Individuals all across the world are nationals of one country or the other. As citizens of a country, we do not think much of the minimal rights (education, health, family, etc.) that our country bestows upon us. However, in this world, there are people who are not considered nationals by the country they were born in and lived their whole lives. These people are in fact not recognized anywhere and have no nationality, and thus remain stateless.

Statelessness is a persistent challenge that stands between the rights of the individual and the duties of the government. Fundamentally, statelessness is a state where people are not granted rights and protection because they do not have a valid nationality. Stateless people are vulnerable because they are disempowered by civil liberties.

Fig 1: Stateless person getting a citizenship

UNHCR: The UN Refugee Agency

There is no exact number of how many stateless people there are in the world today, because half of the countries in the world refuse to even count them. But, as of the end of 2022 the United Nations High Commissioners for Refugees (UNHCR) have stated that at least 4.4 million people in the world are Stateless. The impact of statelessness is harsh, affecting millions of people globally. Owing to such vulnerability, the international community has established legal frameworks, including Conventions, general principles, case laws and other writings.

The Statelessness Conventions

There are two Conventions that stand as a foundation in this endeavour: the 1954 Convention Relating to the Status of Stateless Persons (hereinafter CSP) and the 1961 Convention on the Reduction of Statelessness (hereinafter CRS). These Conventions play a vital role in firstly, preventing Statelessness and secondly, protecting the right to nationality of each human being across the globe.

Fig 2: States Party to the Statelessness Convention

UNHCR: The UN Refugee Agency

 

Convention Relating to the Status of Stateless Persons 1954

CSP was initially designed as a protocol to the 1951 Convention Relating to the Status of Refugees. This Convention safeguarded stateless refugees, highlighting nationality as one, of the factors to be considered.

Later, in 1954, the Protocol was made into an independent Convention of its own with the view that the countries that hadn't ratified the 1951 Refugee Convention could opt to participate in the statelessness protection measure by establishing a separate instrument.

Overview of the CSP

The CSP is the primary Convention adopted to date to regulate and improve the legal status of stateless persons and to ensure their fundamental rights and freedoms without discrimination.

The provisions of the Convention were not drafted to provide nationality to stateless people. The rights of stateless persons as enshrined in the CSP, therefore do not alter the fact that a person is stateless, nor abate the requirement for obtaining nationality.

The fundamental provisions of the CSP may be listed as follows:

a. Definition (Art. 1(1))

Article 1(1) of the CSP defines a stateless person as “a person who is not considered as a national by any State under the operation of its law”.

The definition is legal in a strict sense, and it makes no mention of the characteristics of nationality, like how one can acquire nationality. The definition is limited to the operation of law i.e., the State’s nationality legislation defines ex-lege who has a nationality.

b. Limitation (Art. 1(2))

The CSP has a provision that excludes persons, from the protection that it affords, who were receiving aid from UN agencies at the time the Convention was enacted, except the UNHCR.

Similarly, the Convention also doesn’t apply to people who already possess the rights and obligations associated with the nationality in the nation in which they currently reside. 

The Convention also excludes persons regarding whom there is substantial grounds to believe that they have committed a crime against humanity, a crime against peace, or a war crime; or if an individual has committed a serious crime of a non-political nature outside the country of their residence before admission to the country; or if they have engaged in activities in contrast to the purpose and principles of United Nations.

c. Status

The Convention specifies the obligations and rights of stateless persons in their country of residence. These rights include the freedom to practice their religion (Art.4), property rights (Art.13), and court access (Art.16). In addition, the Convention covers a wide range of issues that significantly impact daily living, including social security, labour laws, public education, public relief, and gainful employment. In return for these rights, Article 2 obligates these persons to comply with national laws and regulations.

Moreover, under Article 7 of the CSP, the contracting States are encouraged to provide stateless individuals who are legally residing on the territory with a standard of treatment, that is, in certain cases, equivalent to that provided to the state’s citizens and, in other cases, comparable to that provided to foreign nationals.

d. Identity and Travel Documents (Art. 27, 28)

The Convention mandates that the Contracting State shall issue an identity document and a travel document to any person recognized as a stateless person. The granting of a travel document does not change the status of the individual. Nonetheless, the documents are especially crucial for stateless people as they enable travel to other nations for work, education, etc.

