Nationality and citizenship are fundamental elements of human security because they provide people with a sense of belonging and identity. They provide a legal basis for the exercise of many human rights. Persons without a nationality are in many countries denied numerous human rights that citizens take for granted, like access to schools and medical care, ownership of property, marriage and foundation of a family and enjoyment of legal protection. Globally, an estimated 15 million people are considered stateless.
Nationality is not granted indiscriminately, but is normally based on factors such as the place of birth of a person, parentage or the relationship a person has established with a state through, for example, marriage to a national or long-term residence there.
A stateless person is a person who is not considered a national of any state under operation of its law. Statelessness occurs for many different reasons. A person may loose her/his nationality and is not able to acquire a new one because of extended stay abroad or because of marriage or dissolution of marriage to a person of a different nationality (women are particularly vulnerable). In the case of children, if they are born to stateless persons or refugees, or in some cases out of wedlock, they may be denied citizenship. Some individuals may find themselves stateless because of faulty administrative practices, such as excessive fees or the failure to be notified of registration or other obligations. Children who are not properly registered at birth can easily become stateless, as they are not able to show where or to whom they were born.
Situations of statelessness involving a large number of persons in a particular society may arise in a number of different circumstances. Governments may change their nationality laws and deny certain groups nationality under the new laws in order to marginalise them or to facilitate their expulsion from the state’s territory. The transfer of territory or sovereignty or the disintegration and formation of new states may leave thousands of people stateless or with disputed claims of citizenship.
Historically, refugees and stateless persons have been linked and both have received protection and assistance from international refugee organisations. After the Second World War, however, the needs of refugees became dominant and when the 1951 Refugee Convention was drafted, a protocol relating the status of stateless persons, attached to the draft convention, was postponed for consideration at a later date. International Conventions on statelessness were adopted in 1954 and 1961, but because the international community did not pay much attention to statelessness at that time, few countries became parties to these treaties. UNHCR was entrusted with certain responsibilities with regard to stateless persons, but for many years the organisation devoted little time, resources and efforts to statelessness.
With increasing numbers of stateless people around the world and the implications this may have for national and regional security, the international community is revisiting international instruments that deal with issues relating to nationality and citizenship. The end of the Cold War led to a profound change in international relations and forced the issue of statelessness onto the agenda of the international community. These changes included the disintegration of several states, the rise of ethnic consciousness in many parts of the world and the fear of large-scale population movements involving stateless persons. This prompted UNHCR and other humanitarian organisations to address the issue of statelessness in a more urgent and systematic manner, by trying to avert situations that can lead to statelessness, protecting stateless persons and trying to find adequate solutions to their problems. Ultimately, however, the problems of statelessness and disputed nationality can only be effectively addressed by states themselves.
The two primary universal instruments on statelessness are the Convention relating to the Status of Stateless Persons (1954) and the Convention on the Reduction of Statelessness (1961). Article 1 Convention relating to the Status of Stateless Persons defines a stateless person as a person not considered a national (or citizen) under the law of any state. In addition to providing a definition of statelessness, the Convention seeks to improve the status of stateless persons and helps ensure that stateless persons enjoy fundamental rights and freedoms without discrimination. It regulates, inter alia, the legal rights of stateless persons, their access to work and welfare and urges states to facilitate their assimilation and naturalisation.
The Convention on the Reduction of Statelessness defines ways in which persons who would otherwise be stateless can acquire or retain nationality through an established link with a state through birth or descent. It deals with cases of statelessness resulting from, inter alia, a change of civil status, residence abroad, or the voluntary renunciation of nationality. It also stipulates that children should be granted the nationality of the state party in which a parent had citizenship. The Convention prohibits states parties from depriving people of their nationalities on racial, ethnic, religious, or political grounds. The Convention does not, however, oblige states to grant nationality to stateless persons who enter their territory, unless those persons already have strong connections with the state and do not have any chance of acquiring a nationality elsewhere.
Other international instruments dealing with the right to nationality include, inter alia, Article 15 Universal Declaration on Human Rights, which stipulates the right to a nationality and the right not to be arbitrarily deprived of nationality and Article 5 CERD, which seeks, with respect to the right to nationality: ‘To prohibit and to eliminate racial discrimination in all its forms and to guarantee the right to everyone, without distinction as to race, colour, or nationality or ethnic origin, to equality before the law.’
International instruments dealing specifically with the right to a nationality with regard to women and children include the Convention on the Nationality of Married Women (1957), CEDAW (Article 9) and CRC (Articles 7 and 8). The instruments concerning women seek to ensure that they enjoy equal rights to acquire, change or retain nationality, while those covering children deal mainly with the right of children to be registered and to acquire a nationality from birth.
