and Jamaica is the only one that has ratified the 1961 treaty. In North America, Canada ratified the 1961 statelessness convention, but not the 1954 convention, while Mexico has done the inverse. The United States is party to neither treaty. Just over half of the South American countries have ratified the 1954 convention (seven of thirteen), while nine states are party to the 1961 convention. In theory, even if momentum on ratification stalls, there are other opportunities to continue making progress toward ending statelessness (although, as we will see, these options are problematic in practice).

National governments can take action to pave the way for the inclusion and protection of stateless persons that do not necessitate becoming a formal party to the statelessness conventions. For instance, domestic legislation can be modified, or new legislation introduced, to provide for stateless persons’ rights and offer them a protective legal status while they undergo naturalization procedures. Statelessness status determination processes can be established that allow for the identification of stateless persons so that their situations can be appropriately resolved. Birth registration systems can be enhanced such that every child born on a territory receives proof of their birth and their parentage. Policies can be put in place requiring personnel who work in key government agencies that have contact with stateless persons to receive human rights and nondiscrimination training. While these possibilities for progress exist outside of the treaty ratification sphere, it will be difficult—if not impossible—to achieve them without each country establishing its own domestic-level National Action Plan (NAP) to end statelessness. And this is where much more work needs to be done.

In the two years since the Brazil Declaration and Plan of Action were issued few, if any, states in the region appear to have developed a domestic-level agenda to institute the BPA's (or the GAP's) suggestions for ending statelessness. Costa Rica has established a statelessness status determination procedure; Bolivia and Ecuador passed resolutions to facilitate stateless persons’ naturalization; and Belize and El Salvador ratified the 1961 and 1954 statelessness conventions, respectively. However, overall country-level assessments of statelessness that include goals to address each state's particular situation, as well as suggested means of accomplishing these goals, are sorely lacking. A comprehensive NAP would not only serve to identify the particular statelessness situation within a given state, and the necessary actions to address it, but would also be the primary means by which a state illustrates its commitment to making the #IBelong Campaign's overarching goal of ending statelessness a reality. A publicly available NAP could also be used to enhance collaboration among states, especially if it includes suggestions as to how civil society members, as well as institutions like the OAS and UNHCR, can play a role in accomplishing the region's statelessness eradication goals. Without each country in the Americas establishing a NAP that is based on an evaluation of its own statelessness situation, it will be difficult to end statelessness regionally in the long term, much less within the decade.

Another issue that persists in the Americas is non-universal birth registration. Birth registration, as UNICEF notes, “is the first step in securing [children's] recognition before the law, safeguarding their rights, and ensuring that any violation of these rights does not go unnoticed.”Footnote ²⁶ The region had aimed to achieve universal birth registration by 2015, but with more than three million children under the age of five still lacking the requisite documentation in 2016, it did not meet its goal.Footnote ²⁷ While lack of birth registration does not equate to statelessness, the lack of such proof often makes it much more difficult to secure the services and protections of a state or to enjoy the rights and freedoms associated with formal belonging. Although the region has made great headway in establishing effective birth registration systems over the past decade, often with the assistance of in-country civil society actors, it will be nearly impossible for every country in the Americas to achieve universal birth registration by 2024 (UNICEF, for example, projects that Belize, Haiti, and Peru will not establish universal birth registration until the 2040s, and Nicaragua not until 2080).

In some countries in the region gender discrimination also exists in passing nationality on to children, thus further exacerbating the potential for statelessness. For example, a Bahamian woman married to a noncitizen cannot pass on her citizenship to her child if said child is born outside the Bahamas. Such children run the risk of statelessness in cases where the father is stateless or if the father's country of citizenship does not recognize the right of the father to pass on citizenship automatically if he has not been recently resident in his country of citizenship. A child born overseas to a married Bahamian mother and Jamaican father, for example, therefore runs the risk of becoming stateless since the right to Jamaican citizenship is not automatic for children born abroad to Jamaican nationals.Footnote ²⁸

Although Barbados allows for Barbadian mothers who have children overseas to pass on their Barbadian citizenship, this right only applies if the woman is a Barbadian citizen by birth on the territory and not if she has acquired citizenship through other means. The child born to a mother in the latter circumstance therefore runs the risk of becoming stateless if the father is unable to pass on his citizenship. While it is unknown how many children face the risk of statelessness because of gender discrimination in nationality provision, it is patently clear that unless legislation is modified or introduced in certain states to eliminate such discrimination, the potential to generate and/or perpetuate statelessness remains, and the region's ability to end statelessness is jeopardized.Footnote ²⁹

Notwithstanding the praise given to the region for its “generous” jus soli provisions, a few states actually practice “qualified” jus soli.Footnote ³⁰ That is, in order for a child born on the country's territory to acquire citizenship, one of the child's parents must be a citizen or a legal resident.Footnote ³¹ Since many of these qualified jus soli countries do not have provisions in place for the identification of stateless persons or for the granting of citizenship in cases where the child is at risk of statelessness (due, for example, to parents’ lack of documentation), the potential to have children born to noncitizen parents remains high in these countries. Moreover, given that data collection on statelessness is woefully inadequate throughout most of the region, it is difficult to assert, as some have, that only “isolated cases of statelessness exist in the Americas” outside the Dominican Republic.Footnote ³² We simply do not know how many people are affected by statelessness and where. Implementation of the GAP's Action 10 (improving quantitative and qualitative data on statelessness), which is absent from the BPA, is therefore especially important to the region.

Another notable absence in the BPA that could hamper the region's ability to end statelessness is the lack of attention directed toward statelessness that results from discrimination (whereas this is addressed in the GAP's Action 4). The Brazil Declaration does include a summons to “foster hospitality and non-discrimination policies to strengthen local integration through the promotion of respect for diversity and interculturalism, highlighting the positive contribution of refugees, displaced, and stateless persons to host communities,” but the BPA itself does not specify the role of discrimination in generating and maintaining statelessness, nor does it provide suggestions by which to overcome this problem in the Americas. This is surprising given the region's shared history of injusticesFootnote ³³ that have resulted in persistent inequalities among people of diverse backgrounds, and given that the largest known case of statelessness in the Americas—the arbitrary denationalization of Dominicans of Haitian descent—is a result of racial discrimination.

Other obstacles exist in the Americas’ quest to fulfill each person's human right to a nationality and to end statelessness: the region-wide lack of established statelessness status determination procedures, the repeated conflation of statelessness with migration, as well as the general lack of prioritization given to statelessness on government agendas. When we consider these outstanding issues, it seems apparent that regardless of progress made at the regional institutional level, the Americas will not be able to heed the clarion call to end statelessness by 2024 due to deficiencies at the individual state level (where, in practical terms, the human right to a nationality must be fulfilled).