Nationality is the closest legal tie between a natural person and a state. Stateless individuals lack this bond. To provide stateless persons with basic human rights, the international community created an autonomous protection status by adopting the 1954 Convention relating to the Status of Stateless Persons. However, to be able to properly identify the beneficiaries of this protection status, States need to establish and employ a statelessness determination procedure.
In my recently published article, I argue that the harmonisation of standards on statelessness determination at the European level would enhance the current national efforts in the identification and protection of stateless persons. To this end, European states should work towards the creation of a regional legal instrument, taking advantage of the region’s powerful international organisations: the European Union and the Council of Europe. The legal instrument should serve as an incentive for States to establish statelessness determination procedures in their own legal systems, along the lines of regionally harmonised minimum standards.
Establishing statelessness determination procedures could provide an effective response to the protection needs of different profiles of stateless persons across Europe. Today, in situ stateless persons make up around 80% of Europe’ stateless population. In my article, I argue that until their citizenship is unsolved, statelessness-specific protection mechanisms should be accessible to them too, as a means to help uphold their fundamental rights. In the migratory context, (the risk of) statelessness represents yet another consequence of the conflicts that cause forced migration. Better identification of statelessness would also help ensure the proper application of safeguards in nationality laws requiring states to grant citizenship to children born on their territory who would otherwise be stateless, a key norm under international law.
Securing harmonisation at the European level
While keeping in mind the ultimate goal of achieving a harmonised legal framework, we should look at selecting the most politically feasible tool to encourage (or oblige) states to adopt statelessness determination procedures. One of the possible avenues for this task would be through a European Union directive on the protection of stateless persons, which could be adopted under the common immigration policy of the EU, on the basis of TFEU 79(2). This solution is backed by several academics and experts. However, there is currently great pressure on the EU to regulate asylum and other protection statuses, amid little or no consensus. This has arguably contributed to a less favourable political environment for the adoption of an EU directive on statelessness.
Another option might be to turn our attention to possible avenues and processes through the Council of Europe (CoE). This consists of 47 member States, of which nine have adopted statelessness determination procedures (these are France, Georgia, Hungary, Italy, Latvia, Moldova, Spain, Turkey, and the United Kingdom). Some other member States address statelessness in a different manner that is not widely accepted as a statelessness determination procedure (like Switzerland). This arguably constitutes a ‘critical mass’ for the harmonisation of statelessness determination procedures under the aegis of the CoE.
Moreover, about 200,000 stateless persons live in countries that are members of the CoE, but are not (yet) part of the EU. By addressing statelessness on the level of the CoE, the situation in the former socialist federations’ successor states and the Western Balkans region could also be improved. Likewise, the current EU candidate countries (Albania, the Former Yugoslav Republic of Macedonia, Montenegro, Serbia and Turkey) are all members of the CoE. This is important because these states need to improve their compliance with their international obligations (including under the 1954 Convention) as part of the EU enlargement process.
Taking both legal and political arguments into account, my paper argues that the adoption of a soft law instrument under the guidance of the Council of Europe is the most feasible way towards encouraging a wider Europe to identify and protect stateless persons. Soft law tools can serve as a compromise between constitutional sovereignty and the need to create rules to govern international relations. The adoption of a recommendation either by the Parliamentary Assembly or by the Committee of Ministers would help test the ground and shape the consensus that may eventually lead to directly enforceable European standards. Progressively, a CoE convention on the identification and protection of statelessness persons might follow.
Furthermore, the leeway for the European Union to subsequently adopt a directive on the identification and protection of stateless persons is still there, and indeed the Council of Europe’s efforts could increase the possibility of this outcome later materialising. For this to happen, it is crucial that all relevant European regional organisations push statelessness higher up on their agendas. Sharing of information and good practice is vital to this process, something the European Network on Statelessness and the European Migration Network Statelessness Platform continue to strive to achieve.
The development of regionally harmonised statelessness determination procedures would help correctly implement the 1954 Convention. In all circumstances, the harmonised procedures should be in conformity with the international standards enshrined by UNHCR. In my view, it is important to underline elements that should apply to everyone, but States should also have the opportunity to design and customise their statelessness determination procedures in light of their own legal systems, and be able to adjust them to the protection needs of the stateless populations under their jurisdictions.