Massey, Hugh: UNHCR and De Facto Statelessness, LPPR/2010/01, April 2010, UNHCR
INTRODUCTION
UNHCR has had a mandate for stateless persons ever since the Office was established in
1950. Originally, that mandate only extended to stateless persons who are refugees. As discussed in Part I below, refugees who do not have a nationality at all are de jure stateless, whereas refugees who do have a nationality are de facto stateless. However, whereas all refugees are stateless, many stateless persons are not refugees.1
UNHCRs mandate began to be extended to stateless persons more generally in 1974. Further to the entry into force of the 1961 Convention on the Reduction of Statelessness, UN General Assembly Resolution 3274 (XXIX) of 1974 designated the Office as the body to which, in accordance with Article 11 of the Convention, a person claiming the benefit of the
Convention may apply for the examination of his claim and for assistance in presenting it to the appropriate authority.2 Broadly speaking, the 1961 Convention establishes a set of rules according to which a person is entitled to acquire the nationality of a Contracting State, or not to be deprived of or to lose the nationality of a Contracting State, if he or she would otherwise be stateless. The Convention itself does not define the term stateless. However, Resolution No. I of the Final Act of the Conference that drew up the Convention recommends that
persons who are stateless de facto should as far as possible be treated as stateless de jure to enable them to acquire an effective nationality.
This implies that de facto stateless persons are to be understood as persons lacking an effective nationality. As will be seen in section 3 below, it also implies that the 1961 Convention is legally binding with respect to de jure statelessness only. The definition of de jure statelessness is itself to be found in the 1954 Convention relating to the Status of Stateless Persons, according to which a stateless person is a person not considered as a national by any State under the operation of its law.3
Apart from the role given to UNHCR under the 1961 Convention, the Offices broader mandate for non-refugee stateless persons arguably originated only with Conclusion No. 50 of the Offices Executive Committee (ExCom), paragraph (l) of which
noted the close connection between the problems of refugees and of stateless persons and invited States actively to explore and promote measures favourable to stateless persons, including accession to the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, as well as the adoption of legislation to protect the basic rights of stateless persons and to eliminate sources of statelessness.
UNHCRs mandate has since been progressively developed to the point where it currently stands in ExCom Conclusion No. 106 of 2006 on Identification, Prevention and Reduction of Statelessness and Protection of Stateless Persons, as endorsed by the UN General Assembly in resolution 61/137 of 2006. Conclusion No. 106 lists a number of measures to be taken by UNHCR, States and other actors with respect to:
The identification of stateless persons and individuals with undetermined nationality;
The protection of stateless persons; and
The prevention and reduction of statelessness.
Like other ExCom Conclusions, Conclusion No. 106 does not explicitly distinguish between de jure statelessness and de facto statelessness.4 UNHCR has therefore tended to assume that it has a mandate for de facto stateless persons who are not refugees just as much as it has a mandate for de jure stateless persons who are not refugees.
UNHCR has accordingly required its Country Operations to address problems of de facto statelessness and to report annual statistics on de facto stateless persons. However, the Office has never clearly defined what de facto statelessness is, nor what the legal and operational responses to de facto statelessness should be. In this respect, it should be noted that whereas an international treaty regime has been developed for addressing problems of de jure statelessness including most notably the 1954 and 1961 Statelessness Conventions there is no such legally binding regime at the global level for de facto stateless persons who are not refugees.5 Whereas the absence of such a regime does not mean in and of itself that UNHCR cannot address problems of de facto statelessness, it does mean that if UNHCR does indeed have a mandate to address such problems, the range of protection tools on which the Office can rely will necessarily be more limited than when addressing problems of de jure statelessness.
The present paper seeks to answer the question what de facto statelessness is. The meaning of the term de facto stateless can only be properly understood by comparing it with the meaning of the term de jure stateless, and thus Part I explores the origins of the international statelessness regime and shows how efforts to create such a regime for de facto stateless persons were, with the notable exception of refugees, rather less successful than they were for de jure stateless persons. Part I also shows how the term de facto stateless was traditionally reserved for persons who are outside the State of their nationality and lacking in that States protection, the protection in question being diplomatic and consular protection and assistance (as opposed to protection on the territory of the State of nationality itself).
Part II discusses how in the 1990s with the dissolution of the Soviet Union, Czechoslovakia and the former Socialist Federal Republic of Yugoslavia UNHCR and others began to expand the concept of de facto statelessness into new areas, not all of which can be fully reconciled with the traditional view referred to above. For example, the expanded concept tends to suggest that de facto stateless persons may include certain persons who are inside the State of their nationality, not just those who are outside it. Part II analyzes in detail the main categories of persons who have been claimed to fit this new paradigm of de facto statelessness, notably:
Persons who do not enjoy the rights attached to their nationality;
Persons who are unable to establish their nationality, or who are of undetermined nationality;
Persons who, in the context of State succession, are attributed the nationality of a State other than the State of their habitual residence.
Part II concludes that the new paradigm of de facto statelessness is doctrinally questionable and serves no useful purpose, since in some cases the persons concerned are actually de jure stateless, in other cases they fit the traditional conception of de facto statelessness, and in yet other cases they should not be considered de facto stateless at all. Part III concludes that the traditional definition of de facto statelessness is still valid in the present day, and proposes an interpretation of that definition. It also provides a few brief conclusions regarding the scope ratione materiae and ratione personae of UNHCRs mandate for addressing de facto statelessness.