Statelessness through the Prism of International Refugee Law
Statelessness through the Prism of International Refugee Law
The Revival of a Protection Issue
Abstract and Keywords
Chapter 1 introduces the context and relevance of the book; its scope, its methods, and outline. It articulates the challenges faced by the international community as a result of the separation of the international regime for the protection of refugees and stateless persons respectively into two distinct instruments. It explains that the book focuses on the potential of stateless persons who are outside their country of former habitual residence to obtain protection as refugees in international law. Hence, it is primarily concerned with stateless persons on the move between states, or stateless persons who have already moved (and not with the stateless in situ), because it is members of this group who require recognition of their status in order to establish themselves in a new country following a decision to flee.
Part 1: Introduction
The protection of refugees and stateless persons has long been understood as a challenge for the international community. However, for decades a focus on refugees has dominated, indeed overshadowed, the plight and protection needs of stateless persons. Yet, as observed by Guy Goodwin-Gill, ‘refugees and stateless persons once walked hand in hand’.1 Indeed, after the First World War ‘their numbers and condition were almost coterminous’2 and in the wake of the Second World War the intention had been to draft a single convention for the protection of both stateless persons and refugees. This historical interlacing is fully captured in Hannah Arendt’s writing on the refugee in The Origins of Totalitarianism, which refers almost entirely to denationalized people, and thus to the de jure stateless.3 However, the consignment of a protection regime for non-refugee stateless persons first to an annex and ultimately to excision from the 1951 Convention relating to the Status of Refugees (‘Refugee Convention’) undoubtedly contributed to a lack of concentrated effort to address the plight and protection needs of this category of ‘unprotected persons’4 notwithstanding the subsequent formulation of the Convention relating to the Status of Stateless Persons in 1954 (‘1954 Convention’)5 and the Convention on the Reduction of Statelessness in 1961 (‘1961 Convention’).6
The separation of the international regime for the protection of refugees and stateless persons respectively into two distinct instruments did not, of course, mean that there was no relationship between stateless persons and refugees as a matter of (p.2) international law. On the contrary, it was recognized in the very text of the Refugee Convention that stateless persons might be entitled to refugee protection. Article 1A(2) of the 1951 Refugee Convention contemplates a refugee as someone with or without a nationality,7 and provides that the country of reference for a person without a nationality is the place of ‘former habitual residence’. Hence, from the outset, stateless persons who are also refugees have been entitled to refugee protection as a matter of international law. Such protection includes the supervisory oversight and guidance provided by the United Nations High Commissioner for Refugees (‘UNHCR’).
Yet the relationship between the 1951 Refugee Convention and the 1954 Convention is radically underexplored and indeed there is scarce scholarly analysis of the capacity of the Refugee Convention to accommodate the subset of stateless persons who are also refugees. To date, statelessness has been examined by law academics through the framework of international statelessness law,8 international human rights law, nationality/citizenship law, and human security.9 Despite a renewed impetus over the past decade in the international community’s focus on stateless persons, attention to the phenomenon of stateless refugees remains inadequate. Although it has had responsibility for stateless refugees since 1950,10 the UNHCR has dedicated very little attention to stateless refugees, at least as a matter of doctrine and international protection.11 Indeed, no systematic argument has been made to date on the application (p.3) of the refugee definition in Article 1A(2) of the 1951 Refugee Convention to stateless refugees, in contrast to refugees with a nationality.12
As Maryellen Fullerton observes, the ‘crossroads of statelessness and international refugee law is uncharted territory, and the need for exploring it is urgent’.13
This book thus addresses a critical gap in existing scholarship by examining statelessness through the prism of international refugee law, in particular by examining the extent to which the 1951 Refugee Convention protects de jure stateless persons. It responds to the need for a ‘comprehensive legal framework … to ensure that refugee law fully addresses the plight of stateless individuals who fear persecution’.14 The central hypothesis of this book is that the capacity and potential of the 1951 Refugee Convention to protect stateless persons has been inadequately developed and understood. This is particularly so when we consider the significant transformation that has occurred over the past sixty years in delimiting state discretion in matters of nationality, including in relation to the acquisition and deprivation of nationality and the treatment of non-nationals. While it may once have been correct to assume that matters of nationality were outside the realm of international law, the advent of international human rights law in particular has limited sovereignty in this respect. Accordingly, whether a stateless person is also a refugee potentially admits of a very different answer in light of modern international human rights law as compared to 1951.
