Note on UNHCR and stateless persons

EC/1995/SCP/CRP.2

Executive Committee of the High Commissioner's Programme
Sub-Committee of the Whole on International Protection
26th meeting

2 June 1995

I. INTRODUCTION

1. In 1994, the Executive Committee of the High Commissioner's Programme noted the persistent problems of stateless persons, and called upon UNHCR to "strengthen its efforts in this domain, including promoting accession to the Convention on the Reduction of Statelessness and the Convention relating to the Status of Stateless Persons, training for UNHCR staff and government officials, and a systematic gathering of information on the dimension of the problem, and to keep the Executive Committee informed of these activities." (A/AC.96/839, para.19 (ee))

2. From initial efforts in these areas, it is clear that certain steps necessarily precede others in assuring a systematic approach to the problem which appears, with variations, in different parts of the world. As a preliminary step, UNHCR seeks to clarify the foundation for its concern and involvement with stateless persons, and for those with no effective nationality.

II. UNHCR'S CONCERN AND INVOLVEMENT

3. While the basic human rights of stateless persons are, in principle, to be respected in their country of habitual residence, statelessness itself creates vulnerability. Stateless persons hold an unequal status in their society which, particularly when aggravated by political changes, may result in complications, including displacement and flight. As part of its humanitarian role, UNHCR seeks to prevent and mitigate as far as possible such involuntary dislocation and movement.

4. Their lack of national protection places stateless persons in a position analogous to that of refugees. Indeed, one means of overcoming refugee status is the realization of an effective nationality. In previous years, UNHCR has promoted accession to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness on behalf of stateless refugees. Technical advice has also been given to Governments seeking to assist refugees who may be stateless. Moreover, since statelessness can be one element in the creation of refugees, UNHCR is concerned with statelessness as a function of its mandate under the 1951 Convention relating to the Status of Refugees.

5. UNHCR has historical reasons for an interest in the 1954 Convention relating to the Status of Stateless Persons. In the past, refugees and stateless persons were less differentiated, with both receiving assistance from international refugee organizations. The 1954 Statelessness Convention, originally drafted as a Protocol to the 1951 Convention, was intended to reflect this link. The pressing needs of refugees in the wake of the Second World War and the impending dissolution of the International Refugee Organization prohibited detailed consideration of the statelessness issue at the 1951 Conference of Plenipotentiaries called to consider both issues. The Refugee Convention was adopted, while the Statelessness Protocol, with articles mirroring those of the refugee convention, was postponed for adoption at a later date.

6. In 1954, this Protocol was made a Convention in its own right. A narrow definition of stateless persons was adopted, covering only "a person who is not considered as a national by any State under the operation of its law" (de jure stateless). While it was felt that a legal distinction between de jure and de facto stateless persons - those with an ineffective nationality or those who cannot prove they are legally stateless - was necessary, the similarity in their positions was, nonetheless, recognized. De facto stateless persons were the subject of a recommendation in the Final Act of the Convention, it being assumed that they had voluntarily renounced their citizenship and were, in any event, refugees.

7. Although no supervisory body was provided for in the 1954 Convention, there is every indication that this was due largely to time constraints and to the intended association with the Refugee Convention.

8. When the 1961 Convention on the Reduction of Statelessness was to enter into force, UNHCR was asked provisionally to assume the responsibilities foreseen under Article 11, "of a body to which a person claiming the benefit of this Convention may apply for the examination of his claim and for assistance in presenting it to the appropriate authority. "The Convention, in seeking to reduce statelessness, requires signatory States to take positive steps to modify their domestic legislation pertaining to nationality and naturalization. As the agency to which those seeking assistance with their nationality status may turn, it is incumbent upon UNHCR to provide expertise in the area of nationality legislation to States parties. This expertise includes the ability to assist the claimant as well as the concerned State in determining whether the individual is, in fact, de jure stateless, and remaining means of redress.

9. The Final Act of the 1961 Convention, like the 1954 Convention, includes a recommendation that the provisions be extended to de facto stateless persons wherever possible. The Conference "Recommend[ed] that persons who are stateless de facto should as far as possible be treated as stateless de jure to enable them to acquire an effective nationality." Here again, the link between lack of nationality, lack of national protection and de facto stateless persons was recognized by the delegates who included the recommendation on behalf of stateless refugees.

