Chapter 4 Resolving Statelessness
This chapter examines global developments in addressing the problem of statelessness. It begins by describing the international legal framework relating to statelessness, goes on to describe the various causes of statelessness, and then outlines various efforts to resolve the problem. It concludes that statelessness can often be effectively resolved, and notes renewed international commitments to address the problem.
Everyone has the right to a nationality, as affirmed in Article 15 of the Universal Declaration of Human Rights. Possession of nationality often serves as a key to enjoying many other rights, such as education, health care, employment and equality before the law. Two global instruments provide guidance on the rights of stateless people and on how statelessness can be avoided: the 1954 Convention relating to the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness.
However, stateless people can be found on every continent and in virtually every country. The stateless experience their lack of citizenship as an ever-present concern, and they are among the most vulnerable people in the world. In the early 1990s, the break-up of the Soviet Union, the Socialist Federal Republic of Yugoslavia and Czechoslovakia, and the emergence of new independent states, led to a dramatic increase in statelessness and underscored the need for a more effective international response.
UNHCR participated in the drafting of both the 1954 Convention and the 1961 Convention. In 1974, UNHCR was designated by the UN General Assembly as the body to which stateless people may turn, under the terms of the 1961 Convention, for assistance in presenting their claims to state authorities. More recently, in 2011, UNHCR acted to reinvigorate efforts to resolve situations of statelessness, devoting particular attention to promoting accession to the statelessness conventions. Since then, the number of states parties to the 1954 and 1961 Conventions rose from 65 and 37 respectively in 2010 to 71 and 42 in 2011. Governments increasingly recognize that their own interests are not served by having large numbers of stateless people on their territories.
The international framework
While international law has traditionally recognized broad discretionary power for states to define eligibility for nationality, the 1954 and 1961 Conventions together constitute the core of the international legal framework relating to statelessness. The 1954 Convention elaborates a protection regime for stateless people, which closely resembles the 1951 Refugee Convention. It establishes an internationally recognized status for stateless persons, according them specific rights, such as access to courts, to identity and travel documents, to employment, to education and to freedom of movement; it sets out a definition of a stateless person, as someone ‘who is not considered as a national by any State under the operation of its law’; and it is seen as part of customary international law. The 1961 Convention creates a framework for avoiding future statelessness, placing an obligation on states to prevent statelessness arising from their nationality laws and practices. Despite low numbers of accessions to this treaty, some of its safeguards—such as granting nationality to foundlings, and preventing statelessness when people change their nationality—are applied in non-signatory states.
Many international human rights instruments also contain principles that limit states’ discretion over nationality matters. The 1954 and 1961 Conventions are also complemented by standards in regional instruments that recognize the right to nationality, and establish additional obligations for states to prevent statelessness. The most detailed standards relating to nationality have been adopted in Europe, in the 2006 Convention on the Avoidance of Statelessness in Relation to State Succession. Regional human rights bodies in the Americas, Europe and Africa have recently also become more active in highlighting and resolving the plight of stateless people. Despite this universal legal framework, statelessness persists almost everywhere.
Causes of statelessness
Statelessness has numerous causes which may often appear to be of a legal or technical nature. However, they often involve discrimination on the basis of gender, race, ethnicity, religion, language, disability or other grounds.
Transfer of sovereignty
People may become stateless when a state ceases to exist and their citizenship is not transferred to the successor state. Following the break-up of the Soviet Union, the former Yugoslavia and Czechoslovakia in the 1990s, millions of people became stateless; migrants and marginalized ethnic and social groups were particularly affected. Most of these cases have now been resolved, but more than 600,000 people were believed to be stateless throughout the region, most of them in countries of the former Soviet Union. Statelessness arising from state succession has also persisted in Africa, Asia and the Middle East. Most recently, the creation of South Sudan in 2011 illustrated the risk of large-scale statelessness occurring amid the complexities of state succession.
Conflict of nationality laws
Individuals may become stateless due to conflicts in the application of nationality laws by different states. States commonly apply two distinct principles for granting citizenship at the time of birth: jus soli, or the law of the soil, and jus sanguinis, the law of blood. Many children become stateless when they are born in a country that applies only the jus sanguinis principle to parents who come from a country that places limitations on the jus sanguinis transmission of nationality in the case of children born abroad. The likelihood of children becoming stateless also increases when one parent is stateless.
People may also become stateless as a result of administrative and practical problems, especially when they are from a particular group that faces official discrimination or onerous bureaucratic procedures. Individuals might be entitled to citizenship but unable to undertake the necessary procedural steps; they may be required to pay excessive fees for civil documentation or required to meet unrealistic deadlines to complete procedures such as registration; or, in disruptive conflict or post-conflict situations, they may find simple administrative procedures difficult to complete.