This book is primarily concerned with stateless persons on the move between states, or stateless persons who have already moved (and not with the stateless in situ), because it is members of this group who require recognition of their status in order to establish themselves in a new country following a decision to flee. In focusing on this group, we are not attempting to address the plight of the totality of the world’s stateless persons—currently estimated at around ten million15—but rather we examine the potential of stateless persons who are outside their country of former habitual residence to obtain protection as refugees in international law. The total estimated number of this subset of persons affected by statelessness currently stands at over 1.5 million.16 These figures are of course based on conservative estimates given the inherent challenges of identifying and accounting for a group of persons who are sometimes described as ‘invisible’.17 What is clear is that despite recent concerted efforts to respond to the challenge of statelessness, it remains an ongoing problem, with the UNHCR estimating that a child is born into statelessness every ten minutes.18 States continue to invoke denationalization in the ‘war on terror’,19 and to create ‘pockets of populations invisible in the state’s legal self image’,20 particularly in relation to ethnic minorities.21 Further, the potentially devastating consequences of statelessness, particularly for children, are now well documented and understood. These developments are all highly pertinent to an assessment of whether stateless persons can and should be protected within the international refugee regime and (p.5) attest to the growing practical significance of the connection between the international regimes for stateless persons and refugees.22
This book is timely for several reasons. First, there is a growing body of jurisprudence by domestic courts exploring the capacity of the refugee definition in the Refugee Convention to accommodate stateless persons, yet there has been comparatively little scholarship exploring this issue. As will be examined in later chapters, refugee decision-makers are grappling with key issues relating to nationality, discrimination, and return. Being stateless often raises important issues relating to arbitrary deprivation of nationality, freedom of movement, and equality in the enjoyment of civil, political, and socio-economic rights, and international and domestic courts are increasingly called upon to interpret and protect those rights in the refugee setting. It is therefore timely to offer a human rights approach to assessing the refugee claims of de jure stateless persons in light of modern international human rights law.
The second reason why this book is timely is the significant transformation of the landscape due to the impetus given to statelessness as an issue of study and focus by the UNHCR over the past decade. This is most clearly highlighted by the pledges on statelessness made by over sixty states during a ministerial conference organized by the UNHCR in Geneva to celebrate the fiftieth anniversary of the 1961 Convention in 2011. Three years later, at the sixtieth anniversary of the 1954 Convention in 2014, the UNHCR launched a ten-year campaign to eradicate statelessness by 2024.23 This campaign has already made concrete progress in increasing ratifications of both the 1954 and 1961 Conventions,24 and mobilizing action particularly concerning the ten key priorities of action identified by the UNHCR as crucial to the reduction and elimination of statelessness.25 The recognition of statelessness as an integral component of the broader debate concerning refugees is embodied in the 2016 New York Declaration for Refugees and Migrants,26 which states:
We recognize that statelessness can be a root cause of forced displacement and that forced displacement, in turn, can lead to statelessness. We take note of the campaign of the Office of the United Nations High Commissioner for Refugees to end statelessness within a decade and we encourage States to consider actions they could take to reduce the incidence of statelessness. We encourage those States that have not yet acceded to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness to consider doing so.27
(p.6) In addition to increasing state ratifications of the core statelessness treaties, there has been an increased focus on implementing the 1954 Convention in the form of domestic statelessness status resolution systems. This has been supported by the normative guidance provided by the UNHCR in its 2014 Handbook on Protection of Stateless Persons under the 1954 Convention. The Handbook consolidates guidelines adopted following a series of expert consultations; it also takes account of (albeit limited) state practice, including jurisprudence of national courts, on the application of the 1954 Convention.
While there can be no question of the importance of these developments and recent achievements, it must be highlighted that these have focused solely on statelessness and non-refugee stateless persons, and that there is very little on stateless refugees, at least by way of principled guidance to support and strengthen the protection of an estimated 1.5 million stateless persons in a refugee-like situation. Hence, there is a genuine need for a comprehensive analysis of the interaction between statelessness and refugee law that could inform the work of scholars, advocates, and the UNHCR (including its Campaign to End Statelessness by 2024) through a greater understanding and use of refugee law in the statelessness context. Indeed, one should not forget the longstanding historical overlap between the two protection regimes (i.e. the 1951 Refugee Convention and the 1954 Convention).
Part 3: Scope
The 1954 Convention and the 1961 Convention, together with UN human rights treaties and regional conventions, form the foundation of the international legal framework to address statelessness. While de jure stateless persons are clearly protected by the 1954 Convention, this book explores the extent to which such persons are also entitled to refugee status under the 1951 Refugee Convention. Hence, this is a book about refugee law; it is concerned with the immediate protection of stateless persons who are on the move, and not with the prevention and reduction of statelessness in countries of origin or indeed in countries of refuge. The key instrument of relevance to this book is therefore the Refugee Convention; although the 1954 Convention and the 1961 Convention are considered where relevant.
The 1951 Refugee Convention is widely acknowledged to constitute the ‘cornerstone of international protection’,28 and hence is the key focus of our examination of international refugee law. There have, of course, been vital regional developments, most notably in the form of the Organisation of African Unity Convention Governing the Special Aspects of Refugee Problems in Africa, which explicitly accommodates stateless persons within its ‘extended definition’ by referring to ‘every person’, ‘place of habitual residence’ and ‘outside his country of origin or nationality’.29 In addition, the (p.7) emergence of regimes providing for complementary protection, that is, implementation of non-refoulement obligations derived from other international and regional human rights treaties, have expanded the protective capabilities of international law. Such developments are also considered where relevant throughout the book.
