Statelessness is the condition faced by an individual who lacks citizenship, or what is sometimes called “nationality.” Citizenship is a bond between the individual and the state that ensures that an individual is able to take on an identity under the law. While it imposes certain obligations, citizenship entitles the individual to protection by the state and provides a legal basis for the exercise of many civil and political rights. The right to nationality is a fundamental human right. Article 15 of the Universal Declaration of Human Rights unequivocally states that “everyone has the right to a nationality” and that “no-one shall be arbitrarily deprived of his nationality.” But many thousands of people across the globe lack the security and protection that citizenship can provide.
A grant of nationality is generally based upon certain factors or principles: ius soli (an individual’s place of birth or relationship to territory), ius sanguinis (an individual’s parentage, descent, or blood relationship), or the relationship established with a state through long-term residence in its territory. In legal terms, such ties provide the “genuine effective link” between the individual and the state. For the vast majority of people around the world, that link is easily established and readily acknowledged by the authorities of the state under which they live. Where, however, these conditions do not apply or are not acknowledged, problems of statelessness are likely to emerge.
People who lack a nationality may find it difficult or impossible to engage in a range of activities that citizens take for granted. If an individual is to enjoy the automatic right of residence in a country, carry a passport, and benefit from diplomatic protection while abroad, citizenship is indispensable. In many situations, nationality also enables people to find employment, to make use of public services, to participate in the political process, to have access to the judicial system, or simply to conduct their civil affairs, such as registering their marriage or filing a birth certificate for a child. Paul Weis (1956) observed that, “From the point of view of international law, the stateless person is an anomaly, nationality still being the link between the individual and the law of nations.” He went on to describe the stateless person as a kind of flotsam, res nullius, that is, in the eyes of international law, something without legal existence.
Article 1 of the 1954 United Nations Convention Relating to the Status of Stateless Persons defined the stateless person as one “who is not considered as a national by any state under the operation of its law.” This category is commonly known as de jure statelessness. There is, however, another category that has remained outside the definition offered by the convention of 1954. There are cases where a person’s nationality cannot be established because it is doubtful, undetermined, ineffective, or simply unknown. This is commonly known as de facto statelessness. The boundary between de jure statelessness and de facto statelessness is sometimes difficult to draw, but both terms are in common use. The majority of scholars feel that the term “statelessness” should be interpreted in the widest and most liberal sense, as the crucial question is one of protection. According to Carol A. Batchelor (1995), it is in this wider sense that the term “statelessness” informs the mandate of the United Nations High Commissioner for Refugees (UNHCR), which implicitly engages the issue of statelessness in its work through its efforts to prevent unnecessary displacement and hardship and to facilitate reintegration.
“Nationality” and “citizenship” are often used synonymously. Indeed, the conventions dealing with statelessness talk about nationality rather than citizenship. In some contexts, this might lead to confusion. Most commentators see citizenship as the relationship between the individual and the state within the territory of that state, and nationality as the relationship between the individual and the state in the international arena. The difference between the two has acquired special importance in the light of profound changes in the notion of the nation-state during the past few decades.
A substantial proportion of the world’s stateless people are victims of forced displacement. In some instances, individuals and communities are deprived of their nationality by governmental decree and are subsequently expelled from the country that they consider to be their home. In other situations, stateless people are obliged to flee because of the persecution and discrimination they experience. And having left the country in which they have lived for most or all of their lives, stateless people may subsequently find it impossible to return. Statelessness is not only a source of human insecurity and a cause of forced displacement but may also pose a threat to national and regional stability. Citizenship disputes have become an important feature of the contemporary world, generating tension and even violence between different states and communities.
Exclusion and inclusion have also been an important part of the process of state dissolution and formation worldwide. As a result, the number of stateless communities has been on the increase. It is not possible to know the exact size of the world’s stateless population because of continuous changes to the status of these communities, unclear and sometimes disputed nationality laws, and the unavailability of official data.