At the regional level, the European Convention on Nationality (1997) embodies principles and rules applying to all aspects of nationality. The Convention on the Avoidance of Statelessness in relation to State Succession (2006) establishes more detailed rules to be applied by states with a view to preventing, or at least reducing to the extent possible, cases of statelessness arising from state succession. Similarly, Article 20 ACHR sets out the right to nationality and prohibits the arbitrary deprivation of nationality or of the right to change it.
Similar to the situation of IDPs, there is today no specific body that deals with the problem of statelessness, or that supervises the 1954 and 1961 statelessness Conventions. In order to fill this vacuum, upon the entry into force of the Convention on the Reduction of Statelessness in 1975, UNHCR was provisionally asked to assume the responsibilities foreseen in Article 11 ‘of a body to which a person claiming benefit of this convention may apply for the examination of his claim and for assistance in presenting it to the appropriate authority’. However, no mention was made of UNHCR’s competence with regard to the Convention relating to the Status of Stateless Persons and UNHCR was not asked to assume any wider responsibilities regarding statelessness issues.
In recent years, the international community has faced an increased number of stateless persons and the security issues arising with them. This led the High Commissioner’s Executive Committee and the UNGA to adopt and endorse the ‘Conclusion on the Prevention and Reduction of Statelessness and the Protection of Stateless Persons’ (Resolution 50/152). In addition, UNHCR was requested to ‘actively promote accession’ to the 1954 and 1961 Conventions on statelessness, ‘as well as to provide relevant technical and advisory services pertaining to the preparation and implementation of national legislation’.
To this end, UNHCR has taken a number of practical steps to strengthen its efforts with regard to stateless persons. It has appointed a legal expert on the problem of statelessness, and has actively assisted governments in the preparation and implementation of nationality legislation while encouraging them to accede to the 1954 and 1961 statelessness Conventions. In addition, UNHCR has strengthened its working relationship with a number of organisations involved in this issue such as the OHCHR, the CoE and the OSCE. UNHCR has also been able to play an important role in a number of situations where problems related to statelessness and nationality have arisen. For example, it has been involved in intensive dialogues with governments of, e.g., Azerbaijan, Cambodia and the Czech and Slovak Republics with regard to their nationality legislation.
The International Court of Justice has examined the issue of naturalization:
Requesting and obtaining [naturalization] is not a common act in the life of an individual. It entails the rupture of a relation of fidelity and the establishment of another relation of fidelity. It entails far-reaching consequences and a profound change in the destiny of the persons who obtains it. (Nottebohm Case (second phase), Judgment of 6 April 6 1955).
The European Court has decided several cases regarding statelessness. Examples include Andrejeva v. Latvia where the Court ruled that refusal to pay the applicant, who was stateless as she had not been granted Latvian citizenship after the fall of the Soviet Union, a state pension in respect of her employment in the former Soviet Union prior to 1991 on the grounds that she did not have Latvian citizenship was discriminatory. In Tatishvili v. Russia, the applicant held citizenship of the former USSR until the year 2000 when she became a stateless person. The Court found that the Russian authorities’ arbitrary refusal to certify her residence at the chosen address, substantially complicating her daily life and rendering uncertain her access to medical care, was not in accordance with the law and constituted a breach of the right to freedom of movement (Article 2 Protocol 4). In Sisojeva and Others v. Latvia the Court found a violation of the right to respect to private and family life because of the Latvian authorities’ refusal to regularise the status of the stateless family in Latvia.
The Inter-American Court has issued an important Advisory Opinion touching upon statelessness: Advisory Opinion on Proposed Amendments to the Naturalization Provision of the Constitution of Costa Rica. The Advisory Opinion examines issues concerning, inter alia, nationality and discrimination. The Court declares, inter alia, that
[n]ationality can be deemed to be the political and legal bond that links a person to a given state and binds him to it with ties of loyalty and fidelity, entitling him to diplomatic protection from that State. In different ways, most States have offered individuals who did not originally possess their nationality the opportunity to acquire it at a later date, usually, through a declaration of intention made after complying with certain conditions. In these cases, nationality no longer depends on the fortuity of birth in a given territory or on parents having that nationality; it is based on a voluntary act aimed at establishing a relationship with a given political society, its culture, its way of life and its values. (Advisory Opinion OC-4/84, para. 35).
The Court has ruled in a handful of nationality cases. In Ivcher Bronstein v. Peru it held that as the applicant did not expressly renounce his nationality, which is the only way of losing it, according to the Peruvian Constitution, but was deprived of it when his nationality title was annulled. Moreover, the state failed to comply with the provisions of its domestic legislation and arbitrarily deprived Mr. Ivcher of his nationality, violating Article 20(3) ACHR. In The Yean and Bosico Children v. The Dominican Republic the Court ruled that by refusing to issue birth certificates and preventing the applicants from enjoying their citizenship rights due to their Haitian origin, the Dominican state had violated a number of the children’s rights under the American Convention: the rights of the child, the right to nationality, the right to equal protection, the right to juridical personality, the right to a name and the obligation to respect their rights.