The Implications of Statelessness on the Politics of Protection

The right to be a citizen has been called “man’s basic right for it is nothing less than the right to have rights” (Perez v Brownwell, 356 U.S. 44, 64 (1958)). This stems from the principle that the right to a nationality provides the path to all other rights; any rights a person is entitled to result from possession of a nationality. The Universal Declaration of Human Rights (UDHR), states that every person has an inherent right to a nationality (Article 15, UDHR). In the case of stateless persons, this right to a nationality is rendered void (Batchelor 2002, p.5); they have no nationality to claim rights from. The right to a nationality is fundamental, as many rights which are granted to individuals are granted by a state only to nationals; “many states only allow their own nationals to exercise full civil, political, economic and social rights within their territory” (Weissbrodt and Collins 2006, p.248). This protection for nations of a state is effective at both a domestic and international level, as states are able to protect its nationals in the international arena under principles of International Law.

To not hold a nationality renders an individual stateless, without a nation to bestow rights upon them or provide them with a minimum level of protection. It has been suggested that “statelessness is the antithesis of legal identity in a world construct of states” (Batchelor 2002, p.2). Statelessness is the lack of a legal bond between an individual and any given state. Whilst all persons reside within a state and therefore should have a bond with a state, this is not the case. According to International law, it is for each individual state to determine its own domestic law stipulating who are its nationals. Traditionally, states follow either the principles of jus soli or jus sanguinis for the attribution of nationality. The former stipulates nationality attribution to the place of birth, whereas the latter entails nationality attribution through parental descent. According to Chan, “Statelessness arises as a result of a deliberate act of deprivation of nationality by the state concerned, as a result of territorial change, or more frequently, as a result of a conflict of nationality law”(Chan 1991, p.12). It is when this conflict of laws occurs that cases of statelessness arise.

There are two types of statelessness; de jure statelessness and de facto statelessness. Though both render a person without an effective nationality, the distinction of the two has both theoretical and practical implications for the level of protection provided for those found to be stateless under either category.  In order to explore these implications it is necessary to consider the legal frameworks for the protection of stateless persons, the phenomenon of statelessness, the distinction between the categories of statelessness, and the effects which the distinctions may or may not have. Finally I shall assess solutions to statelessness as an international problem.

Legal Frameworks for Protection of Stateless Persons 

Due to the gravity of statelessness, the United Nations (UN) has taken active steps to improve the status of stateless persons and trying to reduce the problem. There are two UN conventions, aimed specifically at stateless persons. These provide a legal framework to support stateless persons and to ensure that individuals are guaranteed a minimum standard of rights and privileges so providing them with some stability.

First is the 1954 Convention relating to the Status of Stateless Persons. This convention contains provisions which provide a legal status and basic rights to stateless persons (Batchelor 2002, p.6). The rights afforded for in this convention act only as a minimum standard and are not as broad as those given by nationality occurring from a legal bond between the individual and the state; the convention provides for basic rights for an individual though these rights do not act as a substitute for nationality.  Article 32 of the Convention states that “contracting states shall, as far as possible facilitate the assimilation and naturalisation of stateless persons”. The convention does not impose upon states an absolute obligation to naturalise stateless persons, rather it recommends a state party do this where possible. As a result, the convention can only be seen as a “legal framework for international protection where national protection is not available” (Batchelor 2002, p.6) rather than a substitute to nationality.

Furthermore, there are circumstances when the convention does not apply. The 1954 convention does not apply to persons about whom there are serious reasons for considering that they have committed a crime against peace; a war crime; a crime against humanity; or who have committed a serious non-political crime outside the country of their residence prior to admission to that country (Article one, Status of Stateless Persons Convention 1954). These exceptions mean not all those who are stateless can be protected under this framework. However, one must ask if these exceptions, given their nature, are justifiable in the protection of the state and its nationals.


Second is the 1961 Convention on the Reduction of Statelessness. This convention differs from the 1954 convention as it does not provide rights, rather it is the “primary international legal instrument aimed at the prevention of the creation of statelessness” (Batchelor 2002, p.7). The purpose of the convention is to prevent future cases of statelessness through three basic principles. Firstly it seeks citizenship for persons who would otherwise be stateless if the person is born on the states territory or born abroad to state’s national. Secondly it seeks protection against the loss or deprivation of citizenship if the person will become stateless as a result. Thirdly, it calls for guarantees against statelessness in cases of transfer of territory. These three principles, if all upheld would take great steps in the reduction of the problem of statelessness (Batchelor 2002, p.7). In regards to the first principle, it is clear that the “convention does not require contracting states unconditionally to grant nationality to any stateless person but seeks to balance factors of birth and descent in an effort to avoid the creation of statelessness” (Batchelor 1998, p. 161). At present some of the principle causes of statelessness are the conflicts of law or the transfer of territory; the principles of the convention outlined take introductory steps to address these causes of the problem of statelessness.

