Statelessness is the worst possible result of the violation of the right to a nationality. There are a variety of circumstances that give rise to statelessness at birth or in later life. There is often an element of discrimination and/or arbitrariness at play, when people or entire groups become stateless. In fact, there is emerging authority to support the position that any loss or deprivation of nationality which results in statelessness would be a disproportionate means of achieving any public policy goal (even if the goal in itself is legitimate), and would thus generally be arbitrary and in violation of international human rights law. Discrimination and arbitrariness can manifest itself in an obvious, aggressive and even persecutory manner, such as when entire groups are deprived of their nationality based on ethnicity or religion; or it can be more subtle and latent, such as the failure of states to prioritise legal reform that would plug gaps in the law which could cause statelessness. Thus, it is worth reminding ourselves that while states do have significant freedom to set out their own membership criteria, they also have a responsibility to protect against discrimination and arbitrariness, and to uphold international standards. Statelessness most often occurs when states fail to do so.
Conflict of laws:
The classical example is where state A confers nationality by descent while state B confers nationality by place of birth, but the combination of a particular individual’s birthplace and parentage is such that neither nationality is acquired. Neither state A nor state B necessarily have ‘bad’ laws or have picked out the person concerned as being undeserving of nationality, he or she simply fails to qualify under the regular operation of the rules of either state with which he or she has connections.
Statelessness is often the result of discrimination against particular groups. Some States deny nationality to persons who are of a particular ethnicity or religion, leaving minorities stateless. 27 countries limit the right of mothers to confer their nationality on their children. This can lead to statelessness if a child cannot acquire the father’s nationality, for instance because he is stateless or unknown.
When part of a state secedes and becomes independent, or when a state dissolves into multiple new states, the question emerges as to what happens to the nationality of the persons affected. The new nationality laws of successor states may conflict and leave people without any nationality, while the re-definition of who is a national of the original state (where it continues to exist) may also render people stateless.
The legacy of colonisation:
Many of the most large scale and entrenched situations of statelessness in the world today were born out of the experiences of colonisation, de-colonisation and consequent nation-building. In such contexts, newly independent states (many of which never had a common pre-colonial national identity) have had to deal with borders arbitrarily drawn (often dividing ethnic groups) peoples forcibly migrated (for labour) and the consequences of decades, sometimes centuries of colonial rule which successfully pitted different ethnic and religious groups against each other, privileging some and marginalising others, as part of a wider divide and rule policy. It is not surprising that many newly independent states thus struggled with nation building, national identity and the treatment of minorities. While colonial history does not justify in any way discrimination, arbitrariness and disenfranchisement, this historical context must be understood and addressed in order to reduce statelessness.
Arbitrary deprivation of nationality:
Arbitrary acts can involve the collective withdrawal or denial of nationality to a whole population group, commonly singled out on the basis of discriminatory characteristics (such as ethnicity, language or religion), but it can also impact individuals who are deprived of their nationality on arbitrary and discriminatory grounds. In many cases, the group concerned forms a minority in the country in which they live. Deprivation of nationality on security grounds can also be arbitrary if certain criteria are not met, such as due process standards. Other forms of discrimination in nationality policy can also create, perpetuate or prolong problems of statelessness. For instance, where a woman does not enjoy the same right to transmit nationality to her child as a man, children are put at heightened risk of statelessness.
Administrative barriers and lack of documentation:
Here too, the hand of discrimination can often be seen at play, with ethnic and religious minorities, nomadic communities and the rural poor more likely to face barriers to obtaining documentation than religious and ethnic majorities and urban populations. A surprising number of situations of statelessness actually stem from the poor administration or documentation of a country’s nationals during the period of state formation or when the first citizenship registration was carried out. Elsewhere, individuals and groups who have had difficulties accessing birth or other forms of civil registration may find themselves unable to satisfy the state with which they have connections that these connections exist. For example, without proof of place or date of birth, nor of parentage, states may dispute these facts and fail to consider a person as a national even if he or she would qualify under the law on the basis of these ties.
The inheritance of statelessness:
The single biggest cause of statelessness globally in any given year – in the absence of fresh, large-scale situations stemming from one of the above problems – is the inheritance of statelessness. Many contemporary situations of statelessness have their roots at a particular moment in history, such as state succession, the first registration of citizens or the adoption of a discriminatory nationality decree stripping a whole group of nationality. Yet these situations endure and even grow over time because the states concerned have not put any measures in place to stop statelessness being passed from parent to child – or do not implement existing measures to that effect. Furthermore, these situations migrate to new countries along with the (often forced) migration of stateless persons abroad, as in migratory contexts too, statelessness is allowed to continue into the next generations. This means that most new cases of statelessness affect children, from birth, such that they may never know the protection of nationality. It also means that stateless groups suffer from intergenerational marginalisation and exclusion, which affects the social fabric of entire communities.