Every Contracting State agrees to acknowledge the legitimacy of travel documents issued by other State parties in line with the Schedule to the Convention.

e. Expulsion (Art.31)

The CSP has an important provision that saves the stateless in a Contracting State’s territory from expulsion except on grounds of national security or public order. If expulsion of any stateless person has to be done, it should follow due process, unless there is a compelling reason for national security.

f. Naturalization (Art.32)

The Convention mandates the parties to facilitate the assimilation and the naturalization of stateless persons as far as possible. The Convention encourages efforts to expedite the naturalization proceedings with as much reduction in the charges and cost of such proceedings as possible, to reduce the instances of statelessness as far as possible.

g. Dispute Settlement (Art.34)

The final clauses of the Convention have enshrined a provision regarding the mode of dispute settlement.

The provision provides that any dispute arising between the Contracting State may be referred to the International Court of Justice as a last resort. The wording “…which cannot be settled by other means…” explains that the Convention urges the Contracting States to refer to other peaceful modes of settlement of disputes like negotiations, mediation, conciliation, etc. before resorting to international adjudication.

h. Reservations (Art.38)

The UN Glossary defines reservation as a declaration made by a State by which it purports to exclude or alter the legal effect of certain provisions of the treaty in their application to that State.

The Convention allows State parties to make reservations to certain provisions, provided special conditions prevail in the respective States at the time of ratification or accession of the Convention.

However, no State parties are allowed to make reservations to certain provisions which the drafters have determined to be of fundamental nature. The Convention, therefore, restricts reservation to Article 1, Article 3, Article 4, Article 16(1), and all Articles in the Final Clauses of the Convention.

Analysis

The CSP has defined the term “Stateless Persons” in a very strict sense. The term “de jure” stateless persons is sometimes used to refer to individuals who are covered by Article 1(1), even though the Convention doesn’t specifically use the term. A “de jure” stateless person is one who “is not considered as a national by any State under the operation of its law”, whereas stateless persons who technically have a nationality but whose nationality is not effective are “de facto” stateless. 

The main issue with this strict legal definition is that the persons who are otherwise recognized as de facto may fail to receive the protection guaranteed under the Convention.

Similarly, while the Convention provides an international definition on stateless persons, and the standard of care they are entitled, it does not provide for any method for identifying stateless person as such. However, the CSP does state, in an implicit way, that States must identify stateless people living within their borders and provide them with proper care in order to fulfil their obligations under the Convention. Since the Convention is silent on the matter, states are free to choose how to implement and carry out their processes for determining statelessness.

The right to nationality is considered as the right to have rights. Stateless persons, when deprived of their right to nationality, are generally denied several other rights. The CSP, however, bridges this gap by granting stateless persons a range of fundamental rights. Stateless people's rights and obligations under national law, as well as the status they are granted, must be consistent with international human rights standards.
Currently, 98 States are parties to the CSP which showcases the realization of the importance of accession to the treaty. The accession to this Convention by a State is evidence of its commitment to improving the quality of life of the stateless as well as decreasing the possibility of future displacements.

One substantial weakness in the Convention is the absence of a supervisory body which may have been brought about by timing issues and its connection to the 1951 Refugee Convention. This could affect how well the Conventions provisions are implemented and monitored.

Convention on the Reduction of Statelessness 1961

The formation of the CRS as any other treaty is after the Second World War.  International law had long recognized the discretion of a State to make their own nationality laws. However, such discretion can cause serious instances of statelessness for reasons like discrimination, State succession, arbitrary deprivation, etc. 

Before the adoption of the 1961 Conventions, two possible drafts of the treaty were prepared by the International Law Commission (ILC), one of which focused on the eradication of statelessness and the other on the reduction of statelessness. Although the drafts were similar, the Draft Convention on Elimination of Future Statelessness produced the State parties with fewer exceptions. As a result, the second draft on ‘reduction’ of statelessness was adopted.

