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Statelessness

Status of not being a national of any country

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Through International law, State (polity) and Border

The status of a person who might be stateless ultimately depends on the viewpoint of the state with respect to the individual or a group of people. In some cases, the state makes its view clear and explicit; in others, its viewpoint is harder to discern. In those cases, one may need to rely on prima facie evidence of the view of the state, which in turn may give rise to a presumption of statelessness.

Causes

Conflict of law

Conflicting nationality laws are one of the main causes of stateless births. At birth, nationality is usually acquired through one of two modes, although many nations recognize both modes today:

  • Jus soli ('right of soil') denotes a regime by which nationality is acquired through birth on the territory of the state. This is common in the Americas.
  • Jus sanguinis ('right of blood') is a regime by which nationality is acquired through descent, usually from a parent who is a national. Almost all states in Europe, Asia, Africa, and Oceania grant nationality at birth based upon the principle of jus sanguinis.

A person who has neither parent eligible to transmit nationality by jus sanguinis is born stateless if born in a state which does not recognize jus soli. For example, if that child were born in India and neither parent had naturalized yet, then the child could be stateless, since India confers nationality only to children born to at least one Indian parent.

Gender discrimination in jus sanguinis

Although most states allow the acquisition of nationality through parental descent irrespective of where the child is born, some do not allow female citizens to confer nationality to their children. As of 2022, women in 24 countries, mostly in Africa and Asia, are legally restricted from transmitting their nationality onto their offspring. This can result in statelessness when the father is stateless, unknown, or otherwise unable to confer nationality to the child born to the unnaturalized mother in a foreign country without unrestricted jus soli. Beginning around 2003, there have been changes in favor of sex neutrality in nationality laws in some nations, including reforms in Algeria, Morocco, and Senegal that may inform change elsewhere. For example, Algeria amended its nationality code in 2005 to grant Algerian nationality to children born in or outside Algeria to an Algerian mother or father. Moreover, the Convention on the Elimination of All Forms of Discrimination Against Women prohibits sex-based discrimination in the conferral of nationality.

An important measure to prevent statelessness at birth bestows nationality to children born in a territory who would otherwise be stateless. This norm is stipulated in the 1961 Convention on the Reduction of Statelessness; appears in several regional human rights treaties, including the American Convention on Human Rights, the European Convention on Nationality, and the African Charter on the Rights and Welfare of the Child; and is implicit in the United Nations Convention on the Rights of the Child.

Ethnicity

Many states define their body of citizens based on ethnicity, leading to the exclusion of large groups. This violates international laws against discrimination. The United Nations Committee on the Elimination of Racial Discrimination stated on October 1, 2014, that the "deprivation of citizenship on the basis of race, colour, descent, or national or ethnic origin is a breach of States' obligations to ensure non-discriminatory enjoyment of the right to nationality".

State succession

In some cases, statelessness is a consequence of state succession. Some people become stateless when their state of nationality ceases to exist, or when the territory on which they live comes under the control of another state. This was the case after the Soviet Union had disintegrated in 1991, and also in the cases of Yugoslavia, East Pakistan and Ethiopia. According to the United Nations Office of Legal Affairs, the Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession is the only treaty that aims to reduce this problem. Seven states have joined it.

Political or religious conflicts

Many Muslim or Christian Palestinians fled Israel from 1947 to 1950. In 1950, the newly formed state of Israel introduced a Law of Return that gave Jews the right to become citizens with voting rights shortly after immigration. However, the same right to return was not given to the many Palestinians who fled from 1947 to 1950, causing many of them to become stateless. In December 1948, the UN approved United Nations General Assembly Resolution 194, which affirmed that "refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date".

Administrative obstacles

People may also become stateless as a result of administrative and practical problems, especially when they are from a group whose nationality is questioned. Individuals might be entitled to citizenship but unable to undertake the necessary procedural steps. They may be required to pay excessive fees for documentation proving nationality, to provide documentation that is not available to them, or to meet unrealistic deadlines; or they may face geographic or literacy barriers.

In disruptive conflict or post-conflict situations, many people find that difficulties in completing simple administrative procedures are exacerbated. Such obstacles may affect the ability of individuals to complete procedures such as birth registration, fundamental to the prevention of statelessness in children. Whilst birth registration alone does not confer citizenship on a child, the documentation of place of birth and parentage is instrumental in proving the link between an individual and a state for the acquisition of nationality. The United Nations Children's Fund (UNICEF) estimated in 2013 that 230 million children under the age of 5 have not been registered.

Not holding proof of nationality—being "undocumented"—is not the same as being stateless, but the lack of identity documents such as a birth certificate can lead to statelessness. Millions of people live, or have lived, their entire lives with no documents, without their nationality ever being questioned.

Two factors are of particular importance:

  • whether the nationality in question was acquired automatically or through some form of registration
  • whether the person has ever been denied documents on the basis that they are not a national.

If nationality is acquired automatically, the person is a national regardless of documentation status (although in practice, the person may face problems accessing certain rights and services because they are undocumented, not because they are stateless). If registration is required, then the person is not a national until that process has been completed.

As a practical matter, the longer a person is undocumented, the greater the likelihood that they will end up in a situation where no state recognizes them as a national.

Renunciation

In rare cases, individuals may become stateless upon renouncing their citizenship (e.g., "world citizen" Garry Davis and, from 1896 to 1901, Albert Einstein, who, in January 1896, at the age of 16, renounced his Württemberg citizenship to avoid conscription; in February 1901 his application for Swiss citizenship was accepted). People who ascribe to voluntaryist, agorist, or some other philosophical, political, or religious beliefs may desire or seek statelessness (ideological statelessness). Many states do not allow citizens to renounce their nationality unless they acquire another. However, consular officials are unlikely to be familiar with the citizenship laws of all countries, so there may still be situations where renunciation leads to effective statelessness. Some may even desire statelessness to avoid future military duties by having a citizenship, or to avoid citizenship-based taxation practiced by countries like the US.

Non-state territories

Only states can have nationals, and people of non-state territories may be stateless. This includes for instance residents of occupied territories where statehood never emerged in the first place, has ceased to exist and/or is largely unrecognized. Examples include the Western Sahara region. People who are recognized to be citizens by the government of an unrecognized country may not consider themselves stateless, but nevertheless may be widely regarded as such especially if other countries refuse to honor passports issued by an unrecognized state.

Stateless nations

A stateless nation is an ethnic group or nation that does not possess its own state. The term "stateless" implies that the group "should have" such a state (country). The term was coined in 1983 by the political scientist Jacques Leruez in his book L'Écosse, une nation sans État about the peculiar position of Scotland within the British state. It was later adopted and popularized by Scottish scholars such as David McCrone, Michael Keating and T. M. Devine. A notable contemporary example of a stateless nation is the Kurds. The Kurdish population is estimated to be between 30 and 45 million, but they do not have a recognized sovereign state. Members of stateless nations are often not necessarily personally stateless as individuals, as they are frequently recognized as citizens of one or more recognized state(s).

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