Overview

Law

1. Citizenship Law

a. Jus Sanguinis and Jus Soli Provisions

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 defended and travel between islands was commonplace and largely free. As the Tongan scholar Epeli Hau’ of a 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 10 States (the Federated States of Micronesia, Fiji, the Marshall Islands, Nauru, Palau, Papua New Guinea, Solomon Islands, Tonga, Tuvalu 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, Solomon Islands and Vanuatu who all gained independence from colonial powers between 1975 and 1980 and drafted new constitutions containing citizenship provisions. Vanuatu, Nauru, and Solomon Islands amended their citizenship laws to remove gender discriminatory provisions in 2014, 2017, and 2018 respectively. The citizenship laws of four States (Australia, Kiribati, 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 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.

The nationality laws of six States (Micronesia, Palau, Samoa, Solomon Islands, Tonga and Vanuatu) have no explicit protection for foundlings born on their territory. The citizenship laws of Australia, Fiji, and New Zealand provide citizenship to foundlings born on their territory. Foundling children in both Australia and New Zealand are also automatically considered citizens. Fiji also follows the presumption that a foundling shall be considered to have been born within the country and in turn able to access citizenship through the State’s jus soli provisions. While Tuvalu includes a similar provisions providing citizenship access to foundlings through jus soli provisions, the child must have a citizen parent in order to gain citizenship by birth.

Three States (Kiribati, Marshall Islands and Papua New Guinea) also provide limited protections for foundlings. The limited jus soli provisions in the laws of Kiribati and the Marshall Islands, do not explicitly provide that abandoned children are considered to be born in Kiribati or the Marshall Islands, leaving it unclear whether foundling children are able to access citizenship. The Constitution of Papua New Guinea provides foundlings automatic access to citizenship by descent by deeming them to be the child of a Papua New Guinean citizen.

Five States (Australia, Kiribati, the Marshall Islands, Nauru, and New Zealand) 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’s discretion) and Papua New Guinea to stateless persons born on the territory. There is no protection under the laws of the remaining six States (Micronesia, Palau, Solomon Islands, Tonga and Vanuatu).

Australia is the only country in the Pacific subregion to include a definition of statelessness in its citizenship legislation. However, Australia’s definition does not align with the definition included in the 1954 Stateless Convention as children are required to prove that not only are they not a national or citizens of any other country but that they have never been and are not entitled to nationality or citizenship of another country. The 1954 Convention defines a stateless person as someone “who is not considered as a national by any State under operation of its law”, which does not place the burden of proof on the stateless person.

b. Naturalized Citizenship

Australia is the only country in the Pacific with a simplified process of naturalization available to stateless persons born in the country. The simplified process includes less requirements, making the process more accessible to stateless persons. In order to be eligible for the simplified process in Australia, the only requirement is that the stateless person is not and has never been entitled to citizenship of another country. In six States (Fiji, Kiribati, New Zealand, Solomon Islands, Palau, and Tonga), stateless persons are either unlikely to be eligible (in the case of New Zealand and Kiribati) or are entirely ineligible for the standard naturalization procedure. The Solomons Islands’ citizenship application requires a birth certifcate, passport, or driver’s license and proof of sustainable income, property, investments or economic benefit to Solomon Islands, which may bar stateless persons from being able to apply. In Palau, only persons of Palauan ancestry are eligible for naturalization. Further, stateless persons are not included on the list of eligible persons in Fiji. In New Zealand, the requirement of being able to indefinitely reside in the country in order to apply for naturalization likely barres stateless persons from accessing naturalization. Due to the requirement of the applicant to submit their passport in the application process, stateless persons are also ineligible for naturalization in Tonga. In order to get a permanent residence visa in Kiribati (which is required for naturalization), one must be living in Kiribati for a period of seven years and cannot be “liable for deportation”, which may be the case for stateless persons in the country.

