Standing Committee, 30 May 1997
Executive Committee of the High Commissioner's Programme
30 May 1997
1. During its forty-sixth session, the Executive Committee of the High Commissioner's Programme explored the problem of statelessness, elaborating upon UNHCR's role under the 1961 Convention on the Reduction of Statelessness and related instruments. The Office was asked to initiate various activities and to report biennially on their progress and on statelessness issues. In the past two years, UNHCR has found the problem of statelessness to be both more complex and more prevalent than was initially anticipated. Categories of stateless persons previously unknown to the Office have arisen. Statelessness can, moreover, be more complicated than a simple lack of nationality and the Office has reviewed numerous cases in which persons cannot establish whether they are stateless. Each State in a position to confirm the nationality of these individuals presumes that, for ethnic, historical, residency or other reasons, they hold the nationality of another State. Such situations of disputed nationality leave the individuals concerned unable to benefit from legal instruments intended to assist persons recognized as stateless.
2. Related problems, affecting substantial numbers of persons, are addressed by the Office on a regular basis. Foremost amongst these is legislation allowing individuals to renounce nationality without the guarantee of a new nationality, resulting in individual cases of statelessness appearing around the globe. Of particular consequence for children, is the strict application of the jus sanguinis principle, by which a child inherits the stateless status of the parent(s), and the failure to register births properly, making it impossible for the child's identity and right to a nationality to be established. Denationalization, often followed by expulsion, has also affected thousands, as has discrimination against ethnic, religious, or other minority groups, making access to nationality impossible, often despite generations of residency. In other instances, laws relating to the status of women continue to be a problem, by not allowing a woman to keep her nationality when marrying or divorcing, or by not allowing her to extend her nationality to her children. The problematic practices in relation to State succession, in which the States involved may not ensure nationality for all, or deny nationality to long-term or lifelong residents on their territory, are more visible. Certain post-colonial practices cast doubt on the nationality status of those in transferred territories and conflicts of laws between States with differing legal systems and different ways to determine nationality also arise. In other cases, administrative practices have continued to block access to a nationality for many.
3. There are, moreover, country-specific problems, such as nationality laws and practice in Bosnia and Herzegovina following the Dayton Peace Agreement and the impact these have on the return of refugees, or the nationality legislation and practice in the Great Lakes region, one of the factors in displacement there. Also of concern are the significant numbers of stateless persons who were once citizens of the former Soviet Union and who have subsequently failed to acquire citizenship in any State. Many of these individuals, often including those who have not availed themselves of a nationality accessible to them, approach UNHCR in search of resettlement elsewhere. Such issues are well beyond the scope of the various nationality laws. International law stipulates against the creation of statelessness. The following outlines UNHCR's activities to date in promotion of this principle and of the means to avoid statelessness.
4. In 1994, the Executive Committee requested UNHCR to strengthen its efforts in the area of statelessness.1 In response to this request, UNHCR provided two background reports to the Sub-Committee of the Whole on International Protection of the Executive Committee (SCIP), in June and September 1995 respectively.2 The reports presented the historical and legal links between the 1951 Convention relating to the Status of Refugees and the 1954 Convention relating to the Status of Stateless Persons, the latter originally intended as a Protocol to the 1951 Refugee Convention. The background of the 1961 Convention was also discussed, and UNHCR's role under Article 11 as that "of a body to which a person claiming the benefit of this Convention may apply for the examination of his claim and for assistance in presenting it to the appropriate authority" was described. Legal gaps, which became evident in later years for persons who were unable to establish their nationality status, were analyzed, as were the reasons for the low number of States parties to these Conventions. Proposals were made for the promotion of additional accessions and related activities.
