The International Observatory on Statelessness

What is Statelessness?

A “stateless person” is someone 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). Here, nationality refers to the legal bond between a person and a state. This bond can best be seen as a form of official membership which confers upon the national certain rights (like the right to live in the country or participate in elections) as well as duties (like the duty of military service, where this is still in place). A person who is stateless lacks this membership and will be seen and treated as a foreigner by every country in the world. This phenomenon has also been described as “de jure statelessness”.

In literature on statelessness, “citizenship” and “nationality” are usually used as interchangeable synonyms, both referring to the legal bond of membership described above. However, in some countries or contexts, the use of terminology may deviate from this. It is therefore important to make an effort to understand the exact meaning or content of the terminology in use in the country that is under study. For the purposes of interpreting and applying the internationally established definition of a stateless person in practice, it can also be important to keep the following in mind (see further the ‘Prato Conclusions’ of 2010 and the UNHCR guidelines of 2012 on the definition of a stateless person):

- For a person to be “stateless” it is not relevant how the person came to be without a nationality or whether there is the possibility for the person to acquire a nationality by taking some kind of action: the only thing that matters is whether, at the present moment, the person is considered as a national by any state.

- For a person to be “stateless” it is not relevant where he or she is located. Statelessness occurs in both migration and non-migration contexts. A stateless person may never have crossed an international border, having lived in the same country for his or her entire life.

- To determine whether a person is considered as a national by a state under the operation of its law, requires a careful analysis of how a state applies its nationality laws in practice, in that individual’s case. In some cases, an objective analysis of the law would lead to the conclusion that the person is a national, but the state may not in practice follow the letter of the law, so the analysis must be based on how the competent authorities interpret the law.

- To determine that a person is not considered as a national by any state does not require proving the lack of recognition as a national by all of the world’s states. Nationality is almost always granted based on certain factual links between a person and a state: either links through family or through territory. To work out whether a person is stateless, it is usually sufficient to look at whether they have the nationality of any of the places with which they have such links, i.e. country of birth, country of nationality of parents, country of habitual residence and country of nationality of spouse.

It is of interest to point out that a stateless person can also be a refugee, if in addition to not being considered as a nationality by any state they also meet the definition of article 1 of the 1951 Refugee Convention (i.e. have fled their country due to a fear of persecution). Generally speaking, stateless refugees are identified and treated as refugees - e.g. in UNHCR’s statistics on statelessness only non-refugee stateless populations are counted.

Finally, it is important to note that in the discourse on statelessness, much attention has also been devoted to the concept of “de facto statelessness”. While there is no agreed definition of this term, nor any international legal framework for dealing with “de facto stateless persons”, the expression has entered common use. It is most often invoked to describe a situation in which a person holds a nationality – is considered as a national by a state under the operation of its law – but this nationality is in some way ineffective. Where the main contention lies is in what way a nationality should demonstrate itself to be ineffective, in order to warrant the use of the label of “de facto statelessness”. At an expert meeting that considered this question in 2010 there was some consensus around the idea that a person should be outside their country of nationality – and without its protection – in order to be considered “de facto stateless”. There was also broad agreement at this meeting that many categories of people or types of cases that have been described as a situation of “de facto statelessness”, in fact fall within the scope of the definition of a stateless person as set out in article 1 of the 1954 Convention relating to the Status of Stateless Persons, as set out above.