What is Statelessness?
The term “statelessness” is at once both clear and ambiguous. It unmistakably describes the situation of a person who is stateless or, in other words, without a state to call his own. Indeed the word was contrived to describe a person who cannot enjoy the protection of any state. But how do we determine which of the many scenarios whereby a person finds himself without a state’s protection should properly be depicted as statelessness?
When the expression stateless first entered the scene, this question was not all that pressing or even relevant. During the first half of the 20th century, statelessness was simply an abstract term used to describe the factual situation of any and all unprotected persons. It was only when an international legal framework was put in place to attribute certain rights to the unprotected - following a report entitled the “Study of Statelessness” that was compiled after the Second World War – that labels started to truly matter. Two categories of unprotected persons whose paths had initially been intertwined then went their separate ways: the refugee and the stateless person. And so an international legal definition of statelessness came into being. A stateless person is “a person who is not considered as a national by any State under the operation of its law” (Article 1 of the 1954 Convention relating to the Status of Stateless Persons).
You would be forgiven for thinking that the elaboration of an international definition of statelessness would have provided a decisive answer to the question formulated above. However, the scope of the definition is regrettably narrow - covering only those who are legally or de jure stateless - and does not include the many, similarly-situated, unprotected persons who have not formally lost their bond of nationality. So the international community also set to work with a second sub-category of statelessness: de facto statelessness. Over time, this expression has been used to describe an expanding set of problems. Today, anyone who is unable to establish their nationality or whose nationality is either disputed or ineffective may be considered de facto stateless. As a result, the term “statelessness” is once again being used to describe a wide variety of unprotected persons.
It is within this context that the question posed above resurfaces. Is “stateless” an appropriate name for any or all of the categories of unprotected persons that are now emerging into the international arena such as undocumented persons, irregular migrants, stranded migrants, victims of people smuggling or trafficking and a plethora of displaced persons who do not fall under the definition of a refugee? Moreover, if we are defining statelessness to include those who lack an effective nationality, how do we determine where a “regular” human rights violation ends and a problem of statelessness begins? And more fundamentally, if we are interested in the quality of treatment rather than the mere legal fact of nationality, how relevant is nationality today as a measure of protection? Or, should we revert instead to the formal legal definition of statelessness to which international law attaches rights and benefits, thereby opening a path to debate the appropriateness of this protection and the need to rethink the overall response to today’s (other) unprotected persons? Finally, how do we reconcile these conceptual questions with the reality on the ground: that it is increasingly difficult to distinguish between supposedly different categories of unprotected persons?
With “stateless” still proving to be an attractive umbrella term for people who are without the protection of any state, one of the aims of the Observatory is to encourage and support research that seeks to answer these and other questions relating to the conceptual and practical difficulties of defining statelessness.
Laura van Waas