Blog post by Sriya Shubhalaxmi Mishra, a Fourth-year B.A.LL.B. (Hons) student at the National University of Study and Research in Law, Ranchi, India.
The international law’s promise of nationality for all and the growing dilemma of statelessness has created a paradox, primarily fuelled by the shortcomings present in both international as well as domestic legal systems. The ongoing global pandemic, which has affected the world in ways that are unfathomable, has only added to that dilemma.
With the uncertainty instilled into the society by Covid-19, the stateless are now even more segregated and deprived of their basic rights. This article seeks to unveil some of the shortcomings that have plagued the legal frameworks formulated for countering statelessness and present viable solutions by assessing International law on the Stateless and a reference domestic counterpart: India.
Nexus Between Nationality & Statelessness
Under international law, nationality is of paramount importance. Deprivation of nationality can lead to grave violations of human rights, which are, as was portrayed by the words of Hannah Arendt, ‘right to have rights.’ The expression becomes a lot more important when we note that Hannah Arendt was herself a stateless for 18 years after having fled from Nazi Germany. This idea of statelessness taking away the right to have rights was also illustrated in one of the well-known cases of Trop v. Dulles.
Nationality socially ties a person to the country of which they are national and gives rise to rights and duties on the part of the state, as well as the citizen/national.
This idea has been consolidated internationally through the Universal Declaration of Human Rights (UDHR) of 1948 in its Article 15. The article states that everyone has the right to a nationality and one cannot be deprived of it arbitrarily nor denied the right to change it. The idea can also be found in Article 24(3) of the International Covenant on Civil and Political Rights (ICCPR).
However, the issue with UDHR’s promise is that although it has promised everyone a right to nationality, the same has not been mandated through its provisions and no corresponding obligation on states to grant nationality has been elaborated, nor has any method for protection against the arbitrary deprivation of nationality has been stated. Adding to this is the legally non-binding nature of the UDHR, which makes its enforceability very difficult. It is the very concept of nationality, which, if not protected, gives rise to a class of people known as the Stateless.
The concept of statelessness finds its rightful mention in the 1954 Convention relating to the Status of Stateless Persons which defines a stateless person in its Article 1 as one “who is not considered as a national by any State under the operation of its law.” This Convention is regarded as the cornerstone of the international protection regime for stateless persons.
Specific obligations relating to prevention and reduction of statelessness are also established under the 1961 Convention on the Reduction of Statelessness. The 1961 Convention requires that States address statelessness occurring at birth or later in life and seeks to prevent statelessness due to loss or renunciation of nationality or state succession. It also sets out the very limited situations in which States can deprive a person of their nationality, even if it renders the person stateless.
Misleading Statistics on Statelessness
Statelessness can be a result of discrimination in nationality laws (racial, religious or gender), gaps in nationality laws, state succession or by renunciation. It results in deprivation of basic rights such as education, employment, social welfare, housing, healthcare as well as civil and political rights including: freedom of movement, freedom from arbitrary detention and political participation. This leads to communities being alienated and marginalised. Statelessness, thus, is sometimes referred to as a problem, which gives rise to invisible people who often remain unseen and unheard.
United Nations High Commissioner for Refugees’ (UNHCR) ten-year global campaign called ‘#IBelong’ was launched in 2014 with an aim to end statelessness by 2024. Yet, the recent publications paint a different picture. According to UNHCR’s 2019 reports, the number of stateless people is estimated to be 3.9 million. Although it is a staggering figure in itself, experts believe that the estimation is nowhere close to the original figure, which is supposed to be around 10 million.
The inconsistent figures show that we must first ascertain correctly, who these stateless are, where they are, and how many they are. UN High Commissioner, Filippo Grandi, recently remarked that the issue of statelessness is easily resolvable as well as preventable via political will.
Rights Conferred to the Stateless
The 1954 Convention grants the stateless persons a plethora of different rights and some obligations. These rights, with varying justiciability, include the right to freedom of religion, residence, access to courts, employment, issuance of travel and identity documents and various other socio-welfare rights. The Convention also prescribes Contracting States’ to facilitate and naturalise the stateless persons under its article 34.
The 1961 convention ensures that a Contracting State may not deprive any person or group of persons of their nationality on racial, ethnic, religious or political grounds, under its article 9.
ICCPR in its article 2 requires states “to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind.” The Covenant on Economic, Social and Cultural Rights (ICESCR) contains an almost identical clause in its article 2.
Additionally, the Human Rights Committee, the treaty body for the ICCPR, has further elaborated on this principle of non-discrimination being applicable to everyone irrespective of nationality and statelessness, in its General Comment 15.
