People Without a Country The State of St
People Without
a Country:
The State of Statelessness
❯❯❯ by Bronwen Manby
❯❯❯ Mikhail Sebastian was born in the Soviet republic
of Azerbaijan, of parents who traced their origins
to the neighbouring country of Armenia. He moved
to Houston, Texas, in 1995 on a still-valid Soviet
passport as an assistant to a businessman. He applied
for asylum, based on fear of persecution as a gay
man in Azerbaijan. His application was rejected by
the immigration authorities. U.S. officials arrested
Sebastian and tried to deport him. However, his
Soviet passport had expired, while the Azerbaijan
embassy rejected his application for an Azerbaijan
passport, as did Armenia and Russia. Since there was
no country that would accept him, he was released
with a renewable work permit but in legal limbo as
regards his long-term status in the United States. In
2011, he travelled to American Samoa on vacation;
but on arriving to board his flight to return to the
United States, he was told that he could not legally
enter the country. For more than a year he was stuck
in Samoa, until finally, he was given a humanitarian
permit to return but no right to work. Only in 2014
was he finally granted refugee status, giving him a
secure legal status and a path to American citizenship.
14 Insights on Law & Society 17.3 • Spring 2017 • © 2017 American Bar Association
❯❯❯ Tatianna Lesnikova was born an ethnic Russian
in the Soviet republic of Ukraine. Her older son
had been committed to a mental hospital in 1989,
at aged 16, for criticizing the government. In 1992,
she feared that she might suffer a similar fate at
the hands of the newly independent Ukrainian
government. She fled to the United States with
her younger son David, 15, entering the country
on their old Soviet passports, and applied for
asylum. The application was rejected. Ten years
of appeals followed, with a yearly work permit
allowing her to eke out a living as a piano teacher.
In 2002, the final appeal failed and U.S. authorities
attempted to deport her. They found that they
could not: neither Ukraine nor Russia would
recognize her as a citizen. After three months
in detention, Tatianna and her son were released
into a legal limbo. David eventually married a U.S.
citizen and managed to naturalize as American.
Tatianna was given an annually renewable work
permit, but no permanent status.
A man poses with his passport
from Côte d’Ivoire in 2015.
Many people who are stateless
are victims of governmental
change and find their passports
invalidated, and so are unable to
procure a valid travel document
as proof of citizenship. Photo
courtesy of the United Nations.
❯❯❯ Miliyon was born in Ethiopia as an Ethiopian citizen.
His father came from the northern part of Ethiopia,
which, in 1992, separated from Ethiopia to become
the new state of Eritrea. The Ethiopian government
deported Miliyon’s father, a former Ethiopian
government official, to Eritrea after conflict between
Ethiopia and Eritrea broke out in the late 1990s over
the border demarcation. When Miliyon protested the
move, security officials detained and beat him before
stripping him of citizenship on the grounds that he
was an Eritrean. His mother urged him to leave and
set him up with a smuggler and fake Ethiopian travel
documents, which he used to get a U.S. visa. Once
in the United States, he applied for asylum but was
rejected. He remained in the country with no legal
status or work permit. Both Ethiopia and Eritrea
have denied him recognition as a citizen. He lives in
expectation of being detained as an “irregular migrant”;
which, paradoxically, might assist him. Generally, after
six months in detention with no possibility of being
deported, he could be released with a work permit,
although no permanent status in the United States.
[stories from Stateless Voices]
M
ikhail, Tatianna, and Miliyon are among the
estimated 4,000 people who are stateless in the
United States. None of them have a country that
recognizes them as a citizen; there is nowhere
to which they can be deported because no country agrees
that they belong there. Their stories show how serious the
consequences can be of being stateless: stateless people
are vulnerable to arrest and deportation or to (sometimes
indefinite) immigration detention if they cannot be deported. Stateless people, in the United States and elsewhere,
are often denied access to basic services, including not
only public services such as health care or education, but
even employment in the private sector or the ability to
open a bank account. Of course, they can often not travel
freely, even within a country, let alone across international
borders, because they lack identity documents.
Bronwen Manby is an
independent consultant in the
field of human rights, democracy,
and good governance. She has
worked closely with UNHCR
on its global campaign against
statelessness, as well as for the
Open Society Foundation and
Human Rights Watch.
Insights on Law & Society 17.3 • Spring 2017 • © 2017 American Bar Association 15
❯❯❯ Most stateless people are living in the
place that they were born and have always
lived; some of them in the same place that
parents and grandparents were also born.
Above: An aerial view of the Zaatri Refugee
Camp in Jordan; at right: Members of the
Bedoon ethnic group in Kuwait rally for
citizenship status in Kuwait in 2011.
