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...analyzing the definition of statelessness and methods for practical implementation. Approaches taken by EU Member States to the identification and recognition of stateless persons on their respective territories are assessed, and recommendations aimed at furthering harmonization of approaches as between States are outlined.
Resume
Cet article propose une evaluation de la mise en application de la Convention de 1954 relative au statut des apatrides a la date de 2003 dans les 15 Etats membres de l'Union Europeenne. L'etude fait un bref survol de l'historique de la Convention de 1954, de son contenu et de son objectif, analysant la definition de l'apatridie et des fagons d'appliquer la convention dans la pratique. Elle evalue les approche adoptees pas les divers Etats membres de l'Union Europeenne pour l'identification et la reconnaissance des personnes apatrides sur leur territoires respectifs et fait des recommandations pour harmoniser les approches entre Etats.
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I. Executive Summary
Within the European Union, thirteen of the fifteen current Member States are party to the 1954 Convention relating to the Status of Stateless Persons. Therefore, there is a potential legal framework within the EU for identifying cases of statelessness and for furthering appropriate solutions at the national level which are compatible with EU policy and legal principles. This study has been undertaken to provide an overview of the tools and mechanisms in place, or needed, to promote the implementation of the 1954 Convention within EU Member States and to outline any additional steps recommended for harmonization.
The study provides a brief overview of the history, object, and purpose of the 1954 Convention. Article 1 defining a stateless person is analyzed and methods for practical implementation considered. The study reviews the approaches taken by EU Member States to the identification and recognition of stateless persons on their respective territories. The implications of recognizing someone as stateless, and the approaches taken by various EU Member States to providing access to the rights outlined in the Convention, are assessed. Recommendations concerning implementation of the 1954 Convention within Member States aimed also at furthering harmonization of approaches as between States are outlined below.
The 1954 Convention attempts to resolve the legal void in which the stateless person often exists, by identifying the problem of statelessness, promoting the acquisition of a legal identity, and providing for a legal status which will serve as a basis for access to basic social and economic rights. The Convention is the primary international instrument adopted to date to regulate and improve the legal status of stateless persons and to ensure to stateless persons fundamental rights and freedoms without discrimination. For those persons who are stateless refugees, Who have a well-founded fear of persecution, the 1951 Convention and related legal regime is the relevant reference point. The 1954 Convention was adopted to cover those stateless persons who are not refugees and who are not, therefore, covered by the 1951 Refugee Convention.
UNHCR has a particular role to play concerning statelessness. The Office advocates globally for enhanced co-operation between States to assess situations of statelessness and to further appropriate solutions aimed at ensuring that all stateless persons have a legal status. Over the past decade, UNHCR has expanded its activities worldwide to work with States toward the prevention and reduction of statelessness. Problems continue to persist, nevertheless, and until international efforts result in the abolishment of statelessness, persons affected should have access to procedures designed to identify their particular problem of statelessness, to documentation and a legal identity, and to a minimum standard of rights to ensure their security. It is against this backdrop that the 1954 Convention is highly relevant in Europe today.
The 1954 Convention provides the internationally recognized definition of a stateless person in Article 1 of the instrument. This is the basis on which States can determine at the national level to whom the Convention will apply. It is also an appropriate basis for harmonization of approaches as between States by providing a common reference point defining statelessness. Each State Party determines through its own procedures whether a person fits the definition of a stateless person outlined in Article 1. Clearly, the first criterion for application of the Convention to an individual is that the person is found by the State concerned to be stateless.
As concerns the recognition of stateless persons and the approach to solutions, practice in the EU varies, with very few of the Member States possessing a specialized procedure dedicated to examining an applicant's claim of statelessness. If, however, States do not approach Article 1 with a common interpretation or application, it will be difficult to harmonize implementation of the Convention overall or, indeed, for decisions taken by one State party to be recognized as between States parties. This could mean that a single case will arrive at various results depending on the State in which the stateless person lodges an application. As such, the lack of specialized procedures may be a compelling factor in pushing individuals from one jurisdiction to the next, or from one procedure to another within the same State. As one of the key objectives of the 1954 Convention is to promote the acquisition of a legal identity for a stateless person in one State, which will be widely recognized by other States, a lack of harmonized interpretation or implementation of Article 1 risks limiting the benefits of this instrument for both States and individuals concerned. The lack of specialized procedures also makes it impossible to determine the magnitude of the problem of statelessness within EU Member States, as there may be many cases of statelessness which go unnoticed or unidentified.