Compounding The Crisis: Statelessness And the Effects of Covid-19 Pandemic
The stateless sure have secured a very perfect life if the covenants and legal frameworks are to be believed but the reality is grim. Ethnic cleansing, nations breaking up, war-time displacement, failure to acquire citizenship post nations gaining independence have all contributed to the staggering number of people who are today classified as the stateless. Adding to this long list is the recent wave of chaos infused by Covid-19 Pandemic.
The UDHR refers to health as part of the right to an adequate standard of living in its Article 25. This is also recognised in Article 12 of ICESCR. Stateless people have a high risk of being left behind in the COVID-19 response because of the invisible nature of statelessness. Millions of stateless people miss out on COVID-19 vaccinations because they lack identity papers and are essentially invisible to the authorities. Due to lack of legal status and poor communication, they could be barred from accessing testing, treatment and other social services as all of these require digital IDs or identity documents. Financial assistance measures as State aid programs are often restricted to nationals, specific vulnerable groups with residence permits, or permanent residence holders only and remain inaccessible for the stateless. In fact, in case of crisis, states are naturally inclined towards protecting their nationals first leaving the stateless scrambling for basic necessities. This suggests a deep systemic bias in States’ policy responses to COVID-19.
A number of countries such as Spain, Portugal, Turkmenistan, Lebanon, Kuwait and Jordan have now adopted good practises suggested by the UN and are offering universal COVID-19 vaccination. In the UK, undocumented migrants, including stateless people, will be able to receive the vaccine without having their data shared with the police.
Malaysia and Ireland both have created a sort of firewall between health services and immigration authorities during the crisis, allowing undocumented migrants to access services without fear and the promise of no-arrest of people without documents has been made.
To ensure that national vaccination plans are as inclusive as possible, UNHCR has urged authorities in host countries to accept alternative forms of proof of identity than nationality or identity cards. Even with all of these measures, nations are still struggling to include the stateless in their vaccination drives with millions still awaiting their jabs. This calls for assessment of the shortcomings of laws set in place for the stateless.
(In)Adequacy of Laws Governing the Stateless
As of January 2022, 77 States have joined the 1961 Convention and the 1954 Convention has 23 Signatories and 96 Parties. The very first issue that can be pointed out is that the provisions of both the conventions refer only towards contracting states but as it can be seen from the statistics, there are a number of countries which are not a part of either of the conventions.
Similar to the situation of Internally Displaced Persons, there is no specialised body that either deals with the problem of statelessness, or supervises the 1954 and 1961 Conventions. Although UNHCR was provisionally asked to supervise as required under Article 11 of 1961 Convention, it has not assumed any wider responsibilities regarding issues on statelessness.
Inefficacy in dealing statelessness is sometimes due to its definition. According to the 1954 Convention, a stateless person is “a person who is not considered as a national by any State under the operation of its law.” This understanding, being a purely legal description, entails de jure statelessness; the value of a particular person’s nationality as it is in their home state is irrelevant to the definition. Despite being concise and unambiguous, the definition is too limiting as it excludes persons whose citizenship and nationality cannot be proved or verified.
The definition of statelessness should also include de facto statelessness. Persons who are de facto stateless often have a nationality according to the law, but this nationality is not effective or they cannot prove or verify their nationality. This can occur when governments withhold the usual benefits of citizenship, such as protection, and assistance, or when persons relinquish the services, benefits, and protection of their country.
Furthermore, the provisions are not exactly obligatory and this results in substandard implementation. For example, the 1954 Convention nowhere ‘strictly’ mandates States to admit stateless persons to their territory. This renders the stateless nowhere to go back to as a place of former habitual residence might not exist for them. In such cases, admission to the State and permitting legal stay may be the only solution.
This lack of a strict mandate results from the fact that States are bound by the principle of prohibition of refoulement. Since this is accepted as a core principle of international law, it was deemed unnecessary to enshrine it in the articles of a Convention that is regulating the status of de jure stateless persons. However this has led to states exercising limitless discretion whilst dealing with stateless.
Inconsistent Domestic Regimes: An example of India
The non-binding nature of the conventions and International law in general has led to non-signatory states following laws of their own in this regard. Although many of the non-signatory states strive to protect the stateless, lack of special laws leave room for error and discretion. To understand this aspect, reference may be made to India.
In India, there are various statutes in place to protect the rights of people irrespective of whether they are Indians or not. However, there has not been any invested effort to work particularly in the direction of the stateless. It has not signed either of the two international conventions on statelessness.
The Indian Judiciary has often noted the inadequacy of India’s domestic laws on statelessness and its disastrous consequences. The Indian Foreigners Act, 1946 is the primary law to regulate the entry, presence and departure of foreigners from India. Section 2(a) of the Act defines a foreigner as- “a person who is not a citizen of India”. The definition is ambiguous about inclusion of stateless persons within it.
Under Part II of the Passport Rules, 1980, “stateless persons residing in India, foreigners, whose country is not represented in India, or whose national status is in doubt” may qualify for a ‘Certificate of Identity’. The Passports Act is the only law that recognises such persons in their own category and provides them with an identification document.
