Statelessness and Obligations Of International Community

This article is written by Jasmine  Kaur.

“One day, I was standing between the borders, and could not get into either country. It was the most unforgettable experience in my life! I could not enter the State where I had been; also I couldn’t get into the State where I was born, raised and lived! Where do I belong? I still cannot forget the strong feeling of loss I experienced at the airport.”

Chen, who was formerly stateless

INTRODUCTION

Statelessness is a phenomenon as old as the concept of nationality.[1] Nationality is a legal relationship between an individual and a state that “confers mutual rights and duties on both” and has been called “man’s basic right, for it is nothing less than the right to have rights.”[2] Statelessness is a situation in which a person “is not considered as a national by any state under the operation of its law” (Statelessness Convention, Article 1). In other words, statelessness refers to a
condition in which no single state recognises an individual or a group of an individual’s as nationals under their domestic law. Stateless people are distinct from refugees, although it is likely that the concern of both groups occasionally merge (United Nations High Commissioner for Refugees 2008).[3] (Image taken from here.)

The phenomenon of statelessness in the region leaves person without basic protection, lacking access to basic social services and employment. This phenomenon arises from the outright denial of citizenship, arbitration deprivation of citizenship followed by deportation, and the refusal to grant citizenship to those entitled to it. A person not having a nationality under the law of any state is called stateless.  A person either is stateless at birth as a result of the fact that he does not acquire a nationality at birth according to the law of any state, or he may become stateless subsequent to birth by losing his nationality without acquiring another[4].

Under domestic law, it is the prerequisite for the realization of other fundamental rights, because, as a matter of definition, without affiliation with a state one has no mechanism or context in which to exercise right or duties, not only resulting in problems pertaining to the ability to work, access to social services, housing, etc., but also to obtaining documentation allowing exit form or re-entry to the country.[5]

Statelessness, which was first recognized as a global problem during the first half of the 20^th century, can result from disputes between States about the legal identity of individual’s state succession, protracted marginalization of specific groups within the society, or from stripping individuals or groups of their nationality. Statelessness is normally associated with periods of profound change in international relations.[6]  Without the right to a residence or the right to work, the stateless were constantly in violation of the host state’s laws trying to support themselves and their families, and subject to internment without hearing or sentence.[7]

KINDS OF STATELESSNESS

There are two categories of stateless persons: de jure and de facto.

1.      De jure:

 Stateless persons de jure are persons who are not nationals of any State, either because at birth or subsequently they were not given any nationality, or because during their lifetime they lost their own nationality and did not acquire a new one. [8] Under the 1954 Convention relating to the Status of Stateless Persons, individuals who have not received nationality automatically or through an individual decision under the operation of any state’s laws are known as de jure stateless persons.[9]

2.      De facto:

 Stateless persons de facto are persons who, having left the country of which they were nationals, no longer enjoy the protection and assistance of their national authorities, either because these authorities refuse to grant them assistance and protection, or because they themselves renounce the assistance and protection of the countries of which they are nationals. The Constitution of the IRO in its Annex I (First part-Section A.2) uses this formula: “a person ...who ...is unable or unwilling to avail himself of the protection of the Government of his country of nationality or former nationality.”

Although in law the status of stateless persons de facto differs appreciably from that of stateless persons de jure, in practice it is similar. [10]

Under international law, de facto stateless persons are not covered by the provisions of the 1954 Convention relating to the Status of Stateless Persons even though it includes a nonbinding recommendation that calls upon states to ‘consider sympathetically’ the possibility of according de facto stateless persons the treatment which the Convention offers to de jure stateless people. Most governmental reporting on this issue concentrates on de jure stateless populations although there is a growing awareness that de facto stateless people are unable to realize their human rights and may be equally vulnerable for lack of effective protection from the state to which they have a formal connection.[11]

It has indeed become in recent years a major problem of international law, the very urgency and acuteness of which prompted the insertion of Article 15 in the Universal Declaration of Human Right that “ everyone has the right to nationality”, and that “no one shall be arbitrarily deprived of his nationality”. Statelessness may arise though conflicts of municipal nationality laws, through changes of sovereignty over territory, and through denationalization by the state of nationality. It is a condition which not only means great hardship and lack of security for individuals; but involves the existence of a serious gap in the application of international law.[12]

The right to nationality is founded on the existence of a genuine and effective link between an individual and a State. The first time this link was acknowledged as the basis of citizenship was in a case decided by the International Court of Justice in 1955, the Nottebohm Case.[13]

In that case, the Court stated that:

“According to the practice of States, to arbitral and judicial decisions and to the opinion of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interest and sentiments, together with the existence of reciprocal rights and duties.”[14]

Nationality is also defined by the Inter-American Court of Human Rights as “the political and legal bond that links a person to a given State and binds him to it with ties of loyalty and fidelity, entitling him to diplomatic protection from that State” (Castillo-Petruzzi et al v. Peru, Judgment of May 1999, IACHR [ser.C] No. 52 1999).

