Thursday, 19 January 2012

Ukraine: time to accede

Being a citizen of Ukraine and currently working as an intern for the Statelessness Programme at Tilburg University, I got very interested in the status of stateless people in Ukraine,- where, according to UNHCR statistics, over 40,000 people were affected by statelessness at the end of 2010. I decided to take a closer look at the national legislation which regulates this issue and this is what I have learnt.

A new law of Ukraine on the legal status of foreigners and stateless persons was adopted on the 22nd of September 2011 and entered into force on the 25th of December 2011. Although some lawyers and academics had hoped the new law to change the situation of the stateless people in Ukraine, it has not undergone any major substantive changes to the former one of 1994. However, a new point in the law of 2011, for example, has been introduced by Article 1 (21): “Certificate of a stateless person for travel abroad - a document that identifies the stateless person when crossing the state border of Ukraine and staying abroad”. This Article is linked to another one, Article 19, which stipulates that stateless persons residing in the territory of Ukraine without a permanent travel document receive an ID of a stateless person for travel abroad, which is a document that identifies the stateless person when crossing the state border of Ukraine and staying abroad. Apart from this, the general picture of the mentioned law of 1994 has been preserved.

The new law mainly covers the issues of entry, stay and exit from Ukraine for foreigners and stateless people. The law does not include specific provisions on the fundamental rights and freedoms, nor the duties of the aforementioned categories of people. It does, however, state that foreigners and stateless people, who stay in Ukraine on a valid legal basis, are entitled to the same rights and freedoms, as well as bear the same duties, as the citizens of Ukraine, subject to provisions of the Constitution of Ukraine, as well as national laws and international agreements.

Another negative feature of the new law is that currently, statelessness affects several groups of people already physically residing in Ukraine. Among them, the biggest one is the Crimean Tatars, most of whom live in the Crimean peninsula in the South of the country; but also people from former Soviet Union, such as Uzbekistan, Tajikistan, Kyrgyzstan, Armenia and others. So, while the law is mainly aimed at people who come from the outside and try to enter Ukraine, all of these people live within the territory of the country and their status is therefore left unchanged.

Nevertheless, this law as well as the previous one of 1994 has also shown us its positive tendencies. Thus, Article 1 (15) of the law provides that “a stateless person is a person that under applicable law is not recognized as a citizen by any of the state”. Despite not being a party to either of the two main Conventions on statelessness: Convention relating to the status of stateless persons 1954 and Convention on the reduction of statelessness 1961, the drafters of the new law decided to integrate the international definition of a stateless person from the Convention 1954, which although slightly differently formulated, still conveys the same message as in the Convention relating to the status of stateless people 1954.

With such good policy in place, there are still some points that should be improved by the Ukrainian legislator. In particular, I believe that the two groups who are the beneficiaries of this law, namely the foreigners and stateless people, are too different in order for the same rules to apply to them. And most of the provisions of this law come as a “package deal” regulating the status of the two groups in the same manner. I think that the law should be divided into two separate parts, one explicitly dealing with foreigners, and another one, - with stateless people. This would give a clear picture on how to apply it correctly to two different groups and in different realities that foreigners and stateless people face.

Moreover, what this law truly lacks is a specific statelessness determination procedure, which would help to identify and protect stateless people in Ukraine. This is, however, a problem in many other countries throughout the world and probably one of the hardest to achieve. That is why Ukraine should become a party to both aforementioned Conventions and implement the provisions of those documents. And, despite the fact that, at the UNHCR Ministerial meeting in Geneva which took place on December 7-8, 2011, the representative of Ukrainian government mentioned that Ukraine is regarding the possibility of acceding to the Statelessness Conventions, this promise was formulated in comparatively vague terms while other countries offered a concrete and actionable pledge to accede to the Conventions in the near future.

With the new law in place, it is high time for the Ukrainian government to prove its statement made at the UNHCR Ministerial meeting last December and accede to the two major Conventions on statelessness. There is no better moment than now, especially taking into consideration the introduction of an ID of a stateless person for travel abroad for those stateless people who reside in Ukraine and do not have a permanent travel document in Article 19 of the new law 2011. Such travel document is an indirect recognition of a stateless person and thus implies a need for the further development of the appropriate legal basis. Thus, Ukraine should accede to the two Conventions on statelessness to be able to secure the implementation of its new law.

Valeriia Cherednichenko, Intern, Statelessness Programme


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