A Study of the Concepts and in Europe
Caia Vlieks LLM
Master’s Thesis Contexts of Statelessness A Study of the Concepts Statelessness in situ and Statelessness in the Migratory Context in Europe
Name Caia Vlieks
ANR 638025
Master’s Programme Research Master in Law Tilburg Law School – KU Leuven
Date 11 August 2014
Supervisors Ernst M.H. Hirsch Ballin Professor of Dutch and European Constitutional Law
Laura E. Van Waas Senior Researcher and Manager of the Statelessness Programme
Table of Contents
1. Introduction 1
1.1. Research goals 3 1.2. Research questions 3 1.3. Relevance 4 1.4. Proposition, hypotheses and concepts 5 1.5. Methods and data 6
2. Literature review 9
2.1. Dutch Advisory Committee on Migration Affairs 9 2.2. European Network on Statelessness 10 2.3. Gyulai 12 2.4. Manly 14 2.5. Master’s Theses 18 2.6. Muižnieks 21 2.7. Van Waas & Neal 22 2.8. Other sources 24 2.9. Concluding remarks 25 Figure 1: Table of results of the literature review 26
3. International legal instruments 31
3.1. UNHCR Guidance on the 1954 Convention 31 3.2. Article 15 of the Universal Declaration of Human Rights 34 3.3. The Nottebohm case 34 3.4. ‘Own country’ under the International Covenant on Civil and Political Rights 36 3.5. The right to a nationality under the American Convention on Human Rights 38 3.6. European legal instruments 39 3.6.1. CoE Convention on Statelessness in Relation to State Succession 39 3.6.2. European Convention on Nationality 40 3.6.3. European Convention on Human Rights 40 3.7. Concluding remarks 42 Figure 2: Table of results of the assessment of international legal instruments 42
4. Case study 47
4.1. Case I: Andrej 47 4.2. Case II: Isa 48 4.3. Case III: Luka 49 4.4. Case IV: Rashid 51 4.5. Case V: Roman 52 4.6. Case VI: Sarah 53 4.7. Concluding remarks 54
5. Conclusion 57
6. Bibliography 59
1. Introduction
Recently, the body of knowledge regarding the issue of statelessness has been increasing, also where it concerns statelessness in Europe.1 In academic literature and reports,2 a distinction is often drawn between statelessness in the migratory context and statelessness in situ.3 This distinction is used to address two different contexts in which statelessness arises in Europe. The first concept – statelessness in the migratory context – encompasses stateless persons that are migrants or have a migratory background. The second comprises stateless populations who are ‘in their own country’, meaning that they have “significant and stable ties (through birth, long-term residence, etc.)” with a country.4 It has furthermore been said that the type of (legal) response that is necessary to address statelessness may differ depending on the aforementioned contexts of statelessness.5 However, is this true? And where does this distinction come from? Does it have any roots in international law? And does the distinction make any sense in practice? These questions remain unanswered.
When considering statelessness in the European context6 more generally, it is important to note that more than 600.000 people in Europe are stateless,7 and people in former Soviet republics are in particular still experiencing problems with acquiring a nationality.8 Similarly, but to a lesser extent, statelessness on account of state succession in the Former Yugoslavia and Czechoslovakia is an issue.9 Particular groups in Europe that have been recognised as being (at risk of) stateless(ness) include the Roma,10 non-citizens in Slovenia,11 and ethnic
1 See also Mark Manly and Laura van Waas, ‘The State of Statelessness Research’ (2014) 19 Tilburg Law Review 3. 2 E.g. Gábor Gyulai, ‘Statelessness in the EU Framework for International Protection’ (2012) 14 European Journal of Migration 2 E.g. Gábor Gyulai, ‘Statelessness in the EU Framework for International Protection’ (2012) 14 European Journal of Migration and Law 279. See also Mark Manly, ‘UNHCR’s Mandate and Activities to Address Statelessness in Europe’ (2012) 14 European Journal of Migration and Law 266-267, who identified, similarly to Gyulai, three ‘profiles’ of statelessness; Laura van Waas and Monica Neal, ‘Statelessness and the Role of National Human Rights Institutions’ [2013] Tilburg Law School Legal Research Paper Series No. 022/2013 use the distinction in their survey on the role of national human rights institutions in addressing statelessness. 3 In situ is Latin for ‘in the original place’ or ‘on site’, see e.g. Oxford Dictionaries
1 Russians in the Baltic States, more specific in Estonia and Latvia,12 as well as for instance Syrian refugees,13 and stateless Palestinians and Bidoon from Kuwait seeking asylum.14 A significant number of people in Europe thus lack any nationality and new cases of statelessness keep emerging. Different international and regional instruments have been enacted to address the issue of statelessness, including the access to nationality and the prevention of statelessness. Among these instruments are the 1954 United Nations (UN) Convention relating to the Status of Stateless Persons,15 the 1961 UN Convention on the Reduction of Statelessness,16 the European Convention on Nationality (ECN) and the Council of Europe (CoE) Convention on the Avoidance of Statelessness in relation to State Succession. However, it has been recognised that other legal sources and interpretations thereof can also influence the regulation of nationality and the ways in which statelessness can be dealt with. These include the European Convention on Human Rights (ECHR) with its supervisory body, the European Court of Human Rights (ECtHR), and the European Union (EU) with its court, the Court of Justice of the EU (CJEU), and the notion of EU citizenship.17 Furthermore, the recently increased attention for statelessness and the need to address this issue is underlined by the Office of the United Nations High Commissioner for Refugees (UNHCR), which has been given the mandate to prevent and reduce statelessness by the UN General Assembly,18 launching a 10-year campaign to eradicate statelessness by 2024 to commemorate the 60th anniversary of the 1954 Convention. This campaign “will seek greater political commitment to resolve protracted situations of statelessness and to
Journal 1666; Annemarie Busser and Peter Rodrigues, ‘Staatloze Roma in Nederland’ [Stateless Roma in the Netherlands] (2010) 8 Asiel & Migrantenrecht 384. 11 E.g. UNHCR, A Study and Comparison of National Laws in Slovenia and International Standards related to Statelessness (UNHCR 2012); Jelka Zorn, ‘Non-citizens in Slovenia: erasure from the register of permanent residents’ in: Caroline Sawyer and Brad Blitz (eds), Statelessness in the European Union. Displaced, Undocumented, Unwanted (Cambridge University Press 2011), see also Kuric and others v Slovenia App. No. 26828/06 (ECtHR GC 26 June 2012). 12 E.g. Priit Järve and Vadim Poleshchuk, Country Report: Estonia (EUDO Citizenship Country Reports 2013)
2 prevent new situations of mass statelessness due to state succession or arbitrary deprivation of nationality,”19 thus putting more pressure on policy makers, also at the national level, to reduce, prevent, and ultimately end statelessness. This is true at the European level as well, which is demonstrated by a statement of the CoE Parliamentary Assembly that statelessness should be prevented and eliminated as soon as possible.20
From a perspective of the need to ultimately end statelessness as a pressing policy question in combination with the fact that it is claimed that policy responses to statelessness in Europe may depend on the two aforementioned ‘contexts’ of statelessness, the concepts of statelessness in situ and statelessness in the migratory are in dire need of clarification. These concepts have not (yet) been the subject of research and therefore, this paper sets out to study these concepts from a legal perspective.
1.1. Research goals
Obviously, this study generally aims to add to the existing body of knowledge regarding statelessness, in particular statelessness in Europe. More specific, the goal of this project is to examine and evaluate the distinction that is made between the notions of statelessness in situ and statelessness in the migratory context in Europe from a legal point of view. In doing so, this paper describes the aforementioned two concepts – what they entail and how they are currently used in literature – aiming to uncover whether consensus exists regarding the meaning of the concepts and the differences between them. Furthermore, this piece has the goal of identifying whether and to what extent the distinction between the two concepts is supported in international legal instruments and whether this could help in formulating a working definition of the concepts. Also, turning back to Europe, this piece wants to evaluate whether the distinction between the two profiles of statelessness is useful in practice. To this end, the concepts will be applied to six cases of stateless individuals in Europe. Also, some remarks will be made regarding some the aforementioned particular groups of stateless persons in Europe. In conclusion, this study aims to provide an overall evaluation of the two concepts while attempting to formulate an adequate definition for each of the concepts in light of the outcomes of the research conducted. Also, it considers whether alternatives are needed next to or instead of the two concepts and what those could be.
1.2. Research questions
Considering the problem and topic formulated above, as well as this project’s research goals, the following research question is central to this study:
19 UNHCR, ‘The Campaign to End Statelessness’ (UNHCR) < http://www.unhcr.org/pages/53174c306.html> accessed 26 June 2014. 20 CoE Parliamentary Assembly Resolution 1989 (2014)
3 Are the concepts of statelessness in situ and statelessness in the migratory context as described in literature supported in international law, and how can they be evaluated in Europe?
In order to answer this question, different sub-questions have been identified: I. What do the concepts of statelessness in situ and statelessness in the migratory entail according to current literature on the issue of statelessness? a. What is the meaning of the concepts, what kinds of definitions are used and how is the distinction between them made? b. Why is the distinction pursuant to the aforementioned concepts made? c. What consensus regarding the two concepts can be identified? Can a provisional working definition be identified on the basis thereof? II. Do international legal instruments support the distinction between the concepts of statelessness in situ and statelessness in the migratory context as made in literature? If yes, to what extent? Could this be helpful to formulating working definitions of these concepts? III. In view of sub-questions I and II, how can the concepts of statelessness in situ and statelessness in the migratory context be applied to statelessness in Europe? IV. Reconsidering the answers to sub-questions I, II and III, how can the concepts of statelessness in situ and statelessness in the migratory context be evaluated in Europe? a. What (legal) working definitions can be formulated for statelessness in situ and statelessness in the migratory context? b. Are these concepts adequate for addressing statelessness in Europe or are alternatives instead or next to these concepts needed? If yes, what could these alternatives be?
1.3. Relevance
As was mentioned the research goal of this project is to contribute to the existing body of knowledge concerning statelessness, in particular statelessness in Europe, by providing new insights regarding the topic at hand. In addition, the concepts of statelessness in situ and statelessness in the migratory context have not been the topic of an extensive academic study yet, which – as was demonstrated above – is problematic and evidences that this project has theoretical relevance. Furthermore, this study aims to examine the meaning of the concepts, the question as to why the distinction between them is made, whether this is supported when considering international legal instruments, as well as the application of the concepts in Europe, and even attempts to formulate working definitions. Thus, this piece can contribute significantly to the clarity of reports and research that may be conducted on statelessness in Europe, and possibly beyond, that use these concepts.
The social relevance of this project is evident when considering the recent bold statements on putting an end to the issue of statelessness, as well as the presupposition that differences between (groups of) persons that are statelessness in situ or statelessness in the migratory
4 context entail differences in policy response. As one of the goals of this research is to uncover how and why the distinction pursuant to the two aforementioned concepts is made and evaluate this, also from a legal perspective, it is intended to shed light on the statements regarding these concepts in connection with policy response. Is it indeed true that this distinction entails differences in terms of response? This can contribute to better policy responses to statelessness and may improve the legal protection of stateless persons, as well as the ways in which statelessness may be prevented and reduced by legal instruments, which is highly relevant to the more than 600.000 21 estimated stateless persons in Europe. In this regard, it should be remembered that statelessness has often been associated with the inability to access basic human rights, exclusion, destitution and discrimination.22 This is not only unacceptable in Europe from the perspective of human rights, but may be also be regarded as a human security issue because of the effect that it can have on the integration of people in society, which could ultimately even result in conflict. 23 Designing adequate policies for the protection of stateless persons and the reduction and prevention of statelessness with the help of the findings in this study could give more persons at risk of statelessness and stateless persons a proper place in society, which certainly has social relevance.
1.4. Proposition, hypotheses and concepts
The general working hypothesis of this study is that the concepts of statelessness in situ and statelessness in the migratory context serve a purpose, and may even have roots in the relevant international legal instruments. What the concepts entail according to literature, or even according to international legal instruments, as well as formulating a working definition, is part of this project, but for now statelessness in situ is generally and provisionally considered to encompass stateless populations that are stateless in their ‘own’ country and/or that have significant ties to the country they live in. The notion of statelessness in the migratory context is generally and provisionally defined as statelessness persons that are migrants or have a migratory background. It thus seems possible that (descendants of) persons that are stateless in the migratory context at some point become stateless in situ (that is, when they are unable to acquire a nationality), which is based on the significance of the ties to the country they live in. Where this line should be drawn is dependent on the facts of the case. Examples in literature as well as the application of the concepts to actual cases help in clarifying this further. However, it is also presupposed that the aforementioned two concepts of statelessness in situ and statelessness in the migratory context may not or not fully be able to cover all situations in which stateless persons in Europe may find themselves. Indeed, where the line between the two contexts is hard to
21 Estimates of the UNHCR: UNHCR, ‘Statelessness in Europe’ (UNHCR)
5 draw, it may be necessary to formulate alternative concepts. For this reason, the possibility or a necessity to formulate alternatives next to or instead of the two concepts is included in the research questions.
It should furthermore be noted here that the term ‘international legal instruments’ is interpreted in a broad manner, meaning that it can include ‘soft law’ instruments that explain relevant treaties, such as the Guidelines on Statelessness and the superseding Handbook on the Protection of Stateless Persons of UNHCR. In addition, the legal definition of statelessness is obviously important to this research. A stateless person has been defined clearly in international law as “a person who is not considered as a national by any state under the operation of its law”.24
Last but not least, it should be noted that the distinction pursuant to the concepts of statelessness in situ and statelessness in the migratory context should not be confused with another distinction concerning statelessness, namely that between de jure statelessness and de facto statelessness. The latter distinction has been the topic of quite some discussion in literature25 and is used to indicate the difference between persons that are stateless in law (de jure) – meaning that their situation complies with the definition of statelessness in international law26 – and persons that are factually (de facto) in a similar situation as (de jure) stateless persons, but not legally. The latter category may include situations in which the nationality of an individual cannot be established with certainty. However, in the case where there appears to be no country that considers the person in question as a national, this person could qualify under the definition of statelessness in international law and be considered de jure stateless.
1.5. Methods and data
The method of research that is primarily employed for this study is that of legal research. In order to illustrate this further, the methods and data used for each of the four sub-questions are considered below.
As was demonstrated by the first sub-question of the research questions elaborated upon above, this project’s starting point are secondary sources from academic authors on the issue of statelessness, in particular those in which the concepts of statelessness in situ and/or statelessness in the migratory context are mentioned or that, more generally,
24 Article 1(1) of the 1954 Convention; UNHCR Guidelines on Statelessness No. 1: The Definition of "Stateless Person" in Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons (HCR/GS/12/01)
6 include a distinction between the situations these concepts appear to entail. These documents are critically appraised for their topicality and reliability. Furthermore, the reports and work of the UNHCR cannot be disregarded when conducting research on statelessness because of its mandate to address statelessness. Reports regarding the situation in Europe as well as more general documents, which include references to the concepts central to this study or the distinction they represent, are highly useful. Nonetheless, these documents are examined in a critical manner, as well as reports and other relevant materials of non-governmental organisations (NGOs). The output of the European Network on Statelessness (ENS)27 is valuable in particular given its specific focus on statelessness and on Europe.
In order to be able to evaluate the two concepts, the findings from the literature review are tested by the second sub-question using international legal instruments. For this part of the project, the relevant legal or semi-legal 28 sources, as well as commentaries on these instruments, are systematised and analysed for references to the aforementioned concepts or, more generally, making a distinction between the situations that these notions represent.
Sub-question III embodies the second part of the evaluation, in which the distinction pursuant to the concepts of statelessness in situ and statelessness in the migratory context is applied to the situation of stateless persons in Europe. In particular, this part of the study applies the two concepts to six cases of stateless persons in Europe. These six cases have been collected within the ENS and have been published on their website to personify the issue of statelessness.29 That these cases are useful for a case study on statelessness in Europe is evidenced by the fact that they are just some of the cases collected by ENS members from all over Europe and that these were the ones that were picked by experts on the issue in Europe to give the problem a face. As such, the main sources that will be used here are these six cases and the knowledge gathered while answering sub-questions I and II. However, as was demonstrated earlier, particular groups of stateless persons can be identified in Europe. Consideration is also given to them. The aforementioned main sources are useful here again, but sources used to answer sub-question I may be helpful for this more general part as well.
The final sub-question IV ties the other sub-questions together and is the stepping-stone to the conclusions of this piece. Therefore, the data gathered while answering sub-questions I, II and III serve as input for this part of the study.
27 More information regarding ENS can be found at
7
8 2. Literature review What do the concepts of statelessness in situ and statelessness in the migratory entail according to current literature on the issue of statelessness?
As was elaborated upon in section 1, the starting point of this journey into the concepts of statelessness in situ and statelessness in the migratory context is current literature on the issue of statelessness. Below, a number of important authors and sources that deal with the topic at hand are assessed in alphabetical order. Note that this study intends to look at the most important publications with clear definitions or alternatives to two concepts in order to be able to provide an appropriate answer the research questions and do justice to the varied sources available.
2.1. Dutch Advisory Committee on Migration Affairs
The Dutch Advisory Committee on Migration Affairs (ACVZ),30 a committee that reports and advises the Dutch government and parliament on migration policy issues, published their advisory report on treaty protection for stateless persons in the Netherlands in December 2013.31 As the name of the committee already demonstrates, the ACVZ concerns itself with migration policy issues. When considering stateless persons in the Netherlands in their report, the ACVZ distinguishes between two groups of stateless persons using the labels ‘statelessness in situ’ and ‘stateless migrants’, making their report very interesting to the present study.