Stateless persons may be eligible for the standard naturalization process in Micronesia, the Marshall Islands, Nauru, Papua New Guinea, Samoa, Tuvalu and Vanuatu. While the required length of residence for naturalization varies across States of the Pacific, Nauru notably has the longest required residence period, requiring applicants to be continuously resident in the country for 20 years prior to application.

c. Dual Citizenship

Dual citizenship is permitted in seven States of the Pacific, including Australia, Fiji, Nauru, New Zealand, Palau, Solomon Islands, and Vanuatu. Three States, Kiribati, Marshall Islands and Tuvalu, prohibit dual citizenship. In Micronesia and Papua New Guinea, dual citizenship is generally not permitted, but may be accessed through application in Papua New Guinea. The provision for dual citizenship in Micronesia is only available to individuals having dual citizenship of the United States. There are no provisions stipulating dual citizenship in Samoa or Tonga. The requirement to renounce prior citizenship in order to apply for citizenship through naturalization may leave applicants in Kiribati, Marshall Islands, Solomon Islands and Micronesia stateless. In Micronesia and Marshall Islands, applicants must endure an indefinite period of statelessness throughout the application process as they must renounce prior citizenship before making the application. Applicants in Kiribati must renounce their prior citizenship before accruing the ten years of permanent residence required for naturalization, forcing them to remain stateless for ten years before applying. Similarly, in order for foreign women spouses of a Solomon Islands citizen to gain citizenship, they must renounce any prior citizenship and be a resident for two years before they can apply for naturalization with the consent of their husband. Tuvalu also requires applicants to renounce prior citizenship, however provisions exist to prevent statelessness in this case. Tuvalu’s legislation includes a provision stating that if renouncing citizenship is “impracticable” or prohibited by the other State of citizenship, the applicant can make a declaration of intent to renounce the other State’s citizenship upon gaining Tuvalu citizenship.

2. 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, Micronesia,Nauru, and Samoa all have below-average rates of treaty accession. No countries in the region have formalized statelessness determination procedures.

Status of Accession of International Human Rights Treaties in the Pacific

Country	Stateless 1	Stateless 2	Refugee	ICCPR	ICESCR	ICERD	CRC	CEDAW
Australia
Federated States of Micronesia
Fiji
Kribati
Marshall Islands
Nauru
New Zealand
Palau
Papua New Guinea
Samoa
Solomon Islands
Tonga
Tuvalu
Vanuatu
Total	3	3	8	7	6	7	14	12

Signifies that the country is a party to the convention

Stateless 1 – 1954 Convention relating to the Status of Stateless Persons

Signifies that the country is not a party to the convention

Stateless 2 – 1961 Convention on the Reduction of Statelessness

Population

1. Reported Stateless Persons

Only three States in the Pacific reported stateless populations to UNHCR in 2022, with a combined figure totaling 8,329 persons (Australia (8,314),Nauru (6), Papua New Guinea (9)). Between 2021 and 2022, the stateless population in the Pacific increased by 491 persons, a much smaller increase than the reported populations between 2020 and 2021, which increased by 2,468 persons. The increase between 2020 and 2021 resulted entirely from within Australia. Nauru saw a significant decrease in its reported stateless population, decreasing from 130 in 2021 to only 6 in 2022. Notably, no States in the Pacific reported a stateless population to UNHCR in 2019.The lack of a comprehensive statelessness identification procedure in Australia and Papua New Guinea contribute to a lack of data on the stateless population in these countries. While New Zealand reported 2,364 refugees and asylum seekers to UNHCR in 2022, it is possible that some of this population may also be stateless, as seen in the case of AL (Myanmar). However, due to the lack of mapping or statistics in New Zealand on statelessness, this remains uncertain.

