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

 “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

 “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

“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

“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 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 wellbeing
 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

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

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

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

 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

 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