The United Nations High Commission for Refugees (UNHCR) reports that today “at least 10 million people around the world are denied a nationality.” Stateless people often have difficulty having access to basic human rights such as education, health care, employment and the ability to travel freely. Stateless individuals have been described as living “a life in the shadows and without hope.”
The UNHCR states that the “Convention is the only universal instrument that elaborates clear, detailed and concrete safeguards to ensure a fair and appropriate response to the threat of statelessness” and that “[a]ccession to the 1961 Convention equips States to avoid and resolve nationality-related disputes and mobilize international support to adequately deal with the prevention and reduction of statelessness.” “The Convention seeks to balance the rights of individuals with the interests of States by setting out general rules for the prevention of statelessness, and simultaneously allowing some exceptions to those rules.”
- by requiring states to grant their nationality to children who would otherwise be stateless and have ties with them through either birth in the territory or descent;
- by protecting adults who are in the process of changing nationalities;
- by prohibiting a state from depriving a person of its nationality if that would leave the person stateless and prohibiting the deprivation of nationality on racial, ethnic, religious or political grounds; and
- by describing how states can avoid creating statelessness in the event of state succession.
While the issue of persons without a nationality, the “stateless”, was a concern to the League of Nations and led to its 1930 Protocol relating to a Certain Case of Statelessness, it was the unprecedented displacement of people as a result of the Second World War that intensely focused attention on the matter. The importance of the issue was reflected in 1948 by Article 15(1) of the Universal Declaration of Human Rights which states that “Everyone has the right to a nationality.”
By the late 1940s, the majority view at the United Nations was that there were two discrete issues resulting from this massive displacement of people: the status of refugees and the status of stateless persons. The former was considered to be “an acute situation which required immediate remedial measures” and the latter, while “a continuing concern of the world community”, to be less urgent. As a result, the United Nations concentrated first on the plight of refugees, resulting in the Convention relating to the Status of Refugees of 1951, before returning to the issue of statelessness.
While the elimination of statelessness would be the ultimate goal, the initial efforts of the United Nations were focused on improving the status of stateless persons, by first defining the term and then assuring “to them the widest possible exercise of fundamental rights and freedoms.” The Convention relating to the Status of Stateless Persons was adopted by the United Nations Conference on the Status of Stateless Persons on 28 September 1954.
However, the goal to eliminate statelessness had been established by the United Nations Economic and Social Council in 1950 when it requested the International Law Commission to draft an international convention on the subject. In 1953 the Commission reviewed two draft conventions, one on the elimination of statelessness and the other on the reduction of future statelessness. There was a good deal of dissension in early discussions of the matter, particularly around issues such as “sovereignty, jus soli, [versus] jus sanguinis, the relationship between international and national law, deprivation of nationality, the settlement of disputes, including the individual’s rights in the matter, if any, and the role of the United Nations.” Regardless, the draft conventions were amended, adopted by the Commission and sent to national governments for review and comments.
The Commission received comments from various governments “many of which simply reiterated their view that the proposed texts were incompatible with existing legislation.” However, the Commission persisted, redrafted some of the articles and submitted the two revised draft conventions to the UN General Assembly in 1954. The General Assembly responded with a request that “an international conference of plenipotentiaries be convened as soon as at least twenty States had communicated their willingness to participate to the Secretary-General” to discuss the draft conventions.
It was not until 1959 that the United Nations Conference on the Elimination or Reduction of Future Statelessness first met. The attendees decided to use the draft convention on the reduction of statelessness as the basis for discussion. Once again, there were disagreements around the principles of jus soli versus jus sanguinis, but a compromise that combined both approaches was finally reached. The second meeting of the UN Conference adopted the Convention on the Reduction of Statelessness on 30 August 1961.
The Convention on the Reduction of Statelessness uses the definition of “stateless person” provided in the 1954 Convention relating to the Status of Stateless Persons: “the term ‘stateless person’ means a person who is not considered as a national by any State under the operation of its law.”
The current convention begins by describing measures to prevent statelessness among children. States are required “to grant their nationality to children who would otherwise be stateless and have ties with them through either birth in the territory or descent.” States are permitted however to set certain conditions on the granting of nationality including that the person has always been stateless, that the person has resided a minimum number years in the country and that the person “has neither been convicted of an offence against national security nor has been sentenced to imprisonment for a term of five years or more on a criminal charge.” In addition, children found in the country (foundlings) are to be granted nationality.
The convention next seeks to prevent statelessness of adults, who are in the process of changing nationalities, by requiring the new nationality to have been acquired before the existing nationality is renunciated. There are two circumstances where states are allowed to withdraw nationality – where naturalized persons take up long-term residence abroad (more than 7 consecutive years) and, with conditions, where persons who were born abroad and are not resident in the State when they attain majority.
The convention prohibits a state from depriving a person of its nationality if that would leave the person stateless. There are exceptions provided here too, including where the nationality has been obtained by fraud and when the person has shown disloyalty to the state. In addition, persons must not be deprived of their nationality on racial, ethnic, religious or political grounds.
Finally, the convention describes measures to avoid statelessness in the event of state succession, including the cession of territory from one state to another and the creation of new states.
Disputes between states concerning the interpretation or application of the convention, which cannot be settled by other means, are to be submitted to the International Court of Justice.
Canada acceded to the convention on 17 July 1978 and it came into force for Canada on 15 October 1978.
Canada has been criticized for not having a government body responsible for determining whether a person is stateless or not as well as for not being a party to the 1954 Convention relating to the Status of Stateless Persons.
The convention provides for the establishment, within the framework of the United Nations, “of a body to which a person claiming the benefit of this Convention may apply for the examination of his claim and for assistance in presenting it to the appropriate authority.” The UN General Assembly selected the UNHCR for this task. The UNHCR also offers “technical advice regarding legislation and operational support to promote the implementation of measures to prevent and reduce statelessness.”
Summary of the Convention relating to the Status of Refugees (on this site)
Summary of the Convention relating to the Status of Stateless Persons (on this site)