How does UNHCR help stateless persons (1/4)?

In discussing the relation between migration and statelessness, we already saw that in 2006 the Member States of the Executive Committee of the High Commissioner’s Programme adopted a Conclusion (the ExCom Conclusion) that urged UNHCR “to strengthen its efforts in this domain by pursuing targeted activities to support the identification, prevention and reduction of statelessness and to further the protection of stateless persons”. UNHCR’s efforts led to a rapid increase in the number of State accessions to the relevant UN statelessness conventions and the four categories of identification, prevention, reduction and protection subsequently became the core of the Global Action Plan to End Statelessness: 2014-2024.

Before embarking on our discussion of the protection category, however, we need to be clear about the distinction between de facto and de iure statelessness. Any discussion on statelessness in the end revolves around the absence of a nationality – that is, legal membership of a State. A stateless person, according to Article 1 of the 1954 Convention, is someone ‘who is not considered as a national by any State under the operation of its law’. As Carol Batchelor has put it, this definition ‘is not one of content or quality but simply one of fact’. Following this classification, persons who technically do have a nationality but enjoy none of the benefits normally associated with it (such as the right to reside, leave and return, receive diplomatic protection abroad, etc.) are not considered to be stateless. However, many scholars have argued that a purely technical nationality that is in many or all respects completely ineffective, in practice equals having no nationality at all. People with such a “useless” nationality are commonly referred to as de facto stateless persons, but this group is much less clearly delineated and much more conceptually ambiguous than the de iure stateless. If one visualizes a continuum on which full, legal nationality takes up one end of the spectrum, de iure statelessness occupies the other – unfavourable – end. It has been stated that ‘in between these extremes are millions of de facto stateless persons denied effective protection’.

In practice, therefore, “de facto statelessness” is a problematic and confusing concept. Put simply, one is only considered de facto stateless when one’s nationality is ineffective. However, because (1) no consensus exists as to when this criterion of ineffectiveness is met; and (2) even if this were the case, no legal imperatives exist to grant rights to de facto stateless people on grounds of their statelessness, the concept is rendered rather toothless. Whereas the absence or denial of a nationality (de iure) is covered by the 1954 and 1961 Conventions on statelessness, the denial of rights attached to a nationality (de facto) is an issue already addressed by the existing human rights regime.

This distinction is also reflected in the literature. While Sawyer and Blitz published a book a few years ago analysing de facto statelessness and exclusion in the EU, Blitz and Lynch published a book around the same that analysed de iure statelessness. The complicated and vague nature of the concept of de facto statelessness becomes clear from Matthew Gibney’s contribution to the book by Sawyer and Blitz. In his analysis of undocumented migrants, whom he acknowledges are ‘rarely formally stateless and are often not refugees’, he notes that ‘they are people who lack security, basic civil, political and economic rights, and opportunities for membership in the countries where they are making their lives. Their daily experience is characterised by statelessness in the sense of an effective absence of state protection where they need it’.

Compared to this, de iure statelessness is a clear concept and is caused (1) by problems of state succession, (2) discrimination or the arbitrary deprivation of nationality, or (3) technical/ administrative gaps or lack of coordination between States. The Future Citizen Institute has discussed many examples of this over the last few months.

Stateless persons are protected primarily through the 1954 Convention Relating to the Status of Stateless Persons, which lists a number of rights that stateless persons should benefit from despite not having a nationality. Much progress has been made in convincing States to accede to the convention, as shown in a visualisation by UNHCR here. Moreover, in her contribution to the book by Blitz and Lynch, statelessness expert Laura van Waas concludes that ‘the protection of the stateless has become an integral part of overall human rights protection and stateless individuals can rely on the international legal framework in the same way as persons who do hold a nationality’. Yet her more in-depth analysis leads to a soberer conclusion, namely that

the notion of human rights as belonging to all human beings regardless of nationality or statelessness is not beyond question when the human rights framework is subjected to a more thorough analysis. In particular, the situation of the stateless, the lack of a bond of nationality with any state, places some doubt on the inclusiveness of the term “human” in human rights … Thus, the acquisition … of nationality, putting an end to their actual statelessness, may indeed be the only real remedy to their vulnerability.

Author: Dr. Olivier Vonk