In various cases, the Indian judiciary has helped form a concrete idea about India’s stance on statelessness. However, there are certain limitations to what the judiciary can do as citizenship and its conferral is an executive function in India, and any attempt to step into the shoes of the executive to address issues of statelessness would be considered as judicial overreach.
This situation perfectly captures a case of inadequacies in domestic laws. The judiciary’s role will be insufficient unless accompanied by comprehensive legislative and policy changes. India must accede to the 1954 and the 1961 Statelessness Conventions and adopt a national legislation consistent with international law on statelessness.
How the United Nations can Extend Help
Creation of a supervisory body to ensure that the 1954 Convention relating to the Status of Stateless Persons is properly implemented is required as even though the UNHCR is a competent body, it is not fully equipped in terms of resources and expertise to handle the wide arena of statelessness. UNHCR appointing a Special Rapporteur on Statelessness is also required.
Although, right to nationality has been recognised in Article 15 of UDHR, the body does not define nationality. This requires International bodies and courts to refer to other instruments and their interpretations to understand nationality.
The idea of ‘genuine connection’ between the individual and the State should be integrated into the UN’s idea of nationality. This is first considered from a State-centric perspective, based on the ICJ’s Nottebohm decision which establishes the limitations of nationality where such connection is absent, and then from a human rights understanding based on the idea of an individual’s ‘own country’ to form an understanding of the right to a nationality.
The concept of ‘own country’ also helps in understanding in situ statelessness. The impossibility of leaving or returning to a country or travelling at all is a common consequence of statelessness. Thus, the human right to enter and leave one’s own country is an important concept to consider when trying to resolve statelessness.
In many countries, the fact that stateless people live on the margins of society and are undocumented makes identification difficult. Better statistics would result in better utilisation of resources and policy decisions. This requires an unambiguous definition, common standards and concerted efforts by the UN and the nations. Effective mobilisation of state and non-state actors in determining population censuses can be beneficial.
The UN can help governments to make changes to their domestic legislations to help integrate the stateless as nationals. It can partner with NGOs, civil society organisations and media to relay those changes to the stateless along with arranging legal advice and representation for them.
How can Different Countries Extend Help
States should adopt measures such as incorporating census questions or answer categories to allow stateless people to be identified during national census exercises and verification of population registries and immigration databases to perfect the data on stateless people.
Acquisition of nationality should be promoted, usually of the country with which stateless people have the strongest ties. Naturalisation is also a very effective means. Some municipal laws have been working tirelessly to eradicate statelessness.
In May 2017, the Constitutional Court of the Russian Federation declared in the case of Noé Mskhiladze v Russia that the Administrative Code of Russia has to be changed in order to give stateless detainees the right to appeal in court against the deprivation of their freedom. This decision was based on the earlier decision of Kim v Russia, in which it was concluded that Russian authorities should adopt general measures, including a periodic court revision of the purpose of detention and length of detention.
In 2020, Russia released a draft version of the new procedural code of administrative offences with changed regulations on ways and terms of possible detention of third country nationals and stateless persons accused of violating Russia’s migration rules. The accused can now be placed in a special detention facility based on the court decision indicating a particular period for the detention.
Also, the time spent in detention cannot exceed 90 days but can be extended for another 90 days only through court’s mandate. That equips the detainees to appeal their detention once within three months.
Apart from exemplary measures like these, states should include the idea of statelessness in their domestic laws. This idea should be formed and interpreted consistently with international law on the subject. Apart from co-operation with the UN, the domestic data and figures should be shared with regional academia to further the collective understanding of the scale and reach of statelessness. Financial support should be extended to these communities.
There are certain points that might help to mitigate the crisis of statelessness. There should be limits on states’ discretion in the conferment or loss of nationality in order to prevent or reduce statelessness.
Frameworks formulated to curb statelessness should be incorporated into substantive laws to increase accountability and justiciability. The 1954 Convention does not prescribe a particular procedure for the determination of whether a person is a stateless person. Many stateless people have never crossed borders and find themselves stateless in their own country (in situ stateless persons). Thus, the process determination of status of a person should be intricate and efficient.
Additionally, as there is no single understood meaning of the expression ‘Statelessness’ or ‘Stateless’ the task of analysing their nature and subsequently their position in international law is very difficult. Consequently, a system of either infliction of sanctions upon violations or recognition of their contribution to the needs of the community is equally difficult. Thus, a clear legislative meaning is needed.
Statelessness stems directly from nationality and citizenship issues. As stated by Shearer and Opeskin, ‘Nationality is essentially an institution of domestic law but it has consequences in international law.’ It is also important to realise that the stateless are not without potential and their integration into the civil society can be, by all means, beneficial to the host state too.
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