What is the Concept of Statelessness

The Universal Declaration of Human Rights clearly states that “everyone has the right to a nationality” and that “no-one shall be arbitrarily deprived of his nationality.” Despite this guarantee, people in all parts of the world face the prospect of living without the rights and lack the security and protection which such nationality can provide. [1]

Citizenship is a man’s basic right, for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen.” [2] The phrase “right to have rights” describes very appropriately the consequences of being a national and hence can reflect the impact of being rendered stateless, as well as the reason why there is so much concern now in the international community over this problem.

It would be surprising to know that statelessness was not a recognized issue until the early twentieth century with most questions regarding the State to which a person or subject belonged to being handled by the traditional feudal concept of nationality, whereby people transferred as an attachment to land rather than as independent entities. Thus, before the First World War, these basic assumptions prohibited the occurrence of statelessness. However, after the First World War, these feudal assumptions were largely abandoned and ethnicity, language, and race became more relevant, as groups were excluded from acquiring citizenship following these transfers, thus making it necessary to deal with statelessness in the context of wars and the resultant territorial transfers. [3]

Statelessness – Definition, Types and Causes

Art 1 of the Convention relating to the Status of Stateless Persons, 1954 defines a stateless person as one “who is not considered as a national by any State under the operation of its law.” This definition is helpfully concise and to the point, but at the same time is also very limited and somewhat legalistic, referring to a specific group of people known as de jure stateless, not encompassing the de facto stateless persons who have a nationality but don’t enjoy the protection of any Government. It has been thought useful to approach the notion of statelessness in its broader sense, to denote all those people who lack what has become known as an ‘effective nationality’, and who are consequently unable to enjoy the rights that are associated with nationality. In fact, in 1949, the UN expanded the definition of statelessness to include de facto stateless persons, or those who, “having left the country of which they were nationals, no longer enjoy the protection and assistance of their national authorities, either because these authorities refuse to grant them assistance and protection, or because they themselves renounce the assistance and protection of the countries of which they are nationals.” [4]

While considering the causes for statelessness, it is important to make a distinction between statelessness which is original or absolute and that which is relative or subsequent because different factors underlie both these types of statelessness. Original statelessness, from its very definition can arise either due to faulty administrative practices, the failure or refusal of a state to ensure the registration of births or because of conflicts in the nationality laws of different countries, particularly when one adheres to the principle of jus sanguinis (nationality on the basis of descent) and the other adheres to the principle of jus soli (nationality on the basis of the place of birth). [5] States have the exclusive power to make laws concerning nationality and, by definition, all States try to enumerate which persons have nationality and which persons do not. Although it is the fundamental right of every child to acquire a nationality, strict adherence to jus sanguinis, or nationality based upon descent can be a cause for statelessness. Jus sanguinis, when applied without modifications based on residency or other factors, confers on children the status of their parents. This may mean that statelessness is inherited, passed from generation to generation, regardless of place of birth, residency, or other factors reflecting the genuine effective link. Another possible situation wherein statelessness may arise is when a child is born in a strictly jus sanguinis country whose parents are nationals of a State adhering to the jus soli principle. [6]

However, States do not make this determination in precisely the same way or in consultation with other States. Hence, instances continue to arise in which individuals are not granted nationality by any State leading to the phenomenon of statelessness. These are all cases of individual statelessness which generally arise from a lack of coordination of national legislation with regard to the basic principles governing acquisition and loss of nationality or the laws relating to marriage. [7] Marriage may also be a cause of statelessness, where the nationality law of one State imposes loss of nationality upon marriage to an alien, with no provision for automatic acquisition of the alien’s nationality in his country, upon marriage.

In all such cases statelessness is generally involuntary for the individual concerned. Yet statelessness may also occur voluntarily, e.g., the legislation of a given state may allow for unilateral renunciation of its nationality or may entitle an individual to a release without having regard to his future nationality. This provides the transition for looking into the next category of statelessness i.e., relative or subsequent statelessness for all cases of voluntary statelessness are necessarily subsequent. However, all subsequent or relative statelessness need not be voluntary and most of it generally arises due to conflicts between or within States, transfer of territory or as a consequence of legislative or executive action prompted by political tensions, varying ethnic and racial notions of national identity and social or economic challenges. [8]

Under most of the above circumstances, a mass of people are rendered statelessness. Mass statelessness may result due to territorial changes encouraging the predecessor State to denationalize the populations concerned, even though the successor State may not be willing to confer its own nationality, sometimes even expelling parts of the population concerned or through a State’s legislative or executive action. Instances of the latter kind may be found in the Soviet decree of mass denationalization of December 15, 1921, or in the national-socialist legislation to deprive German Jews of their nationality, or the Czechoslovak legislation to denationalize persons of German origin. Governments may also amend their nationality laws and denationalize whole sections of society in order to punish or marginalize them or to facilitate their exclusion from the state’s territory. [9]

Instances of the former kind could be said to have occurred due to the emergence of newly independent States after World War I as well as due to the process of decolonization or disintegration of a federal polity leaving thousands or even millions of people stateless or with a disputed claim to nationality. [10] The dissolution of multinational or multiethnic federal states and the formation of new political entities and the statelessness arising there from is associated more with developed regions, especially the ex-Communist Bloc, where States are undergoing an “unmixing of peoples,” bringing with it levels of insecurity and uncertain citizenship status to substantial numbers of people.