According to the definition of the ACVZ, persons that are stateless in situ are stateless individuals that have been in the country for a long time or have been born in the country, and have come to consider that country as their own country due to their long-term stay or birth in the country.32 What stateless migrants are exactly according to the ACVZ is not specified. The report goes on to assess these categories of stateless persons in more depth. However, a further characterisation is made here, namely on the basis of the cause of statelessness. The ACVZ says that in situ stateless persons in the Netherlands became stateless as a consequence the Dutch colonial past, or because of the (application of) Dutch nationality laws.33 Examples of in situ statelessness mentioned by the ACVZ are the cases of ‘Molukkers’ (Moluccans), the ‘Toescheidingsovereenkomst tussen Nederland en Suriname’ (a treaty on nationalities between the Netherlands and Suriname) and the Roma people that have been admitted to the Netherlands in 1977-1978. 34 Further categories that are distinguished are stateless children born in the Netherlands, children with an ‘unknown
30 ‘Dutch Advisory Committee on Migration Affairs’ is a translation of the Dutch ‘Adviescommissie voor Vreemdelingenzaken’, which is abbreviated as ACVZ. See also
9 nationality’ that were born in the Netherlands, stateless migrants and migrants with an ‘unknown nationality’.35 For people of unknown nationality, it is possible that they are stateless, but again they also may not be stateless. This depends on whether it is possible to establish their nationality or their statelessness. But since the Netherlands does not have a statelessness determination procedure or mechanism,36 this is difficult to achieve. The report of the ACVZ does not specify which categories can fall within the definitions of either statelessness in situ or statelessness in the migratory context, or both. However, when bearing in mind the provisional definitions from the introduction above it seems clear that the examples of in situ statelessness above, as well as stateless children that were born in the Netherlands can be considered to be stateless in situ. Similarly, it is evident that stateless migrants are stateless in the migratory context. However, the children and migrants that have an unknown nationality are not stateless per se. As such, they cannot be categorised as stateless in situ and/or stateless in the migratory context. However, if one were to categorise them, it seems logical that children of ‘unknown nationality’ are stateless in situ and migrants with an ‘unknown nationality’ are stateless in the migratory context.
From this short overview, a clear definition of statelessness in situ can be taken, as well as information on types of groups that are stateless in situ or stateless in the migratory context in the Netherlands. Furthermore, the alternate label of ‘unknown nationality’ can definitely mean that a person is stateless. It is therefore not surprising that the ACVZ recommends the establishment of a statelessness determination procedure, the incorporation of a new residence ground for the purpose of statelessness, the waiver of the birth certificate- requirement for naturalisation in case of recognised stateless persons, and the withdrawal of the legal residence requirement for stateless children born in the Netherlands who wish to acquire Dutch nationality by option.37
2.2. European Network on Statelessness
In 2013, the European Network on Statelessness (ENS) published a short guide on statelessness determination and the protection status of stateless persons, which also touches upon the concepts under consideration in this project.38 As was mentioned above, ENS focuses on the problem of statelessness in Europe. More specifically, it is a network of (academic) experts and NGOs that are committed to address this phenomenon. ENS is “dedicated to strengthening the often unheard voice of stateless persons in Europe, and to advocate for full respect of their human rights. [They] aim to reach [their] goals by conducting and supporting legal and policy development, awareness-raising and capacity building activities.”39 As such, this network represents an important voice in Europe on the
35 Ibid. 33-41. 36 Ibid. 87. See also Sangita Jaghai and Caia Vlieks, ‘Buitenschuldbeleid schiet tekort in bescherming staatlozen’ [No-Fault Policy Inadequately protects Stateless Persons] (2013) 5/6 Asiel- & Migrantenrecht 287. 37 ACVZ, Geen land te bekennen. Een advies over de verdragsrechtelijke bescherming van staatlozen in Nederland [No Country of One’s Own. An Advisory Report on Treaty Protection for Stateless Persons in the Netherlands] (ACVZ 2013) 111. 38 ENS, Statelessness Determination and the Protection Status of Stateless Persons. A Summary Guide of Good Practices and Factors to Consider when Designing National Determination and Protection Mechanisms (ENS 2013). 39 ENS, ‘Mission Statement’ (ENS) < http://www.statelessness.eu/about-us/mission-statement> accessed 4 July 2014.
10 issue, making their views on the concepts of statelessness in situ and statelessness in the migratory context very valuable to this study.
The ENS guide is not dedicated to the distinction made pursuant to the concepts under consideration in this study; as was noted before, no (academic) research has been conducted on these concepts. The guide’s topics are statelessness determination and the protection status of stateless persons. To this end, the guide concentrates on six important areas (structure, access, procedure, assessment, appeal, status) connected to these matters. For each of them, the international standards that deal with these matters are summarised, as well as current state practices that could serve as guidance for other countries. Furthermore, the guide presents a number of practical questions and factors that states need to consider when designing its own system for the determination of statelessness and the protection of stateless persons.40 In the introduction, the guide speaks of statelessness in the migratory and in the non-migratory context, because it is believed that it is important to bear this in mind when working with the guide. Here, the concepts of statelessness in situ and statelessness in the migratory context are considered. Persons that are considered to be stateless in situ are defined as populations that “have strong and long-established ties to a certain country, the nationality of which they have reasonable and well-founded grounds to claim”.41 Statelessness in the migratory context is furthermore defined as “stateless persons who are in a migratory situation with no or relatively weak ties to the country in which they live”.42
The guide also considers the type of response that may be asked from the state in each of the ‘contexts’, while making clear that it targets the protection needs of stateless migrants. It is believed that identification of stateless persons and affording them with a protection status as such would be the advisable solution to statelessness in the migratory context. It is explicitly noticed that statelessness determination mechanisms are essential when attempting to accomplish this. However, it is not felt that this is the proper response to the situation of in situ stateless persons. According to the guide, targeted nationality campaigns that aim to resolve statelessness by granting nationality would be the correct way to respond to this context. Therefore, statelessness in situ and appropriate responses thereto fall outside of the scope of the guide.43
From this overview, some preliminary conclusions can be drawn. Obviously, definitions of the concepts under consideration in this study were encountered. Also, it was found that the response to the two contexts of statelessness differs. In this regard, the ENS guide provides some guidance for states where it concerns statelessness in the migratory context. A last interesting observation that can be made is that the guide links statelessness in the migratory context – or at least the ways in which to respond to it – to an international legal instrument, namely the 1954 Convention.
40 ENS, Statelessness Determination and the Protection Status of Stateless Persons. A Summary Guide of Good Practices and Factors to Consider when Designing National Determination and Protection Mechanisms (ENS 2013) 4-5. 41 Ibid. 5. 42 Ibid. 43 Ibid.
11 2.3. Gyulai
An article on statelessness in the EU framework for international protection by Gábor Gyulai is a recent example of academic literature in which the distinction between the two ‘contexts’ of statelessness is elaborated upon.44 Gyulai has been studying the issue of statelessness extensively for quite some years now, in particular in Hungary.45 He currently is coordinator of the refugee programme and trainer at the Hungary Helsinki Committee (HHC), and is also a chair of the ENS steering committee.46 He is an expert on statelessness and can be considered as one of the authoritative writers on this phenomenon.
The article in which Gyulai speaks about the concepts of statelessness in situ and statelessness in the migratory context is not dedicated to these concepts, but tries to demonstrate where statelessness is or could be positioned in the present EU framework for international protection and takes stock of the forms of protection that stateless forced migrants can invoke in the EU. On this matter, he concludes that within the EU, many different forms and levels of protection exist with regard to stateless migrants. Still, his remarks on the two contexts of statelessness are highly relevant and interesting. In this regard, he says that in “[r]ecent years’ nascent literature on statelessness”47 the distinction between the two contexts of statelessness in often referred to. However, he does not elaborate on this literature, nor are any references included. He defines the two contexts in which statelessness may arise as follows:
“The first covers stateless populations who are migrants or of a migratory background. The second includes situations where stateless persons are in their ‘own country’, meaning a country with which they have significant and stable ties (through birth, long-term residence, etc.)”48
He indeed labels the latter category as ‘statelessness in situ’. He furthermore mentions that in order to solve these two forms of statelessness, different types of response will usually be necessary. While referring to the opinions of experts and UNHCR, he says that statelessness in situ could be solved by naturalisation or recognition of nationality. With regard to “those who lack a clear attachment to a specific state”49 – so generally the other category, namely that of persons that are stateless migrants – proper forms of protection should be available. Here, adequate statelessness determination mechanisms are – according to Gyulai – necessary, as well as a “meaningful protection status” until it is possible to acquire a
44 Gábor Gyulai, ‘Statelessness in the EU Framework for International Protection’ (2012) 14 European Journal of Migration and Law 279. 45 His publications include: Gábor Gyulai, Nationality Unknown? An Overview of the Safeguards and Gaps related to the Prevention of Statelessness at Birth in Hungary (HHC 2014)
12 nationality (through naturalisation).50 Still, he remarks: “in most cases, the dividing line between these two contexts is not crystal-clear”.51
That the concepts of statelessness in situ and statelessness in the migratory context entail differences in response is underlined in Gyulai’s book chapter on the determination of statelessness.52 Here, he discusses the content and limits of protection of stateless persons and takes into account the Summary Conclusions from UNHCR’s expert meeting in 2011 that mention two different contexts of statelessness.53 He quotes the Summary Conclusions54 that say that the first context consists of (industrialised) states that harbour stateless persons that are mostly – if not solely – of a migratory background or are migrants. The second comprises countries that have populations who are stateless in situ, which means that these persons feel that they are already ‘in their own country’. Also, he explicitly notes that – depending on these ‘contexts’ of statelessness – the response needs to vary.55 He notes that, even though international protection of stateless persons is important, it is not always the proper response to particular stateless populations and holds in that regard:
“Many people who are currently living without a nationality have strong ties to a certain country, many in fact having been living there since birth, the nationality of which they have reasonable and well-founded grounds to claim. In such situations the most suitable resolution for their statelessness is to move towards naturalization or recognition of the nationality of the population concerned, instead of creating a specific ‘stateless person’ protection status, which would maintain their situation of statelessness”.56
Thus, some of the elements of statelessness in situ, which were visible in the ENS publication as well, are presented in order to justify the difference in response. Gyulai does acknowledge though that there are also stateless populations that do not (yet) have amply strong ties to the state of residence (or with another state), which he then links to the migration context. As an example, he considers that for migrants coming from the former Soviet Union or Yugoslavia after the dissolution of these countries, who were unable to acquire the nationality of the country of residence, the advisable response would be “meaningful and rights-based protection mechanisms” when the country concerned does not want to naturalise its residents in order to avoid statelessness.57 What is interesting furthermore, is Gyulai’s belief in relying on not only the 1954 Convention but also on human rights law in the broad sense in situations of stateless populations such as the ones that were elaborated upon above. Notably, the legal notion of ‘own country’ and the rights that relate to this can be helpful and provide guidance in establishing whether a stateless person
50 Ibid. 279-280. 51 Ibid. 280. 52 Gábor Gyulai, ‘The Determination of Statelessness and the Establishment of a Statelessness-specific Protection Regime’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014) forthcoming. 53 Ibid. 54 UNHCR, Expert Meeting – Statelessness Determination Procedures and the Status of Stateless Persons (Summary Conclusions) (UNHCR 2010) 2. 55 Gábor Gyulai, ‘The Determination of Statelessness and the Establishment of a Statelessness-specific Protection Regime’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014) forthcoming. 56 Ibid. 57 Ibid.
13 or population is residing in its ‘own country’.58 However, acknowledges that it remains difficult to determine whether a person is stateless in his or her ‘own country’. Still, he feels supported in international law in his statement that states should adopt “an inclusive approach” and “move towards the reduction of statelessness wherever possible”. A last important remark is that outside of the specific circumstances that were considered above, the 1954 Convention remains highly relevant to stateless individuals.59
In his article, Gyulai also shortly pays specific attention to the issue of statelessness in Europe, which in his article is understood as encompassing the states of the EU, and particular groups of stateless persons that it hosts. He believes that the issue of statelessness is not as massive in the EU as in other parts of the world, such as certain regions of the Middle East, Southeast Asia or Central Africa.60 He does, however, mention Latvia and Estonia as an exception, because thousands of persons of the Russian-speaking minority lack a nationality. Even though these people historically have a migratory background, their ties to these countries are now so substantial that they are commonly accepted to be stateless in situ. Using the example of Germany, where almost 30% of the stateless persons in this country were actually born, Gyulai furthermore demonstrates that other states in the EU also have to deal with statelessness in situ. Here, he seems to add to the definition of this particular context of statelessness by saying that “[t]hese situations are usually either the result of specific historical-political factors, or they are related to dysfunctional or ineffective mechanisms for the prevention of statelessness at birth”.61 With regard to the other context of statelessness, that of statelessness migrants, Gyulai says that in most EU member states, statelessness is an issue that arises in this migratory context.
In conclusion, Gyulai presents quite clear definitions of statelessness in situ and statelessness in the migratory context in his article and book chapter. Also, he applies these definitions to certain groups of stateless persons, thus making clear how these concepts can be worked with. Also, he demonstrates that the response to the different contexts of statelessness needs to vary. Nonetheless, he admits that it is hard to draw a clear line between the two contexts of statelessness.
2.4. Manly
That it is indeed hard to draw a line between the two contexts of statelessness is something that is evidenced to some extent by the article of Mark Manly, who speaks of three ‘profiles’ of statelessness in Europe, which will be seen below.62 Employed by UNCHR, Manly has studied the issue of statelessness for quite some time and currently is Senior Legal
58 Ibid. He refers to UNHCR, Expert Meeting – Statelessness Determination Procedures and the Status of Stateless Persons (Summary Conclusions) (UNHCR 2010) 2 here again, as well as to UN Human Rights Committee (UN-HRC) CCPR General Comment No. 27: Article 12 (Freedom of Movement) (CCPR/C/21/Rev.1/Add.9) para. 20. 59 Ibid. 60 Gábor Gyulai, ‘Statelessness in the EU Framework for International Protection’ (2012) 14 European Journal of Migration and Law 280. 61 Ibid. 62 Mark Manly, UNHCR’s Mandate and Activities to Address Statelessness in Europe’ (2012) 14 European Journal of Migration and Law 261.
14 Coordinator specialised in statelessness with UNHCR. Even though he is employed with UNHCR and addresses UNHCR’s mandate and activities concerning statelessness in Europe, his publications seem to be written in a personal capacity as they do not necessarily reflect the views of UNHCR. Still, it is evident that Manly has great expertise on the matter of statelessness and that his background as UNHCR employee can result in interesting views on the concepts under consideration in this study.
Manly’s article does not concern the concepts of statelessness in situ and statelessness in the migratory context directly. However, he does speak of profiles of statelessness in Europe, even if this is in an – according to him – simplistic manner. He distinguishes between three profiles. The first category of stateless populations in Europe he considers to be populations that are in “their own countries, that is, the countries where they have resided for much of their lives (often since birth), or a successor state”.63 This resembles the definitions of the concept of statelessness in situ that were seen thus far. Manly immediately specifies this by saying that within this category, most people are stateless because of the breakup of the Soviet Union or state succession in the former Yugoslavia. In the latter case, the persons affected are often Roma. According to Manly:
“[They] face significant obstacles in confirming their nationality of a successor state because of bureaucratic hurdles to late birth registration and acquisition of identity documents, coupled with discrimination and the complications caused by state succession, conflict, forced displacement and in some cases destruction of civil registries.”64
Still, it is questionable whether these persons can truly be labelled as being (de jure) stateless, as their situation is often best referred to as ‘being at risk of statelessness”, which is acknowledged by Manly. The explanation for this is simple: if these persons would receive proper information and help with the procedures, their nationality could be confirmed.65 The second category of stateless persons in Europe that is distinguished relates to the first one. It concerns “people who became stateless due to gaps in nationality laws including absence of effective safeguards against statelessness at birth and provisions permitting renunciation, loss or deprivation of nationality even where this results in statelessness”.66 Manly notes that the number of cases of statelessness arising as a consequence of these gaps in law is low compared to statelessness on account of state succession. This is a result of states introducing safeguards against statelessness in their nationality laws.67 Now, this category of stateless persons is explicitly noted as being related to the first. When assessing the second category, as well as the first one, and definitions used by Manly, it is evident that he does not speak of migrants. Both of these categories of stateless persons are in their ‘own country’, but the source of their statelessness differs – namely state breakup/state succession or inadequate nationality laws. Therefore, it would seem that the categories of Manly discussed so far are a specification of statelessness in situ. Turning to the third profile of statelessness in Europe, Manly considers that this comprises “people who have migrated to a European country from another country in the region or elsewhere in the world and
63 Ibid. 266. 64 Ibid. 266-267. 65 Ibid. 267. 66 Ibid. 67 Ibid.
15 were either stateless upon arrival or became stateless thereafter”.68 He illustrates this by using the UNHCR Mapping Studies in the Netherlands and the United Kingdom (UK), and mentions Kuwait’s Bidoon and Palestinians (in the UK) and persons of Indonesian origin (in the Netherlands) as stateless persons that belong to this category.69 Here, it thus is clear that Manly gives a definition of what statelessness in the migratory context in Europe is according to him.
As Manly’s article elaborates upon UNHCR’s activities to address statelessness in Europe, it provides an insight in the way in which UNHCR responds to statelessness. Unfortunately, however, he does not distinguish between the different categories of stateless persons that were discussed above in terms of responses are mentioned. According to Manly, the first step in composing adequate responses to statelessness is the identification of stateless persons as such, as well as understanding the causes and consequences thereof. In this regard, UNHCR conducts and shares research on these matters.70 A further concern of UNHCR is prevention of statelessness, which it aims to achieve inter alia by encouraging accession to the 1961 Convention and reform of nationality laws, as well as by promoting civil registration.71 Another component of UNHCR’s mandate to address statelessness is the reduction of statelessness. Here, Manly notes the protracted situations of statelessness in Europe, but also discusses the two approaches that UNHCR has promoted:
“The first involves changing the law and/or policy defining who belongs in the body of citizens. In a number of situations around the world, additional or amended criteria have been introduced in nationality laws to recognise specific categories of individuals as nationals based on strong links to the state such as residence or birth in the territory. States in Europe have tended to adopt a second approach which is facilitated naturalisation for stateless persons. This is particularly suited to address the situation of individuals but has in a number of instances been applied on a mass scale.”72
He links these approaches for resolving statelessness to the 1954 Convention, which sets the principal standard at the international level in Article 32, as well as to the 1961 Convention, of which Article 12 in relation to Articles 1 and 4 are sometimes used.73 A good example that is furthermore mentioned is the Russian Law on Citizenship of 2002 that provided for an easier procedure through which former Soviet citizens could acquire citizenship if they were they were permanently resident in the Russian Federation on 1 July 2002.74 Last but not least, the protection of stateless persons is a concern of UNHCR. As reported by Manly,75 quite some stateless persons stay in their country of residence, while some travel to other countries for better protection. In such case, they can be refugees, but many are not. Stateless persons that are not refugees are entitled to specific protection under the 1954 Convention. Therefore, accession to this instrument is advocated. UNHCR also works with state authorities on designing determination procedures and proper protection mechanisms. Manly concludes that, even though the ratification rate of the UN
68 Ibid. 69 Ibid. See also UNHCR, Mapping Statelessness in the Netherlands (UNHCR 2011) and UNHCR, Mapping Statelessness in the United Kingdom (UNHCR 2011). 70 Mark Manly, UNHCR’s Mandate and Activities to Address Statelessness in Europe’ (2012) 14 European Journal of Migration and Law 267-269. 71 Ibid. 269-273. 72 Ibid. 273. 73 Ibid. 74 Ibid. 274. 75 Ibid. 274-276.