Photos courtesy of the United Nations.
When People
Become Stateless
The cases of Mikhail, Tatianna, and
Miliyon also illustrate one of the most
common situations when people
become stateless, which is when a new
country splits away from an existing
one (such as Eritrea from Ethiopia) or
an empire breaks up (such as the Soviet Union), and people who find themselves with connections on both sides
of new borders—or who are perceived
to be on the “wrong” side of the border
for people of their ethnicity or religion—are rejected by the new political
authorities in both places.
In one way, however, the three are
not typical of stateless people, in that
they are migrants in another country.
Most stateless people are living in the
place that they were born and have
always lived; some of them in the same
place that parents and grandparents
were also born. The United States, at
least, avoids this situation because of
its legal rule of birthright citizenship: a
person born in the United States automatically acquires American citizenship at birth. Many countries, however,
give few or no rights based on birth on
their soil, instead applying rules that
are based purely on descent from a parent who is a citizen. At least 26 countries around the world restrict access
to citizenship still further, through
laws that discriminate on the basis of
sex and provide no or limited rights to
mothers to transmit citizenship to their
children.1
In a country such as Cyprus, for
example, to be a citizen automatically
from birth, one of your parents must be
16 Insights on Law & Society 17.3 • Spring 2017 • © 2017 American Bar Association
a citizen. There is not even an exception
for abandoned infants of unknown parents (“foundlings”), who in most countries are presumed to be citizens. In
Lebanon, citizenship is only transmitted
through the father, and children have no
rights to acquire citizenship from their
mothers or men from their Lebanese
wives. Children of unknown parents or
whose parents’ citizenship is unknown
are presumed to be Lebanese according
to the letter of the law, but in practice
they struggle to be recognised. Many
people who are descended from ancestors who were resident in Lebanon at
the breakup of the Ottoman Empire following the end of the First World War
are still not recognised as Lebanese.2
These restrictive laws are, surprisingly, not unusual. In international law, there are only quite limited
rules governing the ability of states to
decide who they want to recognise as
a citizen.
History of Rules of
Nationality
The rules on nationality first developed
during the nineteenth century, as European empires expanded, and also as
European states and the United States
disputed questions of jurisdiction over
people and companies. At this time,
nationality (the term most often used
in international law for what is called
“citizenship” in the United States) was
completely a matter of state sovereignty, and the main concerns were that it
should be clear which state had that sovereignty. Dual nationality was discouraged, but also statelessness: it needed
to be clear which state had jurisdiction
over a person—not so much so that person could exercise his rights (a woman
was assumed to follow the citizenship
of her father or husband), but so that
the state could call on him for military
service or other obligations, or so that
the state could protect the commercial
interests of national businesses operating abroad. The first multilateral treaty
on nationality, the Hague Convention of
1930 was designed to avoid conflicts of
laws so that every person would have
a nationality, and only one nationality.
It was only after the Second World
War that nationality began to be seen
as the right of an individual that should
not be arbitrarily taken away. The Nazi
laws denationalising German Jews
brought home the extent to which citizenship was, in Hannah Arendt’s formulation, “the right to have rights.”
The Universal Declaration of Human
Rights, adopted in 1948 and the foundation of the international human rights
regime today, states in Article 15 that
“everyone has the right to a nationality,” and that “no one shall be arbitrarily
deprived of his nationality nor denied
the right to change his nationality.” In
1954, the Convention relating to the Status of Stateless Persons defined a state-
less person as someone who is “not
considered as a national by any state
under the operation of its law” and created obligations on states that ratified it
to protect stateless persons in a similar
way to refugees.
The human rights treaties that
followed from the 1960s emphasized
the rights of children, in particular, to
acquire a nationality and prohibited discrimination in transmission of nationality on the grounds of sex between
spouses and from parents to children.
But it was still not clear in many cases
which particular country had the obligation to provide nationality to any specific person.
The only international treaty that
establishes an obligation to grant
nationality in some circumstances is
the 1961 Convention on the Reduction
of Statelessness, which requires states
to grant nationality to a person born in
their territory if that person would “otherwise be stateless” (subject to very
limited conditions). However, the 1961
Convention has a relatively low number
of states signing up for its obligations,
though these numbers have increased
in recent years.
Statelessness Today
The continuing discretion given to
states in national laws—as well as the
reality of global migration, conflict,
and changing borders—means that it
is increasingly possible for people to
fall between the gaps and end up stateless. For example, a Nepali woman
working as a migrant worker in Saudi
Arabia who is raped by her employer
has no right to transmit her nationality
to that child as a woman. Under Saudi
law, a child born out of wedlock does
not acquire the father’s nationality, and
birth in Saudi Arabia does not give the
child any rights. The child is stateless.