As with the 1954 convention there are restrictions to when the 1961 convention applies to an individual. The convention does not apply to an individual when nationality has been obtained by misrepresentation or fraud; or where the individual has conducted himself in a manner seriously prejudicial to the vital interests of the state (Articles 8(2) and 8(3) of the Convention on the Reduction of Statelessness 1961). These limitations are in place in to protect the state in question so are arguably justifiable, despite the fact it results in individuals not benefitting from the convention provisions.

The Categories of Statelessness

The category of de jure stateless is defined in the 1954 convention. It states that ‘the term stateless person means a person who is not considered a national by any state under the operation of its law’ (Article one 1954 Convention Relating to the Status of Stateless Persons). Under this definition, whether a person is stateless is a question of law, focusing on the existence of a formal bond of nationality with a state under domestic law. Those who do not have an effective and genuine link are de jure stateless. Arguably all persons have a link with one state through birth or residency in a state, and so should be considered to be nationals under a states domestic law. However, “not everyone receives a nationality by operation of law. Those who have not received nationality automatically under the operation of any state’s law are de jure stateless persons”(Batchelor 1998, p.171).

The definition the 1954 convention excludes persons who retain the formal bond of nationality but are not able to rely upon it for protection (Van Waas 2008, p.20). These persons are deemed to be de facto stateless and are not protected under the 1954 convention. The issue of de facto statelessness, due to its exclusion from the conventions has developed into a grey area resulting in confusion as its occurrence has increased. It is suggested that de facto stateless persons are  those who are  confirmed de jure stateless but have a technical possibility of applying for naturalisation in another state, those who following  a state succession or transfer of territory do not receive nationality of the state they have a link with but receive nationality of the successor state with which they have no effective or genuine link and persons who have rights to the nationality but are unable to receive it due to administrative hurdles (Batchelor 1998). As there is a technical bond with a state they cannot be considered as de jure stateless.

The distinction between the two types of statelessness developed when the drafters of the two conventions failed to include de facto statelessness in the definition. This was done in an attempt to prevent any overlap with the 1951 Refugee Convention; as the Refugee convention dealt with de facto statelessness, it was considered a closed topic. However, the drafters “wrongly assumed that all de facto stateless persons would also be refugees” (Weissbrodt and Collins 2006, p.252). Furthermore, it would appear that the drafters wanted a clear definition of statelessness in order to preclude situations where a person may be de facto but not de jure stateless (Weissbrodt and Collins 2006, p.253). However, these decisions mean that many stateless persons are excluded from the protection of the conventions. Arguments for the inclusion of de facto stateless persons in the convention resulted in the non-binding recommendation in the Final Act of 1954 convention relating to the status of stateless persons, referring to de facto stateless persons. The recommendation states that “each contracting state, when it recognises as valid the reasons for which a person has renounced the protection of the state of which he is a national, consider sympathetically the possibility of according to that person the treatment which the convention accords to stateless persons” (Article one, Final Act of the Convention Relating to the Status of Stateless persons, 1954). There are similar recommendations found in the 1961 convention. Whilst these recommendations take measures to attempt to stabilise the position of de facto stateless persons, their non-binding nature means the protection which they afford is limited, resulting in the distinction in protection offered to the two categories.

The distinction found between de facto and de jure stateless, is a simple technical difference, with one type being based on a legal definition and one based upon a question of fact. As seen above, de facto statelessness is not covered by the binding provisions of the Conventions on statelessness whereas persons considered to be de jure stateless are guaranteed a minimum level of rights through the convention. The list is extensive but rights of de jure stateless persons provide that they are only treated as favourably as aliens generally with regard to participation in wage-earning employment (Articles 17-19 , 1954 Convention on the Status of Stateless persons) and that they are  treated no less favourably than nationals with respect to rationing, housing, public education, and public relief (Articles 20-23, 1954 convention on the status of stateless persons).