16 Statelessness Conventions – the 1954 Convention and the 1961 Convention – is highest in Europe, addressing statelessness remains “a work in progress”.76
What can be taken from this article? Manly presents three profiles of statelessness in Europe, of which the first two seem to be a specification of statelessness in situ and the third one is pretty much the same as statelessness in the migratory context. Still, this demonstrates that the concepts of statelessness in situ and statelessness in the migratory in context are not necessarily in that form part of the expert vocabulary on the issue statelessness, and that alternative concepts can be used. Why Manly draws a distinction between three profiles is not explicit. As his article concerns Europe, the logical explanation would be that this is related to the situation in Europe. This is evidenced by the examples of stateless persons in Europe that he gives for each of the three categories. It thus seems that the distinction between the three categories is not necessarily made because the responses to the different ‘contexts’ of statelessness may differ.
What should be taken into account here is the more general book chapter of Manly77 on UNHCR’s mandate and activities, which does not focus on Europe. Here, he pays attention to populations that are stateless in situ. He says that in situ populations are “generally people who have been stateless for decades or generations”.78 However, he continues by setting out differences in response to stateless persons in situ and other stateless persons – he does not explicitly contrast statelessness in situ with statelessness in the migratory context. In terms of protection of stateless persons and the 1954 Convention, Manly asks whether it is appropriate for in situ stateless persons to have to go through statelessness determination procedures and grant them a stateless person’s status. On the basis of expert meetings of UNHCR on the matter and the UNHCR Guidelines of 2012, his answer is ‘no’ and he quotes the UNHCR Guidelines in this regard:79
“For these groups, determination procedures for the purpose of obtaining status as stateless persons are not appropriate because of their long-established ties to these countries. Based on existing international standards and [s]tate practice in the area of reduction of statelessness, such ties include long-term habitual residence or residence at the time of [s]tate succession. Depending on the circumstances of the populations under consideration, [s]tates might be advised to undertake targeted nationality campaigns or nationality verification efforts rather than statelessness determination procedures.”80
Thus, he adds the characteristic of ‘long-established ties to a country’ to the definition of statelessness in situ and these ties are specified as including long-term habitual residence or residence at the time of state succession. Furthermore, the reason for distinguishing statelessness in situ is evident: they deserve a different response from a country because of their ties to that country.
76 Ibid. 277. 77 Mark Manly, ‘UNHCR’s mandate and activities to address statelessness’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014) forthcoming. 78 Ibid. 79 Ibid. 80 UNHCR Guidelines on Statelessness No. 2: Procedures for Determining whether an Individual is a Stateless Person (HCR/GS/12/02) para. 6.
17 2.5. Master’s Theses
Four Master’s Theses that deal with the issue of statelessness use the concepts under consideration in this study, and therefore define them, are assessed in this paragraph. Because they are all theses, they are discussed together in one paragraph in alphabetical order.
One of them is Ivan Kochovski’s thesis81 on statelessness and discriminatory nationality laws, in which the case of the Roma in Bosnia and Serbia is examined in depth. On the matter of statelessness in situ and statelessness in the migratory context he says:
“Statelessness determination procedures are mostly applicable within a migratory context and are part of the state’s asylum and immigration procedures. Nationality verification efforts, on the other hand, are used with regards to domestic or in-situ stateless populations, i.e. persons that are stateless in their own country.”82
Thus, he provides for a definition and a synonym – domestic stateless populations – for statelessness in situ, yet he does not specify statelessness in the migratory context any further. His statement furthermore demonstrates a difference in responding to the phenomenon in its different contexts: the implicit obligation of the 1954 Convention to identify stateless persons83 can be complied with in the migratory context by statelessness determination procedures, while in the case of statelessness in situ nationality verification would be the adequate response.
Another source is the thesis of Matilda Månsson,84 which studies the need for EU regulation on the reduction of statelessness and the access to nationality using the case of the stateless Roma in Slovenia. The main distinction she makes is between stateless refugees and stateless non-refugees. According to her this distinction, in which the concepts of statelessness in situ and statelessness in the migratory context are used, is as follows:
There are two groups of stateless persons: stateless refugees and non-refugee stateless. The former category refers to stateless persons who are migrants or of migratory background (i.e. refugees) and thus protected by the 1951 Convention relating to the Status of Refugees.85 In order to fall under this category and qualify for the protection of the mentioned convention the person must owe to wellfounded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion and be outside his or her country of origin. In comparison to stateless refugees the latter category – also known as in situ (on site) stateless – refers to persons who are stateless in their ‘own country’ in which they reside and have significant and stable ties with (through birth, long-term residence, etc.). Not qualifying for refugee status, in situ stateless persons rely solely on the protection laid out in the [1954 Convention] and the [1961 Convention].”86
For her definition of statelessness in situ, Månsson refers to Gyulai’s definition that he used in his article, which was discussed in paragraph 2.3. In her conclusions, she furthermore mentions that there are situations in which the international instruments cannot suffice in
81 Ivan Kochovski, Statelessness and Discriminatory Nationality Laws: The Case of the Roma in Bosnia and Serbia (Master’s Thesis Tilburg Law School 2013). 82 Ibid. 23. 83 UNHCR Guidelines on Statelessness No. 2: Procedures for Determining whether an Individual is a Stateless Person (HCR/GS/12/02) para. 1
18 addressing statelessness, which is related to the lack of support of states. Also, she concludes that access to nationality can be ensured at EU level, because statelessness in situ is an issue that is not considered in EU law at all.87 Considering the definitions of the concepts of statelessness in situ and statelessness in the migratory context again, it seems that the distinction she makes is between stateless refugees, who are stateless in the migratory context, and stateless non-refugees, who are stateless in situ. However, it seems that she forgets – or at least, she does not make explicit – that it is also possible, when looking at it from a factual point of view and keeping in mind earlier definitions of the two concepts, that stateless persons who are migrants or have a migratory background are not refugees, because they do not qualify as a refugee definition of the 1951 Convention.88 That does, however, not necessarily mean that they are stateless in situ – stateless in their ‘own country’ – as seems to be implied by Månsson. It can also mean that they are stateless persons that have migrated, but cannot rely on the 1951 Convention because they cannot qualify as refugees under the 1951 Convention, and thus can only rely on the 1954 and the 1961 Conventions. This furthermore shows why Månsson makes the distinction between stateless refugees and stateless non-refugees; simply to distinguish between the international legal protection that stateless persons can rely on. Even though her conception of statelessness in situ and statelessness in the migratory context and connection to refugees and non-refugees remains somewhat unclear, the distinction does add another dimension to types of distinctions that can be made when it concerns the issue of statelessness and also demonstrates that concepts to categorise stateless persons are sometimes used in a manner that is questionable.
A thesis that uses the two concepts studied in this project as well, is that of Eva Mrekajova.89 Her thesis concerns naturalisation of stateless persons as a solution to statelessness. To this end, she identifies the existing international obligations on granting nationality through naturalisation, and evaluates effectiveness of the measure of facilitated naturalisation for the reduction of statelessness by assessing the naturalisation regimes in Estonia, Hungary and Slovakia in a comparative manner.90 Her conclusion – in really short terms – is that facilitated naturalisation can be a good tool in reducing statelessness. The concepts of statelessness in situ and statelessness in the migratory context are mentioned when Mrekajova speaks about perhaps the most difficult questions relating to statelessness and facilitated naturalisation, namely: which state should grant nationality to a stateless person? In this regard she quotes a report of the Equal Rights Trust (ERT) on detention, discrimination and protection needs of stateless persons91 in the following manner (quotes from the ERT Report have been italicised):
“Nationality and citizenship policy have always been an expression of state sovereignty. This means that even though “international human rights law enshrines a right to nationality that right can only be provided through an exercise of state sovereignty.” Practical enforcement of the right to nationality, “particularly the right to nationality of persons unwanted by their states, [may then be] a sensitive, difficult and highly politicised issue. In the context of migration, this is because migration is viewed negatively in most countries… [and] fostering political goodwill and support for the nationalization of irregular
87 Ibid. 1. 88 See Article 1 of the 1951 Convention. 89 Eva Mrekajova, Naturalization of Stateless Persons: Solution of Statelessness? (Master’s Thesis Tilburg Law School 2012)
19 migrants who have no effective nationality is consequently an extremely difficult challenge. [On the other hand], in the context of persons within their country of habitual residence [in situ statelessness], it is because most such cases have a long history of discrimination and conflict, which must be addressed in order to ensure effective nationality to victimized minorities.””92
In this regard she also considers the doctrine of ‘genuine and effective link’ that was established on the basis of the Nottebohm Case of the International Court of Justice (ICJ). Mrekajova finds that this may be a good argument for persons that are stateless in situ, because it should not be hard to find the link between the person and the state as this link can be established for instance when a person has been born on the territory of the state or has resided on the territory of the state for a reasonable amount of time. For stateless migrants, however, this kind of link is much harder to provide and the use of this standard would thus not have added value to them in attempting to qualify for facilitated naturalisation. 93 Furthermore, Mrekajova examines the main obstacles to facilitated naturalisation. Above, as quoted, the perspective of the state on granting nationality to stateless persons, while distinguishing between statelessness in situ and statelessness in the migratory context, is seen. However, from the perspective of the main obstacle to naturalisation for stateless migrants consists of complying with integration requirements, while the causes of statelessness in situ are more varied.94 Here it is visible why Mrekajova makes a distinction between the two concepts: because the obstacles to naturalisation that stateless persons encounter differ depending on their situation.
The last thesis that is discussed here is that of Natasa Nikolic.95 She provides a critical analysis of the international legal framework for combatting statelessness and protecting stateless persons by exploring how this framework in implemented in Serbia. When she speaks of the international standards that deal with the protection of stateless persons, Nikolic says that in this regard a “[s]tatelessness determination procedure is necessary for statelessness in the migratory context in order to ensure at least the minimum of rights for persons who would otherwise be left in a legal limbo”.96 She continues by considering that “[p]rotection of in situ statelessness (statelessness in a non-migratory context) serves its purpose by its reduction, i.e. by granting nationality on the grounds of a long-term existing tie (residence, for example) with the [s]tate in question”.97 Her definitions of statelessness in situ – statelessness in a non-migratory context – and statelessness in the migratory context seem simple, but when formulating her definition of statelessness in situ – which includes the components of ‘statelessness in a non-migratory context’ and ‘a long-term existing tie’ – she refers to the UNHCR Guidelines on Statelessness No. 2 on procedures for determining whether an individual is a stateless person. Furthermore, it can – again – be seen that the distinction between the two is made for reasons of difference in response. In addition, Nikolic mentions in her conclusions that “naturalisation on ethnic grounds can significantly contribute to the reduction of state succession and in situ statelessness”.98
92 Eva Mrekajova, Naturalization of Stateless Persons: Solution of Statelessness? (Master’s Thesis Tilburg Law School 2012) 18. 93 Ibid. 94 Ibid. 57. 95 Natasa Nikolic, De jure Statelessness in Serbia. A Critical Analysis of the Legal Framework with regards to Combating Statelessness and the Protection of Stateless Persons (Master’s Thesis University of Gothenburg, University of Roehampton, University of Tromsø 2013)
20 2.6. Muižnieks
In his keynote speech during a conference organised by UNHCR and ENS last April, the CoE Commissioner for Human Rights, Nils Muižnieks, addressed statelessness and the need for improvement of the protection of stateless persons in Europe.99 Muižnieks makes clear that statelessness as a “major human rights issue has already been the focus in a number of country visits” he carried out.100 What however is striking is that he – perhaps implicitly – seems to distinguish between the two contexts of statelessness. Indeed, he mentions stateless migrants, but also mentions ethnic minorities. He clarifies that with ethnic minorities he means the Russian-speaking minority in the Baltic States, the Roma, but also other ethnic minority groups that became stateless due to “inadequate or incomplete responses of authorities to statelessness resulting from historical events”.101 Other causes of statelessness for ethnic minorities include discrimination, fear and administrative obstacles. When these kinds of impediments would be taken away, the statelessness might be solved and these people could – at least – become part of a society again according to Muižnieks. He contrasts stateless ethnic minorities with stateless migrants. On this matter he remarks that “[t]he lack of statelessness determination procedures in many [CoE] member states forces them into a legal limbo and absence of rights, as rightly emphasized by the [ENS] in its 2013 campaign on the protection of stateless persons”.102 This distinction between stateless ethnic minorities and stateless migrants resembles the distinction between statelessness in situ and statelessness in the migratory context. Persons that are stateless ethnic minorities in their country of residence can have – and often have – considerable ties to that country, meaning that they could be considered as stateless in situ, particularly in Europe. Taking the fact that this group is contrasted with stateless migrants into account on top of that, a clear similarity is seen. On the other hand, Muižnieks’ distinction is a different one, because he uses the concept of stateless ethnic minorities instead of statelessness in situ to address the particularities of statelessness as a European phenomenon. As such, this concept might be able to provide an explanation of the situation of certain persons who are statelessness in situ in the European context.
When considering the reasons for making the distinction in this speech, it appears that this is not only because of the differences of the situation and causes of statelessness for each of the groups, but also because the two seem to – to a certain extent – demand a different response according to Muižnieks. With regard to stateless migrants, he believes that the priority is to enact statelessness determination procedures for better protection of these persons.103 On “the situation of those, mainly Roma and members of other minorities, who are at risk of statelessness due to a lack of documentation” he says that it is important to improve birth registration, as well as facilitate (re-)registration in birth registries.104 He furthermore emphasises the need for accession to existing international instruments
99 Nils Muižnieks, Stateless but not Rightless. Improving the Protection of Stateless Persons in Europe. Keynote Speech by Nils Muižnieks, CommDH/Speech(2014)6
21 addressing statelessness, the importance of states granting nationality to stateless children born in their territory in order to end “the perpetuation of statelessness”, and the value of cooperation in reducing statelessness.105
Thus, Muižnieks addresses statelessness in Europe in a manner that resembles the distinction between statelessness in situ and statelessness in the migratory context, yet distinguishes between stateless ethnic minorities and stateless migrants. In doing so, he might have provided for an alternate distinction that fits better within the European context of statelessness. Furthermore, the reasons for making a distinction are visible in his speech and relate to the (factual) differences of the situation of a certain group of stateless persons, the causes of their statelessness, and also seem to be connected to differences in response.
2.7. Van Waas & Neal
Laura van Waas and Monica Neal use the concepts of statelessness in situ and statelessness in the migratory context in their research paper on the engagement of National Human Rights Institutions (NHRIs) on the issue of statelessness.106 It concerns a mapping study on this particular issue, which demonstrates that through their broad human rights mandate NHRIs can address statelessness. Nonetheless, the use of the aforementioned concepts in this research can shed a further light on their definitions and why a distinction between the two is made.
For their research, Van Waas and Neal created a survey questionnaire that inquired NHRIs about experiences with statelessness, preventing statelessness, protecting the rights of stateless people, cooperation and coordination, and other issues.107 This questionnaire is included in an annex to the research paper. In the fourth question of the questionnaire the concepts of statelessness in situ and statelessness in the migratory context are used:
“4. As an NHRI, do you consider statelessness to be a serious problem? In your country, does statelessness mainly come up in the migratory context or is there an existing ‘in situ’ stateless population, i.e. people who are stateless in their own country (or both)?”108
Also, the concepts are considered in an explanation of the key terms used in the survey. According to this explanation, in situ statelessness can be defined as a “stateless person or group still in their own country, i.e. the country in which they were born and where their ancestors are from, but denied that country’s nationality”.109 Furthermore, statelessness in the migratory context is explained as “where a stateless person arrives in a country as a displaced person or migrant”.110 In their paper, Van Waas and Neal do not specify why the distinction between statelessness in situ and statelessness in the migratory context is made, but – as the use in the questionnaire indicates – it seems to be employed to obtain a more
105 Ibid. 106 Laura van Waas and Monica Neal, ‘Statelessness and the Role of National Human Rights Institutions’ [2013] Tilburg Law School Legal Research Paper Series No. 022/2013. 107 Ibid. Section 1. 108 Ibid. Annex 1. 109 Ibid. 110 Ibid.
22 information on the issue statelessness in a certain country, as well as the seriousness of the problem according to the NHRI. In addition, the answers of the NHRIs to this particular question are interesting, because these might shed light on their views on these concepts, and whether and why this distinction is made according to them. Ten NHRIs from different countries around the world responded to the questionnaire. When analysing the replies of these countries, the question that contains the concepts statelessness in situ and statelessness in the migratory context is discussed, but it is evident that the focus rests upon the first part of the question – the seriousness of the problem – rather than the context in which statelessness arises. For instance, the paper describes the answer of the Croatian NHRI as follows:
“Statelessness is considered as a big area of concern, due to the fact that statelessness was one of the consequences of the dissolution of the former Socialist Federal Republic of Yugoslavia.”111
Still, this answer does provide some information regarding the issue of statelessness in Croatia, as its main cause appears to be the dissolution of Yugoslavia – which, on the basis of the reviews in the foregoing paragraphs may be characterised as statelessness in situ. In the paragraph on the Luxembourg NHRI, it is considered that this NHRI believes that statelessness is a problem that mostly crops up in the migratory context. Furthermore, the authors remark here that this is the view of “a number of other European NHRIs”.112 Note that the other European NHRIs that responded to the questionnaire are Belgium, Croatia, Denmark, Georgia, the Netherlands, and Sweden. Unfortunately, there is no further elaboration on this statement or the countries that shared this perspective on statelessness. When looking at the activities of the Luxembourg NHRI it can be seen that they mainly advise the government on the issue, and encourage ratification of the 1961 Convention in an opinion on nationality laws.113 However, this does not provide more information on the concepts of statelessness in situ and statelessness in the migratory context, other than that it indicates that for countries in which statelessness arises in the migratory context ratification of the 1961 Convention is relevant in relation to nationality laws. Looking at other countries then, the NHRI of Thailand takes statelessness very seriously, and says that it “arises both in the migration context and in the case of members of indigenous groups in Thailand”.114 Their activities include lobbying, individual casework and awareness raising, which – again – unfortunately does not contribute to clarifying the concepts studied.