A child born of Cuban parents outside
Cuba does not automatically acquire
his or her parents’ citizenship, and
there are strict conditions attached to
doing so. If the country of birth doesn’t
give the child any rights, the child is
very likely to remain stateless.3 The
children of Syrian refugees born in other countries cannot acquire the nationality of their mothers under Syrian law.
If the Syrian father is dead or missing,
acquisition of the father’s nationality
depends on the birth being registered,
as well as the marriage and the father’s
death, in accordance with Syrian law.4
If the child is lucky enough to be born
and grow up in a country that provides
the child with a right to its nationality
in such circumstances, then the child
may grow up with the ability to live a
full life, even as a refugee. If not, the
child may forever be condemned to
legal invisibility.
In other cases, statelessness is created as a result of discriminatory application of the law as much as the law
itself. For example, many Roma (Gypsy) people living in eastern Europe,
especially the countries that were created out of the former Yugoslavia, find
themselves denied citizenship. They
may have theoretical entitlement to
citizenship but because they have historically faced discrimination from the
authorities, they lack the documents to
prove it, including birth registration.
Even if a country has adopted laws
that establish the minimum protection
required under the 1961 Convention to
grant citizenship to a child born there
who is otherwise stateless, this may
leave many without a legal status in
practice. This protection requires the
parents of a child to prove a negative, to
prove that that the child cannot acquire
the citizenship(s) of his or her parents.
Most often, when a person is stateless, it
is asserted by the state where they were
born or live that the person is “really” from another country and has that
nationality. Indeed, since many countries allow for indefinite transmission
of nationality to children born outside
their borders over many generations, it
is almost impossible for a person from
one of those countries actually to be
stateless under a literal interpretation
Insights on Law & Society 17.3 • Spring 2017 • © 2017 American Bar Association 17
A ship of Rohingya refugees from Myanmar on the Strait of Malacca. Photo from the United States Navy.
of the law. But proving that the person
has that connection may be impossible where births were not registered,
migration happened before there was
any need for paperwork to render it
“legal,” and there are no records to
show the previous connection.
The 1961 Convention also places some limits on states’ discretion to
deprive a person of nationality if that
deprivation would render them stateless. This restriction is being tested in
the context of the global threat of terrorism, leading some states to deprive
citizens (especially naturalized citizens) of their status, even if they do not
have recognition of citizenship in any
other country and are therefore made
stateless. Although the idea of banishing a person who is a threat to national
security may seem appealing, it is not
clear that the person thereby becomes
less of a threat to global security. There
are also grave concerns where such
deprivation happens without adequate
supervision by independent courts.
Bahrain, for example, has deprived
human rights activists, academics, and
journalists of citizenship, as well as
alleged terrorists.5 More common than
formal deprivation, however, is arbitrary nonrecognition of individuals or
groups who were formerly regarded as
citizens, where it is asserted that their
citizenship was simply recognized in
error and was void from the start.
The consequences for people who
find themselves in this situation are
severe. In the worst cases, entire communities have had recognition of citizenship withdrawn and face systematic
persecution. Among these groups are
the Muslim Rohingya of Myanmar (Burma), where an ethnic-based citizenship
law adopted in 1982 deprived them of
their former status. Many thousands
have become refugees or have been
forced to work in subhuman conditions
as irregular migrants in nearby countries of Southeast Asia. In many coun-
18 Insights on Law & Society 17.3 • Spring 2017 • © 2017 American Bar Association
tries, children who are stateless may be
prevented from attending school, especially beyond primary school, or denied
access to state-provided health care,
even basic childhood immunisations.
Sometimes, stateless people are at least
recognized as legal residents and are
issued identity documents accordingly,
but often they have no state-issued documents at all, leaving them unable to
earn a living except illegally—or even
to buy a SIM card for a mobile phone.
This sort of exclusion from rights
granted to citizens can of course also
be true of children or adults who are in
another country without an official permit to be there. But statelessness is different from irregular migration status.
Most stateless people have not left the
country where they have been born and
grew up; and most irregular migrants,
even those who have lost all their documents or had them destroyed or confiscated (for example, by traffickers),
are not stateless. If they are arrested
by immigration officials and presented
to the consular officials of the country
where they came from, they are recognised as nationals of that country,
given travel documents, and deported.
This may be devastating for them and
their families, but it is not the same as
not even having the possibility of being
deported, of living forever without a
secure legal status in any country at all.