It is important to acknowledge at the outset that an examination of the relationship between the 1951 Refugee Convention and the 1954 Convention does not exhaust the connection between refugeehood and statelessness. Rather, there is increasing awareness of the manner in which refugeehood itself can give rise to statelessness. The renewed attention to statelessness as an issue has highlighted the way in which contemporary refugee flows, as well as certain restrictive policies such as offshore processing, can lead to statelessness or a risk of statelessness.30 In the context of the Syrian conflict, for example, refugee children are born in neighbouring countries including Turkey, Lebanon, Jordan, and (the Kurdistan Region of) Iraq. These states are parties to international treaties (including the Convention on the Rights of the Child, Convention on the Elimination of All Forms of Discrimination Against Women, and the International Covenant on Civil and Political Rights),31 which protect the right of a child to acquire a nationality and the right of women to be protected against discrimination in nationality laws. However, in reality, the situation is far from satisfactory. In all four countries, Syrian refugees may be reluctant to apply for a birth certificate for their new-born babies through the Syrian consulate for fear of retaliation by the Assad regime.32 Even if they decide to apply, because of gender discrimination in Syria’s nationality law (Syrian children can only acquire nationality through their fathers), both parents must be present, or if only the mother, she must provide a marriage certificate and the father’s birth certificate.33 In Turkey for (p.8) instance, possibilities to apply for an international birth certificate exist but there are clear obstacles: a time-limit of thirty days from the birth or, if later, subject to a fee; both parents must be present, or if only the mother, she must provide a marriage certificate and the father’s birth certificate; and total lack of awareness that such opportunity exists.34 Finally, statelessness may also occur amongst Syrian adults who may have left Syria following the destruction of their homes and identity documents and who can no longer prove their nationality.35 Such situations of statelessness, or being at risk of statelessness, renders these individuals more vulnerable to harm, detention, and lack of resources, and may even prevent them from seeking refuge outside Syria because of lack of documentation or states’ unwillingness to allow stateless persons to enter their territory (e.g. Palestinian refugees from Syria refused entry into Jordan).36 These issues are ultimately about the interaction between the Refugee Convention and the 1961 Convention, and hence are beyond the scope of this book. However, this indicates the scope for further research and analysis in this important and historically overlooked area of international protection.
As mentioned above, the Refugee Convention’s definition of ‘refugee’ makes clear that, from the advent of modern refugee law, it has always been understood that de jure stateless persons could claim protection under its ambit. For instance, Article 33 of the Refugee Convention (non-refoulement) is absent from the 1954 Convention because it was assumed that a stateless person in a position of being refoulé(e) would be treated as a potential refugee and protected against refoulement under the Refugee Convention.
Of course, not all stateless persons are refugees, hence the need for a specific instrument in international law for the protection of persons who are not considered as a national of any state and who are not refugees. In many respects the 1954 Convention mirrors the terms of the 1951 Refugee Convention, hence refugees and stateless persons, who find themselves outside their country of nationality or former habitual residence, are entitled to a similar level of protection under international law. As such, it might be questioned whether it matters if a person, who is both de jure stateless and a refugee, obtains protection under either the 1951 Refugee Convention or the 1954 Convention.
However, there are significant differences in principle and practice, which render stateless persons less likely to be protected by international law. First, there are discrepancies between the rights listed in the Refugee Convention and the 1954 Convention, such as Articles 15 (freedom of association), 17 (right to work), 31 (right to non-penalization for unauthorized entry), 33 (non-refoulement), and 35 (UNHCR supervision) which are either formulated less favourably for stateless persons (Articles 15 and 17)37 or absent from the 1954 Convention (in the case of (p.9) Articles 31, 33 and 35).38 It is worth emphasizing the significance of the omission of Article 33 from the 1954 Convention. The practical consequence is that even where there is protection under both the refugee and statelessness regimes within one domestic jurisdiction,39 careful attention should nonetheless be given in the first instance to the applicability of the Refugee Convention, given that the statelessness regime does not prohibit return.40 In other words, the 1954 Convention cannot provide adequate protection for a stateless individual fleeing persecution,41 as it does not contain protection from refoulement.42 Second, despite significant increases in state ratification of the 1954 Convention in recent years, the 1954 Convention enjoys far fewer ratifications than the 1951 Refugee Convention (ninety-one versus 146).43 Third, even in those states that have ratified the 1954 Convention, very few have implemented a procedure in domestic law for assessing and according a specific status under the 1954 Convention.44 Finally, even in countries that have a stateless status determination procedure, there remain significant concerns in terms of both the process of status determination45 and full access to rights for stateless persons.46
(p.10) This book does not seek to undermine the importance of the 1954 Convention to the de jure stateless, but rather to ensure that those persons who are both refugees and stateless persons receive the full protection to which they are entitled under international law. In this way, the 1951 Refugee Convention and the 1954 Convention should be understood as complementary rather than mutually exclusive.
Part 4: Method and Outline of Book
This book draws on historical and contemporary interpretation of international law based on the travaux préparatoires to the 1951 Refugee Convention and its antecedents, the travaux of the 1954 Convention, academic writing, UNHCR policy and legal documents, UN Human Rights Council resolutions, UN Human Rights Committee general comments, UN Secretary General reports, and UN General Assembly resolutions (Chapters 2 and 3). It is also based on original comparative case law analysis of existing jurisprudence globally relating to claims to refugee status connected with statelessness (Chapters 4, 5, and 6).
