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Mon. October 02, 2023
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The Link between Statelessness and Refugeehood
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Statelessness has always been a nationality issue. Yet since 2014 and the launch by the United Nations High Commissioner for Refugees (UNHCR) of a campaign to end statelessness by 2024, it has been highlighted as a protection issue as well. This is a welcome step in the right direction. With some 10 million stateless persons in the world, the UNHCR campaign has focused on the causes and remedies of statelessness. However, it has not actually focused on those stateless persons who also happen to be refugees, whose numbers are estimated to be around 1.5 million people.

This is far from being an academic exercise; the 1951 Convention relating to the Status of Refugees provides far better protection – with a broader range of rights, stronger ratification and more widespread implementation of status determination procedures – than the 1954 Convention relating to the Status of Stateless Persons. Hence, there is a real and pressing need to consider the interaction between statelessness and refugeehood.

International law defines a ‘stateless person’ as someone who is not considered as a national by any state (Article 1 of the 1954 Stateless Persons Convention). A ‘refugee’ on the other hand, is someone who is outside his or her country of nationality or residence, who is able to show a well-founded fear of persecution on specific grounds, and who lacks protection from their country (Article 1A(2) of the 1951 Refugee Convention). Under the 1951 Refugee Convention, nationality is not a pre-requisite for refugee status. Yet nationality can be highly relevant insofar as the lack, loss or denial of nationality often indicates a desire to exclude persons from membership to the community, to discriminate against them, and even to persecute these persons.

Over the years, human rights law has highlighted nationality as ‘amongst the most important rights a state can assign to individuals’ (Trop v Dulles, para.101). Its debilitating effect, particularly on children, is profound. Indeed, the universality of human rights rests on the premise that everyone enjoys a nationality (Article 15(1) of the Universal Declaration of Human Rights). Thus nationality creates a sense of belonging, of membership to a community; it impacts the enjoyments of all other human rights – political, civil, economic, social, and cultural. It is therefore relevant when assessing an application for refugee status. However, for the purpose of Article 1A(2) of the 1951 Refugee Convention, not all discriminatory or arbitrary treatment resulting in a person being excluded from a community, amounts to persecution. Refugee law requires that the treatment in question reach a certain level of severity to be considered as persecution. Hence, statelessness per se does not constitute persecution. The case law of senior national courts across the world suggests that this severity threshold is reached in those cases where the denial of nationality was arbitrary and leads to statelessness. Of the few cases on the subject, most have been rejected because the courts failed to accept that the denial was arbitrary. In cases of deprivation of nationality, courts have similarly failed to find that the withdrawal of nationality by the state constitutes persecution – except where the act was shown to be arbitrary, and the consequences severe enough in terms of denying the enjoyment of basic rights to the individual concerned.

This jurisprudence suggests that legal and political inclusion (access to territory, diplomatic protection, political status of citizenship) continue to hold a privileged status compared to social inclusion and substantive equality (entitlements, indivisibility of human rights, etc.). However, a shift towards a ..

Read this rest and more in the latest issue of  International Affairs Forum, focusing on migration and statelessness, by clicking HERE.

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