Campaign to End
Statelessness
In 2014, the UN High Commissioner
for Refugees (UNHCR) launched the
#IBelong campaign to eradicate statelessness within 10 years. The agency’s
official estimate was that there were
“at least 10 million” stateless people in
the world at that time, but it acknowledged that the real number is unknown.
Because stateless people are usually
undocumented, they are by definition
uncounted; very few countries have a
procedure to identify stateless persons
and provide them with protection. In
addition, many poorer countries in Asia
and Africa have a large number of people with no documents at all, not even a
birth certificate, whose status as citizen
or non-citizen is unclear. Paradoxically,
the campaign to eradicate statelessness
may reveal even more people to be
stateless—not because there are more
in reality, but because there is greater
effort to seek out those facing exclusion from society on such grounds.
UNHCR’s #IBelong campaign has
a ten-point action plan to end statelessness. The first action is to resolve major
situations of statelessness—among
them the Rohingya; but also, for example, the status of former citizens of the
Soviet Union (like Mikhail and Tatianna) who find themselves unrecognised
by any of the successor states or the
case of many cross-border or nomadic
ethnic groups in Africa. The action plan
also calls for legal protections to ensure
that no child is born stateless (including protection for foundlings and for
children born in the territory who are
otherwise stateless), an end to gender discrimination in transmission of
nationality, and prevention of arbitrary
denial or deprivation of nationality. The
agency has adopted a series of briefing
papers on “good practices” to reduce
statelessness through such actions. The
actions include:
1. Resolve existing major situations
of statelessness
2. Ensure that no child is born
stateless
3. Remove gender discrimination
from nationality laws
4. Prevent denial, loss, or deprivation
of nationality on discriminatory
grounds
5. Prevent statelessness in the cases
of state succession
6. Grant protection status to stateless
migrants and facilitate their
naturalization
7. Ensure birth registration for the
prevention of statelessness
8. Issue nationality documentation to
those with entitlement to it
9. Accede to the United Nations
Statelessness Conventions
10. Improve quantitative and
qualitative data on stateless
populations
One reason why the campaign has
become so necessary is the increasing
demands across the world for us all
to identify ourselves at every turn; not
having a recognized citizenship greatly increases the risk of not having formal identification papers. Although the
United States is among those countries that do not have a requirement
to hold a national identity card, this
is increasingly rare. And even in the
United States, the need to prove identity and legal presence in the country
is becoming more pervasive. Because
the United States provides citizenship
based on birth on its soil, it has a relatively low number of stateless persons;
but because of that right, the question
of proof becomes even more important.
Universal birth registration is promoted
by the UNHCR action plan as one of the
main protections against statelessness,
whatever the basis of a country’s laws.
In the United States it is especially critical to ensure that the constitutional
rights of children born in the country
are respected.
IN
1. UN High Commissioner for Refugees
(UNHCR), Background Note on Gender
Equality, Nationality Laws and Statelessness
2017, 8 March 2017, available at http://www.
refworld.org/docid/58aff4d94.html.
2. Information on national citizenship laws
available at the EUDO Citizenship observatory website http://eudo-citizenship.eu/countryprofiles (soon to be renamed GlobalCit).
3. For the story of a Cuban girl born in
South Africa, see the video by Lawyers for
Human Rights, available at https://www.
youtube.com/watch?v=ih5keCYFHyM.
4. See the online toolkit produced by the
Institute on Statelessness and Inclusion and
the Norwegian Refugee Council, available at
http://www.syrianationality.org/.
5. See, for example, “Bahrain: Alarming spike in expulsion of citizens arbitrarily
stripped of their nationality,” Amnesty International, 7 March 2016, available at https://www.
amnesty.org/en/latest/news/2016/03/bahrainalarming-spike-in-expulsion-of-citizensarbitrarily-stripped-of-their-nationality/.
Discussion
Questions
1. What role do “identifying documents”
play in your life? Who issues these
documents?
2. Are you surprised by some of the
reasons the author cites for why
someone might be stateless?
What role does migration play in
some of the stateless scenarios?
3. Considering the ten actions that
the United Nations identiied to end
statelessness, what kinds of national
policies enacted in U.N. membernations might help to effect the
recommended changes?
