Full fathom five – can the law on statelessness protect those at risk of climatic statelessness?

In my last blog I looked at how climate change and cross-border migration interrelate and what would happen in the event that entire communities and even states were displaced due to climate change.  In the rest of this series I look at which international law regimes might offer protection now and in the future. And where better to start, for a people who might lose their state, than the international law on statelessness.

 

The usual approach to statelessness

International law on statelessness approaches the issue from two perspectives: the protection of stateless persons and the prevention and reduction of statelessness.  The 1954 Convention Relating to the Status of Stateless Persons focuses on identifying who is stateless and seeks to ensure minimum rights for stateless people in their host country.  Article 1 of the Convention establishes the legal definition of a stateless person as:

“a person who is not considered a national by any state under the operation of its law”.

The 1961 Convention seeks to prevent and reduce statelessness by creating an international framework to promote the right of every person to a nationality.  The 1961 Convention promotes, but does not ensure, a right to nationality.  It imposes only a negative duty on states to prevent statelessness.  This can be achieved when states comply with their obligations to establish safeguards in their nationality laws to prevent statelessness, both at birth, and later in life.

Statelessness is often passed down from generation to generation.  Many are stateless because they have left their original state and cannot be recognised as citizens of that state. This is the case even where their parents are citizens of that state.  Statelessness tends to arise due to the specific circumstances of an individual or a family.  When it occurs in larger communities, it is often due to historical reasons or because of an ongoing discriminatory policy.  Small and large communities who have always lived in the same state, but have not been recognised as belonging to that state, can live in limbo for generations.  To understand more about how this can occur, see my previous blogs on barriers to citizenship for minority communities of Kenya and on the plight of the Bidoon and on the stateless Kurds in Syria.

There are stateless people in every state.

 

No state statelessness

Can the law on statelessness and the definition of statelessness in the 1954 Convention be interpreted so as to provide protection to those who are stateless because their state has disappeared?  On a straight-forward reading of Article 1, this seems unlikely.  Article 1 assumes that the denial of nationality arises by operation of the laws of the state, rather than by the lack of state.  A person who is without a state cannot be stateless under that definition.

The drafters of the 1954 and 1961 Conventions did not have the loss of a state in mind.  One of the reasons for this is that the Conventions focus on instances of de jure statelessness.  De jure statelessness can be caused by the operation of a state’s laws or administrative practices, a conflict of the laws of two or more states which might have given the individual a nationality, or by reason of state succession resulting in individual ‘falling through the cracks’ of old and new nationality laws.

The requirement for statelessness to arise by ‘operation of its laws’ is interpreted to mean that a person needs to comply with the laws of the state to be a citizen of that state.  And for that to happen, there must be a state.  But perhaps the concept of de jure statelessness and how it and the law on statelessness might apply in the context of ‘disappearing states’ could be adapted.  Under this reformulation, de jure statelessness can also occur where there are no laws because there is no state.  As such an individual cannot be considered to be a national of a state which does not have specified nationality laws.

 

Moving from de jure to de facto statelessness

If the concept of de jure statelessness cannot be reformulated, perhaps we can turn to de facto statelessness as a way to provide protection to communities who have lost their state.  UNHCR has defined a de facto stateless person as one who is “unable to demonstrate that he/she is de jure stateless, yet he/she has no effective nationality and does not enjoy national protection” ¹.  De facto statelessness can arise because of a state’s administrative mistake, where groups or individuals are targeted for discrimination, persecution and abuse by the state, or face bureaucratic indifference, delay and corruption.  However, this definition can be difficult to work with because of a lack of clarity as to what ‘no effective nationality’ really means.

The Final Act of the 1961 Statelessness Convention indicates that:

“persons who are stateless de facto should as far as possible be treated as stateless de jure to enable them to acquire an effective nationality”.

In other words, people who are de facto stateless are also in need of protection.  This is why UNHCR was given a mandate in 1996 to help protect all stateless persons.  As part of its remit, UNHCR has a mandate to engage with states to promote the prevention and reduction of statelessness, whether individuals affected are de jure or de facto stateless ².  At present, however, those displaced by climate change are not treated as an identifiable group with expressly articulated rights ³.  Without a clear focus on an identifiable group in need of protection the UNHCR will face a challenge as it seeks to engage with states on solving the problem.

 

States’ duty under the law on statelessness

The principle that there is a duty on states to prevent statelessness is one recognised under international law on statelessness ⁴. It is the other side of the coin to the right to a nationality.  UNHCR has considered how the duty of states might translate into positive action to ensure that those who lose their state can avoid becoming stateless:

“Ideally, multilateral comprehensive agreements would provide where, and on what legal basis such populations would be permitted to move elsewhere and their status. To prevent temporary statelessness, acquisition of an effective nationality should be foreseen prior to the dissolution of the affected State. Dual nationality may therefore need to be permitted at least for a transitional period. As well, a waiver may be required of formal requirements for renunciation or acquisition of nationality which might be difficult to fulfil for affected populations” ⁵.

In the context of climatic statelessness and the loss of an entire state, the duty of states requires a very willing and accommodating host state to either cede territory or grant citizenship to all citizens of the disappeared state.

One obvious limitation is that the Statelessness Conventions only set out rights for individuals, and the corresponding duty on states, in relation to stateless person already within the territory of the state party to the Conventions.  The Conventions do not impose a corresponding right of admission on the basis that an individual, a group or a community are or will be rendered stateless ⁶.

And even when those affected have been admitted, not all states have the procedures necessary to identify those in need of assistance.  Some state parties to the Conventions  are yet to introduce statelessness determination procedures to identify stateless persons within their borders.  For more on statelessness determination procedures, why they are essential for compliance with the Conventions, and what happens when states do not have such a procedure, see here, here and here.  Reliance on the duty of states may ultimately provide limited protection.

 

The right to have choice, and next time on the Torn Identity…

But what if those who have suffer the impact of slow-onset climate change and see their home disappear want to keep their own nationality and rather than become citizens of another state?  The Statelessness Conventions seek to ensure that no one is born or becomes stateless.  This effectively creates a hierarchy of only two possible states: statelessness as the undesirable state and citizenship as the desirable one.  The Conventions do not recognise that there might be a third tier in the hierarchy of preference.  Some people may prefer to have the nationality of their home country rather than just any nationality.   Can we really maintain that the binary option of statelessness vs. any nationality offers sufficient protection to an entire body of citizens who have lost their state and their citizenship?

In my next blog I will look at this issue and whether citizens of states lost to slow-onset climate change can find protection under the law on statehood, state succession and self-determination.