Friday, 26 October 2012

An instant best practice: Philippines’ new Stateless Status Determination Procedure

The Philippines made history this week by becoming the first state in Asia to put a statelessness determination procedure in place. This move follows the country’s ratification, just over a year ago now, of the 1954 Convention relating to the Status of Stateless Persons and the pledge made at last December’s UNHCR High Level Meeting to proceed with establishing a procedure. The adoption of Department Circular No. 58 on “Establishing the Refugee and Stateless Status Determination Procedure” sets a good example, not only in the region, where protection frameworks for stateless people are largely absent, but also to countries in other parts of the world which acceded to the 1954 Convention but have yet to take this vital step in its implementation. There are currently 76 state parties to the 1954 Convention, but less than a dozen examples of dedicated statelessness determination procedures globally.

I was especially excited to hear of the new law passed in the Philippines because I was fortunate enough to have the chance to follow some of the preceding developments first hand. In late 2010, while I was working with UNHCR’s regional office in Bangkok, I had a wonderful, whirlwind 24 hour-trip to Manila, where I gave a presentation on international statelessness law to a room full of people drawn from different government agencies and civil society. Thanks to the amazing efforts of the UNHCR office in the Philippines and the incredible support and enthusiasm of key people within the Department of Justice to carry this issue forward, the decision to ratify the 1954 Convention was already pretty much in the bag. The purpose of the meeting was to ensure that the ratification and any steps that would subsequently be required to implement the treaty enjoyed the broadest possible support, from all relevant stakeholders. I remember very clearly the energy in the room and the overriding sentiment that it was a highly logical step for the country to become a state party: the Philippines was, after all, already a state party to the convention’s sister instrument, the 1951 Convention relating to the Status of Refugees, so surely it made perfect sense to ratify the 1954 Convention in order to complete the protection framework. Moreover, the Philippines had actually signed the statelessness instrument back in 1955, they had simply “forgotten” to follow this up with ratification when interest in this convention temporarily lapsed. This line of reasoning is indeed compelling and suggests that it may be possible to make up the lost ground in terms of accessions to the 1954 Convention relative to the 1951 refugee convention, now that statelessness is again gaining momentum as an issue of international concern.

In late 2011, I crossed paths with a government delegation from the Philippines again, just as the instrument of accession to the 1954 Convention was being deposited with the UN Secretary General. This time, it was at a statelessness workshop and photography exhibition in Madrid, which coincided with a “study visit” from the Philippines Department of Justice, facilitated by UNHCR.  They had travelled to Spain (and subsequently to Hungary), with a view to learning about the operation of statelessness determination procedures. What is most commendable about the law which has now been passed establishing the Philippines’ Stateless Status Determination Procedure, is this: while clearly incorporating good practices drawn from Spain, Hungary and the handful of other countries where a procedure exists, the Philippines’ procedure has addressed some of the shortcomings that are found elsewhere. For instance, it has not mimicked Hungary’s restrictive approach of only accepting applications for stateless status determination from people already lawfully staying in the territory. Moreover, the Philippines’ law explicitly states that, following the lodging of an application for statelessness determination, “any proceeding for the deportation or exclusion of the Applicant and/or his or her dependents shall be suspended” and that an order may also be given to release the applicant from detention (section 7). The Philippines’ law can therefore be considered as something of an instant best practice, providing a more favourable regime than the handful of “older” statelessness specific procedures and following instead in the footsteps of other recently created mechanisms in Moldova and Georgia. It has evidently also drawn from the recent UNHCR guidelines on statelessness determination procedures and the status of a stateless person, reinforcing the approach that is recommended in these guidance documents.

Besides the aforementioned section on the question of deportation and detention, other noteworthy elements of the Philippines law include: a shared burden of proof whereby the applicant and the government protection officer “collaborate” to determine whether the person is stateless; a standard of proof that takes into account the difficulty of establishing beyond any doubt that the person is stateless and instead requires this to be established “to a reasonable degree”; an entitlement to legal counsel, to an interpreter, to access to UNHCR and to be interviewed (heard) during the procedure; an explicit right to residence for a person found to be stateless and his/her family members; and the right to receive a motivated decision in writing and to seek review of a negative decision. In addition, the law deals clearly and appropriately with the relationship between stateless and refugee status determination. Where it is discovered that “a refugee claim appears to exist” in relation to an applicant for stateless status, the investigation into possible refugee status takes priority and stateless determination is only picked up again if the person is found not to be a refugee or following cessation of refugee status. For good measure, the law also explicitly reaffirms that “in no case shall there be contact with the authorities of a foreign state [an important tool in stateless determination] where there is a claim of persecution” (section 31). Finally, with the entry into force of this law, the Philippines’ Refugee Protection Unit has been renamed to become the Refugee and Stateless Persons Protection Unit, in acknowledgement of the need to promote the visibility of both vulnerable groups.