5. In recognition of the problem of statelessness and of the issues raised by UNHCR in these reports, the Conclusion on the Prevention and Reduction of Statelessness and the Protection of Stateless Persons was adopted by the Executive Committee.3 This Conclusion restated the right to a nationality and the right not to be arbitrarily deprived of nationality, outlining that statelessness, including the inability to establish one's nationality, may result in displacement. The responsibilities already entrusted to UNHCR with respect to statelessness were acknowledged and UNHCR was encouraged to continue its activities on behalf of stateless persons. The Office was, moreover, requested actively to promote accession to the 1954 Convention relating to the Status of Stateless Persons and to the 1961 Convention on the Reduction of Statelessness, as well as to provide technical and advisory services pertaining to the preparation and implementation of nationality legislation to interested States. UNHCR was asked to promote the prevention and reduction of statelessness through the dissemination of information, to train staff and government officials, and to enhance cooperation with other interested organizations. These responsibilities were confirmed in General Assembly Resolution 50/152 of 21 December 1995.4
III. ACTIVITIES FOLLOWING ADOPTION OF THE 1995 CONCLUSION
6. There have been new accessions to both of the statelessness instruments. In the case of the 1954 Convention relating to the Status of Stateless Persons, new States parties include Brazil, Azerbaijan, and Guatemala. The number of parties to this Convention increased from 41 in 1995, to 44 in 1996. The 1961 Convention on the Reduction of Statelessness has two new States parties, namely, Azerbaijan and Bosnia and Herzegovina. These new accessions increased the number of States parties to the 1961 Convention to 19 in 1996. Efforts to promote further accessions continue.
B. Initial Steps: Resources, Training, and Promotion
7. An initial step taken by UNHCR, following the adoption of the 1995 Conclusion, was the creation of a post within the Division of International Protection devoted to statelessness issues, ensuring dedicated resources and expertise for required activities. In June 1996, an Information Package was completed and sent to all States not party to both of the international instruments on statelessness. This document, entitled Information and Accession Package: The 1954 Convention relating to the Status of Stateless Persons and The 1961 Convention on the Reduction of Statelessness, outlines the underlying causes of statelessness, developments in international law, the background and history of the two Conventions, and UNHCR's role and interest in these instruments. The Package further provides an overview of the articles of the Conventions and elaborates upon the importance of accession to these instruments. UNHCR continues to offer its advice and expertise to States interested in further information. All field staff were, at the same time, informed of the reports submitted to the Executive Committee, the 1995 Conclusion and the Information and Accession Package. Staff were advised of new activities on the agenda and requested to promote discussion of the Information and Accession Package with the relevant government representatives.
8. UNHCR was also requested to undertake extensive training activities for both staff and government officials. A training package was developed and a workshop was held at Headquarters for all Regional Legal Advisers and protection staff who might be confronted with statelessness issues. Similar training sessions have been undertaken in the field, with particular emphasis on regions with specific needs. To date, sessions have been held for UNHCR staff in Asia and Bosnia and Herzegovina, for issues related to the implementation of the Dayton Peace Agreement, and in Croatia, for issues relating to the dissolution of the former Yugoslavia. Regional training sessions are planned shortly for the Middle East and North Africa, as well as for Central Asia. Training sessions focus on the causes of statelessness, developments in international law, analysis of the 1954 and 1961 Conventions, points to consider in reviewing nationality legislation and means of promoting accession to the statelessness instruments.
9. In addition, several of UNHCR's field offices have organized their own country or regional workshops. These workshops have focused on sensitizing government officials and representatives of international organizations or non-governmental organizations (NGOs) to the problems relating to statelessness and practical means of resolving individual or group caseloads. In some cases, training has been conducted as one of several steps in laying the foundation for implementing partners with whom UNHCR cooperates in addressing individual cases of statelessness. These implementing partners undertake the particular function of assisting individuals in resolving their nationality status so as to avoid cases of statelessness.
10. UNHCR has, since the adoption of the 1995 Conclusion, organized and participated in several conferences and consultations with a particular focus on statelessness issues. The subject of statelessness was considered during the informal consultations on the provision of international protection to all who need it, held in Geneva on 5 and 6 May 1997, culminating in a positive consideration of future efforts the international community might make in the promotion of the reduction of statelessness.