The chapters concerned primarily with interpretation of the Refugee Convention’s definition of ‘refugee’, namely Chapters 4, 5, and 6, are predicated on the need for a principled approach to such interpretation governed by the rules of treaty interpretation set by the Vienna Convention on the Law of Treaties (‘VCLT’). In particular, it is well accepted that Article 31 VCLT’s requirement that the text of a treaty is to be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of a treaty, ‘in their context and in the light of its object and purpose’, means that the terms of the definition should be informed by developments in relevant and cognate areas of international law, especially human rights law. This ensures that the open-ended Convention terms are permitted to evolve, in a principled manner, to ensure the continued relevance and efficacy of the 1951 Refugee Convention.47 The VCLT also acknowledges the relevance of the drafting history,48 and hence our analysis of the refugee definition considers, where relevant, what, if any, insight can be gleaned as to key concepts in relation to stateless persons as refugees, including ‘not having a nationality’, ‘former habitual residence’, ‘unable or … unwilling to return’, as well as the meaning of Article 1E (exclusion for those enjoying de facto nationality) and Article 1D (exclusion of Palestinians).
Chapter 2 sets the context for the book by examining the history and background to the formulation of two distinct regimes for refugees and stateless persons, respectively: the 1951 Refugee Convention and the 1954 Convention. A re-examination of the relationship between the treatment in international law of refugees and stateless (p.11) persons must begin with the development of positive international law in this field in the early twentieth century. Accordingly, this chapter briefly reviews the pre-Second World War position, and then examines in depth the UN’s seminal 1949 Study on Statelessness, which was the precursor to the formulation of the 1951 Refugee Convention. We analyse the extensive debate by the Ad Hoc Committee on Statelessness and Related Problems as to whether to separate issues relating to statelessness from the Refugee Convention. The drafting history reveals that despite ultimately developing separate regimes, stateless persons and refugees have always been understood to suffer a similar predicament and hence to present similar protection needs. The point of departure for our analysis, however, is that the drafting history reveals that the sense of similarity between the two ‘categories’ (refugees and stateless) was connected to their predicament—namely a lack of protection. However, the causes of the two predicaments were thought to be distinct: while the predicament of stateless de jure was thought to be more the result of technical, legal problems, the predicament of de facto stateless (refugees) was understood in more humanitarian terms. Given that the modern human rights regime was in its infancy, it is not surprising that the causes of statelessness were not fully understood in human rights terms. This sets the scene for our later contention that with the benefit of sixty years of evolution in human rights law we can now see that in many instances the causes and effects of statelessness are rooted in human rights violations which may in fact amount to persecution.
Second, while the focus of the book is very much on the 1951 Refugee Convention, important insight into the contemporaneous understanding of the connection between stateless persons and refugees is provided in the drafting history of the 1954 Convention—given its proximity to the 1951 Refugee Convention. We therefore also analyse this history in order to assess whether it provides further insight into the scope, as understood at the time, of the 1951 Refugee Convention vis-à-vis stateless persons.
Chapter 3 turns to the role of nationality in the protection and enjoyment of human rights. It examines the history of international law’s involvement in and regulation of matters concerning nationality, thereby providing a crucial link between Chapter 2 and Chapters 4, 5, and 6. It begins by reviewing the traditional position whereby considerations of nationality (and statelessness), including the practice of re-admission for non-nationals, fell within the reserved domain of states through their own nationality laws. According to this understanding, a lack of nationality could hardly be understood in human rights terms; hence statelessness de jure was an anomaly or aberration due to technical legal issues.49 However as the chapter reveals, the advent of international human rights law has slowly but consistently (p.12) intruded into state discretion such that we can now see that in many instances deprivation of nationality (i.e. denial of nationality and/or withdrawal of nationality) may well violate norms of international law. The chapter therefore examines deprivation of nationality, and the consequences for the persons concerned, in treaty law, UN documents, and the jurisprudence of international and regional courts. For example, the Inter-American Court of Human Rights, the African Commission on Human and Peoples’ Rights, the African Committee of Experts on the Rights and Welfare of the Child, and the European Court of Human Rights (ECtHR) have all issued important judgments, decisions, or opinions on nationality-related issues. The chapter also highlights gaps in the existing international jurisprudence (and litigation strategy), in particular the absence of judgments from the ECtHR on whether an arbitrary act of deprivation of nationality or statelessness per se constitutes inhuman and degrading treatment. Further, the chapter analyses the evolution in international law in respect of the right of stateless persons to enjoy fundamental human rights regardless of whether they are also entitled to nationality. Indeed, the contemporary human rights framework is premised on the notions of equality, liberty, and dignity, and on the idea that we hold basic rights because we are human beings.50 Through the norms of anti-discrimination and equal protection, human rights law now imposes obligations on states to provide a range of civil, political, and socio-economic rights to stateless persons. These developments in international law are essential to a contemporary and principled understanding of the key definitional elements of the refugee definition. For example, given that it is now widely accepted that a denial of human rights can amount to persecution in international refugee law, it is crucial that refugee lawyers and decision-makers take account of the human rights context of the position of stateless persons in assessing their refugee claims.
