During the ENS Annual General Conference, which took place on 6 and 7 June, I had the pleasure to engage with ENS members on their experiences with UN level advocacy and how we can better collaborate to address issues of nationality and statelessness. I presented one of ISI’s ground-breaking evaluation reports called “Mainstreaming Statelessness and the Right to Nationality in the Universal Periodic Review”, which confirms the vital importance of the Universal Periodic Review (UPR) to mainstreaming statelessness as a cross-cutting human rights issue. Since the UPR was established in 2007, it has proven to be an increasingly influential mechanism in raising awareness that nationality matters do not solely fall under the sovereignty of the State but are constrained by international law. It also emphasises that protecting the right to nationality is a collective effort of the international community of States. This blog post takes a deeper dive into how Europe engages with the UPR by identifying good practices, gaps and opportunities for change to better address statelessness and nationality matters in Europe.
The Universal Periodic Review (UPR), under the UN Human Rights Council, assesses the human rights performance of each of the 193 UN Member States every 4.5 years. It is the only State-driven review mechanism in the world, whereby States can make recommendations to other States. Recommending States rely on civil society actors, UN organisations and other actors to provide input, help steer the discussions, and fortify the final recommendations and their implementation. The UPR is a unique mechanism which aims to improving the human rights situation on the ground of UN Member States.
The Importance of the Universal Periodic Review: Mainstreaming Statelessness as a Human Rights Issue
Since the Institute on Statelessness and Inclusion (ISI) was established in 2014, we have engaged extensively and structurally with the UPR, the treaty body system and special mandate holders. To date, we have made nearly 100 stakeholder submissions to the UPR for countries worldwide, in collaboration with local, national and international partners. Together with the ENS Secretariat and members, we have made 30 joint submissions, including Albania, Austria, Belgium, Bulgaria, Croatia, Czech Republic, Denmark, Estonia, Germany, Hungary, Ireland, Italy, Latvia, Malta, Moldova, Montenegro, Netherlands, North Macedonia, Romania, Russia, Serbia, Slovenia, Spain, Switzerland, Turkey, United Kingdom, and Ukraine. Further, ISI has also worked with ENS members to make submissions for countries outside of Europe. For instance, we worked closely with Salam for Democracy and Human Rights on submissions for Bahrain, United Arab Emirates and Kuwait. ISI and ENS engage with national organisations, including stateless-led organisations and individuals, to undertake international advocacy in a manner that aligns with and helps to strengthen longer term national advocacy efforts.
UPR submissions are the gateway to engage with States within the UPR and influence how recommendations are shaped. ISI also closely monitors and reports on the outcomes of UPR sessions, and analyses recommendations that are relevant to the right to a nationality or the rights of stateless people. The recommendations are usually scattered across thousands of reports but can all be found in one place in the ISI database for Human Rights.
Europe's Journey through the UPR Cycles: Successes and Challenges
Our recently published evaluation has given us an insight into statistical trends, the UPR as a process, and substantively how effectively nationality and statelessness have been mainstreamed in the UPR Third Cycle. The report also compares Third Cycle data with general trends from the previous two cycles. What the evaluation shows, in a nutshell, is a success story. However, it is much less of a success story for Europe than for other regions.
During the first UPR cycle, between 2008 and 2011, only a very meagre 150 recommendations relevant to the right to nationality and the rights of stateless people were made globally (relevant recommendations). The scope of these recommendations was very limited: they focused mainly on promoting birth registration, which can help to prevent statelessness by establishing the child’s links to a State, and promoting accession to the 1954 and 1961 statelessness conventions. At that time, there was little in the way of dedicated civil society initiatives on nationality and statelessness, and the mandate of UNHCR as the lead UN agency on statelessness was, in operational terms, still in its infancy.
During the Second Cycle, the number of relevant recommendations more than tripled (503 recommendations), in line with wider efforts to secure stronger recognition for nationality and statelessness as cross-cutting human rights issues and with the progressive development of the statelessness “field”.
In the Third Cycle, attention to nationality and statelessness increased further. 635 relevant recommendations were made, showing the success of mainstreaming efforts. Importantly, recommendations addressed a far wider range of human rights concerns relating to statelessness, increasingly made direct reference to statelessness and in many cases contained much more detailed, concrete and actionable language. These are welcome developments as they allow the UPR process to move beyond broad recognition of nationality and statelessness as human rights issues to a forum for meaningful peer-led monitoring of violations and a driving force for change.
The overall geographic reach of recommendations in the Third Cycle is encouraging. 80% of all States received at least one recommendation. Countries that are known to be home to a large stateless population were covered much more comprehensively by recommendations in the Third Cycle than previously, with many receiving multiple recommendations. In Europe, these countries include Latvia, Estonia, Sweden, Germany, and Poland.
Europe was at the forefront of early engagement by receiving and issuing the highest number recommendations on nationality and statelessness matters during the First Cycle. Looking at the headline numbers of European States engaging in the UPR cycles:
- During the First Cycle, 32% of relevant recommendations were made to European States (48 out of 150 recommendations) and European States were responsible for making 60% of relevant recommendations (91 out of 150 recommendations).
