It’s cold out there – Non-parties to the Statelessness Conventions

UNHCR, the UN Refugee Agency describes the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness as “The key international conventions addressing statelessness. They are complemented by international human rights treaties and provisions relevant to the right to a nationality” ¹.

But still there are many states that are non-parties and have not signed up to either Convention.  The problem of statelessness persists.  There are over 10 million stateless people in the world ².  This blog looks at some, but by no means all, the non-parties the Conventions.

 

The Statelessness Conventions 

Every year, more and more states become signatories to the Conventions, with 62 accessions to the Conventions between 2011 and 2019.  The UNHCR, as part of its Global Action Plan, Action 9, calls on states to accede to the Statelessness Conventions ³.  It frequently repeats these calls in its resolutions ⁴.

The two Statelessness Conventions have a different focus and remit, but they are complementary.

The 1954 Convention focuses on identifying who is stateless and seeks to ensure minimum rights for stateless people in their host country.   The Convention establishes the legal definition of a stateless person.  The definition is “someone who is not recognised as a national by any state under the operation of its law”.  The 1954 Convention seeks to establish minimum standards of treatment of stateless people. It also requires that states guarantee them a number of rights.  Those rights include the right to education, to employment, health and housing, access to a right to identity, to travel documents and to administrative assistance from UNHCR and from the host state.  I have written about what is lost or denied to stateless people here.  Currently the 1954 Convention has 91 parties.

The 1961 Convention seeks to prevent and reduce statelessness by creating an international framework to promote the right to every person to a nationality.  This right can be achieved when states comply with their obligations under the 1961 Convention to establish safeguards in their nationality laws to prevent statelessness, both at birth, and later in life.  Parties to the Convention must allow children born within their borders to acquire the nationality of the country in which they are born if they do not, or cannot, acquire any other nationality.  The 1961 Convention recognises that statelessness is not an accident, but is often the result of legal and policy decisions (on this topic, see for example, my blog on Nepal’s nationality laws).  The 1961 Convention currently has 73 parties.

 

Non-parties to the Statelessness Conventions

Many countries have yet to accede to the Statelessness Convention.  Non-parties include the United States, Venezuela, the Dominican Republic, most of the Caribbean, Mauritania, Morocco, Namibia, South Africa, Sudan, Egypt, Ethiopia, Tanzania, Kenya, Lebanon, Russia, Estonia, Belarus, Kazakhstan, China, Japan, India, Bangladesh, Singapore, Indonesia and South Korea.

 

United States

According to the report ‘Citizens of Nowhere: Solutions for the Stateless in the US’ by UNHCR: “Almost all stateless individuals in the United States who are not also refugees have become stateless while in the U.S., usually through no fault of their own“ ⁵, either because their countries have dissolved or they have not acquired citizenship in any of the successor states.  Sometimes incompatibilities between the old legal regime and the successor state new regime have left people without a nationality.  The US follows a jus soli, or birthright, principle of citizenship.  This means that it offers protection from statelessness to anyone born on its territory.  In some exceptions it also can grant citizenship on the basis of the jus sanguinis ⁶, to children born to US citizens abroad.

However, it has far fewer safeguards for anyone who becomes, rather than is born, stateless on its territory.  It is those individuals who would most benefit from the protections offered by the Statelessness Conventions.  The US maintains that it cannot accede to the Conventions because they contain provisions incompatible with US law on the right to renounce citizenship.  More information about people living stateless in the US can be found here and here.

 

 Dominican Republic

The Dominican Republic has recently been in the news because of the 2014 changes to its constitution and nationality laws which ended birthright citizenship for people of Haitian descent.  The decision applies retrospectively.  It is estimated that hundreds of thousand people suddenly lost their citizenship ⁷.  Anyone who was born to one of the many Haitians who came to the Dominican Republic to work and to find safety, and who is not found on the civil registry, must now register with the government as a foreigner.  Even if they were previously a citizen.  But that process is proving difficult.  Many of those rendered stateless now also face the threat of deportation.

The Dominican Republic accepted in 2009 the recommendation that it should ratify the Statelessness Conventions.  The recommendation was repeated again in 2014.  At that point the Dominican Republic took note of the recommendation, but did not accept it and has not ratified the Conventions ⁸.  More information about people living stateless in the Dominican Republic can be found here and here.

 

Belarus

According to UNHCR, there are approximately 6000 stateless people in Belarus ⁹.  Belarus has repeatedly stated that it does not wish to accede to the Statelessness Conventions because it fears that accession might create a pull factor (presumably for stateless people) and because it does not see the value of being a party to the Conventions ¹⁰.

Despite not being a party to the Conventions, Belarus has made attempts to clarify the status of stateless people within its borders, and even to offer naturalisation.  Without a formal statelessness determination procedure in place, this may be challenging.  Equally, Belarusian nationality law on its own is not sufficient to provide adequate safeguards against statelessness for children born in its territory where the parents do not have permanent residence and who would otherwise be stateless.

 

Estonia

Following its independence in 1991, Estonian citizenship was extended only to citizens of pre-war Estonia and their descendants.  As a consequence, almost 40% of the population of Estonia became stateless ¹¹.  Where Belarus chose to allow anyone with permanent residence to acquire Belarus citizenship, the opposite occurred in the case of Estonia and particularly affected Soviet-era settlers.  The settlers were mainly of Russian ethnicity.  Their children, too, were condemned to statelessness.  As of 1 January 2019, a total of 76,148 stateless persons lived in Estonia, down 2,258 from 78,406 on 1 January 2018 ¹².

