DROI

DROI

Committee on Human Rights (DROI)

#Fundamental rights and statelessness: With an estimated 600,000 stateless individuals living in Europe today, how should Member States ensure the protection of their fundamental rights and access to health care and other basic needs such as shelter and food during the COVID-19 pandemic?

By: Carla Sava (RO)

Topic video

Statelessness explained by #IBelong

The topic at a glance

I question my very existence, my very essence of being human. We don’t want to live or die as ghosts.”
– Stateless person from the former Soviet Union

In a world where having one or more  nationalities is usual, it is almost impossible to imagine that people without citizenship exist. However, there are 10 million stateless individuals in the world – infants, children, adults and elderly living without the protection and rights granted by citizenship. In the European Union (EU) alone, there are over 600,000  people not recognised as nationals by any State. Whereas migration is one of the main issues  where statelessness arises, not all refugees[efn_note]Refugees are people who have fled war, violence, conflict or persecution and have crossed an international border to find safety in another country. They are defined and protected in international law.[/efn_note] are stateless as most stateless people have never crossed an international border. These people become ‘citizens of nowhere’ because of a variety of circumstances, most of them being related to the incompatible and discriminatory legal systems across Europe. 
By the end of the 20th century, the dissolution of the Union of Soviet Socialist Republics (USSR), and the breakup of Yugoslavia caused over 80% of the reported statelessness cases across Europe. This led to the concentration of a vast population of stateless individuals in just four countries: Russia Federation, Latvia, Estonia and Ukraine. Statelessness, albeit on a smaller scale, has been reported in countries such as Sweden, Germany, Poland and Italy, with over 40,000 stateless individuals.
The impact of statelessness can be severe, hindering access to fundamental human rights that are usually taken for granted. For example, stateless people in Italy, Portugal and Spain face challenges when pursuing their education, are forced to turn to emergency shelters and lack access even to emergency healthcare.
These people are having a common burden of not belonging anywhere. At such a critical time, in the middle of a global pandemic, they now are at great risk of being left behind. This year, stateless people have been facing a lack of access to basic needs, most notably food and adequate shelter. How can, and should, the EU ensure a solution to the urgent problems of a long-term issue?

Topic dictionary

Stateless person:  someone who is not considered as a national by any State under the operation of its law.
Nationality/citizenshipthe legal bond between the State and a person. It provides the State jurisdiction over the person and further insuresthe person’s protection. 
Birth registration: the process through which a childʼs birth is recorded in the civil register by the government authority.  It is a fundamental human right,  ensuring that other rights are upheld and is a requirement for the issuing of a birth certificate.
Naturalisation: the legal process through which a non-national individual obtains citizenship of a country.
Statelessness determination procedures (SDP): process that serves to identify stateless persons among migrant populations ensuring that they live by the rights to which they are entitled until they acquire a nationality. Only a small number of countries, such as France, Italy, Hungary and Bulgaria have established SDP’s.
De jure statelessness: refers to stateless people who have no legal nationality, meaning they are not recognized as citizens under the laws of any State. Conversely, de facto stateless are those who have no “effective” nationality meaning they are not recognized as citizens by any State even if they have a claim to citizenship under the laws of one or more States.
Jus sanguinis (Right of the Blood): means that parents are provided with the opportunity to pass their citizenship onto their children, even if their children are not born in that country. Jus soli (Right of the Soil) implies that nationality is acquired through birth on the territory of the state. No European countries grant citizenship based solely on jus soli.

Key actors

The United Nations High Commissioner for Refugees (UNHCR) has been involved in statelessness issues since its formation in the 1950s. Being fully mandated by the United Nations (UN), this agency is the main international body to tackle the problem of eradicating statelessness. UNHCR’s four key areas are identification, prevention, reduction, and protection. 
European Commission (EC) is the executive branch of the EU, proposing legislation and supporting the Member States in their work and promoting dialogue with non-EU countries.  It works in collaboration with the Member States to ensure the integration of stateless people and building a common asylum policy. The EC also works alongside and cooperates with the UN refugee agency.
Member States (MS) have the power to establish their own SDP, implement international agreements and enact a solid body of rights granted to a stateless person in their territory. 
The European Network on Statelessness (ENS) is a network of 150 non-profit organisations (NGOs) and experts in 41 countries committed to protecting stateless people’s human rights through awareness-raising, training and by supporting the development of the legal framework.
The Institute on Statelessness and Inclusion (ISI) is a NGO  addressing the security of the stateless on a global level. Their strategic plan 2018-2023 aims to achieve a more inclusive society with the use of technology, research, innovation and advocacy.
Frontex, the European Border and Coast Guard Agency coordinates and controls the European border management, identifying both migratory patterns and criminal activities. Monitoring the situation on the borders includes evaluating the capacity and readiness of each Member State to face challenges at its external borders, including migratory pressure.
Grassroots organisations and local advocacy are a strong asset in the fight to end statelessness. For example, Roma Advocacy Network Netherlands addresses the issue of Roma statelessness at a national level, providing round the clock services and multilingual information to individuals. They promote an inclusive approach to addressing statelessness and put pressure on the authorities to develop SDPs in line with UNHCR guidelines.