Now, one could argue that the priority was given to State discretion over efforts and compromise to reduce the stances of statelessness, because the text of the treaty was finalized considering that “the nationality laws of various countries based on different conceptions of national allegiance and citizenship would have to be reconciled”.

Overview of the CRS

The CRS is the primary legal instrument dedicated to addressing the issue of statelessness. The fundamental goals of the Convention are to preserve nationality for those who will become stateless if they unintentionally lose it and to allow those who would otherwise be stateless and who have a suitable connection to the State—either by birth on the territory or through descent­­­­, to obtain it.

The fundamental provisions of the CRS can be summed up as follows: 

a. Granting of Nationality

Articles 1- 4 of the CRS have provisions that mandate State Parties to grant nationality to a certain category of persons who would otherwise be stateless but who, by birth or descent, have an effective connection to the State. However, all methods of acquiring nationality are contingent upon the fact that the individual in question would otherwise be stateless.

b. Loss or Renunciation of Nationality

Articles 5-7 of the CRS have provisions on loss or renunciation of nationality. The loss of nationality is a different concept from the deprivation of nationality. According to the Convention, the loss or renunciation of a nationality takes place on conditions that the acquisition of another nationality or the guarantee of obtaining one should be a prerequisite. 

As per Article 7, possible exceptions would be for naturalized individuals who live overseas for a predetermined period of time without expressing a desire to keep their nationality, even after being informed of the necessary procedures and deadlines. Within this particular context, the term "naturalized person" only refers to an individual who has obtained nationality through an application to the relevant Contracting State.

c. Deprivation of Nationality (Art.8,9)

The main contention of Article 8 is that an individual should not be deprived of nationality if such deprivation would leave that person stateless. However, there are certain exclusions like fraud, jeopardizing a State’s vital interests, failure to declare intention, etc.

Moreover, the deprivation must comply with legal requirements and be supported by complete procedural guarantees, including the right to a fair trial. A Contracting State is not permitted to deny anyone of their nationality on racial, ethnic, religious or political grounds.

d. Transfer of Territory (Art.10)

Article 10 of the Convention states that every treaty between the Contracting States allowing for the transfer of territory must contain clauses intended to ensure that no one will lose their citizenship as a result of the transfer. A Contracting State shall make every effort to ensure that such provisions are included in any treaty it enters into with a State that is not party to its Convention. 

Likewise, the Convention states that in case such provisions are absent, a Contracting State that transfers or otherwise acquires territory will grant nationality to individuals who would otherwise become stateless due to the transfer or acquisition.

e. International Agency (Art.11)

The Convention also elucidates a provision for the creation of a body, under the auspices of the UN, to which a person claiming the benefits of the Convention may apply for the review of their claim and support in putting it in front of the relevant authority. The United Nations General Assembly has requested UNHCR for this purpose.

f. Settlement of Disputes (Art.14)

Like the CSP, the CRS also has provisions for dispute settlement. Article 14 of the Convention mandates the State Parties to submit the dispute to the ICJ at the request of any one of the parties to the dispute. However, the condition is that other means of dispute settlement as enshrined in the UN Charter are tried and tested first.

g. Reservations (Art.17)

The Convention allows State Parties to make reservations on only limited provisions at the time of signature, ratification, or accession. Reservations made to any articles other than Article 11 (Agency), Article 14 (Referral of disputes to ICJ), or Article 15 (territories for which the Contracting State is responsible) will be deemed inadmissible as per the Convention.

Analysis

The right to nationality is established by Article 15 of the UDHR, which also prohibits the arbitrary deprivation of nationality. The right to nationality is a fundamental right and the exercise of all human rights is content on this right. The goal of the CRS is to guarantee each person the right to nationality by preventing and reducing statelessness. 

While the Convention does not give an acute definition of statelessness or stateless persons like the CSP, it states that a person cannot lose or be deprived of their nationality if it would make them stateless. The Convention stipulates that States are required to examine whether a person has another nationality and not depend on whether they could acquire it in the future, at the time of loss or deprivation of such nationality.