A third factor responsible for mass statelessness is ‘war’, leading to forced displacement and loss of nationality by a large number of people. Such persons might by virtue of belonging to a particular racial, ethnic or religious group be subject to negative State action of expulsion or deprivation of nationality. Statelessness in such kinds of situation is inevitable and of the most shocking kind for it deprives a vast section of the human population of its inherent right to nationality, in violation of its basic human rights without any reason or logic, reflecting clear callousness and gross discrimination by the State concerned [11].

It can be seen that whereas some cases of statelessness arise as oversights or conflicts in legal approaches, there are others which are the result of discrimination or deliberate denial of human rights. It is these deliberate attempts at rendering people stateless that generally cause mass statelessness and are the most problematic for not only is the impact which is felt, the maximum, it is also discriminatory, being deliberately targeted towards a particular ethnic, racial or religious minority. [12]

While considering the various options available for eliminating or at least reducing the problem of statelessness, it is often debated whether nationality questions fall within the exclusive domain of each State, touching on the sensitive area of State sovereignty or can be the subject of regulation by international norms and standards. In 1923, the Permanent Court of International Justice decided that in the absence of treaty obligations, each State has the right to decide who its nationals are. The court exercised its general obligation to presume that the sovereign nation state is not limited unless there is specific evidence of its express or implied consent. Major twentieth-century problems of statelessness, dual nationality and refugees developed because of this principle. At the Sixth (Legal) Committee of the General Assembly, while some delegates opined that the draft Convention on the Reduction of Future Statelessness and another on the Elimination of Future Statelessness prepared by the International Law Commission of the United Nations encroached on the domestic jurisdiction of States which alone were competent to regulate questions of nationality, several other delegates seemed to think that though nationality questions fall within the domestic jurisdiction of each State, stateless is a problem which transcended national boundaries and hence it was plausible to enter into a Convention whereby States could voluntarily enter into international obligations in this field, entailing amendment of their national legislation to resolve problems of conflict with corresponding nationality legislation in other countries. In the context of contemporary developments, the broad powers enjoyed by the States in the area of conferral and regulation of nationality cannot be deemed to be within their sole jurisdiction and are circumscribed by the obligation to ensure the full protection of human rights. [13]

Difficulties For Stateless Persons

The consequences of the lack of ‘effective nationality’ are the most worrisome and adverse for the stateless person, the reason being that nationality is the principal link between an individual and international law, a bond establishing mutual rights and duties between them. It is a fundamental element of human security and apart from providing people with a sense of belonging and identity; it entitles the individual to the protection of the state and provides a legal basis for the exercise of many civil and political rights. [14]

Stateless persons have often been referred to as “anomalies”, falling outside legal and social constructs. [15] This legal vacuum created by lack of nationality, in the social context, translates into a lack of secure identity, belonging, and sense of place. Frequently, stateless persons cannot work, own property, access education or health care, public services, travel, register births, marriages or deaths, participate in the political process, seek national protection or have access to the judicial system. Positive developments concerning the rights of resident non-nationals are not always applied to stateless persons, in particular to those who cannot establish a legal status in any country. [16] In other words, organization of the entire legal, social and economic life of the individual residing in a foreign country depends upon his possession of a nationality and the lack, loss or deprivation of it can lead to adverse consequences for the individual.

The major impact felt by stateless persons due to absence of the crucial link of nationality is that such a person cannot claim the benefits arising from international law for it implies lack of the possibility of diplomatic protection or of international claims being presented in respect of harm suffered by him at the hands of another State. In situations of statelessness , an individual is considered to be a mere object of international law for whom no subject of international law is internationally responsible – thus, being a notable twentieth-century contribution to the category of res nullius. [17] This, in effect places him in an abnormal and inferior position which reduces his social value and destroys his own self-confidence.

Whereas, earlier, a stateless person could lead a more or less normal existence, without his legal disability causing him any serious difficulties, since the First World War, in Europe, the situation has completely changed. With the re-establishment of the passport and visa system, the increased control over foreigners and the regulations governing all aspects of social life, a stateless person finds himself in constant contact with the authorities, thereby making him conscious of his handicapped status. [18]

International Legal Regime Governing Statelessness

It is clear that in cases of statelessness, the inherent right to a nationality as outlined in the Universal Declaration of Human Rights, 1948 has been rendered void. The challenge essentially is in determining which nationality a person may have a right to. The aspiration of Article 15 was given concrete form by way of two international instruments concerning statelessness, the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. [19] These Conventions form a part of the legal regime governing statelessness.

