1. OAS Course on Statelessness: Statelessness & International Law
Laura van Waas - Statelessness Programme -

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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