Statelessness

From Wikipedia, the free encyclopedia

Spanish gypsy girls, 1917. Statelessness characterises the existence of nomadic Gypsies

Statelessness is the legal and social concept of a person lacking belonging (or a legally enforceable claim) to any recognised state. Statelessness is not always the same as lack of citizenship.

De jure statelessness is where there exists no recognised state in respect of which the subject has a legally meritorious basis to claim nationality.

De facto statelessness is where the subject may have a legally meritorious claim but is precluded from asserting it because of practical considerations such as cost, circumstances of civil disorder, or the fear of persecution.

Statelessness most commonly affects refugees although not all refugees are stateless, and not all stateless persons may be able to qualify as refugees. Refugee status entails the extra requirements that the refugee is outside their country of nationality (or country of habitual residence if stateless), and is deserving of asylum based upon a well-founded fear of persecution for categorized reasons which make him/her unwilling or unable to avail the protection of that country.

[edit] Stateless person

A stateless person is someone with no citizenship or nationality. It may be because the state that gave their previous nationality has ceased to exist and there is no successor state, or their nationality has been repudiated by their own state, effectively making them refugees. People may also be stateless if they are members of a group which is denied citizen status in the country on whose territory they are born, if they are born in disputed territories, if they are born in an area ruled by an entity whose independence is not internationally recognized, or if they are born on territory over which no modern state claims sovereignty.

Individuals may also become stateless voluntarily, by formally renouncing their citizenship while on foreign soil; however, not all states recognize such renunciations on the part of their citizens. Often, depending on the specific laws of the countries involved, one may not renounce a citizenship unless one is a dual citizen and can show citizenship in a country other than that of the undesired citizenship. Consulates do not want to deal with the complications associated with statelessness if they can avoid it. However, consular officials are unlikely to be familiar with all citizenship laws of all countries, so there still can be situations where statelessness might arise. For example, children born outside Canada to a Canadian parent or parents are, under certain circumstances, required to establish Canadian residency by age 28 or lose Canadian citizenship. If such a person held dual citizenship and, as a young adult, renounced the second citizenship on the strength of his or her Canadian passport, and then subsequently failed to establish the required Canadian residency, he or she could end up stateless.

Some areas, such as the West Bank which is under a military occupation by a country which does not issue passports to its residents, are home to stateless persons. In some cases, such as that of ethnic Russians in Latvia, conditions for citizenship may be problematic or difficult to satisfy. In some enclave areas, such as parts of Sudan and Afghanistan, people may have no practical contact with a potentially passport-issuing state which nominally claims sovereignty over them.

While stateless persons were more common before the 20^th century, when many states were somewhat fragile entities, on September 20, 1954 the United Nations adopted the Convention relating to the Status of Stateless Persons: an active policy to prevent people becoming or remaining stateless. States which have ratified the Convention are bound to give stateless persons rights similar to those granted aliens of comparable status. Despite this, there are still Kurdish, Palestinian, Sahrawi and Tibetan refugees who claim asylum due to statelessness, for example.

Principle 3 of the 1959 Declaration of the Rights of the Child asserts that:

"The child shall be entitled from his birth to a name and a nationality."

States bound by the 1989 UN Convention on the Rights of the Child are obligated to implement policies and programs to ensure that children's families and national authorities can secure citizenship for every child in the country.

In practice, when a child’s birth is not registered that child’s existence may not be acknowledged and the child may be denied citizenship. Some governing bodies refuse to recognize births — and therefore the existence and the nationality of some children - because of race, ethnicity, or questions of "legitimacy."

Characteristics of statelessness affect Amerasian children and young adults in Southeast Asia. They are commonly fathered abroad by US servicemen and mothers of Asian nationalities.

An attempt to reduce discrimination against women is made in the 1957 Convention on the Nationality of Married Women with its provisions to prevent the automatic acquisition of the husband's citizenship. It also intends to prevent women losing citizenship and becoming stateless if they marry a stateless man.^[1]

[edit] History

[edit] Prior to World War II

_{4th Century BCE Sicilian Impression of a Theatre Slave}

Statelessness characterised the status of slaves and inhabitants of conquered territories in the Greco-Roman world of antiquity. In antiquity, statelessness could be seen to affect captive and subject populations denied full citizenship (see Roman Citizen) including those enslaved e.g. conquered populations excluded from Roman citizenship such as the Gauls immediately following the Gallic Wars; Israelites under Babylonian captivity.

