The Presumption of Customary International Law: A Case Study of Child Statelessness

Abstract

Child statelessness continues to be a global problem that evades easy solutions and demands better legal solutions. Although UNCHR and other bodies have had some success in increasing participation to the 1954 and 1961 Statelessness Conventions during the current multi-year project to eradicate child statelessness, many states still refuse to adhere to those conventions. For this reason, it would also be helpful to know if there are any rules of customary international law on child statelessness. Historically, most authorities were reluctant to find that norms existed under customary international law governing child statelessness. However, as practice on child statelessness has developed, so too has practice on customary international law. As a first step in studying whether there are any norms of customary international law on this topic, we will first examine whether there are any presumptions in establishing norms, that can be helpful in assessing the developing practice. Proving when certain norms have emerged in customary international law is controverisal to say the least. One stumbling block is agreeing on how to assess evidence of customary international law, to determine when the threshold of practice has been met. This author has attempted to identify tools for determining thresholds in the past, but one device for analyzing a threshold question is whether there are any relevant presumptions. This paper will undertake a preliminary case study on customary international law rules governing child statelessness, specifically considering whether there is a presumption in favor of rules on point. Firstly, it will examine the literature and practice applying a presumption in the customary international law methodology. This question will consider several different factors that might trigger a presumption. Secondly, having concluded that a presumption arises in certain situations, the paper will conduct a case study on applying the presumption by gathering and assessing evidence of relevant situations that would result in a presumption in favor of norms governing child statelessness.