The possibility, in appropriate cases, for a stateless person to secure residence is of particular importance given that it is essentially through this that the individual will be able to access the full rights and benefits provided for in the 1954 Convention. In European Union Member States, rights and benefits available to stateless persons are often attached to the type of residence permit granted. Those granted leave to remain on humanitarian grounds may receive rights equivalent to those of recognized refugees. In other States, economic and social rights may not be granted to persons permitted to stay on humanitarian grounds or under temporary leave to remain. Family reunification rights may vary depending on the type of stay granted.
Many of the social and economic benefits outlined in the Convention are provided for within the national legal systems of EU Member States, although they may be tied to grant of a residence permit. Once a foreigner has residence in an EU Member State, social and economic rights are similar to those for nationals of the Member State concerned, although certain distinctions may be found such as the extent of social welfare. Certain rights may also be linked to the grant of permanent rather than temporary residence. It must be noted, however, that there is no common EU approach to the determination of statelessness under Article 1 of the 1954 Convention. Consequently, there is a lack of harmonization specific to recognized stateless persons of the remaining provisions of the 1954 Convention. Therefore, variations between States will inevitably arise with regard to who is considered stateless as well as in responses adopted to address statelessness. Moreover, under certain provisions of the 1954 Convention, recognition within one State is expected to give rise to entitlements in all other Contracting Parties. However, without harmonization of approaches, discrepancies in the implementation of these entitlements and, therefore, regulation of the movement of persons between Member States are also possible.
For purposes of this study, a key objective was to analyze the tools and mechanisms in place to address issues of statelessness. Without the tool or mechanism in place to identify and recognize stateless persons specifically with regard to their statelessness, the remaining provisions of the Convention will be available to stateless persons only insofar as they are available to populations generally. The lack of a framework specific to stateless persons is, in fact, a key finding of the study and the basis on which recommendations have been elaborated. Nonetheless, there are various best practices noted at the national level which could guide on approaches to harmonization between Member States. These have served as a backdrop to the recommendations outlined below.
II. Recommendations
* States are encouraged to adopt a designated procedure under Article 1 of the 1954 Convention, designed to facilitate access to the statelessness determination process and to identify stateless persons.
* In facilitating solutions, States are encouraged to adopt legislation regulating the transit or entry, as well as the rights and duties, of recognized stateless persons.
* Specialized units with dedicated decision makers are needed as an integral aspect of application of the 1954 Convention. States, in co-operation with UNHCR, are invited to introduce specialized training and to disseminate guidelines on the implementation of the 1954 Convention and on identification of stateless persons.
* As far as possible, States should ensure information exchange, legal assistance, translation services, and other administrative support to facilitate procedures, including personal interviews with the applicant where applicable.
* Decision-making authorities are encouraged to adopt collaborative approaches in receiving and analyzing relevant information as it pertains to the determination of an individual's claim concerning statelessness.
* States are invited to introduce mechanisms to promote the acquisition of lawful stay, in appropriate cases, for recognized stateless persons, in particular for those who have no alternate option. Consultations concerning the type of procedure and status granted by each EU Member State should be promoted with a view to harmonization.
* Efforts should be made to facilitate the documentation of stateless persons, to issue the Convention Travel Document where appropriate, and to establish procedures for the recognition of such documentation as between EU Member States.
* In cases where readmission agreements are concluded, States should pay particular regard to ensuring a legal status is secured for stateless persons in the country concerned.
* Efforts should be made to harmonize approaches to those specific provisions of the 1954 Convention which stipulate treatment equal to that of national in the State of habitual residence as well as in other EU Member States.
* UNHCR and States are invited to enhance co-operation and exchange of information concerning the determination of statelessness and with regard to the most appropriate solutions.
* Those EU Member States which have not yet acceded to the 1954 Convention are encouraged to give renewed consideration to early ratification of this instrument.
III. Introduction
In recent years, statelessness has arisen in a number of contexts within Europe. In some instances, statelessness has been associated with displacement and has overlapped with refugee flows. Statelessness issues have been relevant to conflict prevention and to post-conflict resolution. Significant challenges arose in the context of the succession of States and the determination of nationality (1) status within States emerging from dissolution. Equally, States regaining independence were faced with how to address nationality questions arising on their territory. Events such as these impact not only the State concerned, but also States to which individuals might travel or with which persons have prior links.