After the dissolution of the Soviet Union and Czechoslovakia and the breakup of Yugoslavia, millions of people needed to confirm a new citizenship status. New states emerging from these dissolutions established their own criteria for citizenship. In some cases, people who did not meet the criteria became “stateless”; in others, they failed to acquire citizenship in the countries in which they lived. These problems are by no means confined to Europe; nor does statelessness result only from the dissolution of states. Sometimes it can result from flaws in legislation and procedures governing marriage and registration of births. Sometimes discriminatory policies targeting women, minorities, immigrants, or other vulnerable groups or individuals lead to statelessness. In some instances, governments have passed citizenship laws that have had the effect of marginalizing whole sections of society.
In Asia, the Biharis (non-Bengali Muslims who moved from India to what was East Pakistan in the late 1940s) considered themselves to be Pakistani nationals and refused to take Bangladeshi nationality when Bangladesh gained independence in 1971. The government of Pakistan has since been reluctant to “repatriate” them, and more than 200,000 are still in camps in Bangladesh. In Myanmar, restrictive nationality laws continue to prevent many residents, such as the Rohingyas, a mainly Muslim ethnic group, from being considered as nationals. In Bhutan, citizenship laws adopted in the 1980s effectively excluded many ethnic Nepalis from Bhutanese nationality and compelled them to leave the country. Some 100,000 ethnic Nepalis from Bhutan are still living in camps in Nepal.
In Africa, some 75,000 people were expelled from Mauritania as a result of interethnic clashes between 1989 and 1990. Although most have since returned, around 30,000 remain in Senegal, their claims to citizenship challenged by the Mauritanian authorities. In Zaire, following legislation passed in 1981, thousands of Banyarwanda people de jure lost their citizenship. In Ethiopia, as a result of the war with Eritrea, which started in 1998, the authorities expelled 68,000 people to Eritrea for being nationals of an enemy state. Although both countries have issued papers to these people, by the beginning of the new millennium neither was willing to accept full responsibility for them as citizens.
In the Middle East, until a full-fledged sovereign Palestinian state is established, more than half of the Palestinians refugees, estimated at more than 7 million, will remain stateless. More than 250,000 Kurds in Syria and Iraq are considered noncitizens or have been deprived of their nationality. In the Persian Gulf states, mainly in Kuwait, up to 350,000 Bidoon (an Arabic word meaning “without nationality”) have long lived as a minority without an effective nationality. About 500,000 Iraqis, mostly Shiites, were deprived of their nationality and expelled to Iran in the early 1980s as a result of the Iraq-Iran war.
Attempts to urge states either to grant nationality to stateless persons or to accept nonnational refugees have frequently been made but have not always been successful in the context of strong sovereign states. Statelessness was not perceived as an international problem before the upheavals caused by World War I. Since then states have regularly litigated cases involving questions of nationality before international tribunals. A common feature of these cases was agreement that questions of nationality were predominately internal matters (Doebbler 2001). In 1923, the Permanent Court of International Justice supported this view when it issued an advisory opinion stating clearly that nationality was in principle a matter reserved for domestic jurisdiction. The court, however, also pointed out that “the right of a state to use its discretion is nevertheless restricted by obligations which it may have undertaken toward other states.” The tension between state sovereignty and attempts to provide some basic safeguards to individuals thus remained unresolved.
The creation of the League of Nations increased awareness of minorities, the displaced, and other vulnerable peoples. It was then that arguments supporting state sovereignty began to falter, causing states to take confused steps toward dealing with the problem of statelessness. Two of the first international instruments to address statelessness were the protocols produced by The Hague Conference of 1930. That this early attempt to develop the law was fraught with confusion is evidenced by the failure of these instruments to provide generally acceptable solutions and the consequent failure of a large number of states to ratify them. Nevertheless, the League’s attempt is worth noting if only for their limitations.
The first protocol provided a formula, which was to be repeated in subsequent treaties, providing for children to acquire the nationality of the mother when no other option was available. This principle was called ius sanguinis maternus. This formula is repeated in more modern instruments, although often in tandem with recognition of the ius soli principle. The second protocol provided merely that states must admit stateless persons who last possessed their nationality. This protocol was a predecessor to the human rights treaties that today provide some degree of protection for stateless persons.
