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 <http://www.oxforddictionaries.com/definition/english/in-situ> accessed 11 July 2014. 4 Gábor Gyulai, ‘Statelessness in the EU framework for International Protection’ (2012) 14 European Journal of Migration and Law 279. 5 Ibid. 6 For the purposes of this study, ‘Europe’ is defined as the region comprising the countries of the Council of Europe <http://www.coe.int/en/web/about-us/our-member-states;jsessionid=ABC7BCB90C679DE9AC5f711702C799AD> accessed 24 June 2014. 7 Estimates of the UNHCR: UNHCR, ‘Statelessness in Europe’ (UNHCR) <http://www.unhcr.org/pages/4e12db4a6.html> accessed 24 June 2014, see also UNHCR, War’s Human Cost. UNHCR Global Trends 2013 (UNHCR 2014) 42-44. 8 See generally UNHCR, ‘Statelessness in Europe’ (UNHCR) <http://www.unhcr.org/pages/4e12db4a6.html> accessed 24 June 2014. Furthermore e.g. Kristine Kruma, EU Citizenship, Nationality and Migrant Status: An Ongoing Challenge (Martinus Nijhoff Publishers/Brill Academic 2013); Annelies Lottmann, ‘No Direction Home: Nationalism and Statelessness in the Baltics’ (2008) 45 Texas International Law Journal 503; Ineta Ziemele, State Continuity and Nationality: Baltic States and Russia: Past, Present and Future as Defined by International Law (Brill Nijhoff 2005). 9 E.g. Mark Manly, ‘UNHCR’s Mandate and Activities to Address Statelessness in Europe’ (2012) 14 European Journal of Migration and Law 262; UNHCR, Report on Statelessness in South Eastern Europe (UNHCR 2011) <http://www.refworld.org/docid/514d715f2.html> accessed 24 June 2014. 10 E.g. Ivan Kochovski, Statelessness and Discriminatory Nationality Laws: The Case of the Roma in Bosnia and Serbia (Master’s Thesis Tilburg Law School 2013) <http://arno.uvt.nl/show.cgi?fid=132633> accessed 25 June 2014; Julija Sardelic, Romani Minorities on the Margins of Post-Yugoslav Citizenship Regimes (Citsee Working Paper 2013/31) <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2388859> accessed 25 June 2014; Matilda Månsson, 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) <http://www.lunduniversity.lu.se/o.o.i.s?id=24965&postid=3800897> accessed 25 June 2014; Jessica Parra, ‘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 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) <http://eudo- citizenship.eu/docs/CountryReports/Estonia.pdf> accessed 26 June 2014; Kristine Kruma, Country Report: Latvia (EUDO Citizenship Country Reports 2013) <http://eudo-citizenship.eu/admin/?p=file&appl=countryProfiles&f=Latvia.pdf> accessed 26 June 2014; Sebastian Kohn, ‘Russia and the Baltics: The Great Statelessness Game’ (ENS Blog, 25 October 2012) <http://www.statelessness.eu/blog/russia-and-baltics-great-statelessness-game> accessed 26 June 2014; Maureen Lynch, Latvia: The Perilous State of Nationality Rights (Refugees International field Report 2011) <http://www.refintl.org/sites/default/files/Latvia%20The%20Perilous%20State%20of%20Nationality%20Rights.pdf> accessed 26 June 2014; Raivo Vetik, ‘The Statelessness Issue in Estonia’ in: Caroline Sawyer and Brad Blitz (eds), Statelessness in the European Union.