Within the member states of the Council of Europe and the European Union, much remains to be done to address statelessness. While the laws created by these bodies do not contain obvious gaps that stand in the way of preventing and solving statelessness, concerns persist that the existing legal frameworks are not consistently enforced through concrete action. This is one of the findings of the PhD research I conducted over the past years, which this blog summarises.
Statelessness in Europe: law and history
In my research I explore, contextualise and analyse the legal approaches that states have taken at the regional level in Europe – within the Council of Europe (CoE) and the European Union (EU) – to address statelessness. In particular, my study considers the role that European law can play in preventing and solving statelessness in Europe, i.e. guaranteeing the right to a nationality for everyone. In examining this, it is important to understand the broader context in which the law has been developed and continues to operate. I therefore looked both at international (human rights) law and the historical context relating to statelessness in Europe.
My research unpacks how widespread occurrences of statelessness which demand a response in law from states are often closely related to historical events. World War I and its aftermath made statelessness a core issue on a large scale across Europe. Displacement and denationalisation in the context of World War II further deepened and added to the existing statelessness. The atrocities of war and the complications that ensued from this did not only result in a focus on human rights and the adoption of legal instruments. It also translated into concern for statelessness specifically, prompting the adoption of the Statelessness Conventions in 1954 and 1961. One of the ways in which Europe in particularresponded to the devastation of war, was with the establishment of the European cooperation mechanisms (or the predecessor thereof) which are the focus of my research. A renewed interest in nationality matters and addressing statelessness could also be seen in the context of the state successions after the end of the Cold War. Today, statelessness remains a widespread phenomenon in Europe despite efforts to reduce it through the adoption of legal instruments.
Elements of the right to a nationality in European law
Against this background and based on my analysis, European law aims to address stateless in a variety of contexts. In the context of preventing statelessness, as well as avenues for solving statelessness, it is noteworthy that the CoE and the EU both provide guidance on existing international norms and also offer important safeguards. Both frameworks, for instance, provide tools for addressing childhood statelessness, which rely on key principles such as the avoidance of statelessness, non-discrimination and the best interests of the child.
On loss and deprivation of nationality, there is a strict standard of this mechanism not resulting in statelessness, which allows for almost no exception and is subject to a proportionality assessment.
In the context of addressing statelessness in a situation of state succession, the CoE offers the most elaborate binding legal instrument yet: the CoE Convention on the Avoidance of Statelessness in relation to State Succession (ECSS), which provides detailed guidance on the matter.
On (facilitated) acquisition of nationality, there seems to be consensus that habitual and legal residence are a key prerequisite. Nonetheless, considerations with regard to the right to respect for private and family life demonstrate the need for identification of statelessness and ways to regularize a status at national level – an important first step towards solving statelessness through acquisition of nationality.
With regard to discrimination (a root cause of statelessness), it should be noted that this is prohibited an any ground in European law, including in nationality laws.
Recommendations
I have found no major gaps in the existing standards on preventing and solving statelessness in Europe. European law could consequently make a significant contribution to addressing statelessness. But if the law is to compel states to take action and make a difference in practice, more is needed. Indeed, the Council of Europe, and its European Committee on Legal Co-operation in particular, should intensify its efforts to promote existing instruments for preventing and solving statelessness among its members states. They should also give more information about identifying statelessness. In addition, within the European Union, statelessness should be given much more prominence in EU policy areas such as asylum and migration, children’s rights, and equality. The EU could furthermore provide additional guidance on the identification of statelessness as a necessary precondition to the protection, participation and inclusion of stateless people in law.
My research also shows that even if the law provides opportunities to address statelessness, it also has its limits; it is dependent for instance on treaty ratifications and/or implementation by states, interpretation of norms by courts, and more generally is usually only developed as a response to events or cases involving statelessness, i.e. after the fact. Further research that can also provide other disciplinary perspectives as well as input from stateless people themselves would therefore be important to moving forward and translating law into concrete action.
Caia Vlieks defended her PhD thesis at Tilburg University (the Netherlands) on 14 June 2022. The title of her manuscript is ‘Nationality and Statelessness in Europe. European Law on Preventing and Solving Statelessness’. Her research has been published as a book by Intersentia in their Human Rights Research Series. For any questions, you can contact the author at caia.vlieks@institutesi.org.
