Guestblog By Laura van Waas, Co-Director of the Institute on Statelessness and Inclusion, and Assistant Professor at Tilburg Law School.

1924 – the year in which the League of Nations adopted a resolution mandating the identification of questions which are “sufficiently ripe” for regulation by international agreement, paving the way for the elaboration of the first international convention aimed to abolish statelessness.

2024 – the year by which statelessness will (finally) be brought to an end, according to the goal set by the global campaign spearheaded by the Office of the United Nations High Commissioner for Refugees (UNHCR).

This blog looks at the 100-year (hi)story of the international community’s response to the phenomenon of statelessness. It explores four key chapters: the early international agreements which set the first limits on states’ freedom to regulate nationality; the post-WWII response by the United Nations to the scourge of statelessness; the emergence of the right to a nationality as a fundamental – and justiciable – human right; and finally the launch of a bold and ambitious campaign to eradicate statelessness once and for all.

Chapter 1: Nationality becomes a matter of international law

In the early 20th century, regulating access to nationality fell entirely within the reserved domain of states and was not subject to any rules of international law. When, in 1923, the Permanent Court of International Justice concluded as much in its Advisory Opinion No. 4 on Nationality Decrees in Tunis and Morocco, it did nevertheless acknowledge that this jurisdiction of states could be limited by obligations undertaken in this area towards other states. It was not long before the first international rules were put in place.

In September 1924, the Assembly of the League of Nations adopted a resolution establishing a Committee of Experts to “prepare a provisional list of the subjects of International Law the regulation of which by international agreement would seem to be most desirable and realisable and the present moment”. At its first session, the Committee of Experts identified eleven such subjects and “conflicts of laws regarding nationality” was first on that list. During successive meetings, as the Committee sought to “confine its inquiry to problems which it thought could be solved by means of conventions without encountering any obstacles of a political nature”,[1] the list of topics was reduced. In the end, just three questions remained when the League of Nations proceeded to convene of a conference to codify international rules: Nationality; Territorial Waters; and Responsibility of States for Damage done in Their Territory to the Person or Property of Foreigners.

On a brisk spring day in April 1930, delegates at Codification Conference in the Hague adopted the Convention on certain questions relating to the conflict of nationality laws, along with three Protocols. This was a watershed moment in the international community’s dealings with nationality issues. The Convention recognised that “it is in the general interest of the international community to secure that all its members should recognise that every person should have a nationality [and] the ideal towards which the efforts of humanity should be directed in this domain is the abolition of all cases of statelessness”.[2] With this ideal in mind, the Convention elaborates the first set of international rules through which states can minimise the incidence of statelessness (and dual nationality, also deemed a problematic legal anomaly at the time).

Chapter 2: Statelessness in the aftermath of WWII

When the Second World War concluded, among the challenges that states were left to confront was the large-scale displacement and denationalisation of people which had accompanied the conflict. The Economic and Social Council (ECOSOC) of the recently formed United Nations requested the Secretary-General to undertake a study of this problem, in order to understand whether further international standard setting was required. The UN’s Study of Statelessness, published in 1949, observed that although “statelessness is a phenomenon as old as the concept of nationality [it had now] assumed unprecedented proportions”.

The findings of the study prompted the inclusion of statelessness in the early work of the UN. Eventually, three instruments were elaborated. The first was adopted in 1951, the Convention relating to the Status of Refugees, dealing with the treatment of those who had been forced to flee their country due to a well-founded fear of persecution and who may or may not also have been denationalised.[3] It has become the cornerstone of international refugee protection across the globe. The second was a sister instrument, whose adoption was delayed until 1954, the Convention relating to the Status of Stateless Persons. The aim of this instrument was “to regulate and improve the status of stateless persons by an international agreement”[4] and it remains a pivotal piece of the international law arsenal in respect of statelessness, not least because it contains the international legal definition of a “stateless person” (someone who is not considered as a national by any state under the operation of its law). The third and final UN instrument was concluded in 1961 and is guided by the recognition that, while it is important to ensure that stateless persons are accorded certain minimum standards of treatment, ultimately “it is desirable to reduce statelessness by international agreement”.[5] Thus, the Convention on the Reduction of Statelessness echoes and builds on the earlier League of Nations efforts to prescribe safeguards which will enable statelessness to be avoided.