Chapters 4, 5 and 6 turn to an examination of the key elements of the refugee definition as they pertain to stateless persons. Chapter 4 discusses preliminary issues relating to access to refugee status for stateless persons. It begins by considering the fundamental question of whether stateless persons should be protected per se under the 1951 Refugee Convention or whether they must meet the same criteria as those with a nationality, namely, well-founded fear of being persecuted on a Convention ground. We note the academic and judicial debate surrounding this issue but conclude that in all cases a well-founded fear of being persecuted is a prerequisite to refugee protection. In this respect, we posit that nationality is not determinative in claims for refugee status applications; rather, the need to establish a well-founded fear is key. Chapter 4 then continues to explain that nationality is nevertheless relevant because establishing an applicant’s nationality (or lack of) is key in determining the ‘country of nationality’ or ‘of former habitual residence’, i.e. the country of reference.51 (p.13) The chapter contends that ‘not having a nationality’ in Article 1A(2) of the 1951 Refugee Convention is the same as ‘not being considered a national by any state under the operation of its law’ in Article 1(1) of the 1954 Convention, that is, it is only concerned with whether a person currently has a de jure nationality—under the law. Thus, we argue that there is no room for the concept of inchoate or discretionary nationality. The chapter provides guidance on establishing lack of nationality in the refugee status determination context, and considers questions such as voluntary renunciation and the imposition of nationality without consent, concluding with an examination of the meaning and interpretation of ‘country of former habitual residence’.
In Chapter 5, we analyse the meaning of ‘being persecuted’ for a Convention reason as it applies to stateless persons, by examining its interpretation and application in the case law of the leading common law and civil law jurisdictions. The chapter first addresses deprivation of nationality (namely, denial of nationality and active withdrawal of nationality) and denial of the right to enter one’s country. The chapter then considers other forms of harm related to an absence of nationality such as the right to education, right to work, right to health, right to liberty, right to an effective remedy, and right to family and private life. Thus, in this chapter, we consider various specific manifestations of harm faced by stateless persons in the context of the persecution inquiry. The chapter then concludes by examining instances where refugee protection failed but complementary protection may nevertheless be relevant. This may be the case where, for instance, no nexus exists between persecution and the Convention reasons, where the level of harm was not sufficient to constitute persecution, or where Article 1F applied to exclude a stateless (refugee) person from protection. With regard to the level of harm, the chapter examines why statelessness per se is not generally considered to be inhuman and degrading treatment by courts and tribunals, but instead in some cases is considered a violation of the right to private life.
In Chapter 6 we consider in what circumstances a stateless person may cease to be entitled to protection or indeed excluded from refugee protection. We begin by examining in what situations Article 1C of the 1951 Refugee Convention may apply to a stateless person, before turning to consider the application of Article 1D (in relation to Palestinians) and Article 1E (de facto nationality) to refugee claims by stateless persons. In the final part of the chapter we examine the application of Article 1F to stateless persons. This issue is particularly pertinent given a renewed focus by states on the invocation of citizenship laws, and in particular the withdrawal of citizenship, to respond to the threat of so-called ‘home grown’ terrorists.
In Chapter 7 we conclude by drawing together the analysis in previous chapters which cumulatively supports our hypothesis that a reconsideration of the relationship between stateless persons and the 1951 Refugee Convention, in the context of sixty years of doctrinal development in human rights law, suggests far greater capacity for the protection of stateless persons pursuant to the 1951 Refugee Convention. We reflect briefly on the practical issues raised by this conclusion, particularly in (p.14) those states that have a domestic procedure under both the 1951 Refugee Convention and the 1954 Convention. Finally, we reflect on the need for future research and scholarship on distinct but related issues, suggesting scope for a rich scholarship to develop which will complement and support the international community’s efforts to resolve, protect, and ultimately eliminate statelessness.
(1) Guy S Goodwin-Gill, ‘The Rights of Refugees and Stateless Persons’ in K P Saksena (ed), Human Rights Perspective and Challenges (Lancers Books 1994) 389.
(3) Hannah Arendt, The Origins of Totalitarianism (Schocken Books 1951).
(4) See the British delegate’s suggestion for the definition of refugee and stateless persons to simply refer to ‘unprotected persons’: Ad Hoc Committee on Statelessness and Related Problems, ‘United Kingdom: Draft Proposal for Article 1’ (17 January 1950) UN Doc E/AC.32/L.2.
(5) Convention relating to the Status of Stateless Persons (adopted 28 September 1954, entered into force 6 June 1960) 360 UNTS 117 (hereafter 1954 Convention).
(6) Convention on the Reduction of Statelessness (adopted 30 August 1961, entered into force 13 December 1975) 989 UNTS 175.
(7) Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, art 1A(2) (hereafter Refugee Convention); Protocol relating to the Status of Refugees (signed 31 January 1967, entered into force 4 October 1967) 606 UNTS 267, art 1A(2).
(8) General texts on statelessness scarcely refer to refugee law. For example, a recent monograph by William E Conklin, Statelessness: The Enigma of the International Community (Hart 2014) dedicates half a page to the Refugee Convention: at 143.
(9) For a comprehensive review of the literature, see Brad K Blitz and Maureen Lynch (eds), ‘Statelessness and the Benefits of Citizenship: A Comparative Study’ (Geneva Academy of International Humanitarian Law and Human Rights and the International Observatory on Statelessness 2009) https://s3.amazonaws.com/academia.edu.documents/35024663/Blitz_Lynch_FINAL_08_Oct_2009.pdf?AWSAccessKeyId=AKIAIWOWYYGZ2Y53UL3A&Expires=1544145830&Signature=E81KW9fqjAH9jEJLPiZ2UMVidIE%3D&response-content-disposition=inline%3B%20filename%3DStatelessness_and_the_Benefits_of_Citize.pdf> accessed 9 December 2018. See also Alison Kesby, The Right to Have Rights: Citizenship, Humanity, and International Law (OUP 2012); Alice Edwards and Carla Ferstman (eds), Human Security and Non-Citizens: Law, Policy and International Affairs (CUP 2010); Laura van Waas, Nationality Matters: Statelessness under International Law (Intersentia 2008); Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (CUP 2014); Rhoda E Howard-Hassmann and Margaret Walton-Roberts (eds), The Human Right to Citizenship: A Slippery Concept (University of Pennsylvania Press 2015).
(10) The Statute of the Office of the United Nations High Commissioner for Refugees (‘UNHCR’) defines the ‘competence of the High Commissioner’ in art 6, and it includes, in A(i), any person who ‘not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear or for reasons other than personal convenience, is unwilling to return to it’: UN General Assembly (UNGA), ‘Statute of the Office of the United Nations High Commissioner for Refugees’ (14 December 1950) UN Doc A/RES/428(V).
(11) There are no specific guidelines issued by the UNHCR relating to stateless refugees and very few of the existing Guidelines on International Protection mention issues particularly pertinent to stateless persons or indeed stateless persons at all as refugees. For example, the ‘Guidelines on International Protection: Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees’ mention ‘nationality’ as a protected ground but do not discuss gender discrimination in relation to citizenship: (7 May 2002) UN Doc HCR/GIP/02/01, para 27. However, more recent Guidelines have begun to address this. The most comprehensive treatment of the issue is in ‘Guidelines on International Protection: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of being Trafficked’: see (7 April 2006) UN Doc HCR/GIP/06/07, pt III. See also UNHCR, ‘Guidelines on International Protection: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees’ (22 December 2009) UN Doc HCR/GIP/09/08, paras 18, 35. Hélène Lambert’s study, commissioned by the UNHCR, would appear to be the first work on this issue: ‘Refugee Status, Arbitrary Deprivation of Nationality, and Statelessness within the Context of Article 1A(2) of the 1951 Convention and its 1967 Protocol relating to the Status of Refugees’ (UNHCR Legal and Protection Policy Research Series PPLA/2014/01, October 2014) 58.
(12) With the exception of a few country-specific articles and one book written by a practitioner that analyses some components of art 1 of the Refugee Convention as it applies to stateless refugees: Eric Fripp, Nationality and Statelessness in the International Law of Refugee Status (Hart 2016). See also James Hathaway and Michelle Foster, The Law of Refugee Status (2nd edn, CUP 2014) 64–75 (hereafter Hathaway and Foster, The Law of Refugee Status 2); Guy S Goodwin-Gill, ‘Nationality and Statelessness, Residence and Refugee Status: Issues Affecting Palestinians’ (March 1990) <http://repository.forcedmigration.org/show_metadata.jsp?pid=fmo:567>; Kate Darling, ‘Protection of Stateless Persons in International Asylum and Refugee Law’ (2009) 21 IJRL 742; Maryellen Fullerton, ‘Without Protection: Refugees and Statelessness—A Commentary and Challenge’ (Brooklyn Law School Legal Studies Paper No 351, 8 August 2013) (hereafter Fullerton, ‘Without Protection’); Maryellen Fullerton, ‘The Intersection of Statelessness and Refugee Protection in US Asylum Policy’ (2014) 2 JMHS 144; Stewart E Forbes, ‘ “Imagine There’s No Country”: Statelessness as Persecution in Light of Haile II’ (2013) 61 BuffLR 699. See also Audrey Macklin, ‘Who Is the Citizen’s Other? Considering the Heft of Citizenship’ (2007) 8 Theo Inq Law 333.
(13) Fullerton, ‘Without Protection’ (n 12) 29. Now appears in Maryellen Fullerton, ‘Comparative Perspectives on Statelessness and Persecution’ (2015) 63 UKanLRev 863, 902 (hereafter Fullerton, ‘Comparative Perspectives on Statelessness and Persecution’).
(15) The UNHCR estimates that there are at least ten million stateless persons today in the world: Institute on Statelessness and Inclusion, The World’s Stateless (Wolf Legal Publishers 2014) 35, ch 3 (hereafter ISI, The World’s Stateless).
(17) See e.g., Nicoletta Policek, ‘Turning the Invisible into the Visible: Stateless Children in Italy’ in Marisa O Ensor and Elżbieta M Goździak (eds), Children and Forced Migration (Springer 2017) 79. On the challenge of mapping statelessness, see ISI, The World’s Stateless (n 15) 37. The same concept has been applied to statelessness in international law scholarship, see e.g., Will Hanley, ‘Statelessness: An Invisible Theme in the History of International Law’ (2014) 25 EJIL 321.
(19) As Matthew Gibney observes, ‘in recent years, denationalization powers have gained increasing intellectual and political attention as many liberal states have created new laws or enforced old ones to strip citizenship from individuals involved with terrorism’: Matthew J Gibney, ‘Denationalization’ in Ayelet Shachar, Rainer Bauböck, Irene Bloemraad, and Maarten Vink (eds), The Oxford Handbook of Citizenship (OUP 2017) 358, 359.
(20) Noora A Lori, ‘Statelessness, “In-Between” Statutes and Precarious Citizenship’ in Ayelet Shachar, Rainer Bauböck, Irene Bloemraad, and Maarten Vink (eds), The Oxford Handbook of Citizenship (OUP 2017) 743, 748.
(21) See UNHCR, ‘ “This is Our Home”: Stateless Minorities and their Search for Citizenship’ (November 2017). In July 2018 it was reported that, ‘[a]bout 4 million people who live in the Indian border state of Assam have been excluded from a draft list of citizens, as Bengali-speaking Muslims fear they will be sent to detention centres or deported’: Amrit Dhillon, ‘India: 4 Million Excluded from Assam’s Draft List of Citizens’ The Guardian (London, 30 July 2018) <www.theguardian.com/world/2018/jul/30/four-million-excluded-from-indian-states-assam-draft-list-of-citizens> accessed 4 August 2018.
(22) We are grateful to one of the anonymous reviewers of our book manuscript (commissioned by OUP) for this observation.
(23) UNHCR, ‘Global Action Plan to End Statelessness 2014–24’ (November 2014).
(24) See Michelle Foster and Hélène Lambert, ‘Statelessness as a Human Rights Issue: A Concept Whose Time Has Come’ (2016) 28 IJRL 564, 571.
(25) See Executive Committee of the High Commissioner’s Programme, ‘Update on Statelessness’ (7 June 2017) UN Doc EC/68/SC/CRP.13.
(26) UNGA Res 71/1 (3 October 2016) UN Doc A/RES/71/1 (hereafter New York Declaration).
(27) ibid, para 72 (citations omitted). This language is replicated in the 2018 Global Compact on Refugees: see UNHCR, Report of the United Nations High Commissioner for Refugees, Part II, Global Compact on Refugees, General Assembly Official Records, Seventy-third Session, A/73/12 (Part II), para 83 <https://www.unhcr.org/gcr/GCR_English.pdf> accessed 12 February 2019.
(28) UNHCR, ‘Conclusion on the Provision on International Protection Including through Complementary Forms of Protection No. 103 (LVI)—2005’ (7 October 2005) UN Doc A/AC.96/1021.
(29) Convention Governing the Special Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974) 1001 UNTS 45, art 1(2).
(30) On the topic of offshore processing, see Michelle Foster, Jane McAdam, and Davina Wadley, ‘Part Two: The Prevention and Reduction of Statelessness in Australia—An Ongoing Challenge’ (2017) 40 MULR 456. On the connection between refugeehood and citizenship, see Cathryn Costello, ‘On Refugeehood and Citizenship’ in Ayelet Shachar, Rainer Bauböck, Irene Bloemraad, and Maarten Vink (eds), The Oxford Handbook of Citizenship (OUP 2017) 717.
(31) Note that Turkey has made the following declarations and reservation to the International Covenant on Civil and Political Rights: ‘The Republic of Turkey declares that; it will implement its obligations under the Covenant in accordance to the obligations under the Charter of the United Nations (especially Article 1 and 2 thereof). The Republic of Turkey declares that it will implement the provisions of this Covenant only to the States with which it has diplomatic relations. The Republic of Turkey declares that this Convention is ratified exclusively with regard to the national territory where the Constitution and the legal and administrative order of the Republic of Turkey are applied. The Republic of Turkey reserves the right to interpret and apply the provisions to Article 27 of the International Covenant on Civil and Political Rights in accordance with the related provisions and rules of the Constitution of the Republic of Turkey and the Treaty of Lausanne of 24 July 1923 and its Appendixes’: UN Treaty Collection, ‘Chapter IV: Human Rights, 4. International Covenant on Civil and Political Rights’ (UN Treaty Collection, 10 August 2018) <https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src=IND> accessed 12 November 2018.
(32) Elizabeth Ferris, ‘Displacement and Statelessness’ in A World on the Move: Migration and Statelessness, vol 1 (International Affairs Forum 2016) 79, 80. See also Sarnata Reynolds and Tori Duoos, ‘A Generation of Syrians Born in Exile Risk a Future of Statelessness’ (European Network on Statelessness, 15 July 2015) <http://www.statelessness.eu/blog/generation-syrians-born-exile-risk-future-statelessness> accessed 12 November 2018 (hereafter Reynolds and Duoos, ‘A Generation of Syrians Born in Exile’).