- During the Second Cycle, 17% of relevant recommendations were made to Europe (88 out of 503 recommendations) and European States issued 45% of the relevant recommendations (225 out of 503 recommendations).
- During the Third Cycle, 19% of the relevant recommendation were made to European States (121 out of 635 recommendations) and 35% of the recommendations were given by European States (225 out of 635 recommendations).
The First Cycle set a high baseline of UPR engagement from and with European States, which has shifted over the course of the subsequent cycles as other regions across the globe are increasingly engaging with the UPR process.
The below table shows that European States are more active as recommending States than they are the recipients of recommendations during the Third Cycle. Europe is on top of the list in issuing recommendations (225), yet, in second to last place to receive recommendations. European States accepted 39% of the 121 recommendations received (48 recommendations). Interestingly, more than half of the accepted recommendations were made by States outside of Europe. Here also lies an opportunity for CSOs to connect with non-European missions, to encourage more and strong, measurable and actionable recommendations to European countries.
Looking at acceptance rates of recommendations from a comparative perspective, European States are placed second to last during the Third Cycle. Only countries in the Middle East and North Africa region have a lower acceptance rate of 24% (31 out of 131 recommendations were accepted). Both Africa and the Americas have higher acceptance rates of 70% and 43% respectively (African countries accepted 116 out of 164 recommendations and countries in the Americas accepted 30 out of 70 recommendations).
Reflections on Third Cycle Recommendations: Key Themes, Gaps and Opportunities
Looking more closely at the substance of recommendations made in the Third Cycle, we see the cross-cutting nature of statelessness and nationality issues come into sharper focus. Over the course of all three cycles, there has been greater engagement across the board but with some topics and contexts receiving considerably more attention than others.
Promoting gender equality in nationality law has been the greatest success story of mainstreaming and an example of multi-stakeholder efforts we can perhaps seek inspiration from. Whereas there were only 17 recommendations on this issue in the First Cycle, an impressive 143 recommendations addressed this topic in the Third Cycle. We can learn from the success achieved on this thematic issue, as it is very much an effort of multi-stakeholder engagement (see case study on page 7 of the evaluation report).
When looking at implementing measures, a slightly positive development is that 23 recommendations, of which 16 to European States, were made to implement or adopt a Statelessness Determination Procedure (SDP). This is an issue that CSOs in Europe have structurally been pushing for at international level. At the same time, this is also an area where much improvement is needed given how many States in Europe still lack SDPs or have procedures that exhibit major shortcomings.
Recommendations that address root causes of statelessness in Europe are far less in number. For instance, statelessness and the intersection with racial, ethnic or religious discrimination in nationality law and practice is only made in 22 recommendations in the Third Cycle globally. Only 1 recommendation was made in Europe, for Cyprus. This is of concern, given that such discrimination is one of the most significant drivers of statelessness – with an estimated 75% of the world’s stateless population belonging to minority communities. Across Europe, statelessness and discrimination are strongly interconnected and most often affects minority communities such as Roma across many countries and linguistic minorities in the Baltics.
Engagement on the child’s right to a nationality, as protected under the Convention on the Rights of the Child, has improved considerably, but there is real opportunity for this to also be further strengthened. Thus far, most focus has been on birth registration and less on statelessness among children born in the territory. Of the 266 recommendations on children, only 20 recommendations focus on statelessness among children born in the country. Half of these were made for countries in Europe. Also, globally only two recommendations have been made on safeguards against statelessness for foundlings. Neither were made for countries in Europe. Many countries in Europe do not have full legal safeguards to ensure that childhood statelessness is prevented in all cases.
Further, while arbitrary detention is a big concern for stateless people in Europe, only one recommendation has been made to the UK. As explained on ENS website: “Across Europe a failure by States to put in place effective systems to identify stateless people and grant them protection leaves thousands exposed to repeated and prolonged detention”.
Moving Forward: Recommendations for Strengthening Mainstreaming Efforts in Europe
The UPR recommendations issued to date have laid an important foundation for future work in Europe. Some of the root causes of statelessness have been addressed in a limited number of recommendations in the Third Cycle, but there is still a long way to go to mainstream issues of nationality and statelessness in Europe and move beyond the traditional position of European States as predominantly recommending States. As we move into the Fourth Cycle, there is both the need and the opportunity to move beyond broad mainstreaming efforts and invest in achieving more consistent, complete and comprehensive coverage of the full spectrum of violations of the right to nationality and the rights of stateless people globally.
In doing so, we recommend civil society to:
- Recognise that positive and sustainable change can only be achieved through meaningful participation of stateless communities.
- Promote the further uptake of targeted and action-oriented recommendations.
- Ensure that cross-cutting issues (children, detention, discrimination) are raised in a way which highlights the unique impacts on stateless communities.
- Ensure alignment between international advocacy and national advocacy priorities – so that UPR advocacy messaging does not undermine or inhibit national advocacy efforts.
- Actively engage with UPR beyond making submissions, through (online) engagement in pre-sessions and monitoring implementation of recommendations.
- Recognise the importance of collaborative and collective international advocacy efforts.