There are, nevertheless, a few questions that the Philippines’ law does not address. Although it indicates that the nationality laws of a specific group of countries with which the applicant has a relevant link must be examined, and that the applicant has the obligation to submit “all relevant evidence reasonably available”, it does not detail which forms of evidence may be accepted. Nor does it suggest how such evidence should be weighed, if there is any contradiction, or what conclusions are to be drawn from the failure of a country to which the applicant has a relevant link to respond to questions regarding his or her nationality status. Furthermore, the law prescribes a 90-day timeframe for reaching a decision on an application for either refugee or stateless status – “unless there are reasonable grounds for an extended period”. While it is certainly commendable to aspire to achieve such quick decision-making – establishing a “fair, speedy and non-adversarial procedure” is the stated objective of the law – it remains to be seen whether this is a realistic goal in the context of stateless status determination and whether it will be possible for the applicant to establish his or her statelessness “to a reasonable degree” within this time. All of these procedural issues are, nevertheless, likely to be ironed out as the determination officers gain experience with the new procedure. The law provides sufficient flexibility for on the job learning and all of the most important elements in terms of guiding principles, procedural protections and the rights of the applicant are in place. I wish the officers of the newly renamed Refugee and Stateless Persons Protection Unit the best of luck with their work and I look forward to continuing to follow the Philippines’ journey into the field of statelessness in the years to come.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme.

Monday, 1 October 2012

Campaign for statelessness conventions gains traction, at last

The ‘statelessness conventions’, two little-known instruments that have long floated somewhere on the periphery of international law, are finally starting to command the attention that they deserve...
Closely related to, yet not really part of, either refugee law or human rights law, the Convention relating to the Status of Stateless Persons and the Convention on the Reduction of Statelessness did not initially make much of a splash after their adoption in 1954 and 1961 respectively. The 1954 Convention took twice the time to gather enough state parties to enter into force as compared to its sister instrument, the virtually identical 1951 Convention relating to the Status of Refugees. Meanwhile, the 1961 Convention on the Reduction of Statelessness took a full twelve years to gather just six ratifications and enter into force. After this less-than-promising start, both conventions continued to lag far behind other international agreements in terms of accessions and remained woefully under-appreciated. And so it was with no false modesty or irony that the instruments were still being described as “orphan conventions” into the late 1990s. Recently, however, there has been growing interest in these two international agreements which are specifically designed to help states to protect stateless people and avoid cases of statelessness.

In fact, over the past decade or so, repeated calls have been made by a variety of international and regional bodies - including on numerous occasions by the UN General Assembly - for states to embrace the statelessness conventions. With this renaissance of interest in the issue and rediscovery of the conventions, accessions have also started to pick up significantly. This trend now looks set to continue as the campaign to raise awareness of and support for the statelessness convention starts to really gain traction, especially with regard to Europe. Already at the December 2011 Ministerial Meeting convened by UNHCR, over 30 states worldwide made pledges relating to accession to one or both conventions and many, including some European countries have already acted on these promises. Then, at a similar UN high level meeting dedicated to the Rule of Law, there were further encouraging signs, in particular the pledge by the Delegation of the European Union on behalf of the EU Member States. This included the explicit and concrete statement that “the EU Member States which have not yet done so pledge to address the issue of statelessness by ratifying the 1954 UN Convention relating to the Status of Stateless Persons and by considering the ratification of the 1961 UN Convention on the Reduction of Statelessness” (pledge 4).

This recent EU pledge confirms the position of the statelessness conventions at the heart of the international legal framework for tackling statelessness – EU countries pledge to address the issue by signing up to these instruments. This sends a strong signal to governments elsewhere about the value of these conventions, regardless of their somewhat chequered history. A close inspection of how this statement has been formulated suggests a slightly stronger commitment to the 1954 convention, which serves as the foundation for identifying and protecting stateless people. This is perhaps unsurprising given that the European Union has already achieved near-universal accession to this instrument, with just a handful of states still needing to take action. Still, the promise that universal acceptance of the 1954 Convention relating to the Status of Stateless Persons in the European Union will be met is significant. The instrument is pivotal to the protection of non-refugee stateless people and once all EU member states become parties, this will help to raise the profile of statelessness in the region and may provide a new avenue for instigating a Europe-wide dialogue on the implementation of states’ obligations towards the stateless.

At the same time, it is also promising that EU member states have collectively pledged to “consider” acceding to the 1961 Convention on the Reduction of Statelessness. It is true that Europe already has its own, relatively strong, regional framework for the coordination of nationality policy and the avoidance of statelessness – provided by the 1997 European Convention on Nationality, the 2006 Council of Europe Convention on the Avoidance of Statelessness in relation to State succession and a range of related recommendations. Yet, there are still numerous EU member states which have not adopted these regional standards. And even if they were embraced across Europe, the 1961 Convention remains an important counterpart for this framework at the global level. It contains highly similar safeguards for the avoidance of statelessness and even provides a stronger guarantee with regard to acquisition of nationality at birth where a child would otherwise be stateless. Therefore, by also committing to universal accession of this second instrument, EU member states send a strong message to - and set a good example for - countries elsewhere about taking and sharing responsibility for ensuring that no-one is left without a nationality in this day and age. It remains to be seen within what timeframe these pledges will become a reality.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme

This blog also appears on the website of the European Network on Statelessness