Ways of Resolving Statelessness in Private International Law

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A signage which bars stateless refugees to enter an area without permission (Photo taken from athirtyeightblog.blogspot.com)

The issue of statelessness cannot just bound itself within the realm of a State’s municipal law. The problem is broadly encompassing as it transcends borders and jurisdictions. A number of conventions relating to the problem are named and, in some way, discussed. Even concomitant stipulations from public international law are identified to give pretext for the discussion of statelessness.

As one writer describes it, nationality is “an individual’s basic right – the right, in fact, to have rights.”[1] When someone is stateless, he or she does not only lack nationality and a State to rely on nor does he or she only lack a sense of identity. More importantly, he or she suffers from a significant lack of rights. This class of rights comprises those rights which States can confer only to its nationals. Sad thing is, stateless persons do not have States, as the term being called to them suggests. As such, they cannot exercise these rights at least for the time being.

Stateless persons do have the right to access to courts. This is true as it is the norm all over the world. As long as one is a natural person, he or she can exercise his or her basic human rights. Granting this right to stateless persons does not necessarily pose a problem since this is a standard among states. The problem as regards this is the basis of determining a stateless person’s rights, status and capacity. A competent court is wise enough to use personal law as primary determinant of the rights of those persons who are not deemed nationals of the State of the forum (court). With such convoluted a case, courts must devise a system to efficiently dispense justice. The implications of these ways will be analyzed in detail.

Nationality Theory’s Naturalization and Local Integration

Since the nationality theory posits that the law of nationality must be used in determining personal law, the solution which it offers is the absorption of stateless persons as nationals of a certain State. Needless to say, this system works for States which employ nationality theory in the conduct of this matter. At the outset, this can be seen in an affirmative light. The status of statelessness cannot be a problem anymore once the person acquires an effective nationality.  In other words, the state of being statelessness can be terminated for good if the person gains nationality. This will not only solve the problem of personal law determinacy but also it will solve the person’s ultimate problem which is his or her being stateless. This is beneficial to the person in the long run as rights will be accorded to him or her as a national of the State. As an idiom goes, it is like hitting two birds in one stone.

However, there is a problem regarding this. Most of the states impose rigid qualifications and requirements for aliens who want to be naturalized in their respective jurisdiction. Professor Salonga opines that an ideal naturalization law should “strike a middle ground between laxity and extreme rigidity. It should not be too lax as to open the gates of citizenship to all persons indiscriminately. Nor should a naturalization law be too rigid as to disqualify persons whose qualifications and achievements render them eminently eligible to the rights and privileges of citizenship.”[2]

As cited earlier, the Lebanese nationality laws provide rigid, and even obsolete, qualifications of naturalization. As an analysis of these nationality laws assert[3]:

Lebanese nationality laws do not fully comply with international standards in terms of non-discrimination as these laws are widely discriminatory, particularly against women, between nationals and aliens, and even among aliens themselves.

A comprehensive framework regarding nationality and naturalization is lacking. Most nationality laws in Lebanon were drafted in the first half of the twentieth century and have not been amended to cater to emerging and current circumstances, so much that some provisions may be considered obsolete today…These laws are also incomplete as they overlook countless issues, particularly those of a procedural nature.

In the Philippines, the applicant for naturalization bears the burden of establishing affirmatively that he or she has all the qualifications and none of the disqualifications specified by the law. One of the disqualifications for naturalization in the country is the belief in the practice of polygamy[4]. If an applicant for naturalization were a polygamist, the legal tendency is to deny the applicant the privilege for naturalization. This happens to be one of the weaknesses of naturalization. Cultures vary in each jurisdiction. While other countries find polygamy acceptable, the Philippines cannot allow polygamy as this can be rendered contrary to its laws and public policy. Though this may not be the intent of our existing laws, cultural distinctions can sometimes hinder an alien’s chance for naturalization in the country.

 

Domiciliary Theory’s Adoption of the Law of the Place of Domicile

The domiciliary theory, to reiterate, espouses the law of the place of domicile as the basis for a person’s personal law. Be that as it may, the solution which domiciliary theory-oriented States with regard to stateless persons is the adoption of the law of the place of domicile in matters of a person’s status and capacity.[5] Unlike naturalization, this solution is less tedious and a lot easier to put into practice. A State needs not to make stateless persons its nationals as the place of their domicile (or loosely stated, the place where they reside) will be used as basis for determining personal law and not their nationality. In this case, nationality is not an issue.

Truly, the adoption solution is a practical way of resolving this case. But as compared to naturalization, the adoption solution is only a short-term solution to the problem of stateless persons. Though the problem of statelessness among stateless persons does not fall under the jurisdiction of courts, putting an end to a stateless person’s statelessness should be a policy of the State. Nevertheless, as far as adjudicating cases of stateless persons in the realm of private international law is concerned, the adoption solution provides a convenient means of deciding on cases of stateless persons.

CONCLUSION

The problem of statelessness does only imply absence of identity. As we dig deeper down the hole, we will see that statelessness brings to fore a lot of implications to society, some of which are embedded within the field of adjudicating cases. The solutions available for any system – be they nationality- or domicile-oriented – may have further implications. In any way, it is recommended that States should put an effort in reducing the number of stateless persons in the world. Whether we see it this way or otherwise, statelessness is not only a predicament of one State; it is a predicament of other States, or essentially, of the entire world.

FOOTNOTES
[1] Ibid, p. 159.
[2] Salonga, op. cit., p. 159
[3] For a detailed copy of the analysis, see Frontiers Ruwad Association, op. cit., pp. 10-11.
[4] Sec. 4, C.A. No. 473, as amended. See Salonga, op. cit., pp. 162-163.
[5] Salonga, op. cit., pp. 129-130.

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