11. UNHCR has also hosted numerous visits to Geneva by European Parliamentarians, in particular those faced with potential changes in legislation pertaining to refugees or to stateless persons. These visits presented the opportunity for comprehensive dialogue with State officials who expressed the need to modify nationality legislation or practice in order to address problems associated with statelessness. UNHCR has provided technical and advisory services as follow-up to these discussions, as requested, and has promoted accession to the relevant statelessness instruments.
C. Technical and Advisory Services, and Information Gathering
12. Technical, advisory, and consultative services have been provided in several additional contexts, including to UNHCR staff faced with cases of statelessness, to States globally, to NGOs and to international organizations, such as the Office for Democratic Institutions and Human Rights of the Organization for Security and Cooperation in Europe (OSCE/ODIHR), the Council of Europe, and the International Law Commission, in their respective areas of concern. Position papers, including detailed comments on nationality legislation, analyses of international law, and analysis of nationality in the context of State succession, have been provided in numerous cases. Some of these have been, or will shortly be, published, including the recent analysis of citizenship issues in the States on the territory of the former Yugoslavia. UNHCR's database, Refworld, serves as a reference source for these publications. Several questions pertaining to actual cases of statelessness and to the status of the statelessness instruments were incorporated into the annual Field Protection Report for 1996. The information gathered has been informative on where to direct future efforts.
13. The Division of International Protection commissioned a global compilation of nationality legislation by the Independent Bureau for Humanitarian Issues. Two volumes were finalized in 1996 and Volumes III and IV will be made available in 1997, covering the large majority of States. In combination with the formulation of this global database of nationality legislation, UNHCR has taken steps to ensure that all new changes in legislation will be sent to those in charge of maintaining the compilation, making this database a comprehensive and current source of nationality legislation. The database will be used to assist States with specific questions concerning statelessness created by their own or another State's laws and will provide information on which laws are most in need of change, so as to avoid future cases of statelessness.
D. Cooperation with Interested Organizations
14. UNHCR has formed strong working relationships with other organizations concerned with the problem of statelessness. The Council of Europe, engaged in the drafting of the European Convention on Nationality, has welcomed active participation and exchange of information with UNHCR. This Convention is important in that it is the most recent reference point on nationality issues within the member States of the Council of Europe. One of the underlying principles of the draft Convention is that statelessness should be avoided. The provisions of the Convention are drafted with this objective in mind, reflecting the articles of the 1961 Convention on the Reduction of Statelessness, as well as of more recent developments in international law. UNHCR has also had the opportunity to present a background document on issues pertaining to statelessness, which the Working Group of the European Convention has incorporated into its agenda as a primary item for consideration in 1997.
15. UNHCR and the Council of Europe cooperated closely in 1996 on citizenship issues arising out of the dissolution of the former Yugoslavia. Three separate sessions were hosted in Strasbourg, attended by nationality experts from each of the successor States, as well as by experts representing the Office of the High Representative, the Organization for Security and Cooperation in Europe (OSCE/ODIHR), UNHCR, and independent specialists. The three meetings resulted in the adoption of the Principles on Citizenship Legislation Concerning the Parties to the Peace Agreements on Bosnia and Herzegovina. These principles, incorporating elements of both the 1961 Convention and the draft European Convention, have presented a useful basis for resolution of problematic issues arising both from the dissolution of the former Yugoslavia and the ensuing conflict. Following these sessions, UNHCR, in cooperation with the Council of Europe, the Office of the High Representative in Sarajevo, and the Bosnian experts appointed by the Council of Ministers of Bosnia and Herzegovina, participated in the drafting of the new Law on Citizenship of Bosnia and Herzegovina and of the Entities. Positive citizenship legislation will facilitate the return of refugees and promote regional stability, since citizenship of both the State and of the respective Entities, as well as the division of responsibilities between the State and the Entities in determining citizenship, are to be provided for.
