Europe’s National Human Rights Institutions put statelessness on the agenda

Nationality is a human right. The right to a nationality was established in the Universal Declaration of Human Rights and has been reaffirmed in almost every major human rights treaty adopted since. The very existence of statelessness stands at odds with this human rights norm. Nationality is also critical to the ability to exercise many other human rights, so statelessness presents a significant barrier for people’s access to the benefits of international human rights law. Moreover, nationality is a fundamental part of a person’s identity, so statelessness can leave people feeling like outcasts. In other words, statelessness is a pressing human rights concern. It is also a very real one, given that it effects over 10 million people worldwide.

Around the world, National Human Rights Institutions (NHRIs) share the common objective of promoting and protecting human rights. This is a broad mandate which naturally encompasses a wide variety of issues, including the right to a nationality. The exact work of NHRIs varies from country to country, depending on the national human rights environment and challenges – yet, there are many shared concerns and common types of activity. At different times and in different ways, NHRIs have therefore developed mechanisms to exchange information and discuss experiences, with a view to refining their human rights work. Given the severity, scale and reach of the problem of statelessness, this is an issue which is likely to have drawn the attention of NHRIs in many different countries and regions. At a time of growing international commitment towards addressing statelessness, shedding light on NHRIs’ responses to statelessness can help to build a better understanding of what role they are already playing and to develop a roadmap for their future engagement. With this in mind, in the summer of 2013, the Netherlands Institute for Human Rights and the Statelessness Programme of Tilburg University joined forces to conduct a survey of the role of NHRIs in addressing statelessness. This blog offers a brief snapshot of the principal findings of the study (the full report can be accessed here).

Although the survey response was relatively small, it was complemented by some desk research which uncovered further examples of NHRI engagement on statelessness. Overall, the study clearly demonstrated that statelessness is indeed a phenomenon that is known amongst NHRIs and uncovered some interesting examples of their engagement on this issue. Among the NHRIs that responded to the questionnaire, an impressive 80% has conducted some form of lobbying or issued advice on issues relating to statelessness. Most often, this work concerns advising on the reform of nationality laws or on the removal of discrimination from nationality policy. Nevertheless, 40% has also lobbied or provided advice in relation to strengthening the protection of stateless people and the same proportion has actively assisted individual stateless people to secure better access to their rights. A greater number of NHRIs has engaged in individual cases relating to the enjoyment of the right to a nationality (60%) or recognition as a stateless person (50%). Note that this figure should also be read in light of the fact that not all NHRIs have a mandate to do individual casework. An important aspect of NHRIs’ human rights work is education, i.e. informing different stakeholders and the general public about human rights norms and standards. Another interesting finding of the survey was how often this human rights education has touched on statelessness: 40% of the NHRIs that completed the questionnaire indicated having carried out awareness raising on the issue.

Currently, 40% of the NHRI survey respondents feature statelessness in their work plan, but 60% have dedicated staff time to the problem. All of the latter expressed an interest in developing more expertise on statelessness in the future, suggesting that NHRIs are open to and may benefit from the development of further tools and/or the establishment of networks for information exchange on statelessness. The study expresses this as one of its recommendations, recognising the role that capacity building and knowledge sharing can play in strengthening the influence of NHRIs on statelessness issues in their country of operation.

Earlier this month, the European Group of National Human Rights Institutions discussed the findings of this study and decided to put statelessness on its agenda. One clear common interest of European NHRIs is to strengthen the role of human rights in the migration context and many countries in the region are confronted with statelessness in the migration setting. Indeed, stateless people are among the most vulnerable of Europe’s migrants and much more needs to be done to improve the protection framework under which they are received. Against this background, the issue will now be taken up in the Migration Working Group of European NHRIs, of which the Netherlands Institute for Human Rights is the chair. This will kick off with an informal discussion of challenges and opportunities in response to statelessness in Europe at their next strategy meeting in Brussels this December. We hope that it will mark the beginning of regular discussions on the role of NHRIs in tackling statelessness in the region and perhaps lead to greater collaboration in this area of work.

Stans Goudsmit (Commissioner with the Netherlands Institute for Human Rights) and Laura van Waas (Manager Tilburg University Statelessness Programme)

[Note that both authors are members of the European Network on Statelessness and this blog appeared simultaneously on the ENS website]

Growing support for establishment of statelessness procedure in the Netherlands

At the end of 2011, UNHCR published the findings of a mapping project which looked at the situation of stateless people in the Netherlands. While the country has been a party to both UN conventions on statelessness for several decades, this study uncovered a number of gaps in the implementation of these international norms. Perhaps the strongest recommendation to come out of the research conducted was the need for the establishment of a statelessness determination procedure, which is currently lacking in the Dutch context. Due to this gap, the report suggested, it was unclear whether the Netherlands was meeting its international commitments towards stateless people. Indeed, there were indications that - for some stateless people at least - the protection fell some way short of the international standard. 