It has been suggested that de jure stateless persons are “without nationality and are therefore treated in accordance with the rules and principles of international law pertaining to statelessness. If so inclined the states may assist de facto stateless, as indicated in the Final acts” (Batchelor 1998, p.175). Due to the non-binding nature of these principles, it is unlikely that de facto stateless persons shall be afforded equal levels of protection as de jure stateless persons. In essence if a stateless person is to receive protection under international legal frameworks it is essential that they are able to prove de jure statelessness. However, “to address only fact and not quality of nationality is unjust and arbitrary distinction” (Van Waas 2008, p.22). The distinction between de jure and de facto statelessness results in an unfair disadvantage to those only able to prove de facto statelessness, resulting in suffering. By being excluded from the conventions they are discriminated, losing protection under international law.

The fact that de facto stateless persons do not benefit from the rights and legal protections afforded to de jure stateless persons under the conventions should have implications upon their rights and privileges. However, the distinction may not have as many implications to de facto persons as expected. The primary reason for this is that there has been limited support for the statelessness conventions by the international community; the two conventions relating to stateless persons have had few ratifications. According to the UNHCR, as of 2nd July 2012, the 1954 convention had 72 state parties (most with reservations) (UNHCR 2012a), whereas, the 1961 convention has only 45 state parties (UNHCR 2012b). This limited level of international support means that the two conventions have in fact only had the opportunity to have minimal impact. Van Waas argues that the conventions have had little opportunity to be tested, with little enforcement and resources dedicated to them (Van Waas 2008, p.17). Therefore, the benefits for de jure stateless persons flowing from the conventions on statelessness are not as significant expected; de facto statelessness persons are not greatly disadvantaged by not benefiting from these conventions.


Moreover, stateless persons are often victims of human rights violations and should be able to assert their rights under other International mechanisms which often contain clauses suggesting that “holding a nationality is not a prerequisite to enjoying human rights” (Weissbrodt and Collins 2006, p.249). Stateless persons are afforded a certain level of protection regardless of category, due to other international legal frameworks which ensure certain levels of rights and protections to everyone. Van Waas suggests that there is no need for a special regime based on de facto statelessness as their situation falls within general human rights law, whereas, the de jure absence needs additional legal measures as there is no legal bond to call upon (Van Waas 2008, p.25). Arguably, frameworks on Human rights are sufficient to ensure protection of de facto stateless persons.  Most international legal instruments referring to an individual’s human rights omit a need for citizenship or nationality at all (Cahn 2003), in order to show non-discrimination, meaning they apply to stateless persons.

An example of a non-discrimination clause is seen in the ICCPR. The ICCPR bestows upon individuals civil and political rights including the right to life, freedom of religion, rights to due process and a fair trial. It requires states to respect and to ensure to all individuals within its territory and subject to it jurisdiction, rights recognised in the present covenant, without distinction of any kind (Article two, ICCPR).This suggests that providing for a person is on the territory of the state, that nationality is irrelevant. Furthermore, the monitoring body, the Human Rights Committee, states in its General Comment No. 15, the “rights set forth in the covenant, apply to everyone, irrespective of his or her nationality or statelessness”(UN, 2004). Regional measures may also provide for non-discrimination and provide protection to stateless persons. The European Convention for the Protection of Human Rights and Fundamental Freedoms, requires state parties to secure to everyone within their jurisdiction the rights and freedoms of the convention (Article one European Union Convention for the Protection of Human Rights and Fundamental Freedoms). Thus, there are international frameworks which afford protection to all persons, including stateless persons. However, questions of compliance are raised given the limited nature of enforcement bodies on an international level. As a result, these measures only go so far to provide protection for de facto stateless persons.

Statelessness as a Global Phenomenon

Whilst it is indisputable that the problem of statelessness exists, some contentious issues are raised by the phenomena. The main point of contention concerns the idea of “what qualifies a person stateless” (Van Waas 2008, p.9).  Despite the existence of an official definition of statelessness, states and other relevant bodies apply different interpretations of this single definition. Thus, the methods adopted to recognise statelessness differ, as do their requirements for the proof of statelessness (Van Waas 2008, p.9). These different interpretations and methods result in statistics related to statelessness to vary between organisations.  In 2005, Refugees International estimated 11 million stateless persons worldwide (Lynch 2005). However, in 2006, the United Nations Refugee Agency (UNHCR) estimated there were 5.8 million stateless persons (UNHCR 2006, table 14). These differences are empirical evidence of the uncertainty surrounding the topic, which leads to greater difficulties in dealing with the issue.

