Americas

KEY ISSUES

• The predominance of “birthright citizenship” (jus soli) generally provides a strong basis for preventing statelessness from arising, or being perpetuated from one generation to the next, in the Americas, but the issue still persists in the region.
• Deprivation of nationality, both on an individual and collective basis, has been a significant cause of statelessness in the Americas, with the situation in the Dominican Republic as the most notorious example.
• Other factors contributing to statelessness in the region include gender discriminatory nationality laws, deficiencies in the operation of some jus soli regimes, gaps in the registration and documentation of populations, and migration.
• Childhood statelessness is a particular risk in the context of the humanitarian crisis in Venezuela, which caused millions of people to leave the country: difficulties accessing documentation and consular assistance mean that children born outside Venezuela may struggle to have their nationality recognised or documented.
• Within global statelessness statistics, data on the Americas significantly underrepresents the scale of the issue because it does not account for people affected by statelessness in countries such as the Dominican Republic and the United States. 
• The American Convention on Human Rights and the accompanying case law of the Inter-American Court and the work of the Inter-American Commission provide a robust legal framework for the protection of the right to a nationality in the region. The level of accession to the 1954 and 1961 Statelessness Conventions is also high in the Americas.

STATELESSNESS IN THE AMERICAS

Across the Americas region, legal frameworks generally provide for so-called “birthright citizenship”, granting nationality by virtue of birth on the territory (jus soli). This is a long-standing tradition, with South American jurisdictions for example influenced in this regard by the 1812 Spanish Constitution and the United States enacting unconditional jus soli through the adoption of the 14th amendment in 1868. The conferral of citizenship by descent (jus sanguinis), which is the dominant practice in other parts of the world, is also possible under the nationality laws of most countries in the Americas – although additional conditions apply in some cases where the child is born abroad. 

The principle of birthright citizenship generally provides a strong basis for preventing statelessness from arising, or being perpetuated from one generation to the next, because it provides access to nationality to all persons born on a state’s territory regardless of the nationality - or statelessness - of their parents. Nevertheless, statelessness persists in the region. Individual and mass deprivation of nationality, gender discriminatory nationality laws, deficiencies in the operation of some jus soli regimes and gaps in the registration and documentation of populations, coupled with significant migration flows, all contribute to the emergence of new statelessness cases.

It is difficult to establish how many people are stateless in the Americas. At the end of 2023, UNHCR reported data accounting for just 7,348 stateless people in the region – of whom, the vast majority (5,222) were reported in Canada. This regional statistic does not, however, include those who are affected by statelessness in the Dominican Republic, where UNHCR stopped reporting data in 2015 but where other sources estimate that 137,794 continue to be affected by statelessness in the aftermath of mass deprivation of nationality in 2013. Nor does the data collated by UNHCR account for people who are affected by statelessness in the United States, where a mapping study published in 2020 estimated the number of people affected by or at risk of statelessness to be as many as 218,000 – a significantly higher figure than previously believed. Other data gaps include Haiti (where reporting was discontinued in 2018, but several thousand people were previously found to be stateless) and Venezuela (marked by an asterisk, denoting a significant statelessness issue but the lack of reliable data). As identification and mapping efforts continue, the official tally for the number of stateless persons in the Americas can be expected to rise significantly as it is clear from these examples that statelessness remains unreported or underreported in the region.

Over the past decade, a number of countries in the Americas have enacted legislative reforms aiming to enhance the identification and protection of stateless individuals, including through the establishment of statelessness determination procedures. Indeed, it is the region where accession to the statelessness conventions and the adoption of statelessness protection frameworks has seen the most significant progress in the decade since 2014 – when not only did UNHCR launch its global #IBelong campaign to end statelessness, but the Brazil Declaration and Plan of Action was adopted, which included a chapter on statelessness. 

CHILDHOOD STATELESSNESS

The principle of “birthright citizenship”, or jus soli, is often referred to as an effective means of fulfilling the right to nationality, leading some to comment that the Americas is well positioned to lead the way in eradicating statelessness. However, a study that looked more closely at the operation of the nationality laws of Brazil, Chile, and Colombia concluded that “even facially generous jus soli provisions are only as effective as their implementation, and do not guarantee nationality to everyone”. The research uncovered how children face significant barriers in accessing nationality and may end up stateless as a result of exceptions to, or conditions for, the enjoyment of jus soli citizenship; other policy shortcomings; administrative deficiencies and obstacles to birth registration. Legal counselling and strategic litigation have proven to be important techniques to break down these barriers and assert the right of every child to a nationality – as shown by the experience in Chile, where such work eventually led to a government commitment to ensure that children were not missing out on citizenship. 