The two main legal instruments subject of the study are the United Nations 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. The first was designed to offer minimum standards of protection to individuals without a nationality, and the latter was crafted to prevent new cases of statelessness from arising.

UNIVERSAL DECLARATION OF HUMAN RIGHT (UDHR), 1948

The reality of statelessness is at the odds with the right to nationality which is explicitly recorded in the Universal Declaration of Human Rights. Article 15 of UDHR declares:

“Everyone has the right to a nationality. No one shall be arbitrarily deprived office nationality nor denied the right to change his nationality.”

This right is founded on the existence of a genuine and effective link between individual and state. Although Article 15 of UDHR asserts that every person has right to nationality, it does not prescribe the specific nationality to which a person is entitled. To ensure that individuals are not deprived of a minimum set of right associated with nationality, the international community developed two main treaties: The 1951 Convention relating to the Status of the Refugees and the 1954 Convention relating to the Status of Stateless persons.[15]

CONVENTION RELATING TO THE STATUS OF THE REFUGEE, 1951:

This was made into a convention in its own right and is now the primary international instrument that aims to regulate and improve the status of stateless persons.[16] Under the 1951 Refugee Convention, a stateless refugee receives protection as a refugee, since the arbitrary denial of citizenship because of a person’s race, religion, nationality, membership in a particular social group, or political opinion can indicate that the individual should be recognized as a refugee.[17]

CONVETION RELATING TO THE STATUS OF STATELESS PERSONS, 1954

This convention includes a strictly legal definition of a stateless person:

“A person who is not considered as a national by any state under the operation of its law” (what is known as a de jure stateless).[18]

There are also countless others who cannot call upon their rights to nationality for their protection and are effectively stateless or de facto stateless persons. It should be noted that convention includes a non-binding recommendation that calls upon states ‘to consider sympathetically’ the possibility of according to de facto stateless persons the treatment which it offers to de jure stateless people, but often de facto stateless people are unable to obtain proof of their national identity, residency or other means of qualifying for citizenship and as a result are excluded from the formal state.

CONVENTION ON THE NATIONALITY OF MARRIED WOMEN, 1957:

This convention seeks to promote “universal respect for, and observance of, Human Rights and Fundamental freedoms for all without discrimination as to sex.”

Article 1:

“Neither the celebration nor the dissolution of a marriage between one of its nationals and an alien, nor the change of nationality by the husband during marriage, shall automatically effect the nationality of the wife.”

Article 3:

Refuge mother with child

“The alien wife of one of the (the contracting state’s) national may, at her request, acquire the nationality of her husband through specially privileged naturalized procedures.”

“The grant of such nationality may be subject to such limitations as may be imposed in the interests of national security or public policy.”

It also stipulates “states parties shall grant women equal right with men with respect to the nationality of their children.”
(Image taken from here.)

CONVENTION ON THE REDUCTION OF STATELESSNESS, 1961:

The 1961 Convention on the Reduction of Statelessness asserts that nationality shall be granted: at birth, by operation of law to a person born in the State’s territory; by operation of law at a fixed age, to a person born in the State’s territory, subject to conditions of national law; upon application, to a person born in the State’s territory (the application may be made subject to one or more of the following: a fixed period in which the application may be lodged, specified residency requirements, no criminal convictions of a prescribed nature, and/or that the person has always been stateless); at birth, to a legitimate child whose mother has the nationality of the State in which the child is born; by descent, should the individual be unable to acquire nationality of the Contracting State in whose territory he/she was born due to age or residency requirements (this may be subject to one or more of the following: a fixed period in which the application may be lodged, specified residency requirements, and/or that the person has always been stateless).[19]

MUNICIPAL LAW:

Article 20 of the American Convention on Human Rights (1969) states that:

“Every person has the right to a nationality. Every person has the right to the nationality of the State in whose territory he was born if he does not have the right to any other nationality. No one shall be arbitrarily deprived of his nationality or of the right to change it.”[20]

In 1963, a Europe-wide Convention on the reduction of cases of multiple nationalities and on military obligations in cases of multiple nationality was adopted. That Convention is based on the notion accepted by many Western European States at the time, that having multiple nationalities is undesirable and should be avoided. As the 1963 Convention is limited in scope to just the issue of multiple nationalities, two Protocols were added in 1977 and 1993 to cover related issues and to reflect developments in thinking and practice about nationality. For example, the Second Protocol to the Convention allows for the acquisition of multiple nationalities in the cases of second-generation migrants and spouses of mixed marriages and their children.

The 1997 European Convention on Nationality, allows for the acquisition of multiple nationalities for married persons of different nationalities and their children. But the Convention also covers questions of the acquisition, retention, loss, and recovery of nationality, procedural rights, and nationality in the context of State succession, military obligations, and cooperation among States Parties. It also contains many provisions that aim to prevent the creation of statelessness. The Convention refers to the 1954 Convention relating to the Status of Stateless Persons for its definition of a stateless person: that is, only de jure stateless persons are covered by the provisions of the European Convention on Nationality.

