Professor Goodwin-Gill’s remarks were delivered at a 15 July 2021 European Network on Statelessness event marking the launch of the Statelessness Case Law Database.
Many aspects of nationality were of great interest to States during the time of the League of Nations. Dual nationality was a source of friction, particularly on military service; multiple nationality merely repeated the problems; the nationality of married women raised issues which affected them and also their children; while statelessness was simply anomalous.
What does nationality actually mean? The International Court of Justice emphasized in the Nottebohm Case that for one State’s nationality to be opposable to another State in the context of diplomatic protection, it must satisfy the requirements of international law; it must reflect an effective link – a social fact of attachment between State and individual.
At the same time, however, this sense must be balanced against the socio-political perceptions at particular times, and reading the debates in the 1959/1961 Conferences, one cannot but be struck by how these issues frequently transcend purely legal considerations.
The July 1951 Conference of Plenipotentiaries which finalized the Refugee Convention was originally intended also to adopt a protocol on stateless persons, but it decided that the matter needed more detailed study. It deferred the issue to the General Assembly, and a further United Nations Conference then convened in New York and, after relatively uneventful debate, adopted the 1954 Convention relating to the Status of Stateless Persons.
In many respects, the 1954 Convention parallels the Refugee Convention. It deals essentially with status, and it provides for standards of treatment contingent on levels of ‘attachment’ between individual and State. Certain refugee-specific protections are excluded, however, such as non-penalization for illegal entry and non-refoulement, while article 1 defines a stateless person as, ‘a person who is not considered a national by any State under the operation of its law’. This has given rise to a rather frustrating debate over the standard of proof in applying a definition which, I suggest, was never intended for judicial review.
Still, it is clear that the 1954 Conference was wary of extending the Convention’s scope beyond those who might formally be characterized as not possessing a nationality according to law. It merely recommended that contracting States should ‘consider sympathetically’ the situation of those who had valid reasons for rejecting national protection, and did not consider process any further.
Providing for ‘status’ is one thing, of course, but the further, main challenge is that of eliminating and reducing statelessness; and that is what the 1961 Convention is all about.
In July 1951, responding to what were referred to as the ‘technical aspects’ of statelessness, the International Law Commission appointed Manley O. Hudson, a United States lawyer and former judge of the Permanent Court of International Justice, as Special Rapporteur for the study of nationality.
Hudson observed that statelessness was ‘undesirable’, for everyone should be ‘attributed to some State’; and because of its ‘precariousness’ in the individual case. He submitted a paper which noted that the uniformity of nationality laws seemed,
‘to indicate a consensus of opinion of States that conferment of nationality at birth has to be based on either... jus soli or... jus sanguinis, or on a combination of these principles.’
It was an open question whether State practice supported an obligation in the matter of according citizenship at birth, but in naturalization and the conferment of citizenship after birth, the only rule of international law that could be inferred was that there should be a personal or territorial link between the individual and the State.
Reducing or eliminating statelessness therefore meant attending to causes, and the answer appeared to lie in the adoption of two rules: (1) If no other nationality is acquired at birth, the individual should acquire the nationality of the State in whose territory he or she is born; and (2) loss of nationality after birth should be conditional on the acquisition of another nationality.
In 1953 – Hudson had resigned for health reasons and been succeeded by Roberto Córdova – the Commission reviewed two draft conventions, one on the elimination, and one on the reduction of future statelessness. The following year, after considering the views of governments and some re-drafting, it submitted both to the General Assembly which then decided to convene a conference.
The United Nations Conference on the Elimination or Reduction of Statelessness met first in Geneva in 1959, and again in New York in 1961, opting to use the draft on the reduction of statelessness, which contained less extensive obligations, and focussing on reducing statelessness at birth.
Once again, fundamental differences were revealed between those who favoured the principle of jus soli, and those who went for jus sanguinis. No less divisive was the issue of deprivation of nationality, and this necessitated the second session in New York, when the final text of the Convention on the Reduction of Statelessness was finally adopted.
What does the 1961 Convention actually do? First, it imposes obligations on States to grant nationality in certain circumstances. Article 1 provides that, subject to certain reservations, ‘A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless’.
Second, it settles a variety of incidental problems, such as the nationality of foundlings (article 2); the nationality of those born on board ships or aircraft (article 3); and the nationality of one not born in the territory if one parent did have nationality and the person would otherwise be stateless, again subject to certain limitations (article 4).
Third, it made loss of nationality on the occasion of change of civil status or voluntary act of the individual (such as renunciation) conditional on the acquisition of another nationality (articles 5-7).
And fourth, it deals with deprivation. At the time, the United Kingdom drove the debate.
‘To deprive persons of their nationality so as to render them stateless should certainly be an exceptional step’, it said, ‘and the freedom of States to deprive persons of their nationality should be severely circumscribed by means of appropriate clauses in the convention’.
Article 8 owes much to the UK’s initiatives, with a compromise text which ‘admitted no grounds for deprivation other than those already specified in the current law of the Contracting States’. Article 8 thus ‘freezes’ the grounds of deprivation and it now lays down the general principle that a State shall not deprive a person of his or her nationality if such deprivation would result in statelessness. That duty remains qualified, however, and deprivation of nationality resulting in statelessness is still permitted in the case of naturalized individuals in certain cases.
Article 9 then prohibits, without exception, the deprivation of nationality on racial, ethnic, religious, or political grounds, while in the case of transfer of territory, article 10 obliges Contracting States to include provisions to ensure that no person becomes stateless as a result. Finally, on the eve of the entry into force of the 1961 Convention in December 1975, the General Assembly requested UNHCR to undertake the functions foreseen in article 11, which provided for the establishment of a body within the framework of the United Nations, ‘to which a person claiming the benefit of (the) Convention may apply for the examination of (the) claim and for assistance in presenting it to the appropriate authority’. Initially formulated on a provisional basis, two years later the General Assembly invited UNHCR to continue to perform these functions. Since then, and particularly after the establishment of the Statelessness Unit in 2005, UNHCR has become very active in encouraging the establishment of formal procedures, and generally in combatting statelessness.
How are States doing with the two conventions? The 1954 Convention now has 95 States party, and some 25 or so have procedures in place for the determination of claims to be recognized as a stateless person. The 1961 Convention has 76 States party, and in both cases the increase in ratifications over the past years has been due to the promotional efforts of UNHCR.
What really counts, of course, is implementation in practice, and here the record is mixed. For example, the gap between registration and the obligation to grant nationality has certainly begun to narrow, for the Convention on the Rights of the Child, the 1961 Convention and other instruments, such as the 1966 International Covenant on Civil and Political Rights and its regional counterparts, now also oblige States to guard against and avoid statelessness. Overall, there has indeed been progress; but as in so much else, more remains to be done...
Image: UNHCR/Louise Donovan