“Everyone has the right to a nationality”

Litigating for Statelessness Determination: The Promise of the European Convention on Human Rights?

8 September 2014 | Caia Vlieks, Tilburg University

An array of issues could potentially be pursued through litigation to improve the situation of stateless persons in Europe. In its first discussion paper on strategic litigation Strategic Litigation: An Obligation for Statelessness Determination under the European Convention on Human Rights? published today, the European Network on Statelessness (ENS) concentrates on one single but highly important issue - that of statelessness determination.

Currently, many European countries have yet to set up a dedicated statelessness determination procedure despite their obligations to stateless persons under various international instruments. This begs the question of how states can even identify stateless persons on their territory, let alone protect them.

In the discussion paper ENS has therefore set out to try to establish if the case can be made under the European Convention on Human Rights (ECHR) for an obligation to determine statelessness in order to avoid a violation of protected rights or provide just satisfaction where a violation of such rights occurs. If so, the Convention would constitute an important tool to help ensure better protection for stateless persons in Europe. It would also promote the benefits of the introduction of a formal statelessness determination procedure in the state concerned. The ECHR is particularly significant because all 47 Council of Europe Member States are parties to this instrument.

The discussion paper examines some key articles of the ECHR in order to assess whether an obligation to determine statelessness can be construed – namely the prohibition of torture and inhuman or degrading treatment or punishment (Article 3), the right to liberty and security (Article 5), the right to respect for private and family life (Article 8), the right to an effective remedy (Article 13) and the prohibition of discrimination (Article 14).

Although the ECHR does not explicitly recognize the right to a nationality, the European Court of Human Rights, the supervisory body of the Convention, has dealt with questions regarding nationality and statelessness. Moreover, the Court has also ruled on numerous cases in which stateless persons were the complainant. These include, for instance, Al-Nashif v Bulgaria, Andrejeva v Latvia, Auad v Bulgaria and Kim v Russia.

The discussion paper’s analysis of the five selected articles of the ECHR sheds at least some light on the question “does the ECHR oblige European states to determine statelessness?”  The paper’s answer to this question is an, albeit cautious, ‘yes’. It can be seen that the failure to determine statelessness – or at least, identify a person as being stateless – is very likely to play a role in the Court’s interpretations of the relevant provisions of the Convention. This demonstrates that statelessness, and therefore, the determination thereof, is an issue that should concern all States Parties to the ECHR in order to fulfil their obligations under – at least – Articles 3, 5, 8, 13 and 14 of the Convention. The likeliness that the Court will rule that a state has violated its obligations where it has not taken steps to determine a person’s statelessness will of course vary depending on the circumstances of the case.

To litigate successfully, creativity is obviously needed to connect the case at hand to the ECHR and its interpretations. Although the Court has not explicitly dealt with statelessness determination in its case law to date, it is important to bear in mind that the Convention is considered to be a ‘living instrument’ and that the Court interprets it in line with its object and purpose. It is therefore foreseeable that the Court, at some point, will rule more directly about the need to determine statelessness under the ECHR.

For now the analysis in this paper shows that the Court already gives consideration to statelessness in its judgments. For instance, a situation in which a (possibly) stateless person has not been given any legal status by the respondent state, causing uncertainty and an extended period of time spent in a limbo, might persuade the Court to refer to the importance of statelessness determination to avoid this kind of situation. If, in addition, arbitrary detention, non-removability and issues concerning discrimination play a role in a case, it is similarly possible that the Court may be moved to affirm the need for statelessness determination.

Indeed, the recent case of Kim v Russia on the detention of a stateless person with a view to expulsion has set an important precedent on measures that states need to take to prevent situations of arbitrary detention of stateless persons in order to comply with the Convention, and which is clearly connected with the importance of statelessness determination and procedures to this end.

Next week, during the first ever Global Forum on Statelessness in The Hague, the question of strategic litigation will be on the agenda again. This will provide an opportunity to debate further not only the ideas in the ENS discussion paper but also how to develop strategies for litigating successfully on a range of statelessness issues in various regional fora.

Caia Vlieks is author of the ENS Discussion Paper Strategic Litigation: An Obligation for Statelessness Determination under the European Convention on Human Rights? available on the ENS website here

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