A change in the law in 2015 allows for automatic acquisition of nationality, rather than by following a procedure, “if his or her parents or a single parent have been legally residing in Estonia for at least five years by the time of birth of the child and they are not considered as citizens by any other State on the basis of any legal act in force”.

The new law, in effect since 2016, will apply retroactively to children under 15.  The change in the law will resolve some cases of statelessness.  But does not assist stateless children whose parents do not meet the requirement of 5 years’ lawful residence and who are left without means of acquiring nationality.  The Estonian government does not see a benefit to acceding to the Statelessness Convention.  It somewhat wilfully misinterprets the rights and protections given by the Conventions by arguing that Estonia does not believe that it should influence a person’s choice of citizenship.  More information about statelessness in Estonia can be found here.

 

Lebanon

According to UNHCR there are three main causes of statelessness in Lebanon ¹³.   Historical statelessness stems from the many that were excluded from the 1932 census.  Legislative statelessness can be “gaps in the legal framework which deny nationality to some”.   In the case of Lebanon, the reality is that gender discrimination in nationality laws is a great contributor to statelessness in Lebanon.  Statelessness can also be caused by administrative measures or where an individual is unable to provide proof of the right to citizenship, for example, due to a lack of effective and universal birth registration.  To those three we can also add the challenges that come with Lebanon hosting different groups of long-term refugee communities within its borders.  For example, currently there are an estimated 1.5 million Syrian refugees in Lebanon.  I previously wrote about the causes of statelessness in Lebanon here.

One of the major causes of statelessness in Lebanon is that women in Lebanon cannot acquire, transmit and retain nationality on an equal basis as men.  Lebanon is one of 25 countries which deny women the right to pass nationality to their children on an equal basis with men ¹⁴.  A change in Lebanon’s nationality laws will have a huge impact on the number of stateless within its borders.  According to an NGO study carried out in 2012 and 2013, 73 percent of the stateless people in Lebanon who are not of Palestinian origin were born to a Lebanese mother ¹⁵.

 

South Africa

South Africa confirmed its commitment to acceding to the Statelessness Conventions in 2011, but to date it has not done so.  Currently, it does not have a mechanism for determining who is stateless within its borders.  The South African Constitution ¹⁶ does offer certain protections to those at risk of statelessness.  For example: “every child has a right to a name and a nationality from birth”.   Its Citizenship Act which guarantees South African nationality to “children born on the territory who would otherwise be stateless” and “children born on the territory and who have lived in South Africa until age of majority, and whose parents are permanent residents“ ¹⁷.  But these offer limited protection without statelessness determination procedure.

A further complication is that a birth certificate is needed to benefit from those safeguards.  Many children are not registered at birth, and therefore cannot prove that they were born in South Africa.  More recently, the authorities have been refusing to issue a birth certificate to children born to parents who do not have permanent residence in South Africa.  I have written about the issue here.  More information about children and the impact of statelessness and limited birth registration can be found here.

 

Bangladesh

In 2008 the Supreme Court of Bangladesh did something extraordinary.  The Court adjudicated on the status of a large Urdu-speaking community (known as Biharis) in Bangladesh and found that all 300, 000 members of the stateless Urdu-speaking community in Bangladesh, many of whom were living in camps, were Bangladeshi citizens.  As the UNHCR points out, a decision like this shows how, with political will and common sense, it is possible to resolve the precarious situation of so many.  That is not to say that all the challenges of statelessness can be resolved at the stroke of pen.  UNHCR reports that many still remain without official documents and a legal identity and are unable to meet administrative and legal requirements.  Without meeting those requirements, many are left without access to basic services ¹⁸.  Had Bangladesh signed up to the Statelessness Conventions, it would be obliged to ensure access to basic rights and to identity documents for the hitherto stateless Urdu-speaking population.  This, in turn, would have made the transition to citizen easier to manage.

Bangladesh is once again in the news, this time in relation to the many stateless Rohingya refugees fleeing Myanmar.  As of the end of 2018, it is estimated that more than 33,131 registered refugees are now in Cox’s Bazaar, Bangladesh.  A further 80,000 unregistered Rohingya live in makeshift camps nearby, in terrible conditions.  The movement of the Rohingya into Bangladesh has been described as a ‘crisis’.  Now, more than ever, Bangladesh should look to the Statelessness Conventions to frame its treatment of these newly arrived stateless and desperate people within its borders.  More information about the Rohingya in Bangladesh can be found here and here.

 

No protective framework

We have seen from the stateless in Belarus, Estonia and Bangladesh that statelessness is a minority rights issue.  We can also see how statelessness disproportionately affects minority groups.  As the UN Secretary General has explained “statelessness tends to perpetuate and worsen the discrimination and marginalization they already face” ¹⁹.

We have also seen from the situation of the stateless in Lebanon, in South Africa and in Belarus that the lack of a statelessness determination procedure can affect the ability of states to adequate give protection to stateless people.  I have written about the importance of such a procedure here and here.  The 1954 Convention creates an obligation on states to identify stateless persons.  In its Handbook on the Protection of Stateless Persons, the United Nations High Commissioner for Refugees (UNHCR) observes that: “although the 1954 Convention does not explicitly address statelessness determination procedures, there is an implicit responsibility for States to identify stateless persons in order to accord them appropriate standards of treatment under the Convention.” ²⁰

People are stateless or become stateless for many different reasons.  What they have in common, wherever they are in the world, is the effect of statelessness on their ability to lead a full life with access to basic rights, to a legal identity and to dignity.  The countries discussed above have all made some efforts to mitigate the effects and the risk of statelessness for those within its borders.  But they could all do more, and they could do it more consistently.  Acceding to the Statelessness Conventions would provide them with a clear framework and with a set of obligations for how to achieve this.