Positively, several states have passed legislation to reduce the incidence of childhood statelessness. On 25 May 2020, the Bahamas ruled that children born out of wedlock to Bahamian men and foreign women are citizens at birth and no longer need to wait until they are 18 to apply for citizenship. This ruling benefits tens of thousands of people in the Bahamas, confirming that every person born in the Bahamas is a citizen at the time of their birth, if either parent is a citizen. The Privy Council, the highest court of appeal, upheld the ruling, which has yet to be incorporated into existing citizenship legislation to bring it in line with this development. 

Canada has ended the practice of discrimination in the rights of same-sex parents to confer nationality. The Immigration Minister announced in July 2020 that either parent of a child born abroad, regardless of genetic link, could pass down Canadian citizenship. The United States has similarly removed the requirement of a biological connection for a parent to confer citizenship, ending discrimination against same-sex parents. The U.S. also passed the Adoptee Citizenship Act of 2021 that closes the legal loophole in the 2000 Child Citizenship Act, under which children adopted from foreign states and raised by U.S. parents may face barriers when acquiring citizenship, resulting in thousands of intercountry adoptees being denied their U.S. citizenship because they were born in foreign countries and then adopted in the U.S. In 2021, the U.S. Citizenship and Immigration Services also announced that children born overseas using assisted reproductive technology to unmarried couples where at least one parent is an American and one is related to the child, are eligible for citizenship. 

REGIONAL STANDARDS AND COMMITMENTS

In the Americas, the established regional human rights system (the Inter-American system) is composed of two bodies: the Inter-American Commission on Human Rights (IACHR) and the Inter-American Court of Human Rights (IACtHR), created under the auspices of the Organisation of American States (OAS).  Article 20 of the American Convention on Human Rights (ACHR) protects the right to a nationality. This provision, the accompanying case law of the Inter-American Court and the work of the Inter-American Commission provide a robust legal framework for the protection of the right to a nationality in the region. 

Cases brought before the IACtHR, even if few in number, have reinforced guarantees against statelessness which establish limits to State discretion in this regard. Central among these was the ruling in 2005 in the case of Dilcia Yean and Violeta Bosico against the Dominican Republic. The court ruled that the denial of birth certificates to two girls born to Haitian migrant fathers and Dominican national mothers, despite the constitutional recognition of citizenship for all born in the country, was arbitrary and discriminatory. The court found a violation of Article 20 of the ACHR and also concluded that denying the girls nationality and leaving them stateless placed them in a “situation of extreme vulnerability” which led to other rights violations. In the subsequent case of Expelled Haitians and Dominicans v. Dominican Republic, the IACtHR affirmed that the failure to grant citizenship to otherwise stateless children born on the territory was an arbitrary denial of the right to nationality. The court has also dealt with cases relating to the deprivation of nationality, finding a violation of the ACHR in a case initiated by Ivcher Bronstein against Peru, because he was rendered stateless; but in a case brought by Raghda Habbal against Argentina, the court determined that there had not been a violation of the ACHR because Mrs Habbal was not at risk of statelessness and had sufficient access to judicial remedies.

In December 2023 the Inter-American Commission on Human Rights published a new Resolution on the right to nationality, prohibition of arbitrary deprivation of nationality and statelessness (Resolution 02/2023). The Resolution is intended to guide States, civil society organisations, international organisations and other relevant stakeholders in protecting the right to nationality, prohibiting arbitrary deprivation of nationality, and avoiding statelessness. The Resolution builds on a previous IACHR Resolution published in 2019 (04/19), that contains the Inter-American Principles on the Human Rights of Migrants, Refugees, Stateless Persons and Victims of Human Trafficking. Several resolutions of the OAS General Assembly have also urged states to take action against statelessness, including calling for the review national legislation to prevent and reduce statelessness, accessions to the statelessness conventions, and cooperation with UNHCR.

In 2014, the Brazil Declaration and Plan of Action was adopted by 28 countries and three territories in Latin America and the Caribbean. Within this, Chapter six is dedicated to statelessness and sets out several recommendations for action as part of an ‘eradicating statelessness program’, including (a) accession to the statelessness conventions, (b) the harmonisation of internal legislation and practice on nationality with international standards, (c) the establishment of effective statelessness status determination procedures and (d) the adoption of legal protection frameworks that guarantee the rights of stateless persons. 

The level of accession to the 1954 and 1961 Statelessness Conventions is high in the Americas, with most countries in Latin America now being states parties to both conventions. At UNHCR’s High-Level Segment on Statelessness in October 2019, 10 countries from the region made pledges on issues concerning birth registration, statelessness determination procedures, awareness raising, conducting of studies, reduction of childhood statelessness, capacity building, and one pledge to amend the nationality law (Haiti). A number of states from the region also made pledges relating to statelessness during the December 2023 Global Refugee Forum. States in the Americas are also very active in making recommendations relating to nationality and statelessness within the Universal Periodic Review mechanism of the UN Human Rights Council.

[Last updated January 2024]

Cover image by Adrian Dascal @unsplash