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OAS Course on : Statelessness & International

Laura van Waas - Statelessness Programme - [email protected] Setting the Scene

“Stateless Person”: a person who is not considered as a national by any under the operation of its law

Stateless persons are non-nationals everywhere, which has consequences for their enjoyment of rights

Number affected worldwide: approx. 12 million

No region unaffected; large groups to individual cases

Statelessness Programme What is ?

“Nationality”: the legal bond between a person and a state

Nationality is a form of membership that results in rights and duties, for instance: Right to enter and reside in the state; political rights Duty to perform military service

Nationality vs.

Statelessness Programme What is statelessness?

“Stateless Person”: a person who is not considered as a national by any state under the operation of its law

Article 1 of the 1954 Convention relating to the of Stateless Persons Recognised by ILC as customary Also referred to as “de jure statelessness”

Statelessness Programme What is statelessness?

“Stateless Person”: a person who is not considered as a national by any state under the operation of its law

Components: is not national (any) state considered as… under the operation of its law  Determination based on and practice  UNHCR guidelines on definition issued 20 February 2012 Statelessness Programme Stateless

“Stateless ”: a person who is not considered as a national by any state under the operation of its law and meets the definition of a refugee in article 1 of the 1951 Refugee Convention.

Falls under UNHCR’s refugee mandate

Enjoys protection of the 1951 Refugee Convention

When ceasing to be a refugee, may still be stateless and need assistance to acquire a nationality

Statelessness Programme Statelessness as an International Concern

Why worry about statelessness?  Detrimental impact on individual lives and family well- being  Severe knock-on effect on community stability and international relations

What are the international community’s main aims?  To avoid statelessness  To protect stateless people

Statelessness Programme How can statelessness be avoided?

Step 1: Understand the causes of statelessness

 Gaps in nationality / conflicts of nationality laws  Arbitrary deprivation of nationality  Processes relating to state succession

Common underlying factor: discrimination

Common contributing factors: migration, lack of birth registration, administrative obstacles

Statelessness Programme How can statelessness be avoided?

Step 2: Analyse nationality law and practice

How is nationality acquired?  Family links: parents, spouse  Territorial links: place of birth, residence

What gaps might there be in the law?  No safeguards to prevent statelessness at birth  Loss / renunciation of only nationality is permitted  Gender or racial discrimination  Poor / no procedural guarantees

Statelessness Programme How can statelessness be avoided?

Step 3: Apply relevant international standards

Are states free to regulate nationality?  No, international law now sets some limits on the freedom of states to regular access to nationality

What limits are set by international law?  General principles of law, e.g. non-discrimination  law  1961 Convention on the Reduction of Statelessness

Statelessness Programme Human rights law: the right to a nationality

Everyone has the right to a nationality. Universal Declaration of Human Rights (article 15)

 See also: ICCPR, CRC, CERD, CEDAW, Migrant Workers Convention, Convention on Persons with Disabilities, American Convention on Human Rights, European Convention on Nationality, African on the Rights and Welfare of the Child, Covenant on the Rights of the Child in Islam.

Statelessness Programme 1961 Convention on the Reduction of Statelessness

Specifically aimed at avoiding statelessness

Prescribes concrete safeguards for states to include in their nationality law, where a person would otherwise be stateless e.g. child born on territory who is otherwise stateless should be granted nationality

Not an international law on nationality, but a common framework for avoiding statelessness

Statelessness Programme How can stateless people be protected?

Step 1: Understand link between nationality and rights

What is nationality? Legal bond between a person and a state “Membership” resulting in rights & duties

What is the traditional role of nationality? Nationality as the “right to have rights” Fate of stateless people a matter of “charity”

Statelessness Programme How can stateless people be protected?

Step 2: Analyse challenges faced by stateless people

Limited access to social and economic rights - work, education, housing, healthcare No travel or identity documents Long-term or indefinite ; expulsion Inability to marriage or register births Exclusion from political processes

Statelessness Programme How can stateless people be protected?

Step 3: Apply international standards

Is nationality the foundation for rights? No, international law extends many rights to everyone, regardless of nationality or statelessness

What rights do stateless people enjoy? General principles, e.g. non-discrimination Human rights law 1954 Statelessness Convention

Statelessness Programme Human rights law and the stateless

States must protect human rights of everyone under their , including non-nationals!

ICCPR, ICESCR, CRC, CEDAW, CERD, etc are all relevant to the treatment of stateless people

Some rights may be reserved for citizens (e.g. political)

Statelessness Programme 1954 Convention relating to the status of Stateless Persons

Specifically aimed at protecting stateless people

Provides definition and establishes the legal status of “stateless person” and a minimum level of treatment to be enjoyed

Provides for special measures, including issuance of identity & travel documents and call for facilitated naturalisation

Statelessness Programme