Wednesday, 13 April 2011

“Happy Birthday!” to the Reduction of Statelessness

A commentary on the UNHCR Expert Meeting Conclusions 'Statelessness Determination Procedures and the Status of Stateless Persons'...

Better Later than Never!

The 50th anniversary of the 1961 UN Convention on the Reduction of Statelessness was marked by a UNHCR expert inquiry as to how we can actually determine who is stateless and who is not.  It was high time to address this issue, since the lack of functioning determination procedures for statelessness is still the main stumble block in the access of stateless persons to the protection intended for them. Millions of people suffer hardships of exclusion from the domain of law due to their statelessness, or more specifically – due to their statelessness not being recognised as a legal status entitling them to a set of legal rights.

Even though the Expert Meeting Conclusions have little to do with the reduction of statelessness, but rather with another UN Convention – 1954 Convention Relating to the Status of Stateless Persons – which is is celebrating its unimpressive 57th birthday this year, let us not be picky. Any excuse is good to embark on this important and highly relevant issue of protection of stateless persons!

What Was Concluded?

The task of the expert meeting was not easy: to break 50 years of relative international silence on  determination of statelessness and national implementation of protection  mechanisms for stateless persons. Naturally, in the meanwhile different states went their own ways in dealing (or not dealing) with these issues. Some fused statelessness determination procedures with procedures for the recognition of refugees, some included it into procedures for acquiring a residence status, and for some determination of statelessness does not seem like a suitable solution to the problems of statelessness at all, but instead ways of recognising stateless persons as nationals are sought. Some regularly (attempt to) contact foreign governments to inquire about nationality statuses of individuals, while others have strong objections against such practice. Some see the recognition of statelessness as implying the right of residence, while others consider it acceptable under certain circumstances to require a stateless person to move back to the state of previous habitual residence. These and many other fascinating differences in practices and opinions are reflected in the Conclusions.

On some important points the Expert Meeting also seem to have found agreement. These were, among others:

-        to train and educate national officials on the determination procedures available for stateless persons;
-        to keep confidentiality when communicating with foreign governments about nationality statuses of individuals, to avoid endangering stateless persons who may have refugee-related concerns;
-        to provide procedural guarantees in the statelessness determination procedures, such as remedies against rejection, availability of legal aid, establishing reasonable fees and  suspending deportation orders until the final outcome of the determination procedure;
-        not to place the entire burden of proof on the individual in establishing his or her statelessness.

In addition to discussing how can an individual be identified as stateless, the Expert Meeting touched upon certain relevant issues of protection, especially those that have not been made explicit in the 1954 Convention, such as legal immigration status of stateless persons, their right of residence, and the relation between the protection of refugees and of stateless persons.

Even though the Expert Meeting did not bind any government with legal obligations to enhance their determination procedures for stateless persons, the value of its Conclusions should not be underestimated. It finally drew international attention to one of the major challenges on the way to protecting stateless populations, it identified the points of consensus as well as disagreements, but most importantly, it gave a strong tool for national policy-makers, lobby groups and activist organisations to promote structural changes related to the status of stateless persons.

What Now?

The year of 2011 was not only marked by this Expert Meeting, as far as the attention to the problem of statelessness is concerned. The UNHCR has commissioned several nation-wide studies on statelessness in Europe, and there is a clear increase in the academic interest on the issue. Hopefully this “anniversary push” will stimulate the long-overdue formalisation and effective implementation of the protection of stateless persons within national jurisdictions. The transformation of statelessness from legal anomaly into a well-functioning legal status has thus clearly been defined as a goal, and hopefully we will witness changes to that end before another 50 years of the existence of UN Conventions on Statelessness have elapsed.   

Katja Swider, Researcher/Advisor, Statelessness Programme

The full text of the Conclusions can be found here: 

Wednesday, 6 April 2011

“Hello and welcome!”

You have stumbled upon the blog site of the Statelessness Programme – an initiative of Tilburg Law School, dedicated to research, training and outreach on statelessness and related issues. This is where participating researchers and friends of the Statelessness Programme are invited to post their thoughts on statelessness doctrine, case law and new developments in the field. It is an area for informal commentary and exchange of views. It is a friendly space, where we do our best to use plain language in describing concepts and background. We would like to encourage you to subscribe to the blog or check back regularly for new posts and to participate in the discussion by commenting on any entry that interests you. In this first post, we would like to take the opportunity to extend to you a warm hello and welcome! 

Statelessness is an issue that intersects and interacts with many others. There are, for instance, clear linkages between statelessness and forced displacement, gender discrimination, child protection, state succession, democratization, minority rights, human security and even climate change. For those with an interest in citizenship, the anomaly of the stateless person is compelling because it forces us to reconsider not only how nationality should be regulated, but the very meaning of citizenship itself. For those whose fascination lies with the universalist promise of contemporary human rights law, statelessness provides arguably the ultimate case study – a place to test assumptions about the de-linking of nationality and rights. And for those who seek to understand the role played by nationality today in the formation of our sense of identity, the stateless are uniquely placed to show what impact the denial of political membership has on a person’s psyche. 

By commenting on concepts, cases and developments, we hope that this blog site will grow to provide a space for exploring statelessness from historic, legal, philosophical, sociological, economic, political and psychological perspectives. We look forward to this discussion.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme