Towards eradicating statelessness – Statelessness Determination Procedures: Part I

The causes of statelessness are many and can include discrimination against particular ethnic or religious groups, or on the basis of gender, the emergence of new States and transfers of territory between existing States, and gaps in nationality laws ¹.  But statelessness is not an accident. It is often the result of legal, policy, or political decisions made by states. States can cause statelessness, but they can also choose to eradicate it or to mitigate its effects. One way to do this is to take steps to identify who is stateless. Identification can then be followed by making sure that anyone who is stateless has access to basic rights guaranteed to them under international laws and customs and under the laws of the host state. A statelessness determination procedure can help a state achieve both of those aims and be part of the solution to a seemingly insurmountable problem.

In this first blog on statelessness determination procedures, I look at what the procedures is and how it fits into the obligations of states towards stateless people within their borders.

Next time, in Part II, I’ll come back to this issue. I will look in more detail at how a statelessness determination procedure can help both stateless individuals AND the state and which countries have made use of the procedure. I’ll also explore how embracing the right solutions can make a big difference to the seemingly insurmountable problem of statelessness.

 

The scourge of statelessness

Let’s start with a reminder of the pervasiveness of statelessness. It affects approximately 10million people ² (that’s the population of a small country!). More than 90% percent of stateless people are in just 10 countries. There are more than one million Rohingya stateless people, many of whom are in the process of being expelled from Myanmar ³. Somewhere between half a million (officially) ⁴ and 2-3 million (unofficially) ⁵ stateless people are found in Thailand. I have written about the statelessness problem in Thailand, previously.  Then it’s Zimbabwe, then Latvia (see my guest blog on the stateless in Latvia here and Kuwait too (see my blog on the situation of the stateless Bidoon here, which also applies to some extent to the stateless found in Saudi Arabia, who are also in the top ten list).

What does it mean to be stateless? Well, a stateless person is a person who is not considered as a national by any State under the operation of its law ⁶  What it means in reality is that a person who is stateless will not be able to live in dignity or enjoy many basic rights usually accorded to those who have a nationality. I have written about the hardships faced by stateless people here.

Problem of the state or problem of the stateless person?

It is a long-standing rule in customary and treaty law that it is for each State to determine under its own law who are its nationals ⁷. States can decide who is a national of their state and who can reside within their borders. That said, realistically, most states cannot always help who comes to live within their borders and whether or not they are already national of another country.

So why is it their responsibility to fix a problem that they cannot control?

Despite the wording of Article 1 of the 1930 Convention, the right for a state to determine under its own laws who are its nationals is not unlimited. The provisions of Article 1 must be understood as subject to a clear limit, also set out in Article 1. Any national law, policy or practice in relation to citizenship and nationality — whether it is its acquisition, maintenance or loss — must conform to:

“international conventions, international custom, and the principles of law generally recognised with regard to nationality, including international human rights obligations” ⁸.

 

The role of states

The UN is blunt with its message: if states are not part of the solution, they are part of the problem:

“for millions of stateless individuals, usually persons who are members of a minority, their statelessness is neither coincidence nor accident, but a direct result of a law, policy or practice in violation of international human rights law.” ⁹

Statelessness is not just a coincidence nor an accident which ‘happens’ in states and to states, but is also a direct result of its law, policy or practice. That means states not only play a role in hosting stateless people, but can also have a role in creating the conditions for statelessness.

States can contribute to the solution of the problem of statelessness by complying with international conventions, international custom and human rights principles. Examples include the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. Relevant human rights law includes provisions in the International Covenant on Civil and Political Rights ¹⁰, the Convention on the Rights of the Child ¹¹, and the African Charter on the Rights and Welfare of the Child ¹².

As the UNHCR has concluded in its Global Action Plan to End Statelessness 2014–2024

“statelessness itself is a profound violation of an individual’s human rights”

especially when

“solutions are so clearly within reach” ¹³.

State can be part of the solution by enacting laws, policies and practices to combat statelessness.  A very effective way that that states can play a role in reducing and eliminating statelessness within their borders is to have a Statelessness Determination Procedure.

 

What is a statelessness determination procedure? 

A statelessness determination procedure is a mechanism to identify stateless persons. The need for states to make such determinations is implied by the 1954 Convention ¹⁴, although no particular procedure is prescribed.

Although the 1954 Convention is not explicit, the UNHCR: the UN agency with the mandate to act on statelessness, has given further detail in its Global Action Plan. Action 6 of the Global Action Plan calls for a determination procedure to

“Grant protection status to stateless migrants and facilitate their naturalization.”

Goal 10 is also relevant, in that it seeks to

“Improve quantitative and qualitative data on stateless populations”

which is more easily done where the state has a procedure to identify those who are stateless ¹⁵

As long as the procedure is fair, transparent and efficient, a lot of discretion is given to states in how they design and operate their SDP.  It is up to each state to decide if it should take the form of a new body, or if the duties should be assigned to an existing one and how far the procedure should be integrated into existing asylum procedures. Ideally, appeals must be possible on both points of fact and law in case of an incorrect assessment of the evidence at first instance level.

To have or not have?

Whether the procedure is appropriate will depend on the overriding causes of statelessness within the state.  As the UNHCR explains, a statelessness determination procedure serves to identify stateless persons among migrant populations. This, in turn, ensures that they enjoy the rights to which they are entitled until they acquire a nationality.

The procedure will not be appropriate where the stateless population has long-established ties with the state through birth or long-term residence. In those cases, states should not delay recognition by going through the process of a determination procedure. Rather they should focus on facilitating the full integration of these groups by making sure that they acquire the nationality of the country.  The process should focus on changing legislation and policies to reduce or eliminate requirements for the acquisition of nationality, or by assisting stateless persons to meet those requirements ¹⁶.

Proving a negative

Au­thorities undertaking statelessness determinations must keep in mind that more often than not, stateless people have no documents or evidence to prove that they are not a national of any state. It is hard to provide a negative. As such, states must consider all available evidence, oral or written. This might also include the analysis of national­ity laws of other countries and how they are applied.

Analysis of nationality laws of other countries and how they are applied is especially important in light of another major issue: states’ contribution to statelessness through discriminatory provisions in their nationality laws which negatively affect women and their children. This is worthy of its own blog, but here are a few examples of how states can be part of the problem rather than the solution: in 26 countries a married mother cannot pass on her nationality to a child born outside the country on an equal basis with a married father. This can lead to statelessness if children cannot acquire the nationality of their father ¹⁷. And in around 50 countries women do not have the same rights as men to acquire, change or retain their nationality and may not have the ability to confer nationality on their foreign spouses ¹⁸. Without a statelessness determination procedure, such factors can be ignored, leading to many people, especially women and children, being left in limbo in their host country.

Next time on the Torn Identity…

States can play a role adding to the problem of statelessness, or they can be part of the solution. The statelessness determination procedure is one way that states can work on being part of the solution and managing a migrant stateless population within their borders.

In this blog, I have introduced the relationship between active state engagement with eradicating statelessness and having a statelessness determination procedure. In my next blog, I want to come back to this issue. I will look more closely at how the procedure can help both stateless people and the state, which countries have made use of the procedure and how embracing the right solutions can make a big difference to the seemingly insurmountable problem of statelessness.