THIS IS EXTRACTED FROM THE FORTHCOMMING REPORT OF STATELESSNESS ENCYCLOPEDIA ASIA PACIFIC (SEAP). THE FULL REPORT WILL BE LAUNCHED IN JANUARY 2023. THE CONTENT PROVIDED BELOW IS SUBJECT TO CHANGE.

Countries covered: Australia, the Federated States of Micronesia, Fiji, Kiribati, the Marshall Islands, Nauru, New Zealand, Palau, Papua New Guinea, Samoa, Solomon Islands, Tonga, Tuvalu and Vanuatu. 

A.  Laws

  • Citizenship Law (jus sanguinis/jus soli)

It is important to note from the outset of this chapter that for most of human history within the Pacific conceptions of borders, nationhood and states were much less defined and travel between islands was common place and largely free. As the Tongan scholar Epeli Hau’ofa wrote

“The world of our ancestors was a large sea full of places to explore, to make their homes in, to breed generations of seafarers like themselves. … Theirs was a large world in which peoples and cultures moved and mingled unhindered by boundaries of the kind erected much later by imperial powers. From one island to another they sailed to trade and to marry, thereby expanding social networks for greater flow of wealth.”

The structure and operation of citizenship laws across the Pacific today are varied and fundamentally shaped by colonial legacies. The citizenship laws of seven states (the Federated States of Micronesia, Nauru, Palau, Papua New Guinea, the Solomon Islands, Tonga and Vanuatu) all operate through jus sanguinis provisions with children born either within or outside of the states automatically considered citizens if one of their parents is a citizen of the relevant state. There are similarities in the laws of Papua New Guinea, the Solomon Islands and Vanuatu who all gained independence from colonial powers between 1975 and 1980 and drafted new constitutions containing citizenship provisions. In 2014, 2017 and 2018 respectively, Vanuatu, Nauru and the Solomon Islands amended their citizenship laws to remove gender discriminatory provisions. The citizenship laws of three states (Australia, New Zealand and Samoa) also operate broadly through jus sanguinis structures with some variance between citizens born in and outside of the territories.

The citizenship laws of four states (Fiji, Kiribati, the Marshall Islands and Tuvalu) operate through a combined jus soli and jus sanguinis structure. All children born in Fiji and Tuvalu are considered citizens at birth unless one parent is a foreign diplomat and neither parent is a citizen of the relevant state. Children born in the Marshall Islands are automatically considered citizens if they are not entitled to any other citizenship.  Children born to citizen parents within or outside of Fiji, the Marshall Islands and Tuvalu can also access citizenship through jus sanguinis provisions.

Kiribati is one of the four countries in the Asia-Pacific (and the only in the Pacific) with gender discriminatory nationality laws that limit or inhibit the ability of women to pass on their citizenship to children. Persons born in Kiribati of I-Kiribati descent are automatically entitled to citizenship, those born in Kiribati who are not of I-Kiribati descent are automatically entitled to citizenship if they are not entitled to any other citizenship. Citizenship by descent is limited to children whose fathers are Kiribati citizens. Children born outside of Kiribati to mothers who are Kiribati citizens are not able to acquire Kiribati citizenship. Kiribati is also one of the eight states in the Asia-Pacific (and again, the only state in the Pacific) that contains gender discriminatory laws that limit the ability of married women to confer their nationality onto foreign spouses on the same basis as men

  •  Treaty ratification status

Treaty accession is highly varied across the Pacific. Australia, New Zealand and Fiji have perfect, or near perfect ratification rates. Comparatively Palau has the lowest rates of treaty accession to the relevant treaties of any state in the Asia Pacific region. Tonga, Tuvalu, Vanuatu and Samoa all have below average rates of treaty accession. No countries in the region have formalized statelessness determination procedures.

B. Population

  • Reported stateless persons

Only three states in the Pacific reported stateless populations to UNHCR in 2021, with a combined figure totaling 7,838 (Australia (7,700), Nauru (130), Papua New Guinea (8)). In 2021 the stateless population in the region increased by 2,468, with this population increase entirely within Australia.