Suggested
Resources
• United Nations High
Commissioner for Refugees
http://www.unhcr.org/statelesspeople.html
• Institute on Statelessness and Inclusion
http://www.institutesi.org/
• Global Campaign for Equal
Nationality Rights
http://www.equalnationalityrights.org/
• Stateless Voices
http://www.statelessvoices.com/home/
Stay
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Insights on Law & Society 17.3 • Spring 2017 • © 2017 American Bar Association 19
a Country:
The State of Statelessness
❯❯❯ by Bronwen Manby
❯❯❯ Mikhail Sebastian was born in the Soviet republic
of Azerbaijan, of parents who traced their origins
to the neighbouring country of Armenia. He moved
to Houston, Texas, in 1995 on a still-valid Soviet
passport as an assistant to a businessman. He applied
for asylum, based on fear of persecution as a gay
man in Azerbaijan. His application was rejected by
the immigration authorities. U.S. officials arrested
Sebastian and tried to deport him. However, his
Soviet passport had expired, while the Azerbaijan
embassy rejected his application for an Azerbaijan
passport, as did Armenia and Russia. Since there was
no country that would accept him, he was released
with a renewable work permit but in legal limbo as
regards his long-term status in the United States. In
2011, he travelled to American Samoa on vacation;
but on arriving to board his flight to return to the
United States, he was told that he could not legally
enter the country. For more than a year he was stuck
in Samoa, until finally, he was given a humanitarian
permit to return but no right to work. Only in 2014
was he finally granted refugee status, giving him a
secure legal status and a path to American citizenship.
14 Insights on Law & Society 17.3 • Spring 2017 • © 2017 American Bar Association
❯❯❯ Tatianna Lesnikova was born an ethnic Russian
in the Soviet republic of Ukraine. Her older son
had been committed to a mental hospital in 1989,
at aged 16, for criticizing the government. In 1992,
she feared that she might suffer a similar fate at
the hands of the newly independent Ukrainian
government. She fled to the United States with
her younger son David, 15, entering the country
on their old Soviet passports, and applied for
asylum. The application was rejected. Ten years
of appeals followed, with a yearly work permit
allowing her to eke out a living as a piano teacher.
In 2002, the final appeal failed and U.S. authorities
attempted to deport her. They found that they
could not: neither Ukraine nor Russia would
recognize her as a citizen. After three months
in detention, Tatianna and her son were released
into a legal limbo. David eventually married a U.S.
citizen and managed to naturalize as American.
Tatianna was given an annually renewable work
permit, but no permanent status.
A man poses with his passport
from Côte d’Ivoire in 2015.
Many people who are stateless
are victims of governmental
change and find their passports
invalidated, and so are unable to
procure a valid travel document
as proof of citizenship. Photo
courtesy of the United Nations.
❯❯❯ Miliyon was born in Ethiopia as an Ethiopian citizen.
His father came from the northern part of Ethiopia,
which, in 1992, separated from Ethiopia to become
the new state of Eritrea. The Ethiopian government
deported Miliyon’s father, a former Ethiopian
government official, to Eritrea after conflict between
Ethiopia and Eritrea broke out in the late 1990s over
the border demarcation. When Miliyon protested the
move, security officials detained and beat him before
stripping him of citizenship on the grounds that he
was an Eritrean. His mother urged him to leave and
set him up with a smuggler and fake Ethiopian travel
documents, which he used to get a U.S. visa. Once
in the United States, he applied for asylum but was
rejected. He remained in the country with no legal
status or work permit. Both Ethiopia and Eritrea
have denied him recognition as a citizen. He lives in
expectation of being detained as an “irregular migrant”;
which, paradoxically, might assist him. Generally, after
six months in detention with no possibility of being
deported, he could be released with a work permit,
although no permanent status in the United States.
[stories from Stateless Voices]
M
ikhail, Tatianna, and Miliyon are among the
estimated 4,000 people who are stateless in the
United States. None of them have a country that
recognizes them as a citizen; there is nowhere
to which they can be deported because no country agrees
that they belong there. Their stories show how serious the
consequences can be of being stateless: stateless people
are vulnerable to arrest and deportation or to (sometimes
indefinite) immigration detention if they cannot be deported. Stateless people, in the United States and elsewhere,
are often denied access to basic services, including not
only public services such as health care or education, but
even employment in the private sector or the ability to
open a bank account. Of course, they can often not travel
freely, even within a country, let alone across international
borders, because they lack identity documents.
Bronwen Manby is an
independent consultant in the
field of human rights, democracy,
and good governance. She has
worked closely with UNHCR
on its global campaign against
statelessness, as well as for the
Open Society Foundation and
Human Rights Watch.
Insights on Law & Society 17.3 • Spring 2017 • © 2017 American Bar Association 15
❯❯❯ Most stateless people are living in the
place that they were born and have always
lived; some of them in the same place that
parents and grandparents were also born.
Above: An aerial view of the Zaatri Refugee
Camp in Jordan; at right: Members of the
Bedoon ethnic group in Kuwait rally for
citizenship status in Kuwait in 2011.