When the Netherlands mapping study was launched, it attracted some interest from the national media and subsequently also an official response from the Dutch Cabinet to the recommendations made. However, the former was short lived and the latter was in the form of a confidential letter directed to UNHCR, so there was no further public debate on the way forward. Now, one year on, there is a renewed effort to generate discussion on what legal or policy measures are needed to improve the protection of stateless people in the Netherlands.

On 13 December 2012, a symposium entitled “International developments in the field of statelessness and the situation in the Netherlands” was held at Tilburg University. It was convened by the Statelessness Programme of Tilburg Law School, in cooperation with the universities of Leiden and Maastricht and the office of UNHCR in the Hague. The programme offered participants the opportunity to learn about and reflect on the many currently unfolding developments relating to statelessness across the globe and, in particular, those elsewhere in Europe. On the specific issue of statelessness determination procedures, three international experts offered different perspectives on the value and the various practical considerations of establishing such a mechanism:

-          Inge Sturkenboom, Statelessness Protection Officer for Europe with UNHCR, explained what the approach to this question is in the recently established UNHCR guidelines on statelessness, which provide authoritative interpretation of how the 1954 Convention relating to the Status of Stateless Persons is to be implemented in practice.

-          Gábor Gyulai, Chairman of the European Network on Statelessness, demonstrated some of the ways in which statelessness determination procedures have taken shape across Europe and discussed some of the pros and cons of different approaches.

-          Tamás Molnár, Senior Legal Advisor for the Hungarian Ministry of Interior, offered a government’s perspective by describing the process by which a determination procedure was adopted in Hungary and how it functions in practice.

During the afternoon, the symposium participants divided into a number of workshops to discuss the situation in the Netherlands in greater detail. Two of the groups dealt specifically with the question of when and how statelessness is currently established in the Dutch context and debated whether there is a need for a dedicated procedure.

The first of these workshop sessions took a closer look at the procedure for establishing a person’s nationality for the purposes of registration with the municipal authorities. A consensus was quickly reached that the Dutch municipalities do not currently have clear guidelines on the establishment of statelessness for individuals who approach the office for registration, nor are the municipalities the most suitable site for statelessness determination. The participants - who included civil servants from several municipal authorities and lawyers with many years of experience in dealing with relevant cases - raised a variety of concerns. These included doubts as to the level of expertise and the tools available to municipal officials for the purposes of statelessness determination, as well as the observation that there is already a wide divergence in practice when it comes to registering a person’s nationality.  

The second workshop to consider the question of statelessness determination procedures was that focusing on the Dutch ‘no fault’ policy. The Statelessness Programme has been conducting research over the past few months on the functioning of this non-statelessness specific protection mechanism, which offers an avenue to protection (and a residence status) for some stateless people, but on the basis of a finding that they cannot be expelled from the country rather than specifically on the ground of statelessness. One of the main findings of the analysis of ‘no fault’ case files that was presented during the working group was the fact that statelessness appears to be neither a matter for investigation during this procedure nor of influence on its outcome. Thus, as the workshop participants from the Migration Policy Department of the Dutch Ministry for Security and Justice confirmed, the ‘no fault’ procedure does not lead to the determination of statelessness. The Statelessness Programme researchers pointed out that this makes it difficult to draw conclusions as to the effectiveness of the ‘no fault’ policy as a means for securing protection for stateless people.

Meanwhile in one of the other workshops, where the European Court of Human Rights’ role in addressing statelessness was the subject of debate under the guidance of Prof. Egbert Myjer (former Dutch judge at the ECtHR), the issue of determination procedures also came up. Participants questioned whether the lack of an evident procedure for claiming recognition as a stateless person in order to enjoy the specific entitlements that are attached to that status – such as access to a travel document or to facilitated naturalisation under Dutch law – could be deemed a violation of the European Convention guarantees relating to the right to an effective remedy.  

The various discussions during the symposium and the aforementioned workshops highlighted the need to re-open the discussion on the establishment of a clear procedure for the determination of statelessness in the Netherlands. On the occasion of the symposium, the Netherlands Institute for Human Rights made a call, echoing the recommendation from last year’s UNHCR report, that effort be made to remedy this significant gap in Dutch law. The Institute points out that effective statelessness determination is of great importance both to the individual who is seeking to enjoy a minimum standard of living and to the Dutch state which has made specific commitments to the protection of stateless people through its ratification of the 1954 statelessness convention. The Netherlands Institute for Human Rights therefore called for the establishment of a dedicated statelessness procedure that incorporates all necessary due process guarantees.

The Statelessness Programme will continue to follow this debate closely and provide an update on any relevant developments through this blog. In the meantime, some snapshots and video extracts of the 13 December symposium can be found on our facebook page: www.facebook.com/StatelessnessProgramme.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme