Overview
Article 1 (1) of the 1954 Convention relating to the Status of Stateless Persons defines a stateless person as ‘a person who is not considered as a national by any State under the operation of its law'.
This definition is binding on all States parties to the Convention and applies to other States because the International Law Commission has concluded that it is part of international customary law. (Please see page 49 of the International Law Commission, Articles on Diplomatic Protection with commentaries, 2006, which states that the Article 1 definition can "no doubt be considered as having acquired a customary nature". The text of Article 1(1) of the 1954 Convention is used in the Articles on Diplomatic Protection to provide a definition of stateless person.) With the exception of persons who are excluded (under Paragraph 7 of UNHCR's Statute and Article 1(2) of the 1954 Convention), persons who meet this definition are of concern to UNHCR under its mandate.
To establish whether a person is stateless under the definition, it is necessary to analyse how a State applies its nationality law in practice to individual cases and to any review/appeal decisions that may be relevant to the individual's case. The reference to ‘law' in the definition should be read broadly to encompass legislation, but also ministerial decrees, regulations, orders, case law (in countries with tradition of precedent), and, where appropriate, customary practice.
Relevance for emergency operations
Statelessness is often combined with other forms of discrimination and human rights violations, and is a cause of displacement. Though most stateless people remain in the country of their birth, some leave and become migrants or refugees. Stateless persons who are refugees under the 1951 Convention relating to the Status of Refugees are entitled to protection under that instrument. When an individual is both a refugee and stateless, both types of status should be explicitly recognized. Similarly, where standards of treatment are provided for a complementary form of protection, including protection against refoulement, States must apply these standards to stateless individuals who qualify for that protection. Though the 1951 Convention generally entitles individuals to more rights than the 1954 Convention (including protection against refoulement), a person whose refugee status ceases may not always have acquired a nationality and may continue to require international protection under the 1954 Convention. Recognition as a stateless person by the State authorities can also facilitate exercise of other rights. For example, the children of refugees born in a country (i.e. country of asylum) who do not acquire any nationality are entitled to the nationality of the country in which they are born, under the 1961 Convention on Reduction of Statelessness and regional human rights instruments, in countries which are party to them.
In emergency contexts, population movements from one country to another may include people who are nationals of the receiving country, such as returning refugees and migrants, some of whom may have been abroad for a prolonged period or even born abroad. When displacement is due to armed conflict and other situations of violence, the situation of such individuals may resemble that of refugees, because their nationality may not be documented and they may lack a social support network to assist them on arrival. It is therefore essential to identify nationals of a receiving country when they arrive and assist them to acquire documentary proof of their nationality under UNHCR's mandate to prevent statelessness.
Main guidance
Description and guidance
To this end, steps should be taken (whenever possible) to facilitate the identification of stateless persons in emergencies by ensuring that country of origin is captured at registration (REG) and nationality is recorded as ‘none/stateless'. It is possible to identify stateless persons or persons at risk of statelessness on a prima facie group determination basis. This could be appropriate where there is readily apparent, objective information about the lack of nationality of members of a group such that they would prima facie meet the stateless person definition in Article 1(1) of the 1954 Convention on the Status of Stateless Persons. Where there are reasonable grounds for believing that a person is prima facie stateless (for example, because he or she belongs to a stateless minority population), the person's nationality is to be recorded as ‘none/stateless'. Where a person's nationality is unclear, this should be flagged to facilitate follow-up.
With respect to individual determinations of whether a person is stateless under the definition in Article 1(1) of the 1954 Convention on the Status of Stateless Persons, UNHCR's primary role is to provide technical assistance to States in establishing statelessness determination procedures (SDPs). UNHCR can advise on both the development of new SDPs to be conducted by States and contribute to the enhancement of existing ones. UNHCR can facilitate enquiries made by statelessness determination authorities with authorities of other States and can act as an information resource on nationality laws and practices. Under Article 11 of the 1961 Convention on the Reduction of Statelessness, UNHCR can play a role in examining a person's nationality claims and presenting them to the appropriate State authority.
During the first phases of an emergency, it will usually not be feasible for States to conduct SDPs. However, when implementation of an individual refugee status determination (RSD) procedure is considered necessary and feasible, procedures for identifying stateless persons or persons at risk of statelessness should also be considered, including procedures for flagging such cases during the first stage of registration. Further investigation of whether an individual is stateless or at risk of statelessness may be conducted during RSD or, for individuals who are found not to be refugees, subsequent to RSD. Where it is feasible for SDPs to be implemented by the State, UNHCR should provide all necessary technical assistance in this regard.
It is important to identify individuals who may be nationals of a receiving country as early as possible and, when required, to assist them to be recognized and documented as nationals by the relevant authorities. Incorrect registration of these individuals as refugees may in some situations be detrimental to their recognition as nationals of the receiving country, and, unless they possess the nationality of another State, this may leave them stateless.
Annexes
Links
Main contacts
The first port of call is the UNHCR Deputy Representative (Protection), or UNHCR Assistant Representative (Protection), or the Senior Protection Officer in the country. Contact may also be made with the UNHCR Regional Assistant or Deputy Representative (Protection), with regional statelessness officers, or with the Senior Regional Legal Advisor in the respective UNHCR Regional Bureau, covering the respective country region. He or she will liaise as required with the parent unit at UNHCR DIP: UNHCR DIP Statelessness Section, HQ, Geneva, at [email protected].