Photos courtesy of the United Nations.
When People
Become Stateless
The cases of Mikhail, Tatianna, and
Miliyon also illustrate one of the most
common situations when people
become stateless, which is when a new
country splits away from an existing
one (such as Eritrea from Ethiopia) or
an empire breaks up (such as the Soviet Union), and people who find themselves with connections on both sides
of new borders—or who are perceived
to be on the “wrong” side of the border
for people of their ethnicity or religion—are rejected by the new political
authorities in both places.
In one way, however, the three are
not typical of stateless people, in that
they are migrants in another country.
Most stateless people are living in the
place that they were born and have
always lived; some of them in the same
place that parents and grandparents
were also born. The United States, at
least, avoids this situation because of
its legal rule of birthright citizenship: a
person born in the United States automatically acquires American citizenship at birth. Many countries, however,
give few or no rights based on birth on
their soil, instead applying rules that
are based purely on descent from a parent who is a citizen. At least 26 countries around the world restrict access
to citizenship still further, through
laws that discriminate on the basis of
sex and provide no or limited rights to
mothers to transmit citizenship to their
children.1
In a country such as Cyprus, for
example, to be a citizen automatically
from birth, one of your parents must be
16 Insights on Law & Society 17.3 • Spring 2017 • © 2017 American Bar Association
a citizen. There is not even an exception
for abandoned infants of unknown parents (“foundlings”), who in most countries are presumed to be citizens. In
Lebanon, citizenship is only transmitted
through the father, and children have no
rights to acquire citizenship from their
mothers or men from their Lebanese
wives. Children of unknown parents or
whose parents’ citizenship is unknown
are presumed to be Lebanese according
to the letter of the law, but in practice
they struggle to be recognised. Many
people who are descended from ancestors who were resident in Lebanon at
the breakup of the Ottoman Empire following the end of the First World War
are still not recognised as Lebanese.2
These restrictive laws are, surprisingly, not unusual. In international law, there are only quite limited
rules governing the ability of states to
decide who they want to recognise as
a citizen.
History of Rules of
Nationality
The rules on nationality first developed
during the nineteenth century, as European empires expanded, and also as
European states and the United States
disputed questions of jurisdiction over
people and companies. At this time,
nationality (the term most often used
in international law for what is called
“citizenship” in the United States) was
completely a matter of state sovereignty, and the main concerns were that it
should be clear which state had that sovereignty. Dual nationality was discouraged, but also statelessness: it needed
to be clear which state had jurisdiction
over a person—not so much so that person could exercise his rights (a woman
was assumed to follow the citizenship
of her father or husband), but so that
the state could call on him for military
service or other obligations, or so that
the state could protect the commercial
interests of national businesses operating abroad. The first multilateral treaty
on nationality, the Hague Convention of
1930 was designed to avoid conflicts of
laws so that every person would have
a nationality, and only one nationality.
It was only after the Second World
War that nationality began to be seen
as the right of an individual that should
not be arbitrarily taken away. The Nazi
laws denationalising German Jews
brought home the extent to which citizenship was, in Hannah Arendt’s formulation, “the right to have rights.”
The Universal Declaration of Human
Rights, adopted in 1948 and the foundation of the international human rights
regime today, states in Article 15 that
“everyone has the right to a nationality,” and that “no one shall be arbitrarily
deprived of his nationality nor denied
the right to change his nationality.” In
1954, the Convention relating to the Status of Stateless Persons defined a state-
less person as someone who is “not
considered as a national by any state
under the operation of its law” and created obligations on states that ratified it
to protect stateless persons in a similar
way to refugees.
The human rights treaties that
followed from the 1960s emphasized
the rights of children, in particular, to
acquire a nationality and prohibited discrimination in transmission of nationality on the grounds of sex between
spouses and from parents to children.
But it was still not clear in many cases
which particular country had the obligation to provide nationality to any specific person.
The only international treaty that
establishes an obligation to grant
nationality in some circumstances is
the 1961 Convention on the Reduction
of Statelessness, which requires states
to grant nationality to a person born in
their territory if that person would “otherwise be stateless” (subject to very
limited conditions). However, the 1961
Convention has a relatively low number
of states signing up for its obligations,
though these numbers have increased
in recent years.
Statelessness Today
The continuing discretion given to
states in national laws—as well as the
reality of global migration, conflict,
and changing borders—means that it
is increasingly possible for people to
fall between the gaps and end up stateless. For example, a Nepali woman
working as a migrant worker in Saudi
Arabia who is raped by her employer
has no right to transmit her nationality
to that child as a woman. Under Saudi
law, a child born out of wedlock does
not acquire the father’s nationality, and
birth in Saudi Arabia does not give the
child any rights. The child is stateless.
