“Everyone has the right to a nationality”

States as a root cause of statelessness

28 May 2015 | Katja Swider, University of Amsterdam

What is the root cause of statelessness? There are many answers to this question – conflict of nationality laws, gender discrimination, persecution of a specific minority or state succession. The ultimate root cause of statelessness is, however, the existence of states.

Let me immediately clarify that I am not advocating here for an anarchist utopia. The world of states is the only world we know, it has numerous advantages beside all of its disadvantages, and tempting as it may be, I will not consider any alternatives here. What I want to discuss is the nature of states and the role they play in causing and resolving statelessness. Such discussions are not merely theoretical, but have practical implications for the way states’ responsibilities towards stateless persons are defined. It matters, for example, for the question whether small states with insignificant stateless populations need to establish protection mechanisms for stateless persons. It also matters when considering whether statelessness can be eradicated.

Let me give an example. In December last year I participated in a Symposium on Statelessness by the UNHCR and the University of Ljubljana, where the Minister of Interior of Slovenia, while affirming Slovenia’s commitment to address statelessness, emphasized that ‘Slovenia has only 13 stateless persons’. This statement generated a discussion on how accurate this number is, arguments being made that the real number might be much higher. It appeared as if the plea of establishing a statelessness determination procedure in Slovenia needs to be justified by a larger number of individuals who will potentially benefit from it.

It doubtlessly matters which processes lead to such low estimates of stateless population sizes, and whether they are accurate. It is also important to emphasize, as was done previously on this blog, that even one person suffering injustice due to being stateless is one too many. Already from that point of view, protection mechanisms are necessary regardless of the number of people affected.

However, there is an even more fundamental issue at stake, namely that a state, simply by virtue of being a state, has a certain degree of responsibility to protect any stateless person.

Not only states that violate international standards on the avoidance of statelessness cause statelessness. Undoubtedly, the ‘non-compliant’ states cause statelessness more directly than the states which uphold relevant standards. But even the most compliant statelessness-avoiding and statelessness-reducing state is at the root cause of all statelessness. Any state could choose to turn every single stateless person into its own national at any time. Because in respect of every stateless person none of the states in the world has made that choice, all states are responsible for each existing instance of statelessness.

A more extensive version of this argument involves the concept of state sovereignty, and its dependence on a ‘permanent population’. As famously codified in the Montevideo Convention of 1933, a state is an entity possessing four main qualifications: a permanent population, a defined territory, government, and a capacity to enter into relations with the other states. Although this definition is not universally accepted and has been subject to criticism, there is no doubt that control over the stability of a population plays a key role in whether an entity is seen as a sovereign state by its fellow states. States therefore jealously guard their ability to exercise that control over their populations without external interferences.

Since control over the state’s population is essential to the sovereignty of that state, it is easy to see that statelessness is an unavoidable consequence of states’ existence. If every state is free to decide who its nationals are (and by implication, to decide who are not its nationals), there will inevitably be cases of statelessness and multiple nationality.

While statelessness and dual nationality are a direct result of state sovereignty, both these phenomena are in practice also quite inconvenient for states. Stateless persons fall outside the dichotomy between nationals, who can be controlled, and foreigners, who can be deported. Large concentrations of dual nationals or stateless persons within the territory of a state can pose a challenge to the perceived stability of that state’s population, and thus cause sovereignty-related concerns. It is interesting to note here that in the current trend to accept dual nationality, the states resisting that trend are often the ones with a newly acquired or challenged statehood. Thus, paradoxically, when controlling the composition of their populations with full sovereignty, states produce instances of statelessness and multiple nationalities; at the same time the stability of states’ populations, and thus their sovereignty, is threatened if the number of these instances becomes too high. In light of this paradox any international agreement on nationality issues can be seen as a search for balance between preserving and sacrificing states’ powers over the composition of their populations, with the aim to maximize sovereignty.

The 1961 Convention on the Reduction of Statelessness is an example of such an agreement – it spells out rules that, if applied universally (which they are not), would prevent some (but not all) cases of statelessness from occurring. Complete eradication, however, of either statelessness or multiple nationality, would imply a degree of interference with the states’ control over the composition of their populations that is irreconcilable with the concept of state sovereignty. Statelessness will therefore continue to occur as long as states remain sovereign.  

States have a responsibility towards the stateless

What can we conclude from this? Statelessness only exists because states exist. Every single state is thereby responsible for the statelessness of every single case of statelessness: by virtue of being a state it is claiming part of the world’s population as its own and leaving out the rest. Having its existence so intertwined with the phenomenon of statelessness, the least that any state can do is to ensure a decent protection mechanism for stateless persons within their jurisdiction.

And that is the fundamental reason for all states, including Slovenia, to establish a statelessness determination procedure.

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