The Hague Conference failed to resolve the problems associated with statelessness, and the problems grew with the outbreak of World War II. In the light of increasing numbers of displaced and stateless persons within Europe during the war, statelessness was placed on the initial agenda of the new world body, the United Nations. There followed a flurry of activity, including a series of resolutions by the Commission on Human Rights, the Economic and Social Council, and the General Assembly. Additionally, the secretary-general issued a report citing the organization’s mandate under the Universal Declaration of Human Rights, which provided for the right to a nationality.
At the same time, at its first session in 1949, the UN International Law Commission took up questions of nationality and statelessness with a view to drafting relevant principles of law to deal with the problem. In the same year, the Ad Hoc Committee on Statelessness and Related Problems was formed. This latter body emerged as the de facto drafting committee for language later used in the 1951 Convention Relating to the Status of Refugees and the 1954 and 1961 conventions concerning statelessness.
The 1954 UN Convention Relating to the Status of Stateless Persons requests that state parties grant legal status to lawfully resident stateless persons. The 1961 UN Convention on the Reduction of Statelessness requires that states extend citizenship to those born on their territory who would otherwise be stateless, providing a mechanism for avoiding statelessness either at birth or through inadvertent loss of a nationality. The 1961 convention also makes provision for a mediating agency. In 1975, when this convention came into force, the General Assembly conferred on UNHCR’s responsibilities under Article 11, providing for the establishment of “a body to which a person claiming the benefit may apply for the examination of their claim and for assistance in presenting it to the appropriate authority.” The Final Act to this convention, like that of the 1954 convention, includes a recommendation that the provisions be extended to de facto stateless persons whenever possible.
When a conflict arises involving statelessness, domestic legislation may be scrutinized by arbiters or by the International Court of Justice (ICJ). This provision stems from Article 38 of the Statute of the ICJ, which also delineates international conventions, customary international law, and general principles of law as the primary sources of international law. In essence, therefore, Article 1 of The Hague Convention states that domestic nationality legislation will be recognized insofar as it is consistent with international law.
Both the UN General Assembly and the Executive Committee of UNHCR have adopted resolutions and made recommendations stressing the importance of the principles embodied in international instruments and the need for states to adopt measures to prevent statelessness. At a regional level, the Council of Europe, the Organization of American States, the Organization for Security and Cooperation in Europe, and other bodies have taken similar positions seeking to clarify the rights and responsibilities of states in ensuring individual access to a nationality.
Securing the participation of previously excluded groups has been seen as the key to democratization (Castles and Davidson 2000). Indeed, there has been significant progress over the past three decades. Most states today endorse a liberal approach and apply a combination of the principles of ius sanguinis, ius soli, and residency to determine who should be granted citizenship. Many autocratic regimes still show a strong tendency to view matters related to nationality as “state acts” or “sovereign acts,” however. It is true that each state is free to determine who will be considered a citizen under its national laws. Such laws, however, should only be recognized by other states insofar as they are consistent with international conventions, international custom, and the principles internationally accepted with regard to nationality.
States and international bodies are today faced with the urgent task of reducing the number of rapidly increasing stateless communities. Changing the status of people to noncitizens, or threatening the security of their residency status without consideration for the rule of law, generates insecurity and takes from these communities the ability to control their lives and their future. Statelessness has a devastating impact that leaves a deep physiological and social imprint for generations. The Independent Commission on International Humanitarian Issues (1988) rightly noted that “the stateless are less protected than refugees.” With no access to education or employment, stateless communities are exposed to exploitation and black-market conditions, poverty, and social unrest. Statelessness leads to social tension and regional instability, and there has always been a positive correlation between large-scale displacement and the eruption of major conflicts.
See also: Citizenship; Displaced Persons; Ius Sanguinis; Ius Soli; League of Nations; Migrant Rights; Naturalization; UN Convention Relating to the Status of Refugees, 1951
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