  •  Persons at risk of statelessness

Birth registration rates across the Pacific are varied. Australia and Palau have both reported birth registration rates of 100%, while Papua New Guinea has reported the lowest rates of any state in the Asia Pacific at 13%. Vanuatu (43%), Tuvalu (50%) and Samoa (67%) have notably low rates of birth registration.

Many Pacific Island states are at risk of “disappearing” or becoming uninhabitable due to climate-induced sea level rises. Extensive research has been undertaken into the impacts of climate change on statehood, citizenship and the risk of statelessness. While communities have internally (and in some instances, externally) relocated due to these impacts the fundamental questions regarding loss of nationality and statehood remain largely hypothetical.

  •  Undetermined nationalities

Kiribati and Vanuatu are the only states in the Pacific to have publicly available census data that captures persons of “undetermined” or “unknow” nationality, with the 2020 Censuses of each country reporting eight and 27 persons respectively.

As many as 10-15,000 West Papuan refugees have lived in Papua New Guinea for as long as three decades, who due to absence from West Papua have lost their Indonesian citizenship and have been unable to access Papua New Guinean citizenship through naturalization, despite possessing the right to under the law of Papua New Guinea.  

  • Stateless Refugees

All the reported stateless population in the Pacific are stateless refugees, asylum seekers or, in the case of Australia persons in immigration detention. The populations of both Nauru and Papua New Guinea comprise entirely of Rohingya refugees. While many Pacific Island states are not large refugee-receiving countries frequently reporting no, or single figure refugee populations, New Zealand reported over 2,500 refugees and asylum seekers to UNCHR in 2021. It is possible that some of this refugee population is stateless, however no mapping or statistics are available.

C.  Stakeholders

At least 50 former SNAP members were either based in or focused on statelessness in the Pacific, however, almost the entirety of these members were based within Australia (the exception being two based in New Zealand). This lack of membership should not be seen as evidence of a lack of advocacy, research and activism within Pacific Island states. While stateless specific research is more limited, desk research has shown that there are active CSOs and advocates who have been prominent voices for Pacific Island communities regarding forced migration, the impacts of climate change and environmental degradation. Due less evident issues around statelessness and citizenship and fewer developed relationships, NFA has to date not chosen countries in the Pacific and sites of focus.

Of the former SNAP members, seven were active SNAP members, notably being:

  • Anna Demant, Planet Wheeler Foundation
  • Joanne Russell-Shears, Wilai Foundation
  • Ramesh Kumar, Southern Migrant & Refugee Centre
  • Harriot Beazley, University of Sunshine Coast
  • Sara Davies, Centre for Governance and Public Policy, Griffith University
  • Christoph Sperfeldt, Peter McMullin Centre
  • Lenny Leerdam, DLA Piper

As an organisation based in Australia, NFA has strong contacts within Australia, and has a positive working relationship with the Peter McMullin Centre on Statelessness.

Website:  https://law.unimelb.edu.au/centres/statelessness

The Peter McMullin Centre on Statelessness, established in 2018 operates under the objective of undertaking research, teaching and engagement activities aimed at reducing statelessness and protecting the rights of stateless people in Australia as well as the Asia-Pacific region and globally. In addition to the Peter McMullin Centre there are a number of individual academics researching statelessness and community legal centres working to support stateless refugees and seek citizenship for stateless children born in Australia. This includes the development of the Stateless Children’s Legal Clinic established in 2021 by the Peter McMullin Centre on Statelessness in partnership with the Refugee Advice Casework Service (RACS) and the Melbourne Law School. In 2021 the Stateless Children Legal Australia Network (SCLAN) was founded as an independent not-for-profit network based in Australia.

No former SNAP members or current NFA partners are based within the rest of the Pacific. The Global Campaign for Equal Nationality Rights has advocated to the UPR and other bodies for reform of the gender-discriminatory provision in Kiribati’s citizenship laws and some Australia partners have undertaken research and projects examining the nationality laws of the Pacific and the risks of statelessness and displacement caused by climate change. However, the lack of connections to CSO’s and advocates within the Pacific limits the contextual understanding present in this paper.

