The InterDependent

On 7 and 8 December 2011, at least 75 countries will be joining the U.N. High Commission for Refugees’ (UNHCR) high-level ministerial meeting in Geneva. The meeting, which is, in UNHCR's words, "the largest conference on refugees and stateless people in UNHCR's history," seeks to yield new accessions and commitment to the 1951 Refugee Convention and the 1961 Convention on the Reduction of Statelessness.

UN Photo/Joao Araujo Pinto

Unlike the 1951 Refugee Convention, which enjoys broad appeal and support, as of June 2011 only 38 states are parties to the Statelessness Convention. According to the Convention, stateless refers to the condition of an individual "who is not considered a national by any state under the operation of its law." Today, 12 million such people exist.

Statelessness is troubling because nationality is a precondition to enjoying all other human rights. It facilitates the right to have rights–it constitutes the legal basis that makes civil, political, social, economic, and cultural rights actionable. Arguably, without citizenship, human beings cannot enjoy even their most inalienable human rights as a matter of entitlement.

Unfortunately, this predicament not only reflects the genealogy of human rights, it also highlights the Statelessness Convention's limited potential to treat the problem. While the 1954 Convention relating to the Status of Statelessness marks a milestone in combatting statelessness, it fails to provide a mechanism to identify stateless persons and does not obligate states to reduce statelessness within their borders

Human rights arguably emerged from the ashes of World War II. Germany’s Third Reich had, not unlike many nation-states, responded to the advent of nationalism by constructing an ethno-national mythic citizen and then pursuing state policies to cleanse the state of any non-conformers. Similar tragedies took place during the Armenian genocide in Turkey, the forced displacement of Muslim South Asians to Pakistan and Hindu South Asians to India, and a similar forced population transfer between Turkey and Greece. Indeed, nationalism and the emergence of nation-states witnessed the forced displacement of 100 million persons who were deemed inassimilable with new programs of national cultural homogeneity.

The incongruence of nation, culture, religion, and state metaphorically produced protruding borders comprised of undesirable persons and outliers. At best, states treated these outliers as temporary, transient-guests by recognizing them as minorities and refugees. At worst, states excluded them from their national polities all together by rendering them stateless. Hannah Arendt notes that since the end of First World War, “the refugees and the stateless have attached themselves like a curse to all newly established states on earth which were created in the image of the nation-state.”

To treat their respective “curses,” the Principal Allied and Associated Powers (plus 14 newly created or expanded states in Europe and the Middle East) entered into a series of bi- and multilateral treaties intended to protect the rights of minorities. Although the Minority Treaties intended to protect those persons who did not fit within the states’ ethno-national mythic polity, they arguably entrenched national cleavages and legitimized the exclusion of non-nationals from robust state protection. The Minority Treaties codified existing state practice whereby only nationals could be citizens and non-nationals would be treated well by law of exception. State concern for its nationals, coupled with a shared concern for minorities, encapsulated the seed for the 21st century human rights regime.

According to the prominent jurist Louis Henkin, although human rights are presently accepted as those rights belonging to individuals in society, historically, they were state rights. In a world comprised of nation-states, before globalization and the emergence of a global society, the treatment of nationals was the exclusive concern of those states to which they belonged. The singular exception to this sovereign exclusivity was that State A’s treatment of a national belonging to State B was the proper concern of State B. Accordingly, injustice to a stateless person did not violate any law of nations as no state could claim that it was harmed by another state’s offense.

While the thrust of human rights was originally concerned with nationals, it developed into a broader concern for individuals more generally. This is in part due to the increasing number of stateless persons, which shifted the focus from persecuting states to the status of the persecuted.

By 2005, regional human rights courts accepted and affirmed that human rights belonged completely to individuals irrespective of their nationality or lack thereof. In the Case of Yean and Bosico v. Dominican Republic, the Inter-American Court on Human Rights deliberated whether states had the absolute discretion to deny Haitian children their birth certificates and thereby also deprive them of an education. It found that states have no such rights. In his separate opinion, Judge A.A. Cancado Trinidadae noted:

'With the passage of time, it became evident that the nationality regime was not always sufficient to provide protection under any and every circumstance (as evidenced, for example, by the situation of stateless persons.) Throughout the twentieth century and to date, international human rights law has sought to remedy this deficiency or vacuum, by denationalizing protection (and thus including every individual even stateless persons.'

Notwithstanding these strident developments, the rights of stateless persons still cut across issues of state sovereignty. Consider that the 1954 Convention on Statelessness conditions the humane treatment of stateless persons upon their legal presence and residence. Stateless persons cannot easily fulfill this precondition as they may lack proper documents, have arbitrarily denied birth certificates, or have become stateless by virtue of divorce, trafficking, or other conditions reflecting de facto statelessness. Accordingly, by virtue of their miserable conditions, statelessness continues to constitute a criminal status.

Potential gains at the UNHCR Ministerial Meeting

Notwithstanding the limitations of the existing human rights system, which is far from fully recognizing the individual as a rights bearing agent under international law, there are real incremental strides to be made at the UNHCR Ministerial meeting this week.

In particular, participating states can commit themselves to policies that will reduce the number of stateless persons globally. In some cases, that would be as simple as reversing state policies aimed at the wholesale denationalization of minority populations.

In other cases, countries could promise legislative reform. Ideal commitments include the legislation of non-discrimination clauses in regards to gender. At present, an untold number of women cannot confer their nationality onto their children or their spouses, thereby heightening the risk of statelessness among children.

The United Arab Emirates (UAE) serves as a good model for this prospect. UAE law has historically forbidden a woman national from marrying a foreign man. A 1996 law forces her to surrender her UAE citizenship if she marries a non-Gulf citizen. In the case where UAE woman nationals nonetheless marry foreign men, their children will be born into the condition of statelessness. On 30 November 2011, however, the UAE announced that children of Emirati women married to foreigners could apply for citizenship once they attain the age of 18. Although the amendment fails to close the protection gap for children, the law moves women closer to enjoying the rights of all Emiratis without distinction.

The UAE follows in the footsteps of other Arab countries that have amended their nationality laws in recent years to mitigate gender discrimination as relates to nationality. Tunisia was the first to remove discriminatory barriers in 1993, followed by Egypt in 2004, Algeria in 2005, and Morocco in 2007. Significantly, as part of its reforms following the ouster of Mubarak, Egyptian law has been amended to lift the last of its gender-discriminatory vestiges in nationality law. In recent months, Egypt amended its law to allow Egyptian women to confer nationality to their Palestinian spouses who were excluded from the law's benefit in 2004.

Other advancements on behalf of stateless persons include birth registration campaigns to ensure that all persons have the ability to prove their presence, legal or not. Similarly, states should amend their laws to make nationality flow as a matter of birthplace and not blood. While not the panacea to combat statelessness, the former would certainly reduce the number of stateless persons who languish in host countries for generations.

Arguably, no reform short of a prohibition of statelessness will suffice to treat the vexing condition. Similarly, no legislative reform will adequately imbue the individual with the capacity to act as a rights-bearing agent under international law. Still, the UNHCR’s High Level Ministerial Meeting is rife with significance as it represents the largest meeting of its kind. It illuminates the condition of statelessness with a global stage light that only the United Nations can shine. At the very least, this will mark another step in the direction of an evolving law of nations that tempers the rights of states vis-a-vis the rights of the individuals who do not, and have never, fit neatly within their borders.