There are many causes of statelessness which have been highlighted by the UNHCR’s executive committee (UN High Commissioner for Refugees 2006). Firstly are the restrictions which may be applied to parents on passing on their nationality to their children. This is prominent in countries which apply the jus soli principle for the attribution of nationality. In particular, this refers to the denial of many women’s ability to pass on nationality as many countries only afford the jus sanguinis principle to parental descent not maternal. This creates statelessness when a father is either stateless himself or has died and so has no nationality to pass on leaving the child stateless.  The renunciation of nationality without having secured another nationality and the automatic loss of citizenship from prolonged residence abroad are other key causes for statelessness.

For women, there exists the possibility of loss of nationality through marriage to an alien. This occurs where conflicting nationality laws exist, i.e. where marriage to an alien result in the automatic renunciation of the wife’s nationality but the husband’s nationality is not automatically acquired upon marriage. Furthermore, the deprivation of nationality due to discriminatory practices is cause of statelessness seen among the Bihari persons in Bangladesh (Hussain 2009). Finally is the possibility of statelessness as a result of state succession as seen in the case of the former Yugoslavia.

The consequences of statelessness are also numerous with terrible implications for those affected. “In many states, stateless persons are not only faced with gross human rights violations, but nationality is often a prerequisite for accessing political and judicial processes and for obtaining economic, social and cultural rights” (Weissbrodt and Collins 2006, p.265). The main consequence of statelessness is that it often leaves an individual without identification documents, resulting in difficultly to obtain basic social services:  acquiring jobs, receiving medical care, marrying and starting a family, legal protection, travel, owning property, or education. The treatment of the Rohingya population of Myanmar, for instance, exemplifies the suffering caused by statelessness. They must undertake ‘daily work’ as employers will not employ them without documents on a long term basis; they are denied access to health care, schools and have difficulty in obtaining housing. Furthermore they face infringements on civil and political rights and are often detained for months in immigration camps where they suffer malnutrition, unsanitary conditions and beatings (Coursen-Neff 2000).

Solutions to the Problem of Statelessness

Regardless of the category under which stateless persons fall, these individuals are often victims of civil, political and human rights abuses and face daily sufferings due to their nationality non-status. The current international legal frameworks which are in place have a limited impact on improving their status. Thus solutions to deal with the distinctions of the different categories of statelessness would have minimal effect on protection. Rather, it is necessary to consider the implications of statelessness as an international phenomenon regardless of type of statelessness.

The fact that states have different measures and provisions in regards to statelessness is fundamental in this assessment. Even in circumstances where states employ similar provisions “their efforts and even dialogue toward the prevention of statelessness are hampered due to differing interpretations” (Batchelor 2002, p.9). Actors do not agree on what constitutes statelessness, with some claiming it is no legal bond to a state, others no possible claim to citizenship and others the lack of documentation to prove citizenship (Batchelor 2002, p.9). With contention over the definition of statelessness, solutions to the problem seem doubtful. Therefore, Batchelor suggests “a common platform is needed for reaching consensus on the definition of statelessness and on mechanisms for identifying statelessness and on appropriate solutions” (Batchelor 2002, p.9).

With regards to the position of de jure stateless persons, the effectiveness of the 1954 and 1961 conventions is limited due to its limited signing and ratification. Thus, an “essential step is the promotion of principles contained in the instruments which seek to ensure as a minimum; that persons will  be granted a nationality under certain circumstances in which they might otherwise be stateless” (Batchelor 1998, p.158). This would have significant effect on reducing the number of cases of statelessness. By urging states to ratify and comply with the principles in the two conventions, this would take significant steps in dealing with the situation of de jure statelessness, which would be a huge step in tackling the problem of statelessness. In particular, the prevention of the deprivation of a nationality caused by conflicting laws or state succession would prove effective.

Furthermore, whilst protection exists for all stateless persons as ensured by non-discriminatory clauses in international instruments, there are serious questions raised relating to their effectiveness with a lack of monitoring bodies, to ensure the instruments are complied with. At present, none of the six monitoring bodies of the Human Rights Council are responsible for these treaties (Weissbrodt and Collins 2006, p.273). There are provisions designated to prevent statelessness and to protect stateless persons in widely ratified and monitored treaties such as the Convention on the Rights of the Child, ICCPR and the Convention on the Elimination of all forms of Discrimination Against Women (Weissbrodt and Collins 2006, p.273). However, due to limited monitoring there are few sanctions for failure to comply minimising the desire to take measures for compliance. Therefore, an increase in monitoring and sanctions of these instruments would ensure greater levels of protection. Whilst this would not reduce the number of stateless persons, it would improve their situation.

