Monday, 27 August 2012

GUEST POST: Statelessness - any attention at the national level?

Different international obligations have been established in order to address the problem of statelessness, mainly by the 1954 United Nations (UN) Convention relating to the Status of Stateless Persons and the 1961 UN Convention on the Reduction of Statelessness. Even though a growing number of states is committing to these obligations by acceding to the aforementioned treaties, a question that is often raised is whether states actually follow through and adhere to their obligation to prevent and reduce statelessness, and protect stateless persons at the national level. As part of my research regarding statelessness and statelessness determination – in my view an important first step in adequately protecting stateless persons in practice at the national level – in the European Union (EU), I therefore decided to test to what extent national legislation of EU member states actually pays any attention to statelessness. I did so by undertaking a small study into references to statelessness in the main laws regarding nationality/citizenship of three randomly selected EU member states: Czech Republic, Italy and Luxembourg. Of these countries, only Czech Republic is a States Party to the 1954 and 1961 Conventions; Italy and Luxembourg have both only ratified the 1954 Convention. What furthermore should be noted is that this study is not only limited by the small number of countries included, but also in the sense that only references to statelessness in the main nationality laws of these countries are considered. This approach was chosen because statelessness is closely linked to nationality, as the lack of this is statelessness. Despite these limitations, I still think my findings give an impression of whether states actually take statelessness into account at the domestic level. This preliminary research can also uncover whether it would be of interest to undertake a more elaborate study into references to statelessness in the domestic legislation of all EU member states in order to find good and bad practices in dealing with the different aspects of statelessness. My findings were as follows:

Czech Republic
The Czech Act to regulate the Acquisition and Loss of Citizenship refers to statelessness several times. With a view to prevention of statelessness, it provides that a child born on the territory of Czech Republic shall acquire Czech citizenship if its parents are stateless and at least one of them has permanent residence on the territory. Here, a definition of a stateless person is given as well: “a natural person without citizenship”. Furthermore, the issue of statelessness is acknowledged in naturalization and application procedures in the Czech Republic. Whenever certain documents are needed to prove that someone will lose his or her current/previous nationality with the acquisition of Czech citizenship, the Act provides for an exemption with the words “unless the person is a stateless person or a person with refugee status in the territory of the Czech Republic”. 

The Italian Citizenship Law No. 91 of 5 February 1992 (Law No. 91/92) elaborates on Italian citizenship and mentions statelessness. Again a preventive clause regarding statelessness is provided for, as any person who was born in Italian territory, of whom either both parents are unknown or stateless, or where he or she does not acquire his or her parents’ citizenship according to the law of the state to which the latter belong shall be considered an Italian citizen by birth. There are also some more specific provisions regarding stateless persons with Italian ancestors, and for spouses. A more general reference to statelessness concerns stateless persons who are legally resident in Italy – establishing that they shall be subject to Italian law insofar as the exercise of civil rights and the performance of military duties are concerned. This means that legally resident stateless persons can enjoy civil rights and be protected in this sense. From this, it can also be assumed that there is some way to be legally resident in Italy as a stateless person. Both protection and prevention thus seem to be covered in some way by the Italian law regarding citizenship.

The Law on Luxembourg Nationality is active in the prevention of statelessness by providing that all children born in Luxembourg who have no nationality because their parents are stateless shall acquire Luxembourg nationality through birth. This kind of attention to statelessness can also been seen when the lineage of a child to a Luxembourg parent has not been established prior to him or her reaching the age of 18 years. Normally, a child would lose Luxembourg nationality in this case, unless the other parent possesses the status of Luxembourger or when the child would become stateless. Statelessness is also considered in the context of withdrawing Luxembourg nationality where it was obtained through fraudulent procedures: withdrawal is impossible if this would render the person concerned stateless. In the provisions regarding naturalization, however, no reference to statelessness is to be found. Still, Luxembourg laws clearly try to prevent statelessness, which should be commended.

Though this is only a limited study of references to statelessness in domestic laws of EU member states, some conclusions can be drawn. First of all, it is clear that there definitely are such references to be found – at least in the three countries studied – and that states do pay attention to statelessness at the domestic level. Secondly, the laws studied take statelessness into account in different ways, but certainly all have an interest in preventing statelessness. This could be expected because the rules studied are those dealing with access to nationality. Yet this might imply that in other laws, for example regarding aliens or refugees, references regarding the protection of stateless persons are also included. Overall I think this little piece of research shows that the implementation of the international obligations regarding statelessness at the national level is in need of further inquiry. Also, it demonstrates that states have already taken an interest in the issue of statelessness and sought to address certain problems through their laws. States should therefore be encouraged to join the international treaties on statelessness, and for States Parties to the conventions, guidelines, such as the Guidelines that are being issued by the Office of the United Nations High Commissioner for Refugees (UNHCR), that clarify the commitments and provide guidance in designing the appropriate domestic legislation are important for adequate implementation. Greater attention for the issue and more research will remain key in this process.

Caia Vlieks, Research Master Student, Tilburg Law School

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