Characteristics of statelessness are seen amongst apostates and slaves in Islamic society; the former being persons shunned by or rejecting their tribal/national/ethno-religious birth identity, the latter being persons separated from that identity and subsumed into an underclass role.

Statelessness has perennially characterised the existence of Roma People by virtue of their nomadic lifestyles over centuries of traversing lands claimed by others.

The Office International Nansen pour les Réfugiés, was an organization of the League of Nations, which was internationally in charge of refugees from war areas from 1930 to 1939. It received the Nobel Peace Prize in 1938. Their Nansen passports, designed in 1922 by founder Fridtjof Nansen, were internationally recognized identity cards first issued by the League of Nations to stateless refugees. In 1942 they were honored by governments in 52 countries and were the first refugee travel documents.

[edit] After World War II

The initial focus of UN Action was the sponsorship of Conventions in 1954 (the 'Status Convention') and 1961 (the 'Reduction Convention') resulting in instruments of international law. Continuing action through the UNHCR encourages member states to take up ratification and address statelessness within their own borders by programs of naturalisation and co-operation with neighbouring states. UNHCR also conducts public education campaigns to highlight the plight of stateless communities in special need.

Outside of the UN, regional initiatives to address statelessness and its associated problems can be seen in multilateral treaty instruments such as the Council of Europe Convention on Reduction of Statelessness in Relation to State Succession.

Migrations forced by political instability during World War II and its immediate aftermath highlighted the international dimension of the problems presented by unprecedented volumes of displaced persons including those rendered effectively stateless.

Dating from December 1948 and with the imprimatur of the world community acting through the United Nations, the Universal Declaration of Human Rights at Article 15 affirms that

1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.

In 1949, the International Law Commission included the topic "Nationality, including statelessness" in its list of topics of international law provisionally selected for codification. At the behest of the Economic and Social Council (ECOSOC) in 1950, that item was given priority.

The Convention Relating to the Status of Refugees was done on 28 July 1951, later attracting the signatures of 145 State parties^{As of late January 2005}.^[2]

The International Law Commission at its fifth session in 1953 produced both a Draft Convention on the Elimination of Future Statelessness, and a Draft Convention on the Reduction of Future Statelessness. ECOSOC approved both drafts.

A Convention Relating to the Status of Stateless Persons was signed in September 1954.^[3] It was complemented by the 'Statelessness Reduction Convention' seven years afterwards.

The 1954 Status Convention provided for the UNHCR to issue travel documents to stateless persons. It urged for stateless persons to be treated at least as fairly as aliens and in some cases to be treated the same as nationals by Contracting States (e.g. in their access to the courts, their rights to movable property, their rights to intellectual property). It also acknowledged the problem of stateless seamen by urging that states should confer their citizenship on such people according to the flags of the vessels to which they are attached. Albert Einstein was a stateless person in the period 1896-1901. In 1933 he was affected by German race laws standing him down from his professorship. He renounced his German citizenship, became a refugee, and was granted asylum in the USA. From 1940 until his death he enjoyed dual citizenship of Switzerland and the USA.

The 1961 Statelessness Reduction Convention was a significant aspirational achievement in working to eliminate the problem of statelessness, or at least the problems associated with it. The Reduction Convention is binding on those states that have ratified or acceded to it and it also works to create norms and to codify and confirm principles of customary international law as they relate to nationality law existing at the time of its formation.

[edit] Statelessness since 1961

1961 marks the year from which the UN proposed to exercise a mandate over stateless persons beyond the production of travel documents upon request for them.

In 1974, the UN General Assembly requested the UNHCR to undertake the functions foreseen under the Reduction Convention.

On 13 December 1975, the 1961 Convention entered into force. There is a poor level of uptake, with only 35 state ratifications or accessions in the period to February 2007.

In 1995, the UNHCR Executive Committee(ExCom) and the United Nations General Assembly (UNGA) requested UNHCR to broaden its activities concerning statelessness to include all states. The office was also asked to gather and share information on the problem of statelessness globally, to train staff and government officials, and to regularly report back to the ExCom.

In 1996 UNHCR was asked by the UNGA to actively promote accession to the 1954 and the 1961 Conventions, as well as to provide relevant technical and advisory services pertaining to the preparation and implementation of nationality legislation to interested states.

Regional instruments, such as the 1997 European Convention on Nationality, have also contributed to protecting the rights of stateless persons. That document underlines the need of every person to have a nationality, and seeks to clarify the rights and responsibilities of states in ensuring individual access to a nationality.

