Following our lunchtime event in Strasbourg at the Council of Europe, ENS spoke with Christos Giakoumopoulos, Director General of the Directorate for General Human Rights and Rule of Law (DGI) of the Council of Europe. We discussed recent action by the Council, as well as planned future work to address statelessness in Europe.
In your speech at the ENS-organised launch of the Statelessness Index you emphasised the continuing importance of addressing statelessness, including among recent refugees. Why does addressing statelessness matter?
Unfortunately, living without nationality and rights is still a harsh reality for thousands of people in Europe. Many stateless people, who have lived in the same place for generations find themselves stranded on the margins of society, at risk of discrimination and human rights abuses. For many, this means denial of the basic rights most of us take for granted. Stateless people suffer terrible personal consequences. Often, they do not have the ability to go to school, access healthcare, or obtain a job.
In addition, the recent increase in refugees and migrants arriving to Europe has brought a new statelessness challenge. We have seen statelessness increasing in Europe due to gaps and discrimination in the nationality laws of countries of origin. We need to keep in mind that some countries of origin of refugees and migrants have discriminatory laws, permitting nationality to be transmitted only by the father and not the mother. For example, a woman refugee, from Syria gives birth during her travel to Europe. In the absence of the father, or sufficient documents (something that happens in most cases), this new born child will be at risk of not acquiring any nationality or not being able to prove his or her nationality. The child will be, for all intents and purposes, stateless.
In view of that, it is paramount that European states take the necessary steps to tackle the issue both among recent migrants and refugees and those who have lived in the same place for generations, so that they are not denied their fundamental rights and are protected from human rights abuses.
You previously said that more should and can be done to address statelessness. Could you tell us what DGI can do when it comes to tackling statelessness in Europe?
The Directorate General for Human Rights and Rule of Law (DGI) has overall responsibility for the development and implementation of human rights and the rule of law standards of the Council of Europe. Statelessness is a key concern for the Council of Europe. The European Convention on Nationality from 1997 and its Article 4 provide that everyone has the right to a nationality, that statelessness shall be avoided and that no one shall be arbitrarily deprived of their nationality. Other relevant instruments worth mentioning are the Council of Europe Convention on the avoidance of statelessness in relation to State succession; the Recommendation from the Committee of Ministers on the avoidance and reduction of statelessness and more recently, the Recommendation on the nationality of children. Without appearing immodest, I consider that the Council of Europe has unique competence for nationality issues. And not only in standard-setting; considerable work is also done by the Court, the Parliamentary Assembly and the Commissioner for Human Rights in this field.
Moreover, as solving statelessness often requires inter-governmental cooperation, the Council of Europe and DGI as the main body with responsibility for implementing human rights and the rule of law, can play a key role in gathering governments around the same table in order to identify solutions.
One initiative that is currently being worked on is the Council of Europe Action Plan on protecting refugee and migrant children, and specifically the action on ensuring every child’s right to a nationality. Why was this action included and why is the plan significant?
The Action Plan, which was prepared by the Special Representative of the Secretary General on migration and refugees, provides concrete action on protecting children fleeing war, violence and persecution. It concentrates on issues that have not yet received enough attention; avoiding childhood statelessness being one of these. It was endorsed by all 47 Council of Europe members and we feel that this is an issue where all member states can claim ownership towards achieving a solution. The action plan was informed and in part shaped by stakeholder and civil society initiatives such as the ENS #StatelessKids campaign and the UNHCR #IBelong campaign, which helped secure the inclusion of an action on every child’s right to a nationality.
The recognition of the need to address childhood statelessness as part of the action plan is very welcome but can you tell us how this will be taken forward – what has been done already and what future implementation action is planned?
Bearing in mind the Council of Europe Action plan and in light of the statistical data and other information provided by Mr Gert Westerveen, (former) UNHCR representative to the European institutions in Strasbourg and your Director, Mr Chris Nash, on the extent of the problem of statelessness in Europe, in particular on the number of stateless persons, and on the existing obstacles to acquiring nationality, the European Committee on Legal Co-operation (CDCJ) examined, at its plenary meeting in November 2017, the possibility of undertaking an activity aiming at implementing in practice the principle of avoiding statelessness in relation to child migrants and identifying appropriate solutions in the form of practical guidance.
The European Committee on Legal Co-operation (CDCJ) will undertake a preliminary review of protocols and procedures used by member States to determine, in cases where it is uncertain, the nationality of recently arrived migrants (in particular, children) as well as to resolve cases of statelessness.
The result of this preliminary review will be presented to the CDCJ for consideration at its plenary meeting in 2019, and in the light of its findings, CDCJ will decide on what further action to take.
Immigration detention is another issue that affects stateless people and statelessness increases the risk of arbitrary detention. What is the role of the Council of Europe when it comes to regulating the use of immigration detention?
Under CDCJ's authority, the Committee of experts on administrative detention of migrants (CJ-DAM) is currently carrying out a codifying exercise on a detailed set of immigration detention rules based on existing international and regional human rights standards. The objective of the draft instrument is to protect individuals held in administrative detention by providing them with individual guarantees on their administrative detention and to provide guidance to both national authorities of detention places; people working closely detained person and help the European National Preventive Mechanisms (NPMs) to fulfil their mandates as detention monitoring bodies, in order to prevent torture and ill treatment.
Given the importance of this subject regarding the fundamental values of the Council of Europe, it appeared vital to consult as well the civil society and key stakeholders. Their point of views and experiences are essential to ensuring the draft codifying instrument is complete and effective. In spring last year, we organised a wide written consultation of civil society and a hearing of key actors took place in Strasbourg on 22-23 of June 2017. As your alluded in your question, stateless migrants face a higher risk of arbitrary detention, for indefinite periods, especially when return is not possible. In this respect, we’ve received input from a broad range of stakeholders (including of ENS) during the consultation process organised last year. Some of this pertained to protection of stateless people and will be carefully taking into account throughout the drafting process.
Overall, the main objective of codification is to consolidate different rules into a single and specific instrument, offering a coherent and clear set of international rules on administrative detention, which would avoid the risk of diverging legal regimes and help build universally applicable standards, something that