A framework for dignity – states recently acceded to the Statelessness Conventions

In an earlier blog I considered some of the countries which had not yet acceded to the two Statelessness Conventions and which had no formal protective framework to avoid, reduce or mitigate the effects of statelessness.

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.  Acceding to the Statelessness Conventions provides a clear framework for how to achieve this.

In this blog I look at the more positive news and to the countries which have recently acceded to the Statelessness Conventions.

 

The Statelessness Conventions

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 and standards for stateless people in their host country, such as the right to education, employment, health and housing.  The 1954 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 1961 Convention seeks to tackle and prevent and reduce statelessness by creating an international framework to support the right of every person to a nationality.  That Convention creates obligations on states to ensure that their laws and political and policy decisions do not have the incidental or intended effect of creating statelessness.  The 1961 Convention recognises that statelessness is not an accident but is often the result of legal and policy decisions.

The rights and obligations set out in those Conventions can help give countries are framework for reducing the number of stateless people within their borders and to mitigate the effect of statelessness on those who are stateless or at risk of statelessness.

 

Recent accessions to the Statelessness Conventions

Between 2011 and 2019 there were 69 accessions to the Statelessness Conventions, the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.  Below are some of the countries that have acceded to the Statelessness Conventions in recent years.

 

Chile

Chile acceded to the two Statelessness Conventions in 2018.  Between 1995 and 2014 Chile denied nationality to some 4,000 children born within its borders whose parents were considered to be unlawfully in the country or who had not regularised their status.  The denial of nationality was the result of a flawed interpretation of the nationality requirements, as set out in Article 10 of Chile’s Constitution.  Following a legal challenge to the interpretation of Article 10 which denies nationality to children born in Chile to ‘transient foreigners’ in 2015, the Supreme Court ruled in the children’s favour.  Some 100 children were naturalised ¹. Since then, a special project, Chile Reconoce has sought to identify and assist all those affected by the pre-2015 legal interpretation of the Constitution ².

Progress is being made, and many children at risk of statelessness have been identified through the work of NGOs and local civil society.  However, the problem cannot be resolved solely through the rulings of the court in individual cases.  The court in Chile has to date ruled in favour of the children of irregular migrants, but this does not translate to a change in policy from the Chilean government. Perhaps the first sign of the much-needed policy change is its accession to the Statelessness Conventions.  Acceding to the Conventions is a clear indication that it intends to meet international human rights standards when it comes to reducing and mitigating the effects of statelessness.

 

Guinea-Bissau

Guinea-Bissau acceded to the Statelessness Conventions in 2016.  I have written before about the 2018 decision by Guinea Bissau to grant citizenship to over 7000 refugees who escaped conflict in Senegal in the 1990s.  This is not the only way that Guinea-Bissau is forward-looking when it comes to reducing stateless.  The small country has avoided placing children at risk of statelessness by providing equal rights to men and women to transmit nationality.  Equal nationality provisions have been in place since 1976.  Not only that but its nationality law also provides for the grant of nationality to children born or found within its borders ³.  Children most at risk of statelessness have parents who are both unable to pass on their nationality to their child, for example, where both parents are not nationals of the same state.  Equally, children born to migrants or who are undocumented also need special protection from statelessness.

There is still more work to do to improve the level of birth registration in the country, however.  The UN Committee on the Rights of the Child noted in 2013 that only a quarter of births are registered ⁴, rising to approximately 39% by 2018 ⁵.  In light of the country’s commitment to end statelessness it is no doubt a matter of time before this issue is addressed more fully.

 

Haiti

Haiti acceded to the Statelessness Conventions in 2018 ⁶.  The country has been in the news more recently because of the 2013 decision of its neighbour, the Dominican Republic, to strip the citizenship of Dominican Republic citizens of Haitian descent.  The Constitutional Tribunal of the Dominican Republic decided that those who might have been in the Republic illegally (from as far back 1929) should have their citizenship revoked.  Although the decision affected all those who were deemed to be in the Republic illegally, in fact 86% of those affected were of Haitian descent.  Thousands of Dominicans of Haitian descent became stateless overnight, with no right to be issued birth certificates and identity document ⁷.  Many of those arrived at the end of the 1800s on the invitation of the Dominican Republic to work on sugar cane plantations.

One of the results of the recent events in the Dominican Republic is that many of those now stateless people of Haitian descent have returned or have been forced to return to Haiti.  Figures from 2016 suggest that some 150 000 Haitians and Dominicans of Haitian descent have entered Haiti.  Several thousand now live in makeshift camps ⁸.

Accession to the Statelessness Conventions is a good start for Haiti to deal with the latest developments in the Dominican Republic and the migration crisis created by it on the island of Hispaniola which both nations share.  But signing up is not enough without putting in place a statelessness determination procedure (on which more can be found here and here) or dealing with the influx of migrants who consider themselves first and foremost Dominican and have known no other country as their home until the recent developments.

 

Mali

Mali acceded to the Statelessness Conventions in 2016.  The country has many Mauritanian refugees who crossed the border in the late 1980s and the early 1990s, remaining in the community for decades.  Those born to refugee parents are at heightened risk of statelessness because the children of those refugees lack birth certificates and other legal identity documents.  Children in Mali need to be registered within one month.  If that deadline is missed the process becomes more complicated, and often too complicated, for those living in remote refugee communities ⁹.  A programme in 2015 coordinated by UNHCR sought to address this problem by helping Malian authorities to issue nearly 8000 birth certificates to Mauritanian refugees.  Many however are still undocumented and at risk of statelessness.

The situation in Mali is a good example of how statelessness can be linked to migration and to being born and raised among refugee camps or populations with uncertain status.  Children of refugees and migrants are at a high risk of statelessness where the host nation does not make provisions to register their births or provided them with legal documents.  I have written on this issue before in relation to South Africa.

 

Sierra Leone

Sierra Leone acceded to the Statelessness Conventions in 2016.  Like Mali, it is a good example of how the risk of statelessness is heightened where the population is undocumented.  In Sierra Leone, around half of the country’s children are undocumented ¹⁰.  In Sierra Leone this affects those born in the state to nationals of that state – children (and their parents) who have never known any other home.  But without birth certificates, those children can often lack any evidence of a link with their home and of their own identity.

Sierra Leone has more effectively tackled another source of statelessness, discriminatory nationality laws.  In 2017 it took steps to amend its Citizenship Act 1973 (as amended in 2006) to amend a discriminatory clause which prevented women from passing on their nationality to their children in some circumstances.  Now men and women have equal rights in this respect ¹¹.

 

Joining the international community to promote a framework for dignity

Acceding to the Statelessness Conventions is a sign.  A sign that the state cares about statelessness and the stateless people within its borders.  It is also a sign that the state is ready to formalise its concern by creating procedures for determining statelessness, for identifying who is stateless within its borders, for giving those individuals access to basic rights and maybe even citizenship.

But accession is just the first start to joining the international community on the fight to eradicate statelessness and to minimise its impact on individuals.  The Statelessness Conventions do not provide a detailed recipe for success.  As with many international instruments, the Conventions give guidance, not prescription.

Following that guidance means engaging not just with the letter of the Conventions, but with their spirit.  It means each state party deeply considering what it is doing right, what it could do better and what it needs to start doing to ensure that it does not contribute to the already vast number of stateless people around the world.