The UNHCR has achieved some success in launching campaigns to prevent and reduce statelessness among formerly deported peoples in Crimea, Ukraine (Armenians, Crimean Tatars, Germans, and Greeks who were deported en masse at the close of World War II).^[4] Another success has been the naturalization of Tajik refugees in Kyrgyzstan, as well as the participation in citizenship campaigns enabling 300,000 Estate Tamils to acquire citizenship of Sri Lanka. The UNHCR also assisted the Czech Republic to overcome the large number of stateless persons created when it separated from Slovakia.

An internal evaluation released in 2001 suggested that UNHCR had done little to exercise its mandate on statelessness. Only two individuals were tasked with overseeing work in that area at UNHCR headquarters, though field officers had been trained to address the issue. There was no dedicated budget line. Concerned organisations such as Refugees International have advocated for the appointment of a permanent UN Special Rapporteur of the Commission on Statelessness^[5]

In 2004, ExCom invited UNHCR to pay particular attention to situations of protracted statelessness and explore with states measures that would ameliorate the situations and bring them to an end.

At the beginning of 2006 the UNHCR claimed to have 'on its books' 2.4 million stateless persons, and made an estimate of 11 million as the size of the stateless population worldwide.^[6]

The greatest populations (over 100,000) of stateless persons are seen to be in the Dominican Republic, Ivory Coast, Congo, Syria, Iraq, Latvia and Estonia, Nepal, Bangladesh, Burma, Thailand, Cambodia and Malaysia. Statelessness is adjudged to be least significant in North America, Oceania, North Africa, Southern Africa, most of South America, and China.^[7]

Palestinians comprise the largest stateless population in the world.^[8] Abbas Shiblak Shiblak estimates that over half of the Palestinian people in the world are stateless.^[9]

[edit] Cases of statelessness

[edit] De facto statelessness

Cases of de facto statelessness have arisen due to historical provisions of British nationality law which led to cases where people have had a British passport without right of abode in the United Kingdom. Those with such status who did not have citizenship or residence rights in any other country were effectively stateless despite holding British nationality. Examples of this include the people in Hong Kong not of Chinese descent after the turnover to the People's Republic of China in 1997.

Effective 30 April 2003, as part of the Nationality, Immigration and Asylum Act 2002 the United Kingdom gave most British nationals without any other citizenship the right to register as full British citizens if they wish and has hence resolved most of the British cases of effective statelessness. A similar case can be seen in illegal aliens who cannot be expelled due to specific provisions (health issues, stateless persons who by definition cannot be expelled to their "original country", refugees who are not accepted by their original state, etc.): they thus live in a judicial no man's land.

[edit] Statelessness in Brunei

Brunei Darussalam, a country in South East Asia, has many stateless persons domiciled there. An important note is that the number of stateless persons increase every year because Brunei does not believe in jus soli but only jus sanguinis citizenship.^[10] This causes serious problems of prejudice and discrimination faced by the parents and their children especially when it comes to immigration affairs whilst traveling. Furthermore, the government of Brunei does not have any process of nationalization. After passive protests by stateless persons (who are permanent residents of Brunei but who hold an International Certificate of Identity passport not recognised by most countries) in the local newspaper, the government responded by allowing stateless persons to become citizens if they sit for a written exam on their language proficiency in Bahasa Melayu (the local language). The test focuses on composition, comprehension, local tradition of the Malay race, local culture and knowledge of the Malay race, traditional Malay poems, the Royal Malay jargan and the names of the persons currently holding high government positions in the government such as ministers. This method of initiation is not without its flaws; many people do not know the language or local Malay culture, especially since many of such stateless persons are of Chinese nationality and because many of these cultures tested on are no longer prominent.