The conclusion on the basis of this analysis of the research paper of Van Waas and Neal may be that they provide a clear definition of both statelessness in situ and statelessness in the migratory context. Even though the reasons for making the distinction pursuant to this concept remain somewhat unclear, it is evident that the distinction does serve a purpose in characterising statelessness as a phenomenon in a particular country.
111 Ibid. Section 3, paragraph on Croatia. 112 Ibid. Section 3, paragraph on Luxembourg. 113 Luxembourg already ratified the 1954 Convention in 1960, see also
23 2.8. Other sources
A number of sources from different academic authors, as well as other important organisations and authors have been discussed so far. However, that a distinction is being made between statelessness in situ and statelessness in the migratory context is explicit, often by simply remarking that there are two contexts,115 but also implicit in other sources by their focus on one or the other. Due to their relevance, some of these are mentioned here.
First of them is a book chapter by Sophie Nonnenmacher and Ryszard Cholewinski.116 In their piece, they write on the nexus between statelessness and migration and explicitly focus on stateless migrants and migrants at risk of statelessness. Thus, they show the need for distinguishing between this group and another group of stateless persons – the group that is labelled as stateless in situ in this study. Their research contains interesting information on the role of statelessness in “patterns of irregular migration”.117 In particular, Nonnenmacher and Cholewinski analyse the ways in which statelessness triggers international migration. In this regard, they say that discrimination and deprivation of rights in their country of residence and/or origin is one of the reasons for stateless persons to go abroad in the hopes of finding a better life and living conditions. They also note another characteristic of stateless migrants, namely that they “differ from other migrants in the sense that they generally lack an internationally recognized national identity document required to cross a border”.118 According to Nonnenmacher and Cholewinski, this results in them having to move irregularly across borders.
In contrast to Nonnenmacher and Cholewinksi stands a book chapter by Matthew Gibney in the same book, which actually seems to focus more on the issue of statelessness in situ – evidenced by mentioning the lack of citizenship in the country where they live – by stating:
“[Hannah] Arendt’s account of the experience of statelessness is problematical as a description of the contemporary phenomenon. Unlike the focus of Arendt’s attention – the victims of mass denationalization in inter-War Europe – most stateless people today have not been expelled from their homes; the problem they face is lack of recognition and citizenship in the country where they live, and sometimes have always lived.”119
His account of statelessness as a normative and political issue is, however, more general and raises a number of topics, including the political use of statelessness, i.e. the exclusion of certain groups of people from society by leaving them stateless. What is furthermore interesting is his focus on not the legal, but the moral obligations of states linked to letting stateless people become members of their societies. Gibney’s statements on this matter are relevant to this study because they consider the relation of a person with a state, which can help in distinguishing between stateless persons with significant ties to a country and
115 E.g. Tamás Molnár, ‘Remembering the Forgotten: International Legal Regime Protecting the Stateless Persons – Stocktaking and New Tendencies’ (2014) 11 US-China Law Review 824. 116 Sophie Nonnenmacher and Ryszard Cholewinksi, ‘The Nexus between Statelessness and Migration’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014) forthcoming. 117 Ibid. 118 Ibid. 119 Matthew Gibney, ‘Statelessness and Citizenship in Ethical and Political Perspective’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014) forthcoming.
24 stateless persons who do not have these kinds of ties – stateless migrants. On this matter, he says:
“[T]he best account of the state to stateless people (and the injustice they are subject to) may be one that does not emphasize their experience of statelessness as such, but simply recognizes their right to be included in a particular state. […] The question of a right to membership […] is dependent primarily on one’s relationship to the state in which one is actually making one’s life”.120
These publications of both Gibney and Nonnenmacher and Cholewinksi provide more insight into the concepts of statelessness in situ and statelessness in the migratory context. Also, the question of the relationship of a person with a country and the way in which the state in question should deal with this is prominent, in particular in Gibney’s piece. As such, it is revealed that the topic of this project has strong links with the (difficult) question of how nationality should be conceptualised and at what point a person ‘deserves’ or does not ‘deserve’ to be granted the nationality of a certain country by that country. On this matter, discussion exists in literature as well. It is beyond the scope of this research to consider this too elaborate here, but it is true that, similar to Gibney to a certain extent, advocacy for a nationality that corresponds with a person’s social situation is present in literature.121 This generally reinforces the need to draw a distinction between stateless persons in situ, who – because of their social situation, their significant ties to a certain state – ‘deserve’ to obtain the nationality of a state and to be treated as nationals, and stateless migrants, who do not (yet) have those meaningful ties with a state and should therefore be treated as migrants, but – due to their particular vulnerability because of their lack of nationality – should receive proper protection of a state.
2.9. Concluding remarks
In order to be able to draw the first conclusions on the concepts of statelessness in situ and statelessness in the migratory context – at least as far as these notions in (academic) sources are concerned – a table has been created to examine the findings of the literature review in a more simple and uncomplicated manner. In particular, this way of assessing the outcomes can help in providing an answer to the research questions on the consensus on definitions of these concepts, as well ad the reasons for making a distinction between the two ‘contexts’ of statelessness.
120 Ibid. 121 E.g. Ernst Hirsch Ballin, in Citizens’ Rights and the Right to be a Citizen (Brill Nijhoff 2014) 133, advocates a right to a nationality that corresponds with a person’s social situation, including where a person is “at home”, which could be read as – at least – the ‘significant ties ‘or relationship that a stateless person can have with his or her country of residence. He believes that a right to a nationality also means that a person has a right to be a citizen, as citizens’ rights are the essential connecting link between human rights and life in a democratic society.
25 Figure 1: Table of results of the literature review
Source Definition statelessness Definition statelessness Reason(s) for Remarks in situ in the migratory context distinguishing between the two ‘contexts’
ACVZ 2013 Stateless individuals that Not given, mention of Appears to be related to have been in the country ‘stateless migrants’. the causes of (possible) for a long time or have statelessness of persons in been born in the country, the Netherlands, as well as and have come to characterising the problem consider that country as in the Netherlands. their own country due to their long-term stay or birth in the country. ENS 2013 Stateless populations that “[S]tateless persons who Difference in response Statelessness in “have strong and long- are in a migratory that is required: the migratory established ties to a situation with no or identification and context is linked certain country, the relatively weak ties to the protection status for to the 1954 nationality of which they country in which they stateless migrants (need Convention. ENS have reasonable and well- live”. for statelessness Guide focuses on founded grounds to determination stateless migrants claim”. procedures); targeted and provides more nationality campaigns that guidance on aim to resolve responding to statelessness by granting statelessness in nationality for persons this context. that are stateless in situ. Gyulai 2014 Stateless persons that “[S]tateless persons that Response needs to vary Quotes the “feel that they are already are mostly – if not solely – depending on the ‘context’ UNHCR Guidelines ‘in their own country’”; of a migratory of statelessness: on Statelessness “people who are currently background or are naturalisation or in forming (part) living without a migrants”; often in recognition of the of his definition. nationality [but] have industrialised states; nationality for Takes note of the strong ties to a certain stateless populations that statelessness in situ; legal concept of country, [in which] many do not (yet) have amply “meaningful and rights- ‘own country’ and in fact [have] been living strong ties to the state of based protection the rights that […] since birth, the residence (or with mechanisms” for relate to this, nationality of which they another state); e.g. statelessness in the saying that this have reasonable and well- migrants coming from the migratory context. can be helpful and founded grounds to former Soviet Union or provide guidance claim”. Yugoslavia after the in establishing dissolution of these whether a countries. stateless person or population is residing in its ‘own country’. Gyulai 2012 “[S]ituations where “[S]tateless populations Difference in response is Remarks that the stateless persons are in who are migrants or of a required: naturalisation or dividing line their ‘own country’, migratory background”; recognition of nationality between the two meaning a country with “[stateless persons] who for statelessness in situ; contexts is not which they have lack a clear attachment to protection, statelessness crystal-clear. significant and stable ties a specific state”; within determination (through birth, long-term the EU, statelessness mechanisms and residence, etc.)”; usually mostly arises in this “meaningful protection either the result of context. status” until acquisition of specific historical-political nationality is possible for factors, or they are statelessness in the related to dysfunctional migratory context. or ineffective mechanisms for the prevention of
26 statelessness at birth”; e.g. Russian-speaking minorities in Latvia and Estonia. Manly 2014 In situ stateless Not explicitly contrasted Reason for distinguishing Refers to UNHCR populations are “generally with statelessness statelessness in situ is Guidelines on people who have been migrants; all stateless difference in response: Statelessness. stateless for decades or persons that are not statelessness generations”; “long stateless in situ? determination procedures established ties” to the and protection statuses country of residence, are not enough; targeted which may include long- nationality campaigns and term habitual residence nationality verification or residence at the time efforts are in order. of state succession. Manly 2012 (1) Stateless populations (3) “[P]eople who have Not explicit. Seems not Distinguishes that are in “their own migrated to a European necessarily linked to between three countries, that is, the country from another differences in responses categories of countries where they country in the region or depending on the context stateless persons have resided for much of elsewhere in the world of statelessness, even in Europe (which their lives (often since and were either stateless though his article concerns are indicated by birth), or a successor upon arrival or became responses and the part in the numbers used state”; stateless thereafter”; e.g. which he considers the in this figure). e.g. after dissolution of Kuwait’s Bidoon and three ‘profiles’ of Soviet Union and Palestinians in the UK and statelessness in Europe is Yugoslavia (Roma); persons of Indonesian more of an introductory (2) “[P]eople who became origin in the Netherlands. nature. Still, it seems that stateless due to gaps in the distinction between nationality laws including the three categories of absence of effective stateless persons is drawn safeguards against because of the situation in statelessness at birth and Europe. provisions permitting renunciation, loss or deprivation of nationality even where this results in statelessness”. Master’s Thesis “[P]ersons that are Not really specified, Different responses Kochovski 2013 stateless in ‘their own related to immigration depending on the type of country’”; domestic and asylum. statelessness: stateless populations. statelessness determination procedures for stateless migrants; nationality verification efforts for persons that are stateless in situ. Master’s Thesis “Persons who are “[S]tateless persons who Difference in international Månsson 2013 stateless in their ‘own are migrants or of instruments that stateless country’ in which they migratory background”; persons may rely upon. reside and have stateless refugees àbut significant and stable ties can be stateless non- with (through birth, long- refugees as well. term residence, etc.)” (cf. Gyulai); stateless non- refugees. Master’s Thesis “[Stateless] persons No explicit definition. It is Difference in obstacles to Mrekajova within their country of made clear though that naturalisation that 2012 habitual residence”; states are hesitant to stateless persons “most such cases have a nationalise stateless encounter depending on long history of migrants. their situation. discrimination and
27 conflict, which must be addressed in order to ensure effective nationality to victimized minorities”; “genuine and effective link” (cf. Nottebohm). Master’s Thesis Stateless persons in a Stateless persons in a Difference in response: Refers to UNHCR Nikolic 2013 non-migratory context; a migratory context, not granting Guidelines on long-term existing tie further defined. nationality/naturalisation Statelessness. (residence, for example) on ethnic grounds for with a state. statelessness in situ; statelessness determination procedures are necessary for statelessness in the migratory context in order to ensure at least the minimum of rights. Muižnieks Ethnic minorities(?); e.g. Not explicitly defined. Difference in causes and Distinguishes 2014 Russian-speaking minority situation of stateless between stateless in the Baltic States, the migrants and stateless ethnic minorities Roma, but also other ethnic minorities. Also, and stateless ethnic minority groups difference in response: migrants, perhaps that became stateless due enacting stateless because of the to “inadequate or determination procedures particularities of incomplete responses of is priority with regard to the phenomenon authorities to stateless migrants; in Europe(?). statelessness resulting improving (birth) from historical events”. registration, granting nationality to children born stateless for ethnic minorities. Van Waas & “[S}tateless person or “[W]here a stateless Somewhat unclear, but Neal 2013 group still in their own person arrives in a distinction seems to serve country, i.e. the country country as a displaced a purpose in characterising in which they were born person or migrant”. statelessness as a and where their ancestors phenomenon in a are from, but denied that particular country. country’s nationality”.
Now, what do the concepts of statelessness in situ and statelessness in the migratory context entail? From the review of various sources has become clear that the concepts reflect a difference in attachment to a country. This is also articulated in quite some of definitions collected in the table above, which demonstrate furthermore that a certain level of consensus exists. The reasons for making a distinction between the two concepts highlight this difference in situation that stateless persons can find themselves in as well: the concepts sometimes seem to be used to characterise the way(s) in which statelessness arises as a phenomenon in a country. This is, for example, the case in the ACVZ report and the research paper of Van Waas and Neal. However, the main reason for making a distinction between the two ‘contexts’ of statelessness is the difference in response that the distinct situations represented by the two concepts requires. This is apparent from the considerations of the ENS report, of Gyulai, Manly, Kochovski, Nikolic, and Muižnieks. In this regard, it should be kept in mind that there are two ways of responding to a stateless person: (1) statelessness determination and a protection status (as well as access to
28 facilitated naturalisation)122 – for persons who are stateless in the migratory context – or (2) recognition of nationality – for persons who are stateless in situ. Turning to the question how the distinction between the two concepts is being made in literature the definitions again are helpful, as the way in which the distinction is drawn is obviously visible in the definition that is used. When examining the above table in a global manner, the most striking is the fact that the definitions for statelessness in situ are usually more elaborate than the definitions of statelessness in the migratory context. In fact, this context is often not further defined than by simply mentioning ‘stateless migrants’. In order to shed more light on how to draw the distinction between the two concepts, it therefore seems feasible to consider the definitions of statelessness in situ first.
When looking at the different definitions of statelessness in situ, a number of words and phrases return in almost all of them, mainly the notions of ‘own country’ and ‘(significant/strong) ties’. Also, long duration of the relationship with or stay in that country – thus, in other words, the ties of a person to a country – is an element that is frequently encountered in these definitions. 123 Furthermore, the mention of ethnic minorities or examples – in particular where it concerns definitions formulated in the context of Europe – should be noted. On the basis of the table and combining these four elements, a consensus seems to be visible as to what statelessness in situ is. It is evident that this concept concerns stateless persons that have considerable ties to the country they live in. Whether a person is stateless in situ seems dependent on how strong, significant or old these ties are. With this information, the provisional definition of statelessness in situ124 can be adapted after this literature review. For now, this concept is therefore defined as encompassing persons who are stateless in their ‘own country’, who have meaningful and long-established ties to the country they live in, which can include ethnic minorities particularly.
Turning to statelessness in the migratory context, it would appear that, if the distinction between the two contexts indeed should be drawn on the basis of the ties of a person to a country, statelessness migrants would not have such significant ties to the country they live in. This seems logical, because they are migrants, which already indicates that they came from another country. This is acknowledged by Gyulai and in the ENS report by the inclusion of the element of ‘no or relatively weak ties of a stateless person to the country he or she lives in’ in the definition. Furthermore, the fact that it concerns a migratory context is a returning element in explanations of this concept. This gives rise to an adjustment of the provisional definition of statelessness in the migratory context from paragraph 1.4. Statelessness in the migratory context can, on the basis of the outcomes of the literature review, be defined as statelessness persons that are migrants, or have a migratory background, and who have no (or no significant) ties to the country they live in (yet).
In closing this section of research, the fact that alternatives to the concepts of statelessness in situ and statelessness in the migratory context were encountered in the literature review should be given some consideration. In particular in literature concerning Europe
122 Access to facilitated naturalisation is an obligation for states under the 1954 Convention, see Article 32. 123 The three elements that are visible in many of the definitions of statelessness in situ have been underlined in figure 1. 124 See also para. 1.4.
29 alternatives to the two concepts could be seen, for instance the three ‘profiles’ of statelessness that Manly used and the use of the terms ‘ethnic minorities’ and ‘stateless migrants’ by Muižnieks. However, these characterisations of statelessness strongly resemble, or can be incorporated in the distinction between statelessness in situ and statelessness in the migratory context. On the basis of the research conducted so far it can therefore not be concluded that the concepts are inadequate and that there is a need for alternatives. Nonetheless, the fact that these alternatives or explanations of the two concepts exist should be borne in mind during the remainder of this research, especially when applying the concepts to cases of statelessness in Europe.
30 3. International legal instruments Do international legal instruments support the distinction between the concepts of statelessness in situ and statelessness in the migratory context as made in literature? If yes, to what extent?
The next step in this study is to examine whether and, if so, to what extent international legal instruments support the distinction between statelessness in situ and statelessness in the migratory context. At first sight, it appears to be clear as day that there is no reference to the concepts in international legal instruments – in particular when understood in the traditional sense of treaties. This is evidenced by the fact that the definition of a stateless person in international law, which is included in the 1954 Convention, does not refer to any distinction as regards stateless persons, nor does it consider the concepts of statelessness in situ or statelessness in the migratory context. It is simply stated that “the term ‘stateless person’ means a person who is not considered as a national by any [s]tate under the operation of its law”.125 However, this study delves a little deeper and considers some important ‘soft’ law instruments, as well as interpretations of treaties by supervisory bodies. Also, it focuses in particular on European legal instruments.
