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The Treatment of Statelessness Under International Law

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The Treatment of Statelessness Under International Law Briefing Ruma Mandal and Amanda Gray International Law Programme | October 2014 Out of the Shadows: The Treatment of Statelessness under International Law Summary • The UN estimates that at least 10 million people • International human rights law adds to the are stateless, including communities excluded protection of stateless persons and to the from citizenship for generations. safeguards against statelessness, but the law is not being sufficiently observed. Further efforts • Lacking a formal status, stateless persons are to improve understanding and compliance with among the most vulnerable and marginalized. the existing legal framework are necessary, not • Protracted disputes over the citizenship status new legal standards. of communities can lead to conflict and refugee • In the UK, controversy has arisen over movements. new powers to strip British citizens of their • Despite relatively low levels of participation, the nationality even where this risks statelessness. UN treaties concerning statelessness continue to play a significant role. Out of the Shadows: The Treatment of Statelessness under International Law Introduction one’s nationality.5 Subsequently, various prohibitions on discrimination in relation to nationality have emerged. The It is the worst possible thing to happen to a human being. It means right to a nationality encompasses change and retention of you are a non-entity, you don’t exist, you’re not provided for, you nationality as well as its acquisition.6 Importantly, there is count for nothing.1 no corresponding obligation on a state to grant nationality 7 That a person has a nationality is generally taken for or a right to receive a nationality of one’s choice. However, granted. Yet at least 10 million people are estimated to as discussed further below, certain obligations to bestow be without nationality and, as a consequence, without a or restore nationality have arisen as a consequence of legal link to any country.2 Lacking nationality, they are developments in international human rights law and denied a formal identity and can find themselves excluded provisions found in the 1961 Convention. from society. Barred from education and employment opportunities, the stateless may also be prevented from owning property, marrying legally or even registering the Who is stateless, where and why? birth of a child. Some may suffer prolonged detention simply because they are unable to prove who they are. Statelessness occurs in all regions and the causes are Excluded from political participation, stateless persons are multiple. An individual may be born stateless or fall into forced into the margins and at risk of exploitation. that predicament later in life. Statelessness may arise inadvertently owing to the complexity of, or conflicts This year marks the 60th anniversary of the 1954 between, nationality laws, including gaps arising in cases Convention relating to the Status of Stateless Persons of state succession. Statelessness can be the consequence of (1954 Convention). This treaty, along with the later 1961 gender discrimination in nationality laws or of deliberate, Convention on the Reduction of Statelessness (1961 discriminatory policies against particular communities. Convention), has languished in relative obscurity since its adoption.3 Nationality issues triggered by the dissolution of the Soviet Union, Czechoslovakia and Yugoslavia in the 1990s Box 1: The global reach of statelessness led to a renewed focus on statelessness, including on the part Countries with sizeable stateless populations include of the UN High Commissioner for Refugees (UNHCR), the Myanmar (where around 800,000 people are stateless in UN agency with a mandate for stateless persons. the northern part of Rakhine state alone), Thailand, Côte This paper provides an overview of how international law d’Ivoire, Iraq, Syria and Latvia. In the Dominican Republic, treats situations of statelessness, both in guarding against tens of thousands of Dominicans of Haitian descent were statelessness and in protecting the rights of stateless rendered stateless in September 2013 following a decision persons. of the constitutional court to treat them as non-nationals. In the Gulf, populations which were left out of citizenship laws at independence remain stateless and are known as bidoon The right to a nationality (‘without’ in Arabic). International law traditionally afforded discretion to states in relation to their nationality practices,4 but this A ‘stateless person’ is defined in Article 1(1) of the 1954 has been considerably restricted by developments in Convention: international human rights law. Article 15 of the Universal For the purpose of this Convention, the term stateless person means Declaration of Human Rights (UDHR) declares the right to a person who is not considered as a national by any State under the a nationality and the right not to be arbitrarily deprived of operation of its law. 1 Remarks by a Nubian elder in Kenya quoted in UNHCR, ‘Media Backgrounder: Millions Are Stateless, Living in Legal Limbo’, 2011, http://www.unhcr.org/4e54ec469.html. 2 For latest UNHCR figures, see Global Trends, 2013, http://www.unhcr.org/5399a14f9.html, p. 31. Note the difficulties in compiling statistics on statelessness given limited data collection by governments. Some commentators question whether the UNHCR figures are too conservative. 3 As of 10 September 2014, 82 states are party to the 1954 Convention and 60 to the 1961 Convention, with 17 accessions to the former and 22 to the latter in the last three years. 4 See, for instance, International Court of Justice, Nottebohm Case (Liechtenstein v. Guatemala): Second Phase, 6 April 1955. 5 This right did not make its way into the International Covenant on Civil and Political Rights, except in Article 24(3) in the case of children. It is found, again with respect to children, in the Convention on the Rights of the Child and, with respect to disabled persons, in the Convention on the Rights of Persons with Disabilities, as well as in a number of regional instruments, e.g. the American Convention on Human Rights. 6 For example, Article 9 Convention on the Elimination of All Forms of Discrimination Against Women. See also UN Human Rights Council Resolution, A/HC/20/L.9, 28 June 2012. 7 See International Law Commission, Articles on Nationality of Natural Persons in Relation to the Succession of States (With Commentaries), 3 April 1999, commentary to Article 1. 2 | Chatham House Out of the Shadows: The Treatment of Statelessness under International Law Article 2 sets out categories of people to whom the Protecting the rights of stateless persons convention ‘shall not apply’, including persons enjoying rights equivalent to nationals and individuals who have committed war crimes or serious non-political crimes. Box 2: Statelessness and marginalization The Article 1(1) definition arguably frames the concept of a stateless person for the purposes of international The Galjeel community of Somali origin has lived in Kenya law generally, there being no other definition in a since the 1930s and its members traditionally held Kenyan ID multilateral treaty.8 cards, voted in elections, owned businesses and enjoyed access to government services. However, measures introduced in In spite of its apparent simplicity, issues have arisen 1989 to screen for irregular migrants resulted in many of this with the interpretation of the definition,9 not least its community losing their forms of identification and becoming apparent requirement that a negative be proven in stateless. They now suffer severe discrimination, with limited relation to every country. This particular difficulty can be livelihood opportunities or education for their children.a dealt with through applying an appropriate standard of a See UNHCR, Protecting the Rights of Stateless Persons, 2014, proof. But there is an absence of case law to assist with http://www.refworld.org/pdfid/4cad88292.pdf. interpreting the definition.10 Into this relative vacuum UNHCR has introduced a Handbook on Protection of Stateless Persons which looks, inter alia, at the scope of With the human rights system grounded in the concept Article 1(1).11 of universality, lack of nationality should not act as an automatic barrier to enjoyment of its guarantees.13 The Recognition by governments of the benefits reality is markedly different. In part, this is due to the for social cohesion and political stability has practical difficulties of accessing rights without identity seen a number of protracted statelessness documents or proof of lawful residence in a country. In addition, certain key rights are reserved explicitly for situations resolved in the last decade. nationals; notably the right of political participation and the right of entry and residence in a country. Moreover, the Statelessness is often associated with refugees and the underlying principle of non-discrimination in international Article 1(1) definition indicates that the two categories are human rights law does not preclude any distinctions not mutually exclusive. Unlike refugees, however, stateless between citizens and others.14 Rather, differentiation is persons are not inherently in a migratory situation. Indeed, permissible so long as this furthers a legitimate objective the majority have not moved across a border. Nevertheless, and sits within the bounds of proportionality. the extreme discrimination endured by the stateless has been identified as a significant source of refugee flows. To what extent does
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