Country	2019 (year start)	2020 (year end)	2021 (year end)	2022 (year end)
Australia	–	5,221	7,700	8,314
Federated States of Micronesia	–	–	–	–
Fiji	–	–	–	–
Kiribati	–	–	–	–
Marshall Islands	–	–	–	–
Nauru	–	–	130	6
New Zealand	–	–	–	–
Palau	–	–	–	–
Papua New Guinea	–	–	8	–
Samoa	–	–	–	–
Solomon Islands	–	–	–	–
Tonga	–	–	–	–
Tuvalu	–	–	–	–
Vanuatu	–	–	–	–
TOTALS	–	5,221	7,838	8,320

Reported stateless population in the Pacific

Source: UNHCR, Global Trends: Forced Displacement from 2019-2022

2. Pledges to End Statelessness

At the 2023 Global Refugee Forum, Australia made a pledge “to become members of the Global Alliance to End Statelessness (once established) to actively and collaboratively support the vision of a world free from statelessness so that everyone enjoys the right to nationality without discrimination”.

Two States, Australia and Papua New Guinea, made pledges relating to statelessness at the Ministerial Intergovernmental Event on Refugees and Stateless Persons in 2011. Australia pledged to “better identify stateless persons and assess their claims” and “to minimis[e] the incidence of statelessness and to ensure that stateless persons are treated no less favorably than people with an identified nationality”. Regarding the fulfillment of these pledges, Australia has yet to implement a statelessness determination procedure. Recently, at the 2023 Global Refugee Forum, Australia made a further pledge “to become members of the Global Alliance to End Statelessness (once established) to actively and collaboratively support the vision of a world free from statelessness so that everyone enjoys the right to nationality without discrimination”.

Papua New Guinea in 2011 pledged to amend its legislation to be able to remove the reservations made to the Refugee Convention and facilitate access to naturalization of “West Papuan and other refugees by either waiving all fees or introducing a nominal fee only for applications for citizenship by refugees”. While Papua New Guinea has made progressive strides by removing all reservations on the Refugee Convention regarding refugees sent from Australia, legislative improvement is required for persons in other contexts. Papua New Guinea has also been successful in reducing the fees required for citizenship applications and removed the fee entirely for West Papuan refugees.

3. Persons at Risk of Statelessness

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. In Australia, Indigenous and Aboriginal communities are also at risk of statelessness due to marginalization, lack of access to social services, and a lower birth registration rate.

4. Undetermined Nationalities

Kiribati and Vanuatu are the only States in the Pacific to have publicly available census data that captures persons of “undetermined” or “unknown” 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 since the last 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.

5. Stateless Refugee

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 have consisted entirely of Rohingya refugees. While many Pacific Island States are not large refugee-receiving countries and have been frequently found reporting no or single figure refugee populations, New Zealand reported 2,364 refugees and asylum seekers to UNHCR in 2021. It is possible that some of this refugee population is stateless, however no mapping or statistics are available to confirm this.

Since 2013, Australia has begun utilizing ‘regional processing centers’ in Nauru and Papua New Guinea, to which Australia has forcibly transferred more than 4,000 refugees and asylum seekers that arrived in Australia by boat, a process which has been condemned by UN bodies, NGOs, and refugee advocates. The last refugee on Nauru as a part of this policy was evacuated in June of 2023. At least 14 people died as a result of this offshore processing system, half of which were from suicide.

Causes of Statelessness

1. Discriminatory Nationality Laws

Kiribati and Solomon Islands are the only two countries in the Pacific which contain gender discriminatory provisions in relation to citizenship acquisition, while Papua New Guinea’s legislation contains gender discriminatory provisions with regard to birth registration. In Kiribati, women do not have equal rights to confer citizenship to their children. Persons born in Kiribati of I-Kiribati descent are automatically entitled to citizenship. Those born in Kiribati and not of I-Kiribati descent are only automatically entitled to citizenship if they do not hold 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. 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.

While Solomon Islands did amend some of the gender discriminatory provisions previously included in its legislation, discriminatory provisions remain for foreign women married to a citizen and women who have jointly adopted a child. Foreign women married to a citizen must renounce their citizenship to apply for citizenship and can only do so with the consent of their husband. The law is further discriminatory against women who have jointly adopted a child. They are denied equal right to confer nationality as the application for citizenship of the child can only be made by the father.

Papua New Guinea also has gender discriminatory provisions in relation to birth registration, which stipulate that in the case of a child born to foreign parents in the country, only the father can act as a witness to the birth. This could result in children born to foreign parents unable to register their birth, potentially placing them at risk of statelessness.