3.1. UNHCR guidance on the 1954 Convention
The starting point for this exploration is – of course – the UN Conventions on Statelessness.126 First and foremost should be noted that the concepts of statelessness in situ and statelessness in the migratory context are not mentioned explicitly in both UN Conventions on Statelessness, nor is the distinction between them present in the UNHCR Guidelines on Statelessness that concern the 1961 Convention.127 However, as the title of this paragraph slightly gives away, the UNHCR Guidelines on Statelessness on the 1954 Convention,128 which have very recently been superseded by the UNHCR Handbook on the Protection of Stateless Persons under the 1954 Convention,129 do use these concepts. Therefore, these are discussed more elaborately. When examining these international legal instruments, it furthermore has to be taken into account that they are no treaties or ‘hard’ law instruments. The Guidelines, and the superseding Handbook, have been drafted to provide states with guidance on the implementation of the 1954 Convention.130 As such,
125 Article 1(1) of the 1954 Convention. 126 The UN Conventions on Statelessness are the 1954 Convention and the 1961 Convention. 127 Cf. UNHCR Guidelines on Statelessness No. 4: Ensuring Every Child’s Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness (HCR/GS/12/04). 128 These include the following Guidelines: UNHCR Guidelines on Statelessness No. 1: The definition of “Stateless Person” in Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons (HCR/GS/12/01); UNHCR Guidelines on Statelessness No. 2: Procedures for Determining whether an Individual is a Stateless Person (HCR/GS/12/02); and UNHCR Guidelines on Statelessness No. 3: The Status of Stateless Persons at the National Level (HCR/GS/12/03). Hereinafter: ‘Guidelines’. 129 UNHCR, Handbook on the Protection of Stateless Persons under the 1954 Convention relating to the Status of Stateless Persons (UNHCR 2014)
31 they could be classified as ‘soft’ law. Of course, discussion exists on the extent to which these instruments bind states. However, this is not the primary object of this study and is therefore not considered further. Still, these instruments can provide interesting insights on the concepts of statelessness in situ and statelessness in the migratory context, and the support for them in international law in the broad sense. Lastly, as the Handbook has replaced the Guidelines now,131 this is the instrument that will be considered more deeply here.
In its foreword and introduction on the background of the 1954 Convention, the Handbook immediately discusses the different contexts in which statelessness can arise, and says:
“[Statelessness] occurs in migratory situations, for example, among some expatriates who lose or are deprived of their nationality without having acquired the nationality of a country of habitual residence. Most stateless persons, however, have never crossed borders and find themselves in their “own country”. Their predicament exists in situ, that is in the country of their long-term residence, in many cases the country of their birth. For these individuals, statelessness is often the result of problems in the framing and implementation of nationality laws.”132
Similar to the findings in the literature review, here is visible again that statelessness in the migratory context, or – as the Handbook puts it – “in migratory situations” is not really defined, only an example is given. However, the characteristics of statelessness in situ are more elaborate and include the following elements: “never crossed borders”, “in their ‘own country’”, “in country of their long-term residence”, “country of their birth”. Note that in its Handbook, UNHCR mentions in a footnote that the concept of ‘own country’ is taken from Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR) and used in line with the interpretations of the UN Human Rights Committee (UN-HRC),133 134 thus providing for another starting point in international law for the exploration of this project.
In Part II of the Handbook, the issue of populations that are stateless in situ is raised in the context of stateless determination procedures. On this matter, the Handbook says that statelessness determination procedures can help states in complying with the obligations under the 1954 Convention. However, these procedures are not considered to be appropriate for stateless populations in a “non-migratory context” who “remain in their ‘own country’”.135 The Handbook believes that statelessness determination procedures, which have the objective to grant an individual a status as stateless person, are not suitable for populations who are stateless in situ “because of the long-established ties to [a certain] country”.136 As was seen in the literature review as well, it is evident that the strong attachment of a stateless person to a state is where the distinction is drawn, and the reason why is not only related to these ties but also to the difference in response that they warrant.
contexts of statelessness (see page 20) and the availability of more elaborate sources from UNHCR, this is not considered further here. 131 See also UNHCR, Handbook on the Protection of Stateless Persons under the 1954 Convention relating to the Status of Stateless Persons (UNHCR 2014) 2. 132 Ibid. para. 1. 133 The UN-HRC monitors the implementation of the ICCPR. It has a reporting procedure and can receive inter-state complaints, and the 1st Optional Protocol to the ICCPR introduced a possibility of receiving individual complaints. 134 UNHCR, Handbook on the Protection of Stateless Persons under the 1954 Convention relating to the Status of Stateless Persons (UNHCR 2014) para. 1. 135 Ibid. para. 58. 136 Ibid.
32 On the matter of how to fulfil obligations with regard people who are stateless in situ under the 1954 Convention then – if it is not appropriate to use statelessness determination procedures – the Handbook provides further guidance:
“Depending on the circumstances of the populations under consideration, [s]tates might be advised to undertake targeted nationality campaigns or nationality verification efforts rather than statelessness determination procedures.”137
The Handbook gives more information on these two forms of response,138 and also remarks that in practice the procedural requirements of them will be comparable to the ones set for statelessness determination procedures. According to the Handbook, this is related to the fact that these requirements “need to reflect the forms of evidence available in a country and the difficulties faced by applicants in proving their nationality status”.139 Note that the Handbook in this Part mainly elaborates on how procedures for the determination of statelessness – the way in which states can fulfil their obligations under the 1954 Convention of protecting stateless persons (in the migratory context) – should be designed.
In Part III of the Handbook a division is a made between “individuals in a migratory context”140 and “individuals in their ‘own country’”141 when discussing the appropriate status for stateless persons at the national level. On the characteristics of statelessness in the migratory context is again not elaborated; the Handbook really concerns itself with the type of status that stateless persons in this context should get at the national level, which often, but depending on their circumstances, involves a residence permit. In the considerations on statelessness in situ this context is again characterised further: it can include stateless persons “who are long-term, habitual residents of the state, which is often is their country of birth”; who have a “profound connection with the state in question, often accompanied with an absence of links with other countries”.142 It is also considered that statelessness in situ arises as a consequence of denial of nationality – even when the person in question is born in the state and has resided there for his or her whole life. Another reason for statelessness appearing in this context, according to the Handbook, is that persons belonging to a certain community that “has fallen out of political or social favour” are stripped of nationality.143 Being stateless in their ‘own country’, the Handbook says that persons who are stateless in situ have the right to enter that country and reside there.144 Also, their connection to the state demands that they be fully integrated into society. It is therefore no surprise that the Handbook concludes that proper status for persons who are stateless in situ is the nationality of the country involved. The mechanisms necessary for achieving this were discussed above. The status that persons who are stateless in their ‘own country’ should be able to obtain as a minimum, for instance where the only option for
137 Ibid. 138 Ibid. in paras. 59-60. 139 Ibid. para. 61. 140 Ibid. paras. 144-163. 141 Ibid. paras. 164-165. 142 Ibid. para. 164. 143 Ibid. 144 Cf. Article 12(4) of the ICCPR. See also ibid. para. 166.
33 receiving adequate protection is to go through a statelessness determination procedure, would be permanent residence with facilitated access to nationality.145
In concluding this paragraph, it seems that the UNHCR Guidance on the 1954 Convention, an international soft law instrument, confirms quite some of the findings of the literature review. First of all, it is evident here as well that the definition of statelessness in situ is more elaborate than that of statelessness in the migratory context. Second, the elements used to characterise the first concept are similar to the ones used in literature. Also, the reason for making the distinction is that a difference in attachment to a state exists between the two contexts, which justifies a different response.
3.2. Article 15 of the Universal Declaration of Human Rights
Another starting point in law for the exploration in this study is Article 15 of the Universal Declaration of Human Rights (UDHR). This Article guarantees the human right to a nationality and reads as follows:
“(1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.”146
Turning back to the topic of this research, it is important to remember that stateless persons lack a nationality. In order to claim their right to a nationality, they may therefore be able to rely on Article 15 of the UDHR, which makes it possible that the issue of statelessness and maybe even a distinction between different groups of stateless persons are considered in explanations and commentaries on this Article. This is why this Article is interesting to discuss here. In this regard, it should be remarked though that the UDHR is – again – not a treaty in the traditional sense but a non-binding resolution of the UN General Assembly. Thus, it should be regarded as a form of soft law; an inspirational and aspirational legal document that promotes human rights. Still, it is also an overarching declaration that has been translated into other human rights treaties and has partly become part of international customary law.147 As such, it has truly influenced the entire UN human rights system. However, when considering Article 15 of the UDHR, it is found that this Article lacks specification and enforceability. However, the Article points towards a number of other international legal instruments that can be relevant to the examination in this project.
3.3. The Nottebohm case
In relation to Article 15 of the UDHR, it has been argued that it is not surprising that, with no widely ratified international treaty defining or constraining criteria for granting nationality,
145 UNHCR, Handbook on the Protection of Stateless Persons under the 1954 Convention relating to the Status of Stateless Persons (UNHCR 2014) para. 165. 146 Article 15 of the UDHR. 147 See also John Dugard, ‘The Influence of the Universal Declaration as Law’ (2009) 24 Maryland Journal of International Law 85.
34 the principle of a ‘genuine and effective link’ from the Nottebohm case148 has emerged as a guideline for state practice in granting nationality, thus ensuring the right to a nationality to a certain extent.149 The International Court of Justice (ICJ) decided upon the Nottebohm case in 1955, in which Liechtenstein wanted Guatemala to recognise Friedrich Nottebohm as a Liechtenstein national. It remains, even now, a contentious case that has repeatedly been quoted for its definition of nationality:
“[N]ationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the [s]tate conferring nationality than with that of any other [s]tate.”150
As was seen earlier,151 Mrekajova pointed out that this could provide good arguments for claiming nationality through facilitated naturalisation for persons that are stateless in situ, as they have an genuine connection to the state they live in. This attachment could be established for instance when a person has been born on the territory of the state or has resided on the territory of the state for a reasonable amount of time. Similar to these factors, the judgement sums up a number of characteristics that can help in establishing the strength of the ties of a person with a country:
“Different factors are taken into consideration, and their importance will vary from one case to the next: the habitual residence of the individual concerned is an important factor, but there are other factors such as the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc.”152
These factors resemble the characteristics used in definitions of statelessness in situ. As such, the Nottebohm judgement seems to support a distinction being drawn between persons with and without a meaningful – or, in the words of the judgement, genuine – connection to a certain country. Also, the case demonstrates that the characteristics used in the definitions of statelessness in situ have roots in international law. However, it should be remembered that this study concerns stateless persons, and stateless persons lack a legal bond to a state. So indeed, as Rubenstein and Lenagh-Maguire say, Nottebohm recognises “an effective, social dimension” to nationality. However, as they rightly point out as well, the judgement implies that where a formal – de jure – nationality is existent, but a true link is absent, an individual is not considered to have an effective nationality (when the formal dimension of nationality was acquired via naturalisation). They continue:
“[…] Nottebohm does not provide a solution in the reverse where there is ample evidence of the social connection between an individual and a state, but formal citizenship is lacking as a matter of domestic law. That task falls most often to human rights law as invoked by individuals seeking some of the benefits of nationality from a nation state that either refuses to grant them legal status, or conversely labels them with a citizenship they do not want to retain.”153
148 Nottebohm (Liechtenstein v Guatemala) ICJ Reports 1955, p. 4; General List, No. 18. 149 See also Mirna Adjami and Julia Harrington, ‘The Scope and Content of Article 15 of the Universal Declaration of Human Rights’ (2008) 27 Refugee Survey Quarterly 106. 150 Nottebohm (Liechtenstein v Guatemala) ICJ Reports 1955, p. 4; General List, No. 18. 151 See Master’s Thesis Mrekajova, para. 2.5. 152 Nottebohm (Liechtenstein v Guatemala) ICJ Reports 1955, p. 4; General List, No. 18. 153 Kim Rubenstein and Niamh Lenagh-Maguire, ‘More or Less Secure? Nationality Questions, Deportation and Dual Nationality’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014) forthcoming.
35 As such, the Nottebohm case cannot be seen as truly reinforcing a distinction between statelessness in situ and statelessness in the migratory context, as the case does not support granting citizenship to stateless persons with social attachment to a state. Still, as was found above, the case does demonstrate some support for making a difference between persons with a genuine connection to a country and persons with no (or no meaningful) links to a state in the general sense, and shows that factors that are being used in the definitions of statelessness in situ are similar to those employed in the considerations of the Nottebohm case.
3.4. ‘Own country’ under the International Covenant on Civil and Political Rights
The concept of ‘own country’ – a notion that could be seen in different definitions of statelessness in situ discussed above – in international law is highly relevant to this study. The concept is explicitly mentioned in Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR). On this Article and the notion of ‘own country’, the UN-HRC has provided further interpretation in a General Comment on Article 12.154 Article 12 of the ICCPR concerns freedom of movement, and Article 12(4) – more specifically – ensures a person’s right to enter his or her own country. 155 As the General Comment says, the right guaranteed by Article 12(4) “recognizes the special relationship of a person to that country”.156 Turning to the explanations on the concept of ‘own country’, the General Comment notes that the scope of this concept is broader than the country of nationality, and continues:
“It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. This would be the case, for example, of nationals of a country who have there been stripped of their nationality in violation of international law and of individuals whose country of nationality has been incorporated into or transferred to another national entity whose nationality is being denied them. The language of [A]rticle 12, paragraph 4, moreover, permits a broader interpretation that might embrace other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence.”157
The General Comment thus names ‘special ties to a country’ as a defining factor in establishing ‘own country’. It furthermore explicitly mentions stateless persons arbitrarily deprived of the right to acquire the nationality of the country of long-term residence. This consideration corresponds with statelessness in situ, as is evidenced by the characteristic of long-term residence. Furthermore, it supports a distinction being made between stateless persons who are long-term residents and have special ties to a country, and stateless persons who do not possess these characteristics – i.e. persons who are ‘mere aliens’ or who are, in other words, stateless in the migratory context – in terms of ensuring the right to enter one’s own country.
154 UN-HRC CCPR General Comment No. 27: Article 12 (Freedom of Movement) (CCPR/C/21/Rev.1/Add.9). 155 Article 12(4) reads as follows: “No one shall be arbitrarily deprived of the right to enter his own country”. 156 UN-HRC CCPR General Comment No. 27: Article 12 (Freedom of Movement) (CCPR/C/21/Rev.1/Add.9) para. 19. 157 Ibid. para. 20.
36 Further guidance on the concept of ‘own country’ has been provided by the interpretations of the UN-HRC in its communications. In order to explore this in more depth, the commentary by Kim Rubenstein and Niamh Lenagh-Maguire is used.158 However in the context of dual nationality, their findings aid the clarification of the meaning of ‘own country’ and can therefore be helpful for finding support for distinguishing statelessness in situ from statelessness in the migratory context. While examining the case of Stewart v Canada,159 Rubenstein and Lenagh-Maguire rightly discern that this provided some strong dissenting opinions, among which that of Members Evatt and Quiroga. These Members held, as far as it concerned the rights under Article 12 of the ICCPR:
“[T]he existence of a formal link to the [s]tate is irrelevant; the [ICCPR] is here concerned with the strong personal and emotional links an individual may have with the territory where he [or she] lives and with the social circumstances obtaining in it.”160
As Rubenstein and Lenagh-Maguire put it, this is “a welcome expansion to the rather more limited notion of effective nationality employed in Nottebohm”.161 In the more recent case of Nystrom v Australia, the UN-HRC endorsed the dissenting opinion quoted above by saying that “[…] ‘own country’ invite[s] consideration of such matters as long standing residence, close personal and family ties and intentions to remain, as well as the absence of such ties elsewhere”.162 This reaffirms the above findings on the basis of the General Comment: a distinction can be made between stateless persons with (i.e. stateless in situ) and without (i.e. stateless in the migratory context) strong personal and emotional links to a country as concerns the right to enter one’s ‘own country’. Thus, the concept of ‘own country’ under the ICCPR can be considered as supporting the distinction between the two contexts of statelessness. In terms of the response to stateless persons – either statelessness determination (for stateless migrants) or recognition of nationality (for persons who are stateless in situ) – it seems that the concept of ‘own country’ cannot be said to truly reinforce this, as it only concerns the right to enter one’s own country under the ICCPR. However, when remembering the lack of specification and enforceability of the right to a nationality in the UDHR and the fact that the latter instrument is an aspirational document that has inspired the entire UN human rights system, including the ICCPR, it may be said that the concept of ‘own country’ to a certain extent contributes to defining the content of the right to a nationality under international law. Taking this point of view, one could argue that a stateless person that is in his or her ‘own country’ according to the definitions used under the ICCPR should be granted nationality, while a stateless person who lacks the special ties to the country he or she is in should not be given citizenship (but should receive protection from the state). In this manner, the concept of ‘own country’ under the ICCPR can also be
158 Kim Rubenstein and Niamh Lenagh-Maguire, ‘More or Less Secure? Nationality Questions, Deportation and Dual Nationality’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014) forthcoming. 159 Stewart v Canada (1996) Communication No. 538/1993 (CCPR/C/58/D/538/1993). 160 Stewart v Canada (1996) Communication No. 538/1993 (CCPR/C/58/D/538/1993), C. Individual opinion by Elizabeth Evatt and Cecilia Medina Quiroga, co-signed by Francisco José Aguilar Urbina (dissenting), para. 5. 161 Kim Rubenstein and Niamh Lenagh-Maguire, ‘More or Less Secure? Nationality Questions, Deportation and Dual Nationality’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014) forthcoming. 162 Nystrom v Australia (2011) Communication No. 1557/2007 (CCPR/ CCPR/C/102/D/1557/2007) para. 7.4. See also ibid.
37 seen as supporting the distinction between the two contexts of statelessness being made because they entail a difference in response.
3.5. The right to a nationality under the American Convention on Human Rights
The concept of nationality and the right thereto are highly relevant to this study, as was noted above. As such, the American Convention on Human Rights (ACHR) has a place in an the examination of international legal instruments here. The ACHR – unlike its European equivalent, the ECHR – guarantees the right to a nationality in Article 20. The Inter-American Court of Human Rights (IACtHR) supervises the implementation of the ACHR and provides a quite progressive account of the right to a nationality in its interpretations of this instrument, which could be considered as further reaching than that of the ECtHR. The leading judgement of the IACtHR on nationality is the Case of the Yean and Bosico children v the Dominican Republic.163 The issue in this case was the initial denial and subsequent delay of issuing birth certificates by that state to two young Dominican girls of Haitian descent, which left them stateless. This violated inter alia Article 20 of the ACHR. On the matter of nationality, “the political and legal bond that connects a person to a specific state”,164 the IACtHR held:
“With regard to the right embodied in Article 20 of the [ACHR], the [IACtHR] understands that nationality is a juridical expression of a social fact that connects an individual to a [s]tate. Nationality is a fundamental human right enshrined in the [ACHR], and other international instruments, and is non-derogable in accordance with Article 27 of the [ACHR].”165
Again, a social aspect can be found in the legal definition of nationality. What is even more interesting, are the considerations on persons in transit and not in transit in a procedure to obtain nationality:
“The [IACtHR] observes that, to consider that a person is in transit, irrespective of the classification used, the [s]tate must respect a reasonable temporal limit and understand that a foreigner who develops connections in a [s]tate cannot be equated to a person in transit.”166
When, on top of this, remembering that the applicants were left stateless by the state, the Dominican Republic in this case, it seems that this directly supports the distinction that states have to make between stateless persons in situ – who often have resided in a country for a long time and have developed connections in and with a country, even though not legal and political – and stateless migrants – who do not have these kinds of ties in a procedure to obtain nationality. The former should have their nationality recognised according to the interpretations of the right to a nationality of IACtHR. In its considerations, the IACtHR relies on the function that nationality has: it allows the individual to acquire and exercise rights and obligations inherent to membership in a political community; nationality is a requirement for the exercise of specific rights and has evolved into being a human right.167 Thus, the IACtHR demonstrates on the basis of the (human) rights dimension to nationality
163 Case of the Yean and Bosico children v the Dominican Republic (IACtHR 8 September 2005). 164 Ibid. para. 137. 165 Ibid. para. 136. 166 Ibid. para. 157. 167 Ibid. para. 137-139.