A child born of Cuban parents outside
Cuba does not automatically acquire
his or her parents’ citizenship, and
there are strict conditions attached to
doing so. If the country of birth doesn’t
give the child any rights, the child is
very likely to remain stateless.3 The
children of Syrian refugees born in other countries cannot acquire the nationality of their mothers under Syrian law.
If the Syrian father is dead or missing,
acquisition of the father’s nationality
depends on the birth being registered,
as well as the marriage and the father’s
death, in accordance with Syrian law.4
If the child is lucky enough to be born
and grow up in a country that provides
the child with a right to its nationality
in such circumstances, then the child
may grow up with the ability to live a
full life, even as a refugee. If not, the
child may forever be condemned to
legal invisibility.
In other cases, statelessness is created as a result of discriminatory application of the law as much as the law
itself. For example, many Roma (Gypsy) people living in eastern Europe,
especially the countries that were created out of the former Yugoslavia, find
themselves denied citizenship. They
may have theoretical entitlement to
citizenship but because they have historically faced discrimination from the
authorities, they lack the documents to
prove it, including birth registration.
Even if a country has adopted laws
that establish the minimum protection
required under the 1961 Convention to
grant citizenship to a child born there
who is otherwise stateless, this may
leave many without a legal status in
practice. This protection requires the
parents of a child to prove a negative, to
prove that that the child cannot acquire
the citizenship(s) of his or her parents.
Most often, when a person is stateless, it
is asserted by the state where they were
born or live that the person is “really” from another country and has that
nationality. Indeed, since many countries allow for indefinite transmission
of nationality to children born outside
their borders over many generations, it
is almost impossible for a person from
one of those countries actually to be
stateless under a literal interpretation
Insights on Law & Society 17.3 • Spring 2017 • © 2017 American Bar Association 17
A ship of Rohingya refugees from Myanmar on the Strait of Malacca. Photo from the United States Navy.
of the law. But proving that the person
has that connection may be impossible where births were not registered,
migration happened before there was
any need for paperwork to render it
“legal,” and there are no records to
show the previous connection.
The 1961 Convention also places some limits on states’ discretion to
deprive a person of nationality if that
deprivation would render them stateless. This restriction is being tested in
the context of the global threat of terrorism, leading some states to deprive
citizens (especially naturalized citizens) of their status, even if they do not
have recognition of citizenship in any
other country and are therefore made
stateless. Although the idea of banishing a person who is a threat to national
security may seem appealing, it is not
clear that the person thereby becomes
less of a threat to global security. There
are also grave concerns where such
deprivation happens without adequate
supervision by independent courts.
Bahrain, for example, has deprived
human rights activists, academics, and
journalists of citizenship, as well as
alleged terrorists.5 More common than
formal deprivation, however, is arbitrary nonrecognition of individuals or
groups who were formerly regarded as
citizens, where it is asserted that their
citizenship was simply recognized in
error and was void from the start.
The consequences for people who
find themselves in this situation are
severe. In the worst cases, entire communities have had recognition of citizenship withdrawn and face systematic
persecution. Among these groups are
the Muslim Rohingya of Myanmar (Burma), where an ethnic-based citizenship
law adopted in 1982 deprived them of
their former status. Many thousands
have become refugees or have been
forced to work in subhuman conditions
as irregular migrants in nearby countries of Southeast Asia. In many coun-
18 Insights on Law & Society 17.3 • Spring 2017 • © 2017 American Bar Association
tries, children who are stateless may be
prevented from attending school, especially beyond primary school, or denied
access to state-provided health care,
even basic childhood immunisations.
Sometimes, stateless people are at least
recognized as legal residents and are
issued identity documents accordingly,
but often they have no state-issued documents at all, leaving them unable to
earn a living except illegally—or even
to buy a SIM card for a mobile phone.
This sort of exclusion from rights
granted to citizens can of course also
be true of children or adults who are in
another country without an official permit to be there. But statelessness is different from irregular migration status.
Most stateless people have not left the
country where they have been born and
grew up; and most irregular migrants,
even those who have lost all their documents or had them destroyed or confiscated (for example, by traffickers),
are not stateless. If they are arrested
by immigration officials and presented
to the consular officials of the country
where they came from, they are recognised as nationals of that country,
given travel documents, and deported.
This may be devastating for them and
their families, but it is not the same as
not even having the possibility of being
deported, of living forever without a
secure legal status in any country at all.