III. STATELESSNESS TODAY

10. Recently, issues of statelessness, particularly linked to matters of nationality legislation, have surfaced in several areas of the world including Asia, the Middle East, Eastern Europe, newly formed and restored States of the former Soviet Bloc, and the former Yugoslavia. While it is the right of a State to determine who are its citizens, this determination should accord with the relevant provisions of international law. Certain human rights principles and the existence of a link between the individual and the State act as a basis for citizenship under international law. The genuine effective link, broadly derived from a presumed link between the individual and the State based upon factors of birth, residency and descent, is reflected in a majority of domestic nationality legislation.

11. While initially it was assumed that all de facto stateless persons were refugees and would, therefore, benefit from the Refugee Convention, it is now apparent that there are those who do not qualify for assistance under either category; that is, there are individuals who do not qualify as refugees and whose nationality status is unclear. The situation of such a person in terms of a lack of national protection may be identical to that of a de jure stateless person. Since lack of protection may result in involuntary displacement, UNHCR is concerned with preventive measures on behalf of such individuals. A request for assistance, based on the non-binding recommendations of the Final Acts, may more easily be made by an international organization on behalf of the person concerned than by the individual himself.

12. UNHCR has been approached by both individuals and Governments seeking advice and assistance in nationality matters, including the drafting and implementation of nationality legislation. In a number of instances, the failure to acknowledge the genuine effective link has left long-term habitual residents who lack genuine ties elsewhere without citizenship. In some cases, the resulting instability, in conjunction with other factors, has led to internal displacement or to flight across borders. This may be particularly so with the transfer of territory and the creation of new States which adopt nationality and naturalization legislation.

13. Another source of statelessness can be the strict adherence to jus sanguinis, or nationality based upon descent. Jus sanguinis, when applied without modifications based on residency or other factors, confers on children the status of their parents. This may mean that statelessness is inherited, passed from generation to generation, regardless of place of birth, residency, or other factors reflecting the genuine effective link.

IV. UNHCR INITIATIVES

14. UNHCR is undertaking the difficult process of determining the approximate numbers of de jure and de facto stateless persons, as well as the range of potentially stateless persons. To obtain a clearer picture of the magnitude of the problem, UNHCR will require the active cooperation of States which have stateless persons within their borders.

15. Other initiatives have included collection and analysis of current and proposed nationality legislation. These materials, along with the expertise developed by the Office, will provide the basis for training and technical advice guidelines for UNHCR staff and government officials, in accordance with the Executive Committee's above- mentioned request. UNHCR may develop an accession "package" or guidelines for Governments considering accession to one of the relevant conventions and the adoption of commensurate nationality legislation.

16. Further consultations are planned with those Governments already signatory to one or both of the statelessness conventions with a view to adopting a more coordinated effort in promotion of accessions, as requested by the Executive Committee and in line with the High Commissioner's concern with protection and prevention.

17. Under the 1961 Convention, the scope of UNHCR's activities pursuant to its appointment under Article 11 is restricted owing to the low number of signatories. Nonetheless, the Office is developing its ability to assist non-refugee de jure stateless persons. This expertise has already been of use to individuals who have had difficulty proving their nationality status.

18. In view of the obvious human rights aspects of this issue, discussion on collaboration with human rights organizations, such as the Centre for Human Rights, has also been initiated. UNHCR is also cooperating in this area with the Council of Europe, the Organization for Security and Cooperation in Europe (OSCE), the International Law Commission, parliamentary commissions and other interested governmental and non-governmental organizations.

19. As noted, the basic human rights of stateless persons are, in principle, to be respected in the country of habitual residence. Such persons are not, therefore, assumed to be in acute need of international protection unless they are also refugees. However, statelessness brings an added element of vulnerability and, in some instances, stateless persons are also in need of protection. The Convention relating to the Status of Stateless Persons and the Convention for the Reduction of Statelessness provide valuable legal tools for the protection of stateless persons, although the scope is limited owing to the restricted number of parties. The prevention and reduction of statelessness, and the protection of stateless persons are important for the prevention of potential refugee situations. Promoting accession to the relevant conventions and the enactment of appropriate national legislation are aspects of prevention-related activities.

20. UNHCR will continue to keep the Executive Committee informed regularly of activities undertaken on behalf of stateless persons. The High Commissioner would welcome the Executive Committee's further advice on additional activities, including guidance to Governments on relevant nationality legislation, prevention and promotion activities, training, and dissemination of information on the magnitude and dimensions of the current problem of statelessness.