In 1999, the Organization of African Unity (now the African Union) adopted the African Charter on the Rights and Welfare of the Child. Article 6 of the Charter, which focuses on name and nationality, asserts that:

• Every child shall have the right from his birth to a name;

• Every child shall be registered immediately after birth;

• Every child has the right to acquire a nationality;

• States Parties to the Charter shall undertake to ensure that their Constitutional legislation recognizes the principles according to which a child shall acquire the nationality of the State in the territory in which he was born if, at the time of the child’s birth, he is not granted nationality by any other State in accordance with its laws.[21]

In one of the leading cases on the right to a nationality,

The Yean and Bosico Children v. Dominican Republic[22],

the Inter-American Court of Human Rights recognized the “Inherent right” of all human beings to a nationality and stated, The determination of who has a right to be a national continues to fall within a State’s domestic jurisdiction. However, its discretional authority in this regard is gradually being restricted with the evolution of international law, in order to ensure a better protection of the individual in the face of arbitrary acts of States. Thus, at the current stage of the development of international human rights law, this authority of the States is limited, on the one hand, by their obligation to provide individuals with the equal and effective protection of the law and, on the other hand, by their obligation to prevent, avoid and reduce statelessness.”

 The Court considers that the peremptory legal principle of the equal and effective protection of the law and non-discrimination determines that, when regulating mechanisms for granting nationality, States must abstain from producing regulations that are discriminatory or have discriminatory effects on certain groups of population when exercising their rights. Moreover, States must combat discriminatory practices at all levels, particularly in public bodies and, finally, must adopt the affirmative measures needed to ensure the effective right to equal protection for all individuals. While issues of nationality are primarily within each state’s jurisdiction, a state’s laws must be in accord with general principles of international law. Nationality, according to the International Court of Justice (ICJ), is “a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments.”[23] (Image taken from here.)

CONCLUSION

I would like to conclude it  by saying that after analyzing every aspect of statelessnessness and after looking at the judicial pronouncements regarding this topic by saying that being statelessness is the most difficult and the biggest nightmare in the life of the person. This shows that people who are stateless should be helped by the organization like UNHCR and not only that but the states should also come up and start lobbying for this crucial matter. As without the nationality they can’t do anything. People will not have education, place to live and a job to be offered.   

This article is written by Jasmine  Kaur.

Jasmine is currently pursuing her third year of B.B.A.LL.B at the National Law University, Orissa.  Her aim is to become a successful lawyer specializing in Intellectual Property Rights especially in Patents. She loves reading about all areas of law, just to increase her knowledge .

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[1]United Nations,  A study of statelessness , Aug 1949 lake success, New York

[2] Margaret E. Keen, Issues of Statelessness in International Law, May 31, 2000

[3] Srini Sitaraman,  State participation in International Treaty Regimes.

[4] Paul Weis, Nationality and Statelessness in International Law,

[5] Margaret E. Keen, Issues of Statelessness in International Law, May 31, 2000

[6] UNHCR/Inter-Parliamentary Union , Nationality and Statelessness: A Handbook for Parliamentarians, , October 2005

[7]Margaret E. Keen, Issues of Statelessness in International Law, May 31, 2000

[8] United Nations,  A study of statelessness , Aug 1949 lake success, New York

[9] UNHCR/Inter-Parliamentary Union , Nationality and Statelessness: A Handbook for Parliamentarians, , October 2005

[10]United Nations,  A study of statelessness , Aug 1949 lake success, New York

[11]Professor Brad K. Blitz, Statelessness, Protection and Equality

[12] JOSEPH GABRIEL STARKE, IVAN ANTHONY SHEARER, STARKE’S INTERNATIONAL LAW, (1994)

[13] [1955] I.C.J. Rep. 4

[14] UNHCR/Inter-Parliamentary Union , Nationality and Statelessness: A Handbook for Parliamentarians, , October 2005

[15] UNHCR/Inter-Parliamentary Union , Nationality and Statelessness: A Handbook for Parliamentarians, , October 2005

[16] Brad K. Blitz and Maureen Lynch, "Statelessness and the Benefits of Citizenship: A Comparative Study”,  Oxford Brookes University, UK, JUNE 2009

[17] UNHCR/Inter-Parliamentary Union , Nationality and Statelessness: A Handbook for Parliamentarians, , October 2005

[18] UNHCR/Inter-Parliamentary Union , Nationality and Statelessness: A Handbook for Parliamentarians, , October 2005

[19] UNHCR/Inter-Parliamentary Union , Nationality and Statelessness: A Handbook for Parliamentarians, , October 2005

[20] UNHCR/Inter-Parliamentary Union , Nationality and Statelessness: A Handbook for Parliamentarians, , October 2005

[21] UNHCR/Inter-Parliamentary Union , Nationality and Statelessness: A Handbook for Parliamentarians, , October 2005

[22] (2005) Inter-American Court Of Human Rights

[23] Stateless Again Palestinian-Origin Jordanians Deprived of their Nationality