The Convention Relating To The Status Of Stateless Persons, 1954

The 1954 Convention relating to the Status of Stateless Persons is the primary international instrument adopted to date, to regulate and improve the legal status of stateless persons. It contains provisions regarding stateless persons’ rights and obligations pertaining to their legal status in the country of residence. The primary aim is to set out the legal framework to ensure that a minimum standard of protection [20] is available to persons who are stateless but who cannot demonstrate a well-founded fear of persecution and who are not, therefore, covered by the 1951 Convention relating to the Status of Refugees or its Protocol. [21] In other words, the 1954 Convention outlines a legal framework for international protection in cases where national protection is not available. While the Convention does serve the purpose of providing a legal status and extending basic entitlements to the ‘stateless’, in practice, all it amounts to is a certain limited degree of protection, even so in the area of diplomatic protection and does nothing to solve the very problem of statelessness as such. The Convention places the State Parties under no absolute obligation to naturalize a recognized stateless person.

The Convention On The Reduction Of Statelessness, 1961

This Convention came into force on 13th December, 1975. The essential purpose of this Convention is to avoid the creation of future cases of statelessness. As such, the Convention provides a framework for promoting national protection for stateless persons and a correlative decrease, if that protection is effective, in the need for international protection to fill the void. [22]

The Convention has comprehensively provided safeguards and measures to avoid statelessness from arising due to any of the following reasons in the following manner:

A. Statelessness at birth – The problem of original statelessness is sought to be avoided by the introduction of Art 1- 4 which confer nationality based on jus soli [23] or where such nationality is granted to a person born outside the territory of the State on the basis of jus sanguinis, [24] provided one of the parents of such a person was a national of the Contracting State at his birth.

B. Statelessness due to territorial changes – As already seen territorial changes have in the past been one of the most serious causes of statelessness in terms of the number of persons who are rendered stateless. Art 10 of the Convention has been crafted to deal especially with this problem. It makes it mandatory for the Contracting States to include certain provisions in a treaty for territorial transfers between two Contracting States, or when entering into treaties with non-contracting parties an obligation to include provisions ensuring that no person shall become stateless as a result of the transfer. [25] In the absence of incorporation of such provisions in the treaty of transfer, a Contracting State to which territory is transferred or which otherwise acquires territory shall confer its nationality on such persons as would otherwise become stateless as a result of the transfer or acquisition. [26]

C. Loss of Nationality due to deprivation on discriminatory grounds – Art 9 prohibits the deprivation of nationality on racial, ethnical, religious or political grounds and is one of the most important provisions of this Convention. This is so, especially due to the fact that most of the recent cases of mass statelessness are due to conscious, deliberate and what can be termed as ‘discriminatory’ acts of the Governments of States to deprive a certain section of the population of their nationality, motivated by certain political, religious or ethnical grounds. Amongst the most blatant cases of discrimination is the mass denationalization by Nazi Germany of the German Jews resident abroad, by virtue of the ordinance issued by the Reich Citizenship Law in 1941. Art 9 strictly prohibits such cases of deprivation of nationality and what is encouraging is that such prohibition is absolute and not subject to the condition that it leads to subsequent statelessness. [27]

D. Changes in personal status – Art 6 takes care of situations of loss of nationality by a person’s spouse or children as a consequence of that person losing or being deprived of that nationality by making such loss conditional upon their possession or acquisition of another nationality.

Voluntary renunciation of nationality- Art 7 of the Convention counters situations of statelessness which may arise due to a voluntary relinquishment of nationality by an individual in so far as it provides that such renunciation shall not lead to a loss of nationality unless the person concerned has acquired another nationality.

Apart from this, the Convention also seeks to address the issue of statelessness, where the same may be caused due to the voluntary acts or omissions [28] of the individual. To sum it up, the Convention addresses almost all cases of statelessness through the following provisions: [29]

Access to nationality for persons who would otherwise be stateless if the person is born on the State’s territory or born abroad to a State’s national;

Protection against the loss or deprivation of nationality if the person will become stateless as a result;

As relevant, guarantees against statelessness in cases of transfer of territory.

Conclusion

Statelessness is first and foremost a problem for states to resolve. In the refugee field, it has become an established principle that countries of origin have a primary duty to desist from actions that force people to abandon their homes and a corresponding obligation to create the conditions that will enable exiled populations to repatriate. A similar principle of state responsibility must be fostered in relation to the problem of statelessness since majority of the causes leading to statelessness arise from State action, either that which is objective in so far as there is a conflict of nationality principles of jus soli and jus sanguinis or that which is motivated by extraneous factors to exclude particular sections of the population from its nationality in the context of the changing international relations or historical factors like maybe a war which antagonizes the State towards that community. Governments must be made to acknowledge, both formally and in practice, that they do not have a right to withdraw or withhold the benefits of citizenship from whole sections of the population who can demonstrate a genuine and effective link with the country.