< Viewpoints < 2008

“No one should have to be stateless in today’s Europe”

[09/06/08] Everyone has the right to a nationality. Also, no one shall be arbitrarily deprived of his or her nationality or denied the right to change nationality. These rights are spelled out in the 1948 Universal Declaration of Human Rights – but still not respected in a number of countries, also in Europe. The victims are stateless.

A stateless person is an individual who is not considered as a national by any state under its domestic law. Some of them are refugees or migrants, having left their country of origin. Others live in their home country but are still not recognised as citizens.

Having a nationality means in both law and practice to possess ‘a right to have rights’ (together with the obvious duties). Though non-citizens residing in a country also have human rights, there are certain rights which may be limited to nationals: for example the right to enter a country and stay there but also to vote and be a candidate in elections.

The fact that stateless persons are excluded from participation in the political process undermines the reciprocal relationship between duties and rights. In fact, non-citizens also tend to be marginalised in areas where formally they have rights. Many of them face gross discrimination in their daily lives. They may be denied employment, housing or access to education and health care, because they do not have valid personal identification documents.

When travelling across borders they are particularly vulnerable, if they can travel at all.

The plight of the stateless has received limited attention in recent years and seems to be little understood in wide circles. Stateless people worldwide are currently estimated by UN High Commissioner for Refugees at 12 million. The number in Europe is estimated to be 640,000.

There are, however, agreed international standards to protect the right to have a nationality and to be well treated while one still has no citizenship. There is a UN Convention relating to the Status of Stateless Persons from 1954 and a Convention on the Reduction of Statelessness from 1961.

The provisions of the first treaty enable stateless persons to have access to fundamental human rights in host states. At the same time these states are encouraged to facilitate the integration and naturalization of these individuals. The second treaty complements the first one and includes provisions to prevent the emergence of new cases of stateless persons. The UNHCR has been charged with the task of helping to eliminate statelessness globally.

There has been a special focus on the need to ensure that children are not made victims of statelessness. Both the UN Convention of the Rights of the Child and the International Covenant of Civil and Political Rights stipulate that children shall have the right to acquire a nationality(1). The host country has an obligation to ensure that children do have a citizenship; that the parents are stateless is no excuse.

Europe has a shameful history of producing and repressing stateless people, the memory of which contributed to the norms which were agreed through the UN treaties mentioned here. However, developments after 1989 created new problems of statelessness in Europe.

The break-up of the Soviet Union, Yugoslavia and Czechoslovakia caused enormous difficulties for persons who were regarded by the new governments as belonging somewhere else - even if they had resided in their current location for many years.

For instance, large numbers of residents, including children, remain non-citizens in Latvia and Estonia. I have recommended that steps be taken to grant citizenship automatically to children and to relieve older people from the requirement to go through the tests for naturalisation(2). It should be noted that the European Court of Human Rights has highlighted the obligation of states to effectively protect personal and family life in such situations(3).

Several thousand persons, among them many Roma, who had not sought or obtained Slovenian citizenship soon after the independence of that country, became victims of a decision in 1992 to erase non-Slovene residents from the Register of Permanent Residents. Many of them had moved to Slovenia from other parts of Yugoslavia before the dissolution of the federation.

Also in other states in the Balkans there are Roma who are without citizenship or even basic identity papers. Those who have moved from the former Yugoslav Federation to other parts of Europe – for instance Italy - often lack personal documents and therefore live in uncertainty. They are de facto stateless. Their newborn children are frequently not registered and risk losing their right to apply one day for citizenship as they cannot prove legal residence in the country.

In Greece a Nationality Code caused the de-nationalisation of a large number of members of the Muslim minority in Thrace, many of them of Turkish origin. This particular provision in the Code was withdrawn in 1998 but the change did not apply retroactively which meant that Muslims who had lost their citizenship did not get it back but had to start a naturalisation process as if they were newcomers. I have suggested that the Greek authorities address this unfair situation with priority(4).

Another case of eventual de-nationalisation was discussed during my visit last year to Bosnia and Herzegovina where the authorities had prepared a review of citizenship granted to a significant number of foreign nationals since 1992. To withdraw citizenship, when already granted, must be regarded as a very serious action and should only be possible in extreme circumstances of deliberate deceit in the original application.

A case which must be brought to a positive solution is the fate of the Meskhetians who were deported 1944 from Georgia by Stalin to other parts of the Soviet Union. Very few of those who so wished have been able to return to Georgia and many of those who now are in, for instance, Krasnodar Krai in Russia are stateless. There are hopes that the Georgian authorities will now ensure the follow through of their decision to ensure the possible return of this minority.

The Council of Europe has adopted two highly relevant treaties to guide a rights-based approach, especially to those problems which have followed the state dissolutions and successions since 1989. One is the 1997 Convention on Nationality and the other is the 2006 Convention on the Avoidance of Statelessness in relation to State Succession.

Both treaties contain general principles, rules and procedures of utmost importance for the effective enjoyment of the human right to a nationality in Europe. Some core provisions are:

• the overarching principle of non-discrimination in law and practice;
• the special protection that must be provided by states to children born on their territories and who do not acquire at birth another nationality;
• restrictive conditions on which someone may lose his or her nationality ex lege;
• the duty of the states to reason and provide in writing their nationality-related decisions.

It is a serious concern that only sixteen Council of Europe member states have, so far, ratified the 1997 Convention on Nationality. This is in spite of Recommendation R(99)18 of the Committee of Ministers (on the avoidance and reduction of statelessness) which clearly encouraged ratification. Moreover, only two states have ratified the 2006 Convention on the Avoidance of Statelessness in relation to State Succession.

The problem of statelessness in Europe should be given higher priority. The victims have in most cases little possibility themselves to be heard and are in many cases silenced by their fear of further discrimination. It is most important that governments, ombudsmen, national human rights institutions and non-governmental organisations take action for the rights of stateless persons.

The persistence of “legal ghosts” in today’s Europe is unacceptable. Council of Europe member states should protect the rights of stateless persons on their own or other states’ territories and adopt a proactive policy. They should realise that measures aimed at reducing and eliminating statelessness can prevent, as well as resolve, conflicts. This is one way of promoting social cohesion and harmony in our societies.

Thomas Hammarberg

Notes

1. Convention of the Rights of the Child, Article 7 and International Covenant on Civil and Political Rights, Article 24.
2.See the Commissioner for Human Rights’ "Memorandums to the Latvian Government CommDH(2007)9 and the "Estonian Government CommDH 2007(12).
3. See Slivenko v Latvia, judgment of 09/10/2003, Sisojeva v Latvia, judgments of 16/06/2005 and of 15/01/2007.
4. See the Commissioner for Human Rights’ Follow-up Report on the Hellenic Republic (2002-2005) CommDH (2006)13.


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