Chapter 3: The right to a nationality

At the same time that the UN was studying the problem of statelessness, it was also taking its first steps in a related field of international law which has since developed at astounding pace: human rights. The Universal Declaration of Human Rights, adopted in Paris on the 10th of December 1948, proclaims that “everyone has the right to a nationality” (article 15). This is another milestone in the history of the international community’s engagement with the question of nationality because it marks the beginning of an evolution from a technical issue around which states may take on certain international obligations to deal with conflicts of laws, to a matter of human rights.

Taking their cue from the Universal Declaration, most of the multitude of binding human rights instruments which were subsequently elaborated at the UN level and within emerging regional human rights frameworks contain some affirmation of the right to a nationality. For instance, the International

Covenant on Civil and Political Rights (article 24) and the Convention on the Rights of the Child (article 7), among others, protect the right of every child to acquire a nationality. Discrimination in the enjoyment of the right to a nationality, on the grounds of race or ethnicity, or sex, or disability, is prohibited under the terms of the Convention on the Elimination of All Forms of Racial Discrimination (article 5), the Convention on the Elimination of All Forms of Discrimination Against Women (article 9) and the Convention on the Rights of Persons with Disabilities (article 18).

Over the course of the second half of the 20th century then, the story of statelessness becomes a story of human rights – statelessness being a severe form of violation of the right to a nationality. As we entered the 21st century, this important development was consolidated as a series of cases decided by human rights courts and committees. In cases brought before the Inter-American Court of Human Rights,[6] the African Committee of Experts on the Rights and Welfare of the Child,[7] the European Court of Human Rights,[8] the African Commission on Human and Peoples’ Rights[9] and even the Court of Justice of the European Union,[10] rulings have been guided by the recognition of nationality as an inherent part of a person’s social identity and by the understanding that statelessness should be avoided. The right to a nationality is not just a human right, it is a justiciable one and states can be held to account for their laws and decisions on nationality.

Chapter 4: #ibelong

The most recent chapter in the story of statelessness commenced on the 4th of November, 2014. On this day, UNHCR launched #ibelong campaign, accompanied by its Global Action Plan to End Statelessness 2014-2024. Inspired by the increasingly bold talk of working towards solving statelessness by the then High Commissioner for Refugees, Antonio Guterres,[11] UNHCR elaborated this 10-point plan with the aim of eradicating statelessness within a decade.

The ambition, as this (hi)story has demonstrated, is not a new one – but there is a renewed sense of both urgency and momentum. With the UN’s statelessness conventions and human rights law providing the necessary foundations and guidance for action, and the ever-growing interest in the issue among states, civil society and UN actors, and academia, the right ingredients are there. Even so, there is much work to be done and the clock is ticking ever louder by the day to find a pathway to nationality for the world’s over 15 million stateless persons.[12]


 

[1] See for this and a further history of the 1930 Hague Codification Conference, United Nations, Documents on the Development and Codification of International Law, Supplement to American Journal of International Law, Volume 41, No. 4, October, 1947, available at: http://legal.un.org/ilc/documentation/english/ASIL_1947_study.pdf. Also available via the Peace Palace Library Catalogue.

[2] Preamble to the 1930 Hague Convention on certain questions relating to the conflict of nationality laws.

[3] For more on the nexus between statelessness and displacement, see this scoping paper by the Norwegian Refugee Council and Tilburg University (2015): http://www.institutesi.org/stateless_displacement.pdf.

[4] Preamble to the 1954 Convention relating to the Status of Stateless Persons.

[5] Preamble to the 1961 Convention on the Reduction of Statelessness.

[6] Including Yean and Bosico v. Dominican Republic, 2005.

[7] Including Children of Nubian descent v. Kenya, 2010.

[8] Including Genovese v. Malta, 2011 and Mennesson v. France, 2014.

[9] Including Amnesty International v. Zambia, 1999.

[10] Including Rottmann v. Freistaat Bayern, 2010.

[11] In his speech at a 2011 Ministerial meeting on international protection of refugees and stateless persons, Guterres said “together we must go beyond acknowledging the problems of stateless people. What they really need are solutions. Solutions that enable them to secure a nationality and enjoy the full rights of citizens”. See http://www.unhcr.org/4ecd0cde9.html. In 2012, he made a statement to UNHCR’s Executive Committee in which he called on states “to make a firm commitment to ending statelessness within the next decade”. See http://www.unhcr.org/506987c99.html.

[12] See for a global overview of situations of statelessness The World’s Stateless report by the Institute on Statelessness and Inclusion (2014), available at: http://www.institutesi.org/world/report.php.

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