(36) Zahra Albarazi and Laura van Waas, ‘Statelessness and Displacement: Scoping Paper’ (Norwegian Refugee Council and Tilburg University 2016) 25.
(37) In the Refugee Convention (n 7) art 15, refugees are to enjoy ‘the most favourable treatment accorded to nationals of a foreign country’ in relation to these rights, whereas in the 1954 Convention (n 5) those rights are delivered only at the same level as for ‘aliens generally’.
(38) Regarding art 33, the travaux préparatoires to the 1954 Convention reveal that the reason why non-refoulement was not included in this Convention was because it was assumed that ‘any stateless person in such a position [needing to be protected against return to the frontiers of territories where their life or freedom would be threatened] would be treated as a potential refugee and given the status of a réfugié sur place’: Conference of Plenipotentiaries on the Status of Stateless Persons, ‘Summary Record of the Eighth Meeting’ (29 September 1954) UN Doc E/CONF.17/SR.8 (The President, speaking as representative of Denmark). Regarding art 35, the UNHCR became responsible for stateless persons through an extension of its mandate: see Mark Manly, ‘UNHCR’s Mandate and Activities to Address Statelessness’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (CUP 2014) 88.
(39) We note that this is quite rare: see generally Katia Bianchini, Protecting Stateless Persons: The Implementation of the Convention relating to the Status of Stateless Persons Across EU States (Brill Nijhoff 2018).
(40) See New Zealand decision Refugee Appeal No 73861  NZRSAA 228 (30 June 2005)  for recognition of this point.
(41) ibid, .
(42) However, it should be acknowledged that it is now accepted that non-refoulement has attained the status of customary international law; nonetheless, this is still debated by some states and hence a less secure footing on which to base a protection need: see Cathryn Costello and Michelle Foster, ‘Non-Refoulement as Custom and Jus Cogens? Putting the Prohibition to the Test’ (2015) 46 NYIL 273.
(43) UN Treaty Collection, ‘Chapter V: Refugees and Stateless Persons: 3. Convention relating to the Status of Stateless Persons’ (UN Treaty Collection, 21 January 2019) <http://treaties.un.org/Pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-3&chapter=5&Temp=mtdsg2&clang=_en> accessed 22 January 2019; UN Treaty Collection, ‘Chapter V: Refugees and Stateless Persons: 2. Convention relating to the Status of Refugees’ (UN Treaty Collection, 21 January 2019) <https://treaties.un.org/Pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-2&chapter=5&Temp=mtdsg2&clang=_en> accessed 22 January 2019.
(44) Nineteen countries currently operate a full or partial statelessness-specific protection regime, see European Network on Statelessness, ‘Amicus Curiae Submitted by the European Network on Statelessness to the Borgating Court of Appeal in Norway, in Case Number 17-073503ASD-BORG/01’ (25 May 2018) <https://www.refworld.org/docid/5b361e374.html> accessed 9 December 2018.
(45) For instance, Katia Bianchini’s important 2018 book, Protecting Stateless Persons: The Implementation of the Convention relating to the Status of Stateless Persons Across EU States (Brill Nijhoff 2018) undertook a comprehensive examination of ten European Union States that have ratified the 1954 Convention and found that ‘they are all in breach of their international obligations’: at 291. She observed, that in most states there were common problems: ‘poor decision-making; lengthy proceedings and lack of status for applicants while their cases are pending’: at 291.
(46) See e.g., Hungary: Hélène Lambert, ‘Comparative Perspectives on Arbitrary Deprivation of Nationality and Refugee Status’ (2015) 64 ICLQ 1, n 3.
(47) For a comprehensive treatment of the rules of treaty interpretation in this context, see Michelle Foster, International Refugee Law and Socio-Economic Rights: Refuge from Deprivation (CUP 2007) ch 2; Hathaway and Foster, The Law of Refugee Status 2 (n 12) ch 1.
(48) Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155 UNTS 331, art 32.
(49) Carol A Batchelor, ‘Transforming International Legal Principles into National Law: The Right to a Nationality and the Avoidance of Statelessness’ (2006) 25 Refugee Survey Quarterly 8; Carol A Batchelor, ‘Stateless Persons: Some Gaps in International Protection’ (1995) 7 IJRL 232, 235, citing Paul Weis, ‘The United Nations Convention on the Reduction of Statelessness, 1961’ (1962) 11 ICLQ 1073. See also Gerard D Cohen, In War’s Wake—Europe’s Displaced Persons in the Postwar Order (OUP 2012).
(50) Article 1 of the Universal Declaration of Human Rights states that ‘All human beings are born free and equal in dignity and rights.’ See also Rosalyn Higgins, Problems and Process: International Law and How We Use It (Clarendon Press 1994) 96.
(51) International Association for Refugee Law Judges European Chapter, ‘Qualification for International Protection (Directive 2011/95/EU: A Judicial Analysis’ (December 2016) <https://www.easo.europa.eu/sites/default/files/QIP%20-%20JA.pdf.