While many States are diligent in ensuring persons born on their territories or born abroad to their nationals are not rendered stateless under national laws, problems of statelessness may still arise in the context of aliens entering or residing in their territories. In consultations with the European Union held under the Spanish Presidency in January of 2002, the Office of the United Nations High Commissioner for Refugees (UNHCR) outlined the problem of statelessness in the context of the scope and content of international protection. Participants noted that the problem of statelessness has taken on new dimensions in the European context. (2)
Within the European Union, thirteen of the fifteen current Member States are party to the 1954 Convention relating to the Status of Stateless Persons. (3) In principle, therefore, there is a legal framework within the EU for identifying cases of statelessness and for furthering appropriate solutions at the national level which are compatible with EU policy and legal principles. This study has been undertaken to provide an overview of the tools and mechanisms in place, or needed, to promote the implementation of the 1954 Convention within the current fifteen EU Member States and to outline any additional steps recommended for harmonization. (4) The findings of the study will, moreover, be relevant for purposes of harmonization of approaches within future Member States as well.
The study provides a brief overview of the history, object, and purpose of the 1954 Convention, shedding light on how the instrument should be interpreted and applied. An analysis of Article 1 defining a stateless person is outlined with methods for practical implementation considered. The study reviews the varied approaches taken by EU Member States to the identification and recognition Of stateless persons on their respective territories. The implications of recognizing someone as stateless and the approaches taken by various EU Member States on providing access to the rights outlined in the Convention are considered. Recommendations to support the full implementation of the 1954 Convention within each Member State, and to promote harmonization of approaches as between States, have been outlined.
The project has been funded with support from the European Commission. Collaboration with partners, such as the European Commission, in promoting implementation of the 1954 Convention within the EU will help to address particular problems faced by stateless persons and to reduce such cases.
A. History of the 1954 Convention
In 1948, the Economic and Social Council of the United Nations requested the Secretary General to undertake a study and to make recommendations on the situation of stateless persons. (5) This study led to the formation of an Ad Hoc Committee on Statelessness and Related Problems considering, inter alia, the desirability of a revised convention relating to the status of refugees and stateless persons. (6) In February 1950, the Ad Hoc Committee completed its work with the adoption of a Draft Convention relating to the Status of Refugees and an accompanying Protocol relating to the Status of Stateless Persons.
Consequently, the United Nations General Assembly decided to convene a conference of plenipotentiaries, which adopted in 1951 the Convention relating to the Status of Refugees. (7) The draft Protocol relating to the Status of Stateless Persons was not adopted at the Conference. Instead, it was communicated by the UN Secretary General to governments with the request that they comment on those aspects of the 1951 Convention they would be prepared to extend to non-refugee stateless persons.
In 1954, after the 1951 Convention had already come into force, a new Conference of Plenipotentiaries was convened in New York to revise the Draft Protocol on the Status of Stateless Persons. During the Conference, however, the delegates decided to sever the Protocol from the 1951 Convention as it became clear that a separate instrument would be needed. (8) The end result was the completion of a distinct Convention completely separate from the 1951 Convention, which was opened for signature on 28 September 1954. (9)
The overlap between problems of statelessness and refugee flows was considered substantial in post-war Europe, requiring preparation of a legal framework designed to address both problems. Yet not all stateless persons actually become refugees or necessarily cross borders. Moreover, States have well-established approaches to the determination of nationality which, while not problematic internally, may inadvertently collide with the established and equally legitimate approaches of another State. Hence, some cases of statelessness arise as oversights or conflicts in legal approaches and are not the result of discrimination or deliberate denial of human rights. For such reasons, a comprehensive legal framework specifically tailored to the problem of statelessness was deemed necessary and, accordingly, was prepared under the auspices of the United Nations.