D. Causes of Statelessness

  •  Discriminatory nationality laws

As noted above, Kiribati is one of the four states in the Asia Pacific with gender discriminatory provisions in their nationality laws the limit the ability for women to confer nationality onto their children. Children born outside of the territory to mothers with Kiribati citizenship cannot access citizenship automatically. Unlike other Pacific Island states (such as Tonga), Kiribati has a small overseas population, with approximately 5,000 I-Kiribati’s living in New Zealand and Australia. There are no reliable statistics on the number of persons this provision has affected.

  • Lack of legal safeguards

The nationality laws of seven states (Federated States of Micronesia, Nauru, Palau, Samoa, Solomon Islands, Tonga and Vanuatu) have no explicit protection for foundlings born on their territory. The citizenship laws of four states (Australia, Fiji, New Zealand and Tuvalu) provide citizenship to foundlings born on their territory. Foundling children in both Australia and New Zealand are also automatically considered citizens. Tuvalu and Fiji provide presumption that a foundling shall be considered to have been born in within the country and in turn able to access citizenship through each state’s jus soli provisions. Three states (Kiribati, Marshall Islands and Papua New guinea) provide limited protections for foundlings. The limited jus soli provisions in the laws of Kiribati and the Marshall Islands while structurally similar to those of Fiji and Tuvalu, do not explicitly provide that abandoned children are considered to be born in Kiribati or the Marshall Islands, as such it is less clear how easily foundling children are able to access citizenship. The Constitution of Papua New Guinea provide foundlings automatic access to citizenship by descent by deeming them the be the child of a Papua New Guinean citizen.

Seven states (Australia, Fiji, Kiribati, the Marshall Islands, Nauru, New Zealand and Tuvalu) provide citizenship to children born on their territories who would otherwise be stateless. There is limited protection provided under the laws of Samoa (at the minister discretion) and Papua New Guinea to stateless persons born on the territory. There is no protection under the laws of the remaining six states (Federated States of Micronesia, Palau, the Solomon Islands, Tonga and Vanuatu).

  •  Citizenship stripping

Concerns have been expressed by UNHCR and independent NGOS regarding the potential statelessness of West Papuan refugees in Papua New Guinea, who due to absence from West Papua have lost their Indonesian citizenship and have been unable to access Papua New Guinean citizenship through naturalization. The Immigration and Citizenship Authority of Papua New Guinea has estimated that there are between 10-15,000 Indonesian Papuans living in the country. While there have been reports in recent years of some West Papuan refugees accessing citizenship, this does not appear to be universal, In 2021 the US Department of State reported that no  Indonesian Papuans had been granted citizenship that year.

  • Statelessness and climate change

As a region, the Pacific faces some of the greatest risks and has seen the greatest attention regarding the threat of climate-induced statelessness. There are a number of articles and reports written on the risk of statelessness faced by citizens of low-lying pacific states including Kiribati, the Marshall Islands and Tuvalu due to the impact of climate-induced sea-level rise. This risk of statelessness from ‘disappearing states’ currently remains a hypothetical question, with most expert agreeing that this scenario will not inevitably lead to statelessness. Further, before any states ‘disappear’, the impacts of relocation and an increase in displaced populations on communities and individual’s nationality status will need to be faced. It is this displacement across borders rather than the ‘disappearance’ of islands that poses the greatest risk of statelessness in the future.

  • Administrative barriers

Administrative barriers to nationality appear to be less prevalent in the Pacific region compared to areas such as East Asia where household registration plays a vital evidentiary role for citizenship. This does not mean that administrative barriers are non-existent, for example in Papua New Guinea children of refugee fathers and Papua New Guinean mothers continue to face both legal and administrative barriers to gaining birth certificates citizenship. Knowledge on the administrative barriers to citizenship is limited by our lack of country partners across the Pacific and nuisance and contextualized understandings of the practical applications of laws and policies.