16. Equally important has been the undertaking of the International Law Commission's "Working Group on Nationality in the Context of State Succession". The Special Rapporteur has submitted draft articles for a proposed declaration on nationality attribution following the succession of States, an important step in the avoidance of statelessness. UNHCR is pleased to have the opportunity to cooperate with the Special Rapporteur in an exchange of information and views on the problems faced by the Office in diverse regions. Active participation is also underway with the United Nations High Commissioner for Human Rights (UNHCHR) and the Centre for Human Rights, in particular in the context of the Inter-Agency Consultations on Minorities. The problem of statelessness of national minorities will be further pursued within this Working Group.
IV. FUTURE ACTIVITIES AND RECOMMENDATIONS
17. UNHCR has laid the groundwork, since the adoption of the 1995 Conclusion, for a larger, more encompassing campaign to promote the statelessness Conventions and the principles they contain. The activities mentioned above constitute the initial steps taken by the Office in response to the directive of the Executive Committee in 1995. Those activities, with an ongoing component, such as training of UNHCR staff and government officials, will continue to be developed.
18. In an effort to ensure basic familiarity and access to the subject for all interested persons, an Information Brochure will be completed in 1997. This document, intended for public distribution, will address some of the basic elements of statelessness in a user-friendly manner. The Brochure may be easily translated, improving awareness of statelessness problems and of UNHCR's role. Further, the Division of International Protection is looking to provide more detailed information to decision-makers dealing with cases of statelessness, nationality legislation and practice, and development of international law pertaining to statelessness. These efforts will include further instructions for staff, outlining developments in the area and UNHCR's positions in response to these developments. Drafting of detailed guidelines is also planned and will be distributed to all field offices for assistance in dealing with individual cases, for promotion of the Conventions and for discussion with government officials. These guidelines will provide information on the technical and advisory services to be offered to Governments considering accession to the Conventions, as well as to States contemplating changes in their nationality legislation.
19. Technical and advisory services will continue to be provided on a case-by-case basis, as required. An internal monthly newsletter will shortly be tested as a means of ensuring a continual exchange of information between Headquarters and the field. Finally, active steps are being taken to encourage positive developments in international law in this area, to maintain momentum. In promotion of these goals, UNHCR is planning to host a symposium on statelessness and related nationality issues in the coming year, bringing together concerned international and regional organizations, NGOs and the academic community for an exchange of views and proposals for future developments and activities in promotion of the reduction of statelessness.
20. As noted above, the forty-sixth session of the Executive Committee, in its conclusion on the prevention and reduction of statelessness (A/AC.96/860 para. 20), provided UNHCR with clear direction. Given these directives and the relative obscurity of the issue in the years since the drafting of the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, the Office was faced with a significant task in structuring a plan of action; implementing it globally; developing relationships with other interested organizations; promoting accessions to little-known instruments; training staff and government officials; providing advisory services on nationality legislation and practice; and ensuring the capacity to provide technical expertise in each of these areas. The steps outlined above represent initial efforts to respond to the Conclusion of the Executive Committee in both the short and longer-term.
21. The problem of statelessness is a global one. The Office has already addressed both cases of de jure and of de facto statelessness caused, inter alia, by the succession of States; transfer of territory; conflicts in laws; laws relating to marriage; problematic administrative practices; discrimination; laws relating to the registration of births; inheritance of statelessness; renunciation without the prior acquisition of another nationality; automatic loss of nationality by operation of law; and, significantly, mass denationalization. UNHCR will continue to make every effort to develop both global and regional programmes to address the particularities of the various problems in respect to statelessness which appear and would welcome further guidance and support by the Executive Committee in this regard.
1 See A/AC.96/839, para.19 (ee).
2 See EC/1995/SCP/CRP.2 of 2 June 1995 and EC/1995/SCP/CRP.6 of 21 September 1995.
3 Conclusion No. 78 (XLVI) on the Prevention and Reduction of Statelessness and the Protection of Stateless Persons, A/AC.96/860, para. 20.
4 General Assembly resolution 50/152, adopted by the General Assembly on 21 December 1995, in reference to the report of the Third Committee, Office of the United Nations High Commissioner for Refugees (A/50/632).