B. Object and Purpose of the 1954 Convention
The 1954 Convention attempts to resolve the legal void in which a stateless person often exists by identifying the problem of statelessness, promoting the acquisition of a legal identity, and providing, in appropriate cases, for residence which will serve as a basis for access to basic social and economic rights. The 1954 Convention relating to the Status of Stateless Persons is the primary international instrument adopted to date to regulate and improve the legal status of stateless persons and to ensure to them fundamental rights and freedoms without discrimination. For those persons who are stateless refugees, who have a well-founded fear of persecution, the 1951 Convention and related legal regime is the relevant reference point. (10) The 1954 Convention was adopted to cover those stateless persons who are not refugees and who are not, therefore, covered by the Refugee Convention. (11)
The international community has long since seen the need to promote the avoidance and reduction of cases of statelessness, as aspects of conflict prevention, post-conflict resolution, and reduction of cases of displacement, and as part of the protection of the human rights of individuals. Article 15 of the 1948 Universal Declaration of Human Rights declares each person has an inherent right to a nationality. (12) The challenge is in determining which nationality a person may have a right to. Mechanisms for the application of Article 15 were given concrete form by way of two international instruments concerning statelessness, the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. (13)
These Conventions outline a comprehensive legal framework to avoid the creation of cases of statelessness (1961 Convention) and to ensure that, at a minimum, individuals are granted a legal status which provides them with a measure of stability and, in appropriate cases, normalizes their stay in a given country (1954 Convention). This, in turn, significantly decreases the potential for displacement. It also provides a reference point for resolving cases which might arise between States. In brief, the 1954 and 1961 Conventions provide a ready-made framework for addressing one of the consistent challenges to effective protection arising both in and between States. By seeking to ensure everyone has their right to a nationality in practice, this legal framework places emphasis on securing national protection for persons who might otherwise be in need of international protection. It must be noted that if all States actively applied the provisions of the 1961 Convention, there would be a decrease in the number of cases arising in relation to the 1954 Convention. (14) In this regard, comprehensive efforts to promote the avoidance of statelessness altogether will necessarily be coupled with increased efforts to secure and protect a nationality for all persons through the effective application of nationality laws globally. (15)
C. UNHCR's Role Concerning Statelessness
UNHCR has been requested to undertake specific activities to assist States in avoiding and reducing cases of statelessness globally. (16) In 1974, the United Nations General Assembly requested UNHCR to assume temporarily the responsibilities foreseen in Article 11 of the 1961 Convention, of a body to which a person claiming the benefit of the Convention may apply for the examination of his claim and for assistance in presenting it to the appropriate authority. (17) In 1976, this role was renewed and extended indefinitely. (18)
In 1995, UNHCR's Executive Committee in its Conclusion No. 78 on statelessness requested UNHCR to promote accession to the 1954 and 1961 Statelessness Conventions and to provide technical and advisory services pertaining to the preparation and implementation of nationality legislation to interested States. (19)
UNHCR advocates globally for enhanced co-operation between. States, in consultation with other concerned organizations and civil society, to assess situations of statelessness and to further appropriate solutions aimed at ensuring that all stateless persons have a legal status. Increased accessions to and implementation of the Statelessness Conventions will help to address the particular problems faced by stateless persons and to reduce such cases.
While progress has been made in identifying cases of statelessness and in promoting appropriate solutions, numerous cases of statelessness continue, with new cases arising due to various factors such as: conflicts of laws between States; transfer of territory; laws relating to civil status and marriage; administrative practices; discrimination and denationalization; lack of registration or documentation of births and marriages; inheritance of statelessness; renunciation or loss of nationality without the acquisition of an alternative nationality; and automatic loss due to residence abroad. (20)
Over the past decade, UNHCR has expanded its activities worldwide to work with States toward the prevention and reduction of statelessness. Problems continue to persist, nevertheless, and until international efforts result in the abolishment of statelessness, persons affected should have access to procedures designed to identify their particular problem of statelessness, access to documentation and a legal identity, and access to a minimum standard of rights to ensure their security. It is against this backdrop that the 1954 Convention is highly relevant in Europe today.
IV. Determining Statelessness
The 1954 Convention provides the internationally recognized definition of a stateless person in Article 1 of the instrument. (21) This is the basis on which States can determine at the national level to whom the Convention will apply. It is also the appropriate basis for harmonization of approaches as between States. Each State Party determines through its own procedures whether a person fits the definition of a stateless person outlined in Article 1. Clearly, the first criterion for application of the Convention to an individual is that the person is found by the State concerned to be stateless. (22)
If the person is found not to be stateless, the Convention will not be applicable. Existing State practice in the EU varies, with very few of the Member States possessing a specialized procedure dedicated to examining an applicant's claim of statelessness. If, however, States do not approach Article 1 with...
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