Central to dealing with the problem of statelessness is better identification of stateless persons. As discussed above, this is a difficult and complex task as different nations and organisations interpret the definition differently. As a result, the number of stateless persons is unclear, so solutions are difficult to develop.  In the conclusion on identification, prevention and reduction of statelessness and the protection of stateless persons, UNHCR is called upon to continue to work with interested governments to engage in or to renew efforts to identify stateless populations; within the framework of national programmes, which may include, as appropriate, processes linked to birth registration and updating population data (UN High Commissioner for Refugees 2006, Paragraphs (b) and (d)). By developing more effective means of establishing statelessness there would be increased awareness of the problem allowing for the development of more effective solutions to the problem. This could further be achieved through the increased exchange in statistics on statelessness by states.

At present the identification and records of statelessness are flawed and need to be developed. In many instances, those who are stateless are not correctly recorded as governments are unsure in how to record it, thus they are recorded as non-national residents or aliens on temporary visas. Whilst there have been recommendations for the use of population census to measure statelessness by ECOSOC (UNHCR 2008), this may prove to be ineffective as many stateless persons do not have the means to prove their stateless status. Furthermore, many lack the desire or ability to express their status due to fear of expressing illegal residence and the consequences so do not take part in the population census  of their habitual residence making it difficult to rely on statistics on stateless persons created through this means.

The identification of statelessness is further complicated by the conflicting ways in which states may attribute nationality.  Most states either grant nationality though the principles of jus sanguinis or jus soli; conflicts of these principles often result in statelessness. This is seen mostly in regards to the Jus Sanguinis principle. For example, some countries grant citizenship through parental descent alone, rendering a mother unable to independently pass on her nationality to her children. Furthermore, nationality laws can produce stateless children where the parents are married and non-stateless, if they are unable to inherit their parents’ nationality (Weissbrodt and Collins 2006) Therefore, Hudson suggests the principle of jus connectionis, or right of attachment , which “advocates the nationality of the state to which the individual is proved to be most closely connected in his or her conditions of life” (Hudson 1952, p.49) Under this principle an “emphasis would be placed on the positive right to a nationality by establishing which nationality the individual has a right to, based upon well founded principles of the genuine and effective link” (Batchelor 1998, p.181).This principle would eliminate current conflicts. If it is unclear if a person is stateless then they will not be able to receive any real protection. By having in place the ‘jus connectionis’ principle, it would not only eliminate this conflict but also take steps to reducing statelessness, as all  persons have some link with a state, meaning all persons could have nationality.

Conclusion

“Statelessness is not merely a legal problem, it is a human problem” (Batchelor 1998, p.182) This is due to the fact that many complications arise for those who have no nationality regardless of their category of statelessness which have been outlined in this essay. As there are limitations in the protection afforded to persons who fall under the category of de jure statelessness due to the limits of the conventions relating to statelessness, the level of protection offered to de jure and de facto stateless does not greatly differ. Instead, stateless persons gain protection through the recognition of principles of international law found in various instruments including the Covenant on Civil and Political Rights. In order to see results in the battle against statelessness, it logically follows that “positive steps taken by all states can ensure the integration and implementation of these principles and standards” (Batchelor 1998, p.183).

In order to effectively deal with the problem of statelessness, there needs to be a reduction in the conflicts which cause statelessness. Therefore,  Hudson suggests the “improvement of status will only be achieved if the nationality of the individual is the nationality of that state with which he is, in fact most closely connected; his ‘effective nationality’”(Hudson 1952, p.49). By ensuring that a person is entitled to the nationality where he is most linked, an individual is more likely to be able to effectively access the rights which are bestowed upon him under the variety of international legal frameworks, as well as benefit from those rights which are only allowed to citizens of states. The implications of the distinction between de facto and de jure statelessness on protection are minimal;  it is the position of being stateless which has the implications on the protection afforded to an individual.

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Written by: Elyse Wakelin
Written at: University of Leicester
Written for: Dr Kelly Staples
Date written: May 2010

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