Articles 5 to 7 of the 1961 Convention, refer to “loss of nationality” as the automatic withdrawal of nationality by operation of law. Whereas the term “deprivation” is used in Article 8 of the Convention to characterize circumstances in which the State initiates the withdrawal.

Article 7(6) of the Convention qualifies the principle of articles 5 to 7 which states that a person shall not lose the nationality of the Contracting State if such loss would cause him to become stateless, even though this Convention's other provisions do not specifically forbid such loss. Articles 5(1), 6 and 7(1) permit the loss of nationality of an individual if they are currently holding another nationality. However, the articles are mindful that when a former nationality is lost and a new one is not obtained, it may result in statelessness. Likewise, article 5(1) also applies if it is proven that the family relationship that served as the foundation for a child’s nationality was incorrectly registered or where it is later found out that there was never a family relationship following the acquisition of nationality. 

Moreover, according to article 7(3), losing one’s nationality due to immigration, living overseas, failure to register, or other similar circumstances does not automatically make a person stateless. However, two exceptions to this rule are permitted by Article 7, paragraphs 4 and 5. First, loss of nationality may arise from naturalized citizens, who have lived abroad continuously for seven years or longer, without registering with national authorities, and second from foreign-born citizens, who have failed to take action to retain their nationality within a year of becoming an adult.

Moving on to the deprivation of nationality, the rule under article 8(1) is that a contracting state shall not deprive a person of their nationality, if such deprivation stems statelessness. However, the article is not without its exception. Article 8(2) allows deprivation based on extended residency overseas, or deception. On the other hand, article 8(3) allows deprivation of nationality that may lead to statelessness because of disloyalty to the state or allegiance to another state, subject to certain requirements and restrictions to avoid misuse of this exception. These exceptions are meticulously designed to strike a balance between the rights and responsibilities of the individual and the State’s interests.

A contracting state may deprive a naturalized person of his nationality for prolonged residence abroad, or mandate registration for those born abroad to retain their nationality. However, the provision of nationality on these grounds is not justified if it leads to statelessness. Similarly, states may deprive nationality to someone for failing to renounce the foreign nationality, if the failure was intentional, regardless of the outcome of statelessness.

Any State party also has the right to deprive any person of their nationality, even if it results in statelessness if the person does any conduct which is inconsistent with the duty of loyalty to the State concerned or has given definite evidence of allegiance to another state. However, such a State can retain such rights only if a declaration is made to that end at the time of signature, ratification or accession of the Convention, and the grounds already exist in their national legislation. Under Article 8(3)(a)(ii), states can deprive nationality of a person on the basis of conduct that is detrimental to the security and vital interests of the State. However, since the article is silent on what would constitute “seriously prejudicial” to the “vital interest” of the State, reference may be made to the expert interpretation of the convention, which elucidates that the ordinary meaning of the terms indicates that the conduct must threaten the foundation and organizations of the state and that the individual's concern has the capacity to impact negatively the State.

Lastly, article 9 prevents contracting states from depriving any person or group of persons of their nationality on racial, ethnic, religious, or political grounds, irrespective of whether Statelessness would result. One consequence of this article is that a State needs to establish that a deprivation is not made on these grounds.

Therefore, CSP and CRS are two primary Conventions providing essential safeguards for stateless persons around the world that help in the protection of stateless persons and the eventual eradication of statelessness.

Conclusion

Statelessness remains a critical threat to human rights and dignity, requiring immediate global action. It is intrinsically connected to the right to nationality, and any violation of this right may infringe upon other fundamental human rights. UNHCR and the States are two primary actors that can solve the issue of Statelessness. The UNHCR has contributed through the formation of comprehensive international conventions explained above, thus, it is now the responsibility of the State parties to demonstrate political will in effectively implementing international legal frameworks. However, the 1954 and 1961 Conventions on Statelessness remain ineffective due to gaps in state implementation. Stronger international cooperation and mechanisms are needed to protect and recognize stateless persons under international law.

 

Disclaimer: The perspectives and opinions shared in this article belong to the author and do not necessarily represent the views or stances of the National Policy Forum (NPF).