Many who go for this exam take breaks from their work to go for tuition and private study for months just to obtain such knowledge for the exam. Those who do, end up with more local traditional knowledge than most of those people who are granted citizenship naturally by birth. Many people pass this exam but many more others fail and keep on failing after numerous tries. Furthermore, the application process takes years each time. This process has been said to serve no purpose but to deny as many people as the government can from gaining citizenship. Many PR stateless persons feel that such steps by the government are unfavorable and citizenship should be granted to them by right of their birth on Brunei soil. Such practices are in contravention of Article 7 of Convention on the Rights of the Child^[11] which Brunei ratified on 26th January 1996.^[12] Article 7 states the following:

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

[edit] Detainees in Guantanamo Bay

See also: No longer enemy combatant

While detainees in the Guantanamo Bay detention camp with citizenship in countries such as France,^[13] Britain,^[14], Sweden ^[15] or Germany^[16] have at times been released and accepted into their respective countries, other countries have refused to allow former Guantanamo detainees to enter their borders, leaving such detainees hung in a stateless limbo.^[17] 82 such prisoners exist, as of April 2007, denied asylum by the United States and blocked from entering other foreign countries.^[17] A notable group of such prisoners is the Uyghur captives in Guantanamo, members of a Turkic ethnic group in China who refuse to return to China for fear of government persecution. A few of these captives have been granted asylum by Albania, but others still remain imprisoned in Guantanamo.^[17] Other countries refusing to accept Guantanamo prisoners include Yemen and Algeria; the Washington Post reports, "Foreign governments have questioned why U.S. officials should expect other countries to pitch in, given that Washington won't offer asylum to detainees either."^[17]

United States law bans the government from shipping people to countries in which they could be persecuted or tortured; each individual case is reviewed, adding to the length of the extremely slow legal process.^[17] But even prisoners coming from a Western country are not guaranteed admittance: Britain, for example, has refused to accept six immigrants captive in Guantanamo.^[17] Human rights advocates have proposed that the US could shorten the stateless limbo in which the prisoners are held by appealing for help from an international group such as the United Nations, but the US has not done so.^[17]

[edit] In popular culture

A slightly tragicomic portrayal of this condition is the film The Terminal (2004), in which a man is forced to live in an airport due to his unrecognized citizenship status (his homeland had a military coup while he was in transit and the US government refused to recognize its new government). This story was inspired in part by the real-life story of Mehran Karimi Nasseri, who spent almost two decades in the Charles de Gaulle Airport, originally due to conflicts with French law (he refused to claim being an Iranian refugee) plus also the fact he was not welcome in his countries of origin (Iran and Belgium) nor his destination (the United Kingdom). He was eventually granted and served with French immigration documents, but subsequently refused to leave the building.

The book The Death Ship (1926), by B. Traven, describes the predicament of merchant seamen who lack documentation of citizenship and cannot find legal residence or employment in any nation.

In the made for TV movie, The Taking of Flight 847: The Uli Derickson Story (1988), the famed flight attendant Uli, played by Lindsay Wagner, is seen in a late scene singing "Heimatlos" to Castro, the ringleader of the hijackers. "Heimatlos" is a German song referring to the homeless people of the world. Which is why once the lullaby ends, Castro says, "It could be about us."

In Laurel and Hardy's last movie, Atoll K (1951), a stateless refugee Antoine, played by Max Elloy, tries to smuggle himself ashore with shipments of zoo animals. When caught, he pleads, "You land monkeys without a passport, and not human beings." Antoine agrees to sail with Laurel and Hardy to their newly inherited island, since no other land will accept him. En route they discover an uncharted new island, which they name "Crusoeland," and because Antoine was the first to set foot on it, no other nation can claim it and they are allowed to declare it an independent country. Laurel and Hardy explain Antoine's predicament. Hardy: "You see, he's what is known as a stateless man, in other words, a misplaced person." Laurel: "You see, he's lost and he can't find himself."

[edit] References

[edit] See also

• UNHCR
• 1954 Convention Relating to the Status of Stateless Persons
• 1961 Convention on the Reduction of Statelessness
• Bidun
• Non-citizens (Latvia)
• Citizenship
• Nationality
• Office international Nansen pour les réfugiés
• Refugees and Refugee Law

[edit] External links

• Full Convention text of 1961 Convention
• Map showing State Parties to 1961 Convention
• Council of Europe Convention on Reduction of Statelessness in Relation to State Succession
• [1] UNHCR Map (21 August 2006) Stateless Persons and Populations at Risk of Statelessness
• Refugees International 'Global Review of Statelessness'
• British nationality - provisions for reducing statelessness
• Full list of (and links to) treaties on Stateless persons from the Foreign and Commonwealth Office website
• United States IRS Form 8898 (Renouncing citizenship).
• UNHCR page on prevention and reduction of statelessness and protection of stateless persons - background information, tools and news From UNHCR website
• UN Convention relating to the Status of Stateless Persons (full text)

[edit] Further reading

• Stateless Palestinans
• Report describing US contributions to the resettlement of stateless populations in FY2004 and FY2005