38 that it is necessary for states to distinguish between persons who are stateless in situ and persons who are stateless in the migratory context, also in terms of how to respond to them.
3.6. European legal instruments
An explicit distinction between statelessness in the migratory context and statelessness in situ cannot be found in European legal instruments. Nonetheless, there are instruments that refer to the attachment of a (stateless) person to a country that – to some extent – could support a distinction between the two contexts of statelessness. Three of them are highlighted below.
3.6.1. CoE Convention on the Avoidance of Statelessness in Relation to State Succession
The European instrument that relates to statelessness in Europe in the most straightforward manner – in the title – is the CoE Convention on the Avoidance of Statelessness. According to Article 5(1) of this Convention a successor state shall grant its nationality to persons who, at the time of the state succession, had the nationality of the predecessor state, and who have or would become stateless as a result of state succession if at that time they were habitually resident in the territory which has become territory of the successor state, or they were not habitually resident in any state concerned but had an appropriate connection with the successor state. The term ‘appropriate connection’ is further clarified in section 2 of Article 5 as including – inter alia – a legal bond to a territorial unit of a predecessor state which has become territory of the successor state; birth on the territory which has become territory of the successor state; last habitual residence on the territory of the predecessor state which has become territory of the successor state. The explanatory report to this Convention lists even more factors, such as previous long residence on the territory; descent (by one generation or more) from a person covered by the Article; or marriage to a person covered by the Article.168 Indeed, as Kruma169 highlights on the basis of considerations of Ineta Ziemele,170 the principle of appropriate connection is broader than the effective link principle from the Nottebohm case. In relation thereto Kruma also warns that the principle of effective link should be applied with caution to the issue of statelessness. She says:
“The principle of effective link should be distinguished from dominant nationality. Effective link remains instrumental in cases of naturalisation and cases of [s]tate succession. However, due to lack of specific criteria it will be difficult to invoke effectively in cases of deprivation of nationality, especially leading to statelessness”.171
In this regard, it should be remembered that the Convention concerns a specific situation in which a state succeeds another, which does as such not say anything about statelessness in the two contexts under consideration in this study. Nonetheless, the overall picture of the
168 CoE Convention on the Avoidance of Statelessness in relation to State Succession (CETS No. 20) – Explanatory Report http://conventions.coe.int/Treaty/EN/Reports/Html/200.htm accessed 25 July 2014, para. 24. 169 Kristine Kruma, EU Citizenship, Nationality and Migrant Status: An Ongoing Challenge (Martinus Nijhoff Publishers/Brill Academic 2013) 48. 170 Ineta Ziemele, State Continuity and Nationality: Baltic States and Russia: Past, Present and Future as Defined by International Law (Brill Nijhoff 2005) 33, 89. 171 Kristine Kruma, EU Citizenship, Nationality and Migrant Status: An Ongoing Challenge (Martinus Nijhoff Publishers/Brill Academic 2013) 48.
39 great value given to the broad variety of connections of a person to a certain country in the recognition of nationality by international law is visible again and guidance is provided on how to establish the attachment of a person to a country as far as the context of state succession concerns. This assessment is similar to the methods employed for defining who is stateless in situ, which indicates that stateless persons in a situation of state succession can be incorporated within the context of statelessness in situ.
3.6.2. European Convention on Nationality
The European Convention on Nationality (ECN) establishes principles and rules relating to the nationality of natural persons and rules regulating military obligations in cases of multiple nationality, to which the internal law of states parties needs to conform.172 In Article 2, the ECN defines nationality as the legal bond between a person and a state, which does not indicate the person's ethnic origin. Thus, this Convention’s formal definition of nationality does not seem to concern itself with whether a strong connection exists between the person and the state or rely on the international legal principles of ‘genuine and effective link’. However, as Kristine Kruma says, it can be argued that the ECN supports the principle of effective link as a guideline on defining nationality and provides for compelling examples under Articles 6, 7(e) and 18 of the ECN that demonstrate this.173 In these Articles, for example Article 6, a distinction is being made as to who should be able to acquire nationality, namely persons that have (lawfully and habitually) resided on the territory of the state for a prolonged time. Thus, again it can be seen how value is being attached to a certain tie of a person to a country, in this case a tie of long-term residence. This underlines that the ties of a person to a country are instrumental in determining his or her ‘right’ to acquire a nationality and what the proceedings ought to be.174 To some extent, one could argue that this can support a distinction between stateless persons in situ – so with considerable ties to a certain country – for which the appropriate procedure would be a mechanism that recognises their nationality of that country, and stateless migrants without this connection to a state, who because of their particular vulnerability due to their lack of a nationality should receive protection from the state using statelessness determination procedures. It thus shows the distant international – or better – European roots of the distinction between statelessness in situ and statelessness in the migratory context by endorsing these principles of international law.
3.6.3. European Convention on Human Rights
The ECHR does not refer to statelessness or nationality in its provisions. How could this instrument in any way support a distinction made between two contexts of statelessness then? It is in the interpretations of the ECHR by the ECtHR that an answer may be found. The principal case on nationality under the ECHR is Genovese v Malta.175 This case concerned a British man who was born out of wedlock to a Maltese father and a British mother. He
172 Article 1 of the ECN. 173 Kristine Kruma, EU Citizenship, Nationality and Migrant Status: An Ongoing Challenge (Martinus Nijhoff Publishers/Brill Academic 2013) 46-47. 174 Cf. the right to be a citizen as used by Ernst Hirsch Ballin in Citizens’ Rights and the Right to be a Citizen (Brill Nijhoff 2014). 175 Genovese v Malta App. No. 53124/09 (ECtHR 11 October 2011).
40 wanted to acquire Maltese nationality, but this was denied because of his birth out of wedlock and the fact that then only the mother could pass nationality to her child. The ECtHR concluded that there had been a violation of Article 8176 in conjunction with Article 14177 of the ECHR. However, in order to find this violation, the ECtHR had to bring the issue of nationality within the ambit of the ECHR. It did this using Article 8 as follows:
“[…] even in the absence of family life, the denial of citizenship may raise an issue under Article 8 because of its impact on the private life of an individual, which concept is wide enough to embrace aspects of a person’s social identity. While the right to citizenship is not as such a Convention right and while its denial in the present case was not such as to give rise to a violation of Article 8, the Court considers that its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that Article.”178
The ECtHR does, unfortunately, not define social identity further. Nonetheless, it is imaginable that where a person’s social identity is linked to a certain country because of the significant ties of that individual with that state, but that this person remains stateless in that country, it could impinge on his or her social identity, which could breach Article 8 of the ECHR.179 This would provide for a strong statement in law on the links that stateless persons in situ have with a country, and which stateless persons in the migratory context have not (yet). However, as this is a hypothetical scenario and far from reality now,180 it seems that the ECHR cannot really provide us with more than that social identity – whatever that may be; likely to concern the kind of connection of a person with a state that has been discussed above – can play a role in nationality policy, i.e. in (not) granting nationality to an individual.
Whereas the Genovese case is not able to provide convincing support for distinguishing between the concepts of statelessness in situ and statelessness in the migratory context, the case of Andrejeva v Latvia181 may be more useful. This case actually involved a stateless woman, a non-national of Latvia with permanent residence. Relying on Article 14 of the ECHR, 182 she claimed that the fact that her pension was not calculated the same manner as for Latvian citizens – which was why she received a significantly lower pension – amounted to discrimination. She furthermore maintained that nationality was the sole ground for the difference in treatment. The ECtHR agreed and held that nationality was the sole criterion for the distinction complained of. Considering its previous case law on this matter, the ECtHR furthermore stated that very weighty reasons would have to be put forward before it could regard a difference of treatment based exclusively on the ground of nationality as compatible with the ECHR.183 However, the ECtHR could not discern such reasons in this case and found a violation of Article 14 in conjunction with Article 1 of Protocol No. 1 to the ECHR. One of the important observations of the ECtHR in this regard was that the applicant
176 Article 8 of the ECHR guarantees the right to respect for private and family life. 177 Article 14 of the ECHR contains the prohibition of discrimination in relation to the rights and freedoms set forth in the ECHR. 178 Genovese v Malta App. No. 53124/09 (ECtHR 11 October 2011) para. 33. 179 Cf. Caia Vlieks, A European Human Rights Obligation for Statelessness Determination? (Master’s Thesis Tilburg Law School 2013) 34. 180 In particular when considering the dissenting opinion of Judge Valenzia in this case. 181 Andrejeva v Latvia App. No. 55707/00 (ECtHR 18 February 2009). 182 Article 14 needs to be invoked in conjunction with another Article of the ECHR because Article 14 prohibits discrimination in relation to the rights and freedoms set forth in the ECHR. In this case, Article 14 was invoked in conjunction with Article 1 of Protocol No. 1 to the ECHR (the protection of property). 183 Andrejeva v Latvia App. No. 55707/00 (ECtHR 18 February 2009) para. 87.
41 was not a national of any state; she had the status of a ‘permanently resident non-citizen’ of Latvia. The ECtHR considered that Latvia was “the only [s]tate with which she had any stable legal ties and thus the only [s]tate which, objectively, could assume responsibility for her in terms of social security”.184
Returning to the topic of this study, this last consideration of the ECtHR is highly interesting. The distinction between the two contexts of statelessness relies on a difference in attachment – in the ties of a stateless person to a country, which warrants a difference in response. With the Andrejeva case the ECtHR seems to acknowledge that the ties of a person to a country can matter in the protection a person that is no national at all can receive under the ECHR. More specifically, it is recognised that where a stateless person has had stable legal ties to a country, and no other country, the state in question should treat this person in the same manner as a national where it concerns social security, and possibly beyond. As such, the case can be deemed to support a distinction between statelessness in situ and statelessness in the migratory context, and – to some extent – also the need for a different response depending on the context of statelessness.
3.7. Concluding remarks
In order to be able to examine the findings of this study in international legal instruments, the results have been translated into a table.
Figure 2: Table of results of the assessment of international legal instruments
International legal Supports distinction between Helpful in defining Remarks instrument the two contexts of statelessness in situ and statelessness? statelessness in the migratory context?
UNHCR Guidance on the 1954 Yes. Explicit mention of both Yes. However, no definition of Soft law. Refers to Article Convention contexts. The distinction is statelessness in the migratory 12(4) of the ICCPR and made on the basis of the context, just mention of “in interpretations of the attachment/ties of a stateless migratory situations”. UN-HRC for guidance on person to a state. Also Statelessness in situ is the concept of ‘own reaffirms that the distinction is elaborately characterised country’. necessary because of the using a number of factors: difference in responding to “never crossed borders”; “in them. In terms of procedure their ‘own country’”; “in this means that a country of long-term statelessness determination residence”; “country of their procedure would be birth”; “non-migratory appropriate for stateless context”; “long-established migrants, (resulting in a ties to [a certain] country’; protection status and persons “who are long-term, residence permit) whereas habitual residents of the targeted nationality state, which is often is their campaigns or nationality country of birth”; who have a verification efforts should be “profound connection with undertaken with regard to the state in question, often populations who are stateless accompanied with an absence
184 Ibid. para. 88.
42 in situ (preferably resulting in of links with other countries”; a status as national). sometimes related to a community falling out of political or social favour. Article 15 UDHR No. This Article lacks Not really. Only to the extent Soft law, but partly specification and that it can help in finding international customary enforceability. other relevant international law now. legal instruments. Nottebohm case Not really. The Nottebohm Provides guidance on how to judgement seems to support a establish the strength of the distinction being drawn ties of a person to country: between persons with and “[…] the habitual residence of without a meaningful – or, in the individual concerned is an the words of the judgement, important factor, but there genuine (and effective) – are other factors such as the connection to a certain centre of his interests, his country and demonstrates family ties, his participation in that the characteristics used in public life, attachment shown the definitions of statelessness by him for a given country and in situ have roots in inculcated in his children, international law. However, etc.” These factors resemble the case cannot be considered the ones used to define as truly reinforcing a statelessness in situ. distinction between statelessness in situ and statelessness in the migratory context, as the case does not support granting citizenship to stateless persons with social attachment to a state. ‘Own country’ under the Yes. A distinction can be made As ‘own country’ is a factor It can be argued that this ICCPR between stateless persons for defining statelessness in concept can provide for with (i.e. stateless in situ) and situ, the characteristics of this (some of) the content of without (i.e. stateless in the concept can be helpful: “her the right to a nationality migratory context) strong special ties to or claims in under the UDHR. personal and emotional links relation to a given country”; to a country as concerns the not “a mere alien”; “long right to enter one’s ‘own standing residence, close country’. Also, it can be personal and family ties and argued that on the basis of intentions to remain, as well this legal instrument the two as the absence of such ties contexts warrant a difference elsewhere”. in response. The right to a nationality Yes. The IACtHR observed that A little bit. In order to draw The IACtHR under the ACHR “a foreigner who develops the distinction between the demonstrates the human connections in a [s]tate cannot two contexts of statelessness, rights dimension to this be equated to a person in the state must respect a issue by relying on the transit” in a case concerning reasonable temporal limit function that nationality stateless persons. According according to the has; nationality is a to the IACtHR, the former interpretations of the IACtHR. requirement for the should have their nationality exercise of specific rights recognised. Thus also direct and has evolved into support for a difference in being a human right. responding to stateless migrants and persons who are stateless in situ is found. CoE Convention on the Yes, to some extent. It Yes. Uses the term Avoidance of Statelessness in reaffirms the great value given ‘appropriate connection’, Relation to State Succession to the broad variety of which can include the connections of a person to a following factors: a legal bond certain country in the to a territorial unit of a
43 recognition of nationality by predecessor state which has international law is visible and become territory of the guidance is provided on how successor state; birth on the to establish the attachment of territory which has become a person to a country as far as territory of the successor the context of state succession state; last habitual residence concerns. on the territory of the predecessor state which has become territory of the successor state; previous long residence on the territory; descent (by one generation or more) from a person covered by Article 5; or marriage to a person covered by the Article 5. This assessment is similar to the methods employed for defining who is stateless in situ, which indicates that stateless persons in a situation of state succession can be incorporated within the context of statelessness in situ. European Convention on Not really. Nonetheless, the No. Nationality ECN demonstrates that value is being attached to a certain tie of a person to a country, in this case a tie of long-term residence. This underlines that the ties of a person to a country are instrumental in determining his or her ‘right’ to acquire a nationality and what the proceedings ought to be. European Convention on Yes, to some extent. In the Yes. The definition of Human Rights Andrejeva case the ECtHR statelessness in situ could seems to acknowledge that benefit from the the ties of a person to a considerations of the ECtHR in country can matter in the the Andrejeva case, as this protection a stateless person case concerned a person who can receive under the ECHR. appears to be stateless in situ. More specifically, it is The ECtHR observed that in recognised that where a the case where the state in stateless persons has had question is the only state with stable legal ties to a country, which a person has any stable and no other country, the legal ties, this state is the only state in question should treat state that, objectively, can this person in the same assume responsibility for this manner as a national where it person (in terms of social concerns social security, and security). possibly beyond. As such, the case supports a distinction between statelessness in situ and statelessness in the migratory context, and the need for a different response depending on the context of statelessness.
44
On the basis of the above examination of international legal instruments it is clear that there is support for making a distinction between the two contexts of statelessness, as well as the way in which this distinction is made. The extent to which varies though and a broad range of concepts are used to indicate the strength of the ties of a person to a country (which are underlined in the table above). The guidance on the 1954 Convention addresses the two concepts and the difference in response they require because of the difference in attachment to the state of a person explicitly and directly reinforces the distinction between the two contexts of statelessness. Furthermore, direct support seems to be found in (the interpretations of) the concept of ‘own country’ and (the interpretations of) the right to a nationality under the ACHR, as well as in the CoE Convention on the Avoidance of Statelessness in Relation to State Succession in the usage of the term ‘appropriate connection’ and the ECHR, which refers to ‘stable legal ties’, to some extent. This support seems to be linked to human rights law, which was demonstrated for instance by the interpretations of the ACtHR on the matter. Also, the principle of nationality under international law, with its strong emphasis of genuine and effective ties of a person to a country, indirectly demonstrates why it is important to – even when it concerns persons that lack nationality – distinguish between persons with and without meaningful links to a country, because it seems that persons with those ties have a better reason for claiming the nationality of a country than persons with no(t yet) such ties (even though they may still claim protection of a state). In this regard, this study has examined a couple of important international instruments to demonstrate this, but does not pretend to be exhaustive because of the large body of commentaries that exists on this issue.