Measures already in place

The 1954 Convention relating to the Status of Stateless Persons is a UN multilateral treaty providing a definition of statelessness and guaranteeing a set of minimum standards for their treatment.  It states that within signatory States, stateless people should, at minimum, have the same rights as other non-nationals – including the right to education, employment and housing. 
The 1961 Convention on the Reduction of Statelessness is another UN multilateral treaty, proposing a series of impactful measures to combat all forms of statelessness.  One of its most important provisions is that stateless children should acquire the nationality of the country in which they are born. Additionally, the convention covers instances of state succession or renunciation of nationality.  In Europe, 12 countries are still to accede to the 1954 Convention and 20 countries are not yet part of the 1961 Convention.

The Council of Europe’s (CoE) 1997 European Convention of Nationality and the 2006 Convention on the Avoidance of State Successions are legal instruments clarifying and enforcing the importance of ending statelessness. 
In 2004, the UNHCR launched the decade-long #IBelong Campaign, with the goal of eradicating statelessness by 2024. The Global Action Plan of the campaign aims to resolve existing situations of statelessness, prevent new cases, and improve identification and protection of stateless persons. It set out 10 actions needed to end statelessness, examples being mandatory birth registration, increasing the numbers of signatories to the UN conventions and collecting more accurate data on statelessness. 
COVID-19 Emergency Statelessness Fund (CESF) [efn_note]Coronavirus disease 2019 (COVID-19) is a contagious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2).[/efn_note] is an initiative of the ISI that aims to raise funds in order to address the issue of statelessness during  COVID-19 pandemic. While the CESF primarily focuses on areas outside of Europe, its structure represents a clear example of how humanitarian relief confronts the practical, legal and political barriers that stateless people face, working towards systemic solutions.

Key conflicts

1. Lack of SDP’s vs the need for naturalisation procedures

Before obtaining a nationality, stateless people must be identified by the State so that they can have basic human rights and residence until their situation is resolved. An SDP is the mechanism to facilitate naturalisation of the stateless people, however 15 EU Member States lack SDPs. Although the need for naturalisation is enshrined in the aforementioned UN Conventions, some EU countries still fail to identify nationality problems. A  vicious cycle is created: the lack of recognition as stateless means that one can not be protected under international law either, and without international protection, stateless people are unable to take any step towards being identified as stateless in the first place. While the development of effective naturalisation processes is crucial, without establishment and improvement of SDPs, they are of little use.

2. Granting citizenship vs the universal right to nationality 

Individual countries have almost exclusive competence when it comes to granting and withdrawing nationality. Individuals may therefore be denied nationality of a State despite having strong ties to that State. Reasons for their application being rejected differ, and are in many cases controversial and claimed to be discriminatory. Therefore, there is an incompatibility between the authority of national governments to grant citizenships, and Article 15 of the Universal Declaration of Human rights (UDHR), which declares the right to a nationality. In Europe, Roma people are often seen as “a criminal minority who refuses to integrate”, leaving them undocumented and stateless in Italy, Ukraine and Bulgaria.

3. Lack of birth registration systems and the insufficient reliable data

Birth registration is fundamental to prevent a child from becoming stateless, yet one in four children under age 5 (166 million) are not registered in the world today, having 40 million births going unregistered annually. Without functioning birth registration systems, civil protection cannot achieve universal coverage. Moreover, collecting data on the occurrence of stateless people is almost impossible. This problem causes the statistics to be misleading, showing that there are only 3.7 million stateless people in 78 countries, however UNHCR estimates that at least 10 million people are in this situation worldwide. 

4. Eradicating statelessness vs ensuring other fundamental rights for stateless individuals

Legal recognition is essential to addressing Statelessness, as it is virtually the only way out of this condition. However, the COVID-19 pandemic has made it clear that access to proper health care is impetuous to stateless persons. The lengthy procedure for acquiring a nationality fails to address the necessities stateless people have on a daily basis: proper education, health care coverage and civil protection.

What’s next

The statelessness problem will get resolved until the States succession, lengthy administrative and legal procedures and forced migration pursue. A world where no child is born stateless, discrimination from nationality laws no longer exists, naturalization is facilitated, and quantitative and qualitative data on stateless populations are improved is a world “towards zero statelessness”. For them, contributing personally and culturally to their homes is impossible without a formal connection with the State by which they are not recognised. 
The EU has the ability to have a leading role in eradicating statelessness inside and outside its borders. Their goals alongside UNHCR include implementing discussions between the EU and partner countries; improving data collection and analysis; putting the necessary laws and determination procedures in place ensuring that stateless people can be identified and protected.
Therefore, how should the EU use its policy making power to establish a common set of values among Member States which will help eradicate statelessness absolutely. What might these values be, and how should Member States ensure that the fundamental rights and practical needs of stateless individuals are fulfilled?

Key questions 

  • How can Member States reframe “jus soli laws” in order to better resonate with the situations of the stateless?
  • Are there any examples of European countries with functioning birth registration systems? If so, what may be the key element for these systems? If not, what do you think is missing for them to function?
  • What criteria, in your opinion,  should determine the eligibility for nationality? 
  • Do you think that there are stateless people who are neither de jure, neither de facto? 
  • Are there any cases of stateless people who can’t even establish their nationality?  Will they ever be able to do so?

Links for further research 

Stateless in Europe: ‘We are no people with no nation’”, The Guardian
Statelessness in the EU“, European Commission
The Impact of COVID-19 on Stateless Populations: Policy Recommendations and Good Practices”, UNHCR
Ending Statelessness Within 10 Years”, UNHCR 
A story on statelessness”, European Network on Statelessness