OAS Course on Statelessness: Statelessness & International Law Laura van Waas - Statelessness Programme - Laura.vanWaas@tilburguniversity.edu

Setting the Scene “Stateless Person”: a person who is not considered as a national by any state under the operation of its law Stateless persons are non-nationals everywhere, which has consequences for their enjoyment of rights Number affected worldwide: approx. 12 million No region unaffected; large groups to individual cases Statelessness Programme

What is nationality? “Nationality”: the legal bond between a person and a state Nationality is a form of membership that results in rights and duties, for instance: Right to enter and reside in the state; political rights Duty to perform military service Nationality vs. citizenship Statelessness Programme

What is statelessness? “Stateless Person”: a person who is not considered as a national by any state under the operation of its law Article 1 of the 1954 Convention relating to the Status of Stateless Persons Recognised by ILC as customary international law Also referred to as “de jure statelessness” Statelessness Programme

What is statelessness? “Stateless Person”: a person who is not considered as a national by any state under the operation of its law Components: is not national (any) state considered as… under the operation of its law Determination based on nationality law and practice UNHCR guidelines on definition issued 20 February 2012 Statelessness Programme

Stateless Refugees “Stateless Refugee”: a person who is not considered as a national by any state under the operation of its law and meets the definition of a refugee in article 1 of the 1951 Refugee Convention. Falls under UNHCR’s refugee mandate Enjoys protection of the 1951 Refugee Convention When ceasing to be a refugee, may still be stateless and need assistance to acquire a nationality Statelessness Programme

Statelessness as an International Concern Why worry about statelessness? Detrimental impact on individual lives and family well-being Severe knock-on effect on community stability and international relations What are the international community’s main aims? To avoid statelessness To protect stateless people Statelessness Programme

How can statelessness be avoided? Step 1: Understand the causes of statelessness Gaps in nationality laws / conflicts of nationality laws Arbitrary deprivation of nationality Processes relating to state succession Common underlying factor: discrimination Common contributing factors: migration, lack of birth registration, administrative obstacles Statelessness Programme

How can statelessness be avoided? Step 2: Analyse nationality law and practice How is nationality acquired? Family links: parents, spouse Territorial links: place of birth, residence What gaps might there be in the law? No safeguards to prevent statelessness at birth Loss / renunciation of only nationality is permitted Gender or racial discrimination Poor / no procedural guarantees Statelessness Programme

How can statelessness be avoided? Step 3: Apply relevant international standards Are states free to regulate nationality? No, international law now sets some limits on the freedom of states to regular access to nationality What limits are set by international law? General principles of law, e.g. non-discrimination Human rights law 1961 Convention on the Reduction of Statelessness Statelessness Programme

Human rights law: the right to a nationality Everyone has the right to a nationality. Universal Declaration of Human Rights (article 15) See also: ICCPR, CRC, CERD, CEDAW, Migrant Workers Convention, Convention on Persons with Disabilities, American Convention on Human Rights, European Convention on Nationality, African Charter on the Rights and Welfare of the Child, Covenant on the Rights of the Child in Islam. Statelessness Programme

1961 Convention on the Reduction of Statelessness Specifically aimed at avoiding statelessness Prescribes concrete safeguards for states to include in their nationality law, where a person would otherwise be stateless e.g. child born on territory who is otherwise stateless should be granted nationality Not an international law on nationality, but a common framework for avoiding statelessness Statelessness Programme

How can stateless people be protected? Step 1: Understand link between nationality and rights What is nationality? Legal bond between a person and a state “Membership” resulting in rights & duties What is the traditional role of nationality? Nationality as the “right to have rights” Fate of stateless people a matter of “charity” Statelessness Programme

How can stateless people be protected? Step 2: Analyse challenges faced by stateless people Limited access to social and economic rights - work, education, housing, healthcare No travel or identity documents Long-term or indefinite detention; expulsion Inability to contract marriage or register births Exclusion from political processes Statelessness Programme

How can stateless people be protected? Step 3: Apply international standards Is nationality the foundation for rights? No, international law extends many rights to everyone, regardless of nationality or statelessness What rights do stateless people enjoy? General principles, e.g. non-discrimination Human rights law 1954 Statelessness Convention Statelessness Programme

Human rights law and the stateless States must protect human rights of everyone under their jurisdiction, including non-nationals! ICCPR, ICESCR, CRC, CEDAW, CERD, etc are all relevant to the treatment of stateless people Some rights may be reserved for citizens (e.g. political) Statelessness Programme

1954 Convention relating to the status of Stateless Persons Specifically aimed at protecting stateless people Provides definition and establishes the legal status of “stateless person” and a minimum level of treatment to be enjoyed Provides for special measures, including issuance of identity & travel documents and call for facilitated naturalisation Statelessness Programme