Reconsidering the definitions of statelessness in situ and statelessness in the migratory context it is particularly helpful to look at the characterisations of the two concepts in the UNHCR guidance on the 1954 Convention because of its direct and explicit link to the two contexts of statelessness. When comparing the factors to be taken into account according the UNHCR, the important yet obvious characteristic that is lacking in the working definitions formulated on the basis of the literature review is that stateless persons in situ are in a non-migratory situation. As this factor was encountered in the literature as well, and can help in providing more clarity, it is added to the definition. Furthermore, the duration of the ties to a country as a differentiator between in situ and migratory is a factor that is visible in the interpretations of the IACtHR for example. Family ties as a characteristic for defining statelessness in situ is also found various instruments, including the Nottebohm case, the concept of ‘own country’ under the ICCPR and the CoE Convention on the Avoidance of Statelessness in Relation to State Succession. However, the fact that according to the definition the ties of a stateless individual to a country have to meaningful for the person to be considered stateless in situ, it does not seem necessary to specify this further in the definition. Furthermore, as there is support in international legal instruments for the distinction between the two contexts of statelessness and for the ties that a person has or does not have to a country as the differentiator between the two, no further adjustments to the working definitions are deemed necessary. Thus, statelessness in situ is defined as encompassing persons who are in a non-migratory situation and remain stateless in their ‘own’ country, who have meaningful and long-established ties to the country they live in,
45 which can include ethnic minorities particularly. Statelessness in the migratory context is defined as concerning statelessness persons that are migrants, or have a migratory background, who have no (or no significant) ties to the country they live in (yet).
46 4. Case study How can the concepts of statelessness in situ and statelessness in the migratory context be applied to statelessness in Europe?
In order to apply the concepts of statelessness in situ and statelessness in the migratory context to statelessness in Europe, definitions were formulated on the basis of the findings on this study so far in concluding remarks of the last section. Also, six cases that have been collected by the ENS were introduced in the introduction. The definitions are applied to these six cases in order to come to a provisional understanding of the practical workability of the contexts of statelessness in Europe. The six cases present a sometimes heart-breaking account of the problems that stateless persons face. They demonstrate the importance of protection of stateless persons, as well as the prevention and reduction of statelessness. However, as this is not what the current project aims to study, the examination of the cases really takes the perspective of the two contexts of statelessness. In order to be clear and complete before embarking upon the adventure of this case study, a quick reminder of the working definitions formulated for the two contexts of statelessness on the basis of the findings in this study so far: • Statelessness in situ: persons who are in a non-migratory situation and remain stateless in their ‘own’ country, who have meaningful and long-established ties to the country they live in, which can include stateless ethnic minorities particularly; • Statelessness in the migratory context: statelessness persons that are migrants, or have a migratory background, who have no (or no significant) ties to the country they live in (yet).
4.1. Case I: Andrej
“Andrej was born in Azerbaijan, then part of the USSR, and resided there until 1987. Because he left Azerbaijan before 1992 he has no automatic entitlement to citizenship.
In 1987, Andrej moved to Lithuania and lived there until 2005 when he moved to Ireland. Prior to the breakup of the Soviet Union, he had first been issued with a Lithuanian passport and later - when Lithuania joined the EU in 2004 – became an EU citizen. Andrej arrived in Ireland as a Lithuanian citizen exercising freedom of movement and has been continuously living in Ireland ever since.
However in February 2008, almost three years after his arrival in Ireland, Andrej received notification from the Lithuanian authorities that his citizenship had been unilaterally revoked on grounds that he had allegedly obtained citizenship of the Republic of Azerbaijan. When he received notification that his Lithuanian citizenship had been revoked, Andrej first believed this to be simply an administrative error since he has never been a citizen of Azerbaijan although he was born there. Unfortunately, his efforts to resolve the matter through the Lithuanian courts were not successful.
In April 2010, Andrej submitted an application for recognition as a stateless person to the Irish Naturalisation and Immigration Service – this application has remained pending for almost four years. However, meanwhile he was eventually granted permission to reside in Ireland on other grounds, and currently holds a five-year residence permit with access to the labour market. However, while waiting for his permit he experienced a range of problems. Andrej was also issued with an ‘alternative travel document’ by the Irish authorities but this does not allow him to travel freely and he still requires a re-entry visa, costing €60 for a single entry and €100 for multiple entries, in order to be able to return to Ireland from any trip abroad.
47 In November 2012, Andrej applied for Irish citizenship – asking that the normal requirement of five years ‘reckonable residence’ be waived on the basis of this statelessness. His application remains pending.” 185
Andrej was born in Azerbaijan, then part of the Union of Soviet Socialist Republics (USSR), moved to Lithuania and then moved to Ireland, where he has lived for nine years now. His story, moving from one country to another, makes him – in principle – a migrant. Turning to the definition of statelessness in the migratory context therefore, the question is whether it is true that he has no or no significant ties to the country he currently lives in; Ireland. It would seem that it cannot be said that he has no ties to Ireland, as he has a residence permit with access to the labour market and might have made connections with the country, for instance through work. But are they significant enough to consider him as being stateless in situ? The answer appears to be ‘no’. Even if he would have worked in the country, this does not necessarily constitute as a significant tie; migrant workers are not a new phenomenon. He is definitely stateless in a migratory context, with no(t yet) meaningful ties to his country of residence. He is not stateless in his ‘own country’, nor can his ties be considered long- established, in particular when you consider that he has moved around. Thus, Andrej is a stateless migrant.
4.2. Case II: Isa
“Isa was born in Kosovo - Former Yugoslavia. He fled to Belgrade following the 1999 conflict, but because he didn’t have any papers proving his identity, was never registered as an internally displaced person.
His very first document, his birth certificate, was issued in 2013 when he was 29. This was only possible due to a new procedure introduced in 2012. Up till then Isa lived a life of an invisible. He did not attend school, he did not have health insurance and the only pieces of evidence about his residence are the statements of his common-law spouse and his neighbours.
However, despite managing to register his birth with the birth registry, Isa remains stateless without a nationality. He cannot “inherit” his father’s nationality since his father doesn’t have any (his father was born in Macedonia and lived in Kosovo since the 1980s, but has never had his nationality officially registered) or his mother’s (she left Isa when he was only two weeks old and Isa doesn’t know if she held any nationality at the moment of his birth). Without nationality, Isa remains deprived of rights and services. He says:
“I cannot get married, recognize paternity of my children, visit my family in Kosovo. I cannot work legally, receive social welfare assistance or register for health insurance. To be without documents and a nationality is as if you never existed in this world.”
Serbia currently lacks a procedure to recognise Isa’s statelessness and regularise his status. Meanwhile, the only option open to Isa now is to try to acquire Serbian nationality through the naturalization procedure. Unfortunately, the outcome of the procedure remains uncertain because Isa cannot provide any written proof of his residence, which is one of the legal requirements. So he remains stuck in a vicious circle and facing a life in limbo.” 186
Isa is one of the persons that remained stateless after the dissolution of Yugoslavia. In order to understand his situation, it is important to discuss the break-up of Yugoslavia shortly. When Yugoslavia dissolved, the countries mentioned in Isa’s case came into being: the Republic of Serbia, the Socialist Republic of Macedonia and the currently partially recognised Republic of Kosovo. It is well known that in the states that succeeded Yugoslavia quite some
185 ENS, ‘Andrej – Faces of Statelessness’ (ENS, 2014)
48 persons were left stateless. Also, it should not be forgotten that persons left stateless in their (new) state after state succession can be referred to as stateless in situ.187 The starting point for assessing Isa’s case thus appears to be the definition of statelessness in situ. First of all, Isa is indeed stateless in a non-migratory context; he has not crossed borders by fleeing to another state – at least, not of another country that has not been a state that succeeded Yugoslavia, the country in which he was born. As such, he also remain stateless in his ‘own country’, as he has considerable and long-term ties to Yugoslavia through birth. Arguably, one of the states that succeeded Yugoslavia should therefore have granted Isa nationality. Remember furthermore that in literature ‘long-established ties to a country’ have been specified as including long-term habitual residence or residence at the time of state succession. Also, that Isa is stateless in situ is evident when reminiscing on the difference in response that the two contexts of statelessness entail. Similar to what Manly188 in his considerations on the two contexts of statelessness and the difference in response in connection with the UNHCR Guidance on the 1954 Convention has held, the appropriate response to Isa’s statelessness is not a statelessness determination procedure; rather states are advised to undertake targeted nationality campaigns or nationality verification efforts. On the basis of the facts presented in the case of Isa above, the conclusion may thus be that he is stateless in situ. Given this finding, it might be helpful to include ‘residence at the time of state succession’ in the definition of this context of statelessness.
4.3. Case III: Luka
“Luka was born in Ukraine then still a part of the former USSR. After growing up in an orphanage, he moved to Slovakia in 1991 when he was only 15. Given the circumstances of his childhood Luka never had any documents from the Ukrainian state confirming his nationality.
During his stay in Slovakia Luka was repeatedly detained, last time in 2010, when he spent 14 months in the detention centre. He was released based on the decision of the court that his expulsion from Slovakia is not possible and was granted tolerated stay. Police repeatedly verified and investigated the possibility of an administrative expulsion to Ukraine, however Ukraine never confirmed his identity nor his citizenship. Although Luka doesn’t have any travel document, the Slovak authorities simply recorded his citizenship as “undetermined”. All the evidence however suggests that he is indeed stateless. Luka has a 8-year old son who is a Slovak citizen and who lives with him and his mother - Luka’s partner. Luka is unable to register himself officially as the father in his son’s birth certificate because he does not possess any identification document.
In 2013, when Luka tried to submit an application for extension of his tolerated stay, he was asked to submit new documents from the Ukrainian embassy confirming that Ukrainian embassy refuses to issue him with replacement travel document. Although the police had at that time already enough proof confirming that Ukraine did not accept Luka as its citizen they still refused to accept his application. Instead they issued Luka with a fine of € 80 for the misdemeanour of illegal stay. One week later he was given another fine, this time of € 160.
After living in Slovakia for over 20 years, Luka is still not recognised as being stateless and his tolerated stay status still doesn’t allow him to work or to have health insurance. He cannot marry his partner and he cannot be registered officially as the father of his son.”189
The case of Luka presents a dilemma. Yes, Slovakia was never part of the USSR, so the qualification as statelessness in situ in a similar manner as Isa does not apply here, and that
187 Cf. Manly in para. 2.4, as well as the considerations in para. 3.6.1. 188 See para. 2.4. 189 ENS, ‘Luka – Faces of Statelessness’ (ENS, 2014)
49 he appears to be in a migratory context. However, part of then Czechoslovakia was annexed by the USSR and the relationship between Czechoslovakia and the USSR was very close, making the situation slightly more complicated. What makes the case even more difficult is the fact that Luka’s ties to Ukraine appear to be practically non-existent; he has no (family) ties to Ukraine as he grew up in an orphanage and moved to Slovakia when he was only 15 years old. With the current working definitions this project, Luka would not be stateless in situ – because he is in a migratory situation, but would also not be a stateless migrant, because his ties to Ukraine are non-existent and his ties to Slovakia are significant through his duration of residence and his family there.
It therefore is feasible to look beyond these definitions, because they may have flaws in them, and consider definitions that were encountered earlier in this study in law and literature. Given the case, particular consideration is given to the concept of ‘own country’ and the significant ties that this entails, as well as the criterion of non-migratory situation. Recall, for instance, that ‘own country’ has been interpreted by the UN-HRC as inviting consideration of factors such as long standing residence, close personal and family ties and intentions to remain, as well as the absence of such ties elsewhere. That this interpretation is correct, is underlined in the UNHCR Guidance on the 1954 Convention, which notably mention the absence of ties elsewhere. When applying this to the case of Luka, it is clear that he has long-standing residence, close personal and family ties through his partner and son. Furthermore, his intention to remain can be seen in that he has a partner and probably wants to be a father to his son. Lastly, ties to Ukraine are – besides being born there as an orphan – indeed absent as noted above. Pursuant to the concept of ‘own country’ as used in the definition of stateless in situ and as interpreted in international legal instruments would thus appear to label Luka as stateless in situ. But, what of the non-migratory factor of the definition then? Some definitions in literature included this, or referred to it in a different manner, for example by saying that statelessness in situ concerns a situation in which persons have been stateless for decades or generations, such as the Russian-speaking minorities in Latvia and Estonia,190 or say that it is the country where the ancestors of the person in question are from.191 The fact that statelessness in situ concerns a non-migratory situation is acknowledged in international legal instruments as well, mainly by the Handbook by saying that this concept is applicable to stateless persons ‘who have never crossed borders’.192 So, when applying this to Luka’s case, the conclusion arrived at can only be that he has crossed borders and that he has not been in the country for generations, which would point at him being stateless in the migratory context. As such, this case reveals a contradiction in the definition of stateless in situ, namely between the concept of ‘own country’ and the non-migratory factor of the definition. The concept of ‘own country’ appears to be more inclusive, i.e. broader than what is meant with the notion of statelessness in situ. The only way to solve this is to weigh the two and maybe approach the case from an entirely different perspective.
190 Cf. Manly in para. 2.4. 191 Cf. Van Waas & Neal in para. 2.7. 192 Cf. para. 3.1.
50 A manner to approach this case then is in terms of response. In this study has been proven that the difference between the two contexts of statelessness is made to articulate a difference in attachment to a state which warrants a difference in response. Therefore it is helpful to ask whether it is appropriate for Luka to have to go through a statelessness determination procedure and receive a corresponding protection status. Or would this be disproportionate and does Slovakia need to recognise him as a national? The principle of proportionality can thus play an important role in this process. When looking at the case from this perspective, it appears that it is not unfair to ask Luka to obtain a status as a stateless person through a statelessness determination mechanism; he has not been in the country for generations. Even though the facts of the case demonstrate that it is obvious that Luka does ‘deserve’ to obtain the nationality of Slovakia at some point, this is not out of the question when using statelessness determination procedures, as the connected status to this should provide for a possibility of (facilitated) naturalisation after a certain number of years.
When considering the case again, it indeed appears that Luka is in a different situation than that is meant with the concept of statelessness in situ. As such, the proper characterisation of his case would be to use the notion statelessness in the migratory context. Luka’s case, nonetheless, has demonstrated that the definition of statelessness in situ is not as inclusive as the notion of ‘own country’ in international law, to which the definition of the former refers. Still, the concept of ‘own country’ proved to be an element in the definition that was helpful to some extent, as it could aid in establishing the significance of the ties of a (stateless) person to a country. The notion of ‘own country’ should therefore not necessarily be eliminated from the definition. However, it is important to incorporate an element into the definition that can help in weighing the concept of ‘own country’ and the non-migratory factor in a sort of proportionality-test, namely that of the difference in response.
4.4. Case IV: Rashid
“Rashid was born in Maungdaw, Myanmar in 1988. He fled to Bangladesh with his mother in 1992 after his father, who was a Muslim rights activist, was killed and his sister was arrested. He lived in Bangladesh for 20 years, first in a refugee camp and then in several villages.
At that point Rashid decide to travel to the Netherlands to seek sanctuary. He applied for asylum twice and his request was rejected both times. Rashid’s situation is made worse by the fact that he fled Myanmar without ever having owned a valid identity document. As a member of the Rohingya ethnic group he was deprived of his Myanmar nationality by the Government.
Currently, Rashid is not residing legally in the Netherlands. He lives in a homeless shelter but could be asked to move out any time in the future. For Rashid the future is uncertain, he is all by himself in a foreign country and is dealing with traumas from his childhood. He has nightmares, and high blood pressure – even though he is only 25 year old. Every day Rashid gets more depressed as he does not have any prospect of acquiring a legal residence permit anywhere in the world at this point. He is stuck in limbo because of the failure by the Dutch authorities to put in place a functioning statelessness determination procedure.”193
193 ENS, ‘Rashid – Faces of Statelessness’ (ENS, 2014)
51 Rashid appears to be a refugee – as his stay in a refugee camp suggests – from Myanmar, who ended up in the Netherlands via Bangladesh. He therefore seems to be in a migratory situation. Remember in this regard the connection of stateless refugees or stateless refugees that cannot qualify as a refugee under the 1951 Convention to statelessness in the migratory context on the basis of some of the statements by Månsson.194 When examining Rashids situation further under the definition of statelessness in the migratory it is indeed true that his ties to the Netherlands cannot be considered as meaningful and/or long established; he is only 25 years old and has lived in Bangladesh for 20 years. Furthermore, the reference in the case to the need for establishing a statelessness determination procedure in the Netherlands – the mechanism needed to adequately protect stateless migrants – indicates that he is stateless in the migratory context. In conclusion, Rashid can therefore be seen as a stateless migrant.
4.5. Case V: Roman
“Roman is stateless. He was born in Kosovo in the 1960’s. His father was a Yugoslav citizen and his mother was a citizen of the USSR. Early in his life, Roman’s mother took him to Russia to live with his grandmother. But before he was old enough to obtain an ID as proof of his nationality, his grandmother died and Roman left Russia to travel around Europe.
More than 20 years ago Roman came to Slovakia but he has remained in limbo ever since due to his lack of a nationality or any official ID. This has caused him many problems. On multiple occasions Roman was held in the immigration detention centre awaiting deportation from Slovakia. In 2005 the Government issued him with an expulsion order and a 10 year re-entry ban. However, as neither Serbia, Kosovo, nor the Russian Federation recognised him as their citizen, his forced expulsion could not proceed. As a result his continued detention was eventually considered futile and he was released.
In 2006 he was granted tolerated stay because “his departure from Slovakia is not possible and his detention is not effective”. Since then his tolerated stay has been prolonged repeatedly every 6 months.
In 2005 Roman’s citizenship was registered as “Yugoslav”. Then a year later the police changed his citizenship to “unknown” in granting him tolerated stay. In 2008 police suddenly started to evidence him as “stateless”. This then changed again in 2013 to “unspecified”. As there is no statelessness determination procedure in Slovakia Roman has never been officially recognized as a stateless person.
Roman has a spouse who is a Slovak citizen. They have lived together for 15 years in a common household, however for the last few years they have been made homeless. Roman’s spouse is disabled and almost blind with full time care needs provided to her by Roman. Because Roman only has tolerated stay (rather than full regularisation as a stateless person) he continues to live in limbo - unable to work, access full healthcare or enjoy a secure future with his partner. Roman explains:
“[W]e cannot marry and they also do not want to give me a residence permit as to her partner. What can we do?”
While Slovakia enables stateless persons to apply for Slovak citizenship if the person lived on the territory for at least three years, Roman does not meet other conditions, having a birth certificate and a criminal record which is the result of not respecting the deportation order, despite the fact that he was unable to leave Slovakia because he did not possess any valid travel documents. As a person who was granted tolerated stay Roman has no access to health care or access to employment, with no possibility to get married. Roman’s future remains unclear.”195
From the facts of the case is evident that Roman has travelled around Europe; after being born in Kosovo and growing up in Russia, he ended up in Slovakia. This points in the direction of him being stateless in the migratory context. On the other hand, Roman has
194 See para. 2.5. 195 ENS, ‘Roman – Faces of Statelessness’ (ENS, 2014)
52 been in Slovakia for over 20 years now and is settled with his wife. The question remains: are his ties to Slovenia meaningful and long established or not (yet), i.e. is he stateless in his ‘own country’ or not? It would seem that they are meaningful through his wife, but are not that long established as for stateless persons who have been stateless in a country for generations for instance. Roman clearly has (had) ties to another country, Russia, through his mother and grandmother. Indeed, these ties may no longer be as strong as they used to be, but they are there. As such, ties to another country cannot really be considered absent. Also, when assessing the case in light of the non-migratory factor of the definition of stateless in situ, it is obvious that Roman has crossed borders. Thus, Roman is considered to be stateless in the migratory context.
4.6. Case VI: Sarah
“Sarah was born and raised in the Democratic Republic of Congo. Until the age of 18 she possessed both Congolese and Rwandan nationality as her father is Rwandan and her mother is Congolese.
In 2001, during the conflicts between the two neighboring countries, Sarah’s parents were arrested on allegations of spying on the Congolese government. At the age of 15 Sarah was left on her own. She stayed with family friends for a year, but soon realised that she had nowhere to go. More and more she felt that her life was in danger if she stayed in Congo. After a year of her parents being put into jail, in 2002, when Sarah was only 16, she decided to flee to the Netherlands. On her arrival she applied for a residence permit for unaccompanied minor asylum seekers. Her application was rejected and the process of repatriation commenced. However 2 days prior to her return to Kinshasa, Congo the Dutch Repatriation & Departure Service announced that the Laisser-Passer needed for her deportation and previously granted by the Congolese authorities had been withdrawn for unknown reasons. This suspended the deportation process and Sarah was allowed to stay.
In order to regularise her status Sarah applied for a Dutch “no-fault residence permit”, a one year residence permit for those who cannot leave the Netherlands through no fault of their own. As part of her application she had to acquire proof of identity documentation from the Congolese authorities and it was at this point Sarah for the first time realised that she was stateless. The Congolese Embassy in the Netherlands stated that she automatically lost her Congolese nationality at the age of 18, stating that people with dual nationality are ought to opt for one nationality when they turn 18. Sarah was not aware of this. She contacted the Rwandan Embassy several times to try and obtain identity documents from them. However, she was told that she cannot be recognized as Rwandan citizen because she was not born in Rwanda, and has no close links to the country.
Now, twelve years later, Sarah is still stuck in the same situation, unable to (re)acquire original Congolese or Rwandan identity documents. Because the Netherlands currently has no procedure to recognise or regularise stateless persons, Sarah has no solution in sight.”196
Even though Sarah has been in the Netherlands for considerable time, her story demonstrates that she fled from Congo to the Netherlands, making her a migrant (and perhaps a refugee, but her asylum application was refused). She thus seems to be stateless in the migratory context. Is it true then that she has no or no significant ties to the Netherlands (yet)? The answer appears to be ‘yes’. The case above does not mention any meaningful ties to the Netherlands, whereas ties (through her parents) to Rwanda and Congo can be noticed. In the latter country, Sarah has also actually lived, and she seems to have to strongest connection to. As such, Sarah is stateless in the migratory context.
196 ENS, ‘Sarah – Faces of Statelessness (ENS, 2024)
53 4.7. Concluding remarks
Applying the concepts of statelessness in situ and statelessness in the migratory context to the six cases above was not as easy as one might expect. Each case involves a person with a specific story, and it is hard to compare these stories to each other. Nonetheless, it proved possible to assign either the context of stateless migrants or of stateless persons in situ to the cases. In this exercise some of the shortcomings of the working definitions formulated in this study were visible though, as well as the fact that the assignment of a context is a process of weighing the facts of a case and the elements of the definitions. Based on the above, it could be concluded for instance that the incorporation of statelessness in relation to state succession into the concept of statelessness in situ would be advisable.
An important finding was furthermore that the notion of ‘own country’ in international law is not the same as what the concept of statelessness in situ entails; it is broader. As such, the reference to ‘own country’ in the definition of stateless in situ seems contradictory. However, the process of establishing who is stateless in situ and who is stateless in the migratory context in the above cases demonstrated that this is a process of weighing the facts of the case using the response that a person’s situation demanded, and in light of the principle proportionality. This should therefore be added to the definition. For instance, is a person in need of a determination of statelessness with a corresponding status, or is this disproportionate and is verification of nationality the proper response? This proportionality- criterion can benefit from the content of the definitions. The interpretation given to the concept of ‘own country’ by the UN-HRC, for instance, was helpful in defining who is stateless in situ and who is stateless in the migratory context. Having its roots in international law, this element can not only clarify the concept of statelessness in situ, but can also reinforce the definition from a legal perspective. On the other hand, however, the non-migratory factor had to be weighed. To clarify this, it seems important to make some kind of reference to the fact that the ties of a person should really be long established, e.g. by mentioning ‘since birth’ in the definition of statelessness in situ. In addition, none of these cases involved ethnic minorities who were stateless in situ, whereas a member of the Rohingya ethnic minority was found to be stateless in the migratory context. As such, it seems not very necessary to keep this element in the definition, as it may only confuse the differences between the two definitions.
In light of these concluding remarks, the working definitions of statelessness in situ and statelessness in the migratory context are adapted and redefined as follows: • Statelessness in situ: persons who are (usually) in a non-migratory situation and remain stateless in their ‘own country’, often since birth – who are long standing residents or were residents at the time of state succession, who have close personal and family ties to this country and intentions to remain, as well as no such ties elsewhere – which warrants a different response than to stateless migrants as the former should be granted nationality. • Statelessness in the migratory context: statelessness persons that are migrants, or have a migratory background, who have no (or no significant) ties to the country
54 they live in (yet), and should be able to obtain protection of the state they live in (as well as access to facilitated naturalisation) through determination of statelessness.
Finally, some remarks on the basis of the findings in this study can then also be made on the particular groups that are stateless in Europe. Already in the course of this research, mainly in the literature review, examples of stateless populations that are stateless in situ or stateless in the migratory context were visible. In the introduction, a couple of these groups were mentioned as well. They included the Roma, non-citizens in Slovenia, and ethnic Russians in the Baltic States, more specific in Estonia and Latvia, as well as for instance Syrian refugees, and stateless Palestinians and Bidoon from Kuwait seeking asylum. The ethnic Russians in Latvia and Estonia have been identified in this study as being stateless in situ, which similarly is also true for the non-citizens in Slovenia. On the other hand, the stateless Palestinians, Kuwait’s Bidoon and Syrian refugees are clearly stateless in the migratory context. The Roma present a slightly more difficult case, as they are sometimes only at risk of being stateless and often travel. In the ACVZ report was seen, for instance, that Roma people who were admitted to the Netherlands in 1977-1978 were considered to be stateless in situ. Indeed, their long-term ties to the Netherlands of more than 36 years point towards this context. It is also conceivable Roma persons have been in a country for their entire life – since birth, yet remain stateless there, which would also imply that they are stateless in situ. However, when they have moved around and have been in the country they currently live in for a limited amount of time, their situation should be characterised using the concept of statelessness in the migratory context.
55
56 5. Conclusion Are the concepts of statelessness in situ and statelessness in the migratory context as described in literature supported in international law, and how can they be evaluated in Europe?
This study demonstrates that in literature a consensus appears to exist on the concepts of statelessness in situ and statelessness in the migratory context and what they entail, which was examined elaborately using a table for comparison of definitions. It was seen that the two concepts represent a difference in attachment to the state a person lives in, and that this difference in attachment requires a difference in response. By considering the attachment, i.e. ties of a person to a country, one can thus draw a distinction between the two contexts of statelessness. More importantly, international legal instruments explicitly and implicitly support this distinction and how it is made. An important finding in this regard was the fact that the notion of nationality in international law supports a distinction being made on the basis of the ties of a person to a state, as people with significant connections have a better reason for claiming the nationality of a country than persons with no(t yet) such ties, even though they may still claim protection of a state. Turning to European instruments then, it is evident they were able to provide an interesting further insight on the concepts under consideration in this study. It was, however, perhaps disappointing to note that the ECtHR has not been as progressive in its interpretations as the IACtHR, even though the Andrejeva case that was decided upon by the ECtHR could provide for some support for the distinction between the two contexts of statelessness. Still, he IACtHR did not only directly reinforce this distinction; it also very clearly demonstrated the link that exists with human rights.
The part of this research that attempted to give an indication of how the concepts of statelessness in situ and statelessness in the migratory context can (or cannot) be used in practice was the case study. In the spectrum extending from citizen/national to migrant somewhere a distinction between statelessness in situ and statelessness in the migratory context can indeed be made. However, in the course of applying the concepts to the cases, it appeared that the working definitions of the concepts could be fine-tuned. An important finding was that the notion of ‘own country’ – which is referred to in the definition of statelessness in situ – in international law is broader than the concept of statelessness in situ. As such, using ‘own country’ in the definition seems contradictory. However, the case study proved that drawing the line between the two contexts of statelessness is a process of weighing the different facts of a case against the definitions of the two contexts of statelessness. Particularly helpful in this exercise was the usage of a proportionality-test, especially when employing this in relation to the response that a context required, i.e. is it in a certain case proportional to ask a person to resort to a statelessness determination procedure, or should he or she have his or her nationality recognised by the state in question? Eventually, it proved possible to apply the concepts of statelessness in situ and statelessness in the migratory context to the cases using working definitions of these concepts that did not go beyond the meaning of these contexts as indicated in the literature and legal instruments studied. Consequently, the concepts were reformulated in the concluding remarks of section 4 of this paper as follows:
57 • Statelessness in situ: persons who are (usually) in a non-migratory situation and remain stateless in their ‘own country’, often since birth – who are long standing residents or were residents at the time of state succession, who have close personal and family ties to this country and intentions to remain, as well as no such ties elsewhere – which warrants a different response than to stateless migrants as the former should be granted nationality. • Statelessness in the migratory context: statelessness persons that are migrants, or have a migratory background, who have no (or no significant) ties to the country they live in (yet), and should be able to obtain protection of the state they live in (as well as access to facilitated naturalisation) through determination of statelessness.
It proved possible to apply the concepts with these definitions to cases in Europe. Therefore, this study cannot provide for reasons that the concepts of statelessness in situ and statelessness in the migratory context are inadequate in the European context. Within the two categories of stateless persons, it might be possible to make further distinctions that may better address the situation of a certain type of stateless population, e.g. within the context of statelessness in situ one could distinguish persons who remained stateless after state succession. In this regard, it should be remembered though that it would impossible to have a label that would exactly fit every type of situation that a stateless person finds him- or herself in. Also, it is undesirable to have other qualifications for contexts in which statelessness arises from a legal perspective, because international legal instruments support and sometimes even explicitly refer to statelessness in the migratory context and/or statelessness in situ. Furthermore, these instruments – some more clearly than others – reinforce the difference in response that these contexts entail. Thus, using the two contexts of statelessness in Europe can provisionally be evaluated positively. Still, this study admits that applying the concepts of statelessness in situ and statelessness in the migratory context to a particular case will remain a challenging exercise, as the facts of the case will have to be weighed bearing the principle of proportionality in mind and using the definitions of the two contexts of statelessness.
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Kruma, Kristine, Country Report: Latvia (EUDO Citizenship Country Reports 2013)
Lottmann, Annelies, ‘No Direction Home: Nationalism and Statelessness in the Baltics’ (2008) 45 Texas International Law Journal 503
Manly, Mark, ‘UNHCR’s Mandate and Activities to Address Statelessness in Europe’ (2012) 14 European Journal of Migration and Law 261
Manly, Mark and Waas, Laura van, ‘The State of Statelessness Research’ (2014) 19 Tilburg Law Review 3
59 Månsson, Matilda, Reduction of Statelessness and Access to Nationality: The Need for EU Legislation. The Showcase of Stateless Roma in Slovenia (Master’s Thesis Faculty of Law Lund University 2013)
Molnár, Tamás, ‘Remembering the Forgotten: International Legal Regime Protecting the Stateless Persons – Stocktaking and New Tendencies’ (2014) 11 US-China Law Review 824
Mrekajova, Eva, Naturalization of Stateless Persons: Solution of Statelessness? (Master’s Thesis Tilburg Law School 2012)
Nikolic, Natasa, De jure Statelessness in Serbia. A Critical Analysis of the Legal Framework with regards to Combating Statelessness and the Protection of Stateless Persons (Master’s Thesis University of Gothenburg, University of Roehampton, University of Tromsø 2013)
Parra, Jessica, ‘Stateless Roma in the European Union: Reconciling the Doctrine of Sovereignty concerning Nationality Laws with International Agreements to Reduce and Avoid Statelessness’ (2011) 34 Fordham International Law Journal 1666
Rodrigues, Peter, ‘De facto Staatloosheid of de Uitdaging van Onuitzetbaren’ [De facto Statelessness or the Challenge of Undeportable Persons] (2013) 5/6 Asiel & Migrantenrecht 281
Sardelic, Julija, Romani Minorities on the Margins of Post-Yugoslav Citizenship Regimes (Citsee Working Paper 2013/31)
Sawyer, Caroline and Blitz, Brad (eds), Statelessness in the European Union. Displaced, Undocumented, Unwanted (Cambridge University Press 2011
Spiro, Peter, ‘A New International Law of Citizenship’ (2011) 105 The American Journal of International Law 694
Tucker, Jason, ‘Questioning de facto Statelessness by Looking at de facto Citizenship’ (2014) 19 Tilburg Law Review 276
Vlieks, Caia, A European Human Rights Obligation for Statelessness Determination? (Master’s Thesis Tilburg Law School 2013)
Waas, Laura van, ‘Fighting Statelessness and Discriminatory Nationality Laws in Europe’ (2012) 14 European Journal of Migration and Law 243
Waas, Laura van, ‘Statelessness: A 21st Century Challenge for Europe’ (2009) 2 Security and Human Rights 133
Waas, Laura van, Nationality Matters. Statelessness under International Law (Intersentia 2008)
Waas, Laura van and Neal, Monica, ‘Statelessness and the Role of National Human Rights Institutions’ [2013] Tilburg Law School Legal Research Paper Series No. 022/2013
Ziemele, Ineta, State Continuity and Nationality: Baltic States and Russia: Past, Present and Future as Defined by International Law (Brill Nijhoff 2005)
Reports by UN agencies and civil society organisations
• ACVZ, Geen land te bekennen. Een advies over de verdragsrechtelijke bescherming van staatlozen in Nederland [No Country of One’s Own. An Advisory Report on Treaty Protection for Stateless Persons in the Netherlands] (ACVZ 2013) • ENS, Statelessness Determination and the Protection Status of Stateless Persons. A Summary Guide of Good Practices and Factors to Consider when Designing National Determination and Protection Mechanisms (ENS 2013) • Equal Rights Trust, Unravelling Anomaly. Detention, Discrimination and the Protection Needs of Stateless Persons (ERT 2010) • Lynch, Maureen, Latvia: The Perilous State of Nationality Rights (Refugees International Field Report 2011) • Lynch, Maureen, Lives on Hold. The Human Cost of Statelessness (Refugees International 2005) • Massey, Hugh, UNHCR and de facto Statelessness (UNHCR 2010) LPPR/2010/01 • IPU and UNHCR, Nationality and Statelessness. Handbook for Parliamentarians No. 22 (2nd edn, IPU/UNHCR 2014) • UNHCR, War’s Human Cost. UNHCR Global Trends 2013 (UNHCR 2014) • UNHCR, A Study and Comparison of National Laws in Slovenia and International Standards related to Statelessness (UNHCR 2012) • UNHCR, Mapping Statelessness in Belgium (UNHCR 2012) • UNHCR, Mapping Statelessness in the Netherlands (UNHCR 2011)
60 • UNHCR, Mapping Statelessness in the United Kingdom (UNHCR 2011) • UNHCR, Report on Statelessness in South Eastern Europe (UNHCR 2011) • UNHCR, Expert Meeting – Statelessness Determination Procedures and the Status of Stateless Persons (Summary Conclusions) (UNHCR 2010)
International and European legal instruments and related documents
• 1954 Convention relating to the Status of Stateless Persons (adopted 28 September 1954, entered into force 6 June 1960) 360 UNTS 117 (1954 Convention) • 1961 Convention on the Reduction of Statelessness (adopted 30 August 1961, entered into force 13 December 1975) 989 UNTS 175 (1961 Convention) • Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended) (ECHR) CETS No. 005 • Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137 (1951 Convention/Refugee Convention) • Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession CETS No. 200, and Explanatory Report • Council of Europe Parliamentary Assembly Resolution 1989 (2014) • European Convention on Nationality (ECN) CETS No. 166 • International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) • UNHCR Guidelines on Statelessness No. 1: The Definition of "Stateless Person" in Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons (HCR/GS/12/01) • UNHCR Guidelines on Statelessness No. 2: Procedures for Determining whether an Individual is a Stateless Person (HCR/GS/12/02) • UNHCR Guidelines on Statelessness No. 3: The Status of Stateless Persons at the National Level (HCR/GS/12/03) • UNHCR Guidelines on Statelessness No. 4: Ensuring Every Child’s Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness (HCR/GS/12/04) • UNHCR, Handbook on the Protection of Stateless Persons under the 1954 Convention relating to the Status of Stateless Persons (UNHCR 2014) • UN-HRC CCPR General Comment No. 27: Article 12 (Freedom of Movement) (CCPR/C/21/Rev.1/Add.9) • Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) (UDHR)
Case law
• Andrejeva v Latvia App. No. 55707/00 (ECtHR GC 18 February 2009) • Case of the Yean and Bosico children v the Dominican Republic (IACtHR 8 September 2005) • Genovese v Malta App. No. 53124/09 (ECtHR 11 October 2011) • Kuric and others v Slovenia App. No. 26828/06 (ECtHR GC 26 June 2012) • Nottebohm (Liechtenstein v Guatemala) ICJ Reports 1955, p. 4; General List, No. 18 • Nystrom v Australia (2011) Communication No. 1557/2007 (CCPR/ CCPR/C/102/D/1557/2007) • Stewart v Canada (1996) Communication No. 538/1993 (CCPR/C/58/D/538/1993)
Significant Internet sources
• ENS, ‘Andrej – Faces of Statelessness’ (ENS, 2014)
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