Campaign to End
Statelessness
In 2014, the UN High Commissioner
for Refugees (UNHCR) launched the
#IBelong campaign to eradicate statelessness within 10 years. The agency’s
official estimate was that there were
“at least 10 million” stateless people in
the world at that time, but it acknowledged that the real number is unknown.
Because stateless people are usually
undocumented, they are by definition
uncounted; very few countries have a
procedure to identify stateless persons
and provide them with protection. In
addition, many poorer countries in Asia
and Africa have a large number of people with no documents at all, not even a
birth certificate, whose status as citizen
or non-citizen is unclear. Paradoxically,
the campaign to eradicate statelessness
may reveal even more people to be
stateless—not because there are more
in reality, but because there is greater
effort to seek out those facing exclusion from society on such grounds.
UNHCR’s #IBelong campaign has
a ten-point action plan to end statelessness. The first action is to resolve major
situations of statelessness—among
them the Rohingya; but also, for example, the status of former citizens of the
Soviet Union (like Mikhail and Tatianna) who find themselves unrecognised
by any of the successor states or the
case of many cross-border or nomadic
ethnic groups in Africa. The action plan
also calls for legal protections to ensure
that no child is born stateless (including protection for foundlings and for
children born in the territory who are
otherwise stateless), an end to gender discrimination in transmission of
nationality, and prevention of arbitrary
denial or deprivation of nationality. The
agency has adopted a series of briefing
papers on “good practices” to reduce
statelessness through such actions. The
actions include:
1. Resolve existing major situations
of statelessness
2. Ensure that no child is born
stateless
3. Remove gender discrimination
from nationality laws
4. Prevent denial, loss, or deprivation
of nationality on discriminatory
grounds
5. Prevent statelessness in the cases
of state succession
6. Grant protection status to stateless
migrants and facilitate their
naturalization
7. Ensure birth registration for the
prevention of statelessness
8. Issue nationality documentation to
those with entitlement to it
9. Accede to the United Nations
Statelessness Conventions
10. Improve quantitative and
qualitative data on stateless
populations
One reason why the campaign has
become so necessary is the increasing
demands across the world for us all
to identify ourselves at every turn; not
having a recognized citizenship greatly increases the risk of not having formal identification papers. Although the
United States is among those countries that do not have a requirement
to hold a national identity card, this
is increasingly rare. And even in the
United States, the need to prove identity and legal presence in the country
is becoming more pervasive. Because
the United States provides citizenship
based on birth on its soil, it has a relatively low number of stateless persons;
but because of that right, the question
of proof becomes even more important.
Universal birth registration is promoted
by the UNHCR action plan as one of the
main protections against statelessness,
whatever the basis of a country’s laws.
In the United States it is especially critical to ensure that the constitutional
rights of children born in the country
are respected.
IN
1. UN High Commissioner for Refugees
(UNHCR), Background Note on Gender
Equality, Nationality Laws and Statelessness
2017, 8 March 2017, available at http://www.
refworld.org/docid/58aff4d94.html.
2. Information on national citizenship laws
available at the EUDO Citizenship observatory website http://eudo-citizenship.eu/countryprofiles (soon to be renamed GlobalCit).
3. For the story of a Cuban girl born in
South Africa, see the video by Lawyers for
Human Rights, available at https://www.
youtube.com/watch?v=ih5keCYFHyM.
4. See the online toolkit produced by the
Institute on Statelessness and Inclusion and
the Norwegian Refugee Council, available at
http://www.syrianationality.org/.
5. See, for example, “Bahrain: Alarming spike in expulsion of citizens arbitrarily
stripped of their nationality,” Amnesty International, 7 March 2016, available at https://www.
amnesty.org/en/latest/news/2016/03/bahrainalarming-spike-in-expulsion-of-citizensarbitrarily-stripped-of-their-nationality/.
Discussion
Questions
1. What role do “identifying documents”
play in your life? Who issues these
documents?
2. Are you surprised by some of the
reasons the author cites for why
someone might be stateless?
What role does migration play in
some of the stateless scenarios?
3. Considering the ten actions that
the United Nations identiied to end
statelessness, what kinds of national
policies enacted in U.N. membernations might help to effect the
recommended changes?
Suggested
Resources
• United Nations High
Commissioner for Refugees
http://www.unhcr.org/statelesspeople.html
• Institute on Statelessness and Inclusion
http://www.institutesi.org/
• Global Campaign for Equal
Nationality Rights
http://www.equalnationalityrights.org/
• Stateless Voices
http://www.statelessvoices.com/home/
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Insights on Law & Society 17.3 • Spring 2017 • © 2017 American Bar Association 19