People may also become stateless due to discrimination on racial or ethnic grounds. Ethnic minorities may be arbitrarily excluded from citizenship and sometimes this discrimination is enshrined in law. Minorities brought to a country during the colonial period to perform specific types of work have been excluded from citizenship when independent states were formed, such as the formerly stateless Hill Tamils in Sri Lanka and Nubians in Kenya. Indigenous groups have also been left stateless in some situations, including some hill tribes in Thailand. Nomads whose way of life leads them to move across borders may be labelled foreigners, and not recognized as citizens in any country. Ethnic, racial, religious or linguistic minorities have sometimes been rendered stateless as a result of an arbitrary decision that deprives them of their nationality. Minorities may also face also considerable obstacles in obtaining birth certificates or other documents necessary to acquire or confirm citizenship.
People may become stateless when citizenship laws do not treat women and men equally. Prior to the adoption of modern human rights instruments, the ‘principle of unity of nationality of the family’ meant women often automatically lost their nationality upon marriage to a foreigner, and nationality could only be conferred to children by the father. Progress in the elimination of gender discrimination in nationality laws has come from developments in international human rights law, and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). This guarantees women’s equality with men in respect of acquisition, change or retention of their nationality as well as in conferring nationality on their children. A preliminary analysis by UNHCR found that more than 40 countries still discriminated against women with respect to these elements, but there is also a growing trend towards states remedying gender inequality in their citizenship laws, notably in the Middle East and North Africa.
As awareness grows, more is being done to address statelessness around the globe. The principal methods for responding to situations of statelessness include identification, prevention and reduction of statelessness as well as the protection of stateless persons.
While very few countries have established procedures to determine statelessness, accurate identification of who is stateless—and formal recognition of this—is crucial to ensuring that stateless people can exercise their rights until they acquire a nationality. Baseline data on stateless populations is improving and UNHCR has data on statelessness in 65 countries compared to 30 in 2004. From 2009 to 2011, UNHCR carried out identification activities in 42 countries. By 2010, UNHCR had data that 3.5 million people were stateless worldwide. It found the problem to be more pressing in Southeast and Central Asia, the Middle East, Central and Eastern Europe and in certain countries in Africa. Those with the largest number of stateless people for which estimates are available are Estonia, Iraq, Latvia, Myanmar, Nepal, Syria and Thailand. However, UNHCR believes there could be as many as 12 million stateless persons worldwide.
Most national action on statelessness in recent years has been in the area of law reform. Both state and non-state parties to the 1961 Convention have shown a clear trend towards bringing their nationality legislation into line with Convention standards—among them are Brazil, Georgia, Iraq, Indonesia, Kenya, Kyrgyzstan, Lithuania, Syria and Vietnam. The Citizenship Law adopted by the Russian Federation in 2002 is an example of good practice; on the basis of simplified naturalization procedures, the law enabled former citizens of the Soviet Union who were stateless to acquire citizenship if they resided permanently on Russian territory onJuly 1, 2002. They were also exempted from fees. By the time the procedure was discontinued in 2009, more than 600,000 people had received Russian citizenship.
An increasing number of actors are working on statelessness. In June 2011, the UN Secretary-General Ban Ki-moon, issued a Guidance Note on preventing and reducing statelessness, which sets out seven principles to guide action by the UN system to address statelessness and makes clear that addressing statelessness is a ‘foundational and integral part’ of UN efforts to strengthen the rule of law. While UNHCR is the agency mandated to work with governments on issues of statelessness, it relies on cooperation and contributions from other UN agencies, regional organizations and civil society. Through a series of regional events held between 2009 and 2011, UNHCR and partners have sought to raise awareness of the situation of stateless people among states, international and regional organizations and civil society actors, and to promote the exchange of good practices in addressing statelessness. These efforts have led to a number of concrete actions, including a government campaign to register all undocumented people in Turkmenistan—many of whom are stateless. This has resulted in the registration of 20,000 people since 2007.
International experience during the past two decades shows that many instances of statelessness can be prevented if existing standards are properly applied, and that statelessness must not be seen as an intractable political issue. At the ministerial meeting convened by UNHCR in December 2011 to mark the 50th anniversary of the 1961 Convention, many states made pledges to prevent or reduce statelessness, to recognize the status of stateless people and to accede to the 1954 and 1961 Conventions. Progress will be measured by the implementation of these commitments.