Palau’s citizenship legislation contains ethnic discrimination as only ethnic Palauans are able to apply for naturalization. Another country which has discriminatory citizenship legislation is Tonga which stipulates that children born out of wedlock are registered at birth as ‘illegitimate’ and are, as a result, unable to inherit land or title and experience stigma and marginalization.

2. Lack of Legal Safeguards Against Childhood Statelessness

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 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 provides 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).

3. 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 the country has estimated that there are between 10-15,000 Indonesian Papuans living in the country.1353 While there have been reports in recent years of some West Papuan refugees accessing citizenship, this does not appear to be universal,1354 In 2021, the US Department of State reported that no Indonesian Papuans had been granted citizenship that year. In Kiribati, only a person of non-I-Kiribati descent can be stripped of Kiribati citizenship if they breach allegiance to Kiribati, obtain nationality of another country by voluntary act, or, if the Minister deems it necessary for “public good”, leaving stateless persons with no further protections. Such a provision is in violation of the 1961 Statelessness Convention as “public good” is not an acceptable reason to deprive a person of citizenship. Naturalized citizens of Tonga may be deprived of citizenship on very broad grounds (including defamation of the Royal family or any offence which involves dishonesty or fraud) leaving them vulnerable to statelessness.

4. 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 and 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. The lengthy citizenship application process remains an administrative barrier in Australia, where refugees reported waiting on average 215 days for their application to be processed.

Birth registration rates of the countries in the Pacifc

*Aboriginal and Torres Strait Islander peoples’ birth registration rate was reported at only 77.2% in the same year.
Source: “Data Warehouse,” UNICEF DATA; UN Statistics Division, Coverage of Birth and Death Registration’ (February 2021)

In several Pacific Islands States, including Fiji, Marshall Islands, Micronesia, Samoa, Solomon Islands, and Tuvalu, birth registration access tends to be lower in rural areas. Due to stigmatization towards single mothers, children of unwed mothers in Kiribati, Marshall Islands, Samoa, Solomon Islands, and Tonga tend to either remain unregistered or be registered with inaccurate information regarding the parents. The need for a centralized and streamlined birth registration system has been expressed for Kiribati and Micronesia respectively. Late registration fees in four States (Fiji, Kiribati, Solomon Islands, and Tuvalu) present a barrier to birth registration. In Fiji, wealth of households and maternal age and education level are key factors influencing levels of birth registration among Fijian children. Further, i-Taukei speaking households also demonstrated notable disparities in birth registration rates compared to other groups.

5. Requirement of Birth Registration for Citizenship Acquisition

A birth certifcate can serve as a form of evidence of citizenship in Australia, Fiji, Kiribati, Nauru, New Zealand, and Tonga. Marshall Islands, Micronesia, Palau, Tuvalu, and Vanuatu do not specify whether birth registration is required for citizenship certification. However, in Vanuatu, lack of birth registration or a birth certifcate can mean that a person does not have the documentation they need to determine their citizenship eligibility. In Papua New Guinea, Samoa, and Solomon Islands, a citizenship certifcate is needed to prove citizenship.

6. 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 Island 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 experts 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.

In Tuvalu, gaps in protective legislation against statelessness exist with regard to naturalized citizens subject to climate-induced displacement. Tuvalu’s legislation on loss of citizenship includes a provision which states that naturalized citizens will lose their citizenship of Tuvalu if they do not continue to comply with the requirements of naturalization, which include remaining financially self-supporting. In the event of climate-induced displacement, the affected person may not be able to maintain financial self-sufficiency, making naturalized citizens in this scenario potentially vulnerable to deprivation of citizenship. Tuvalu has, however, enacted new legislation in 2023 which redefines the definition of statehood for Tuvalu. The Constitution provides that the State’s physical territory will remain the same, regardless of rising sea levels, and establishes the country’s intention for “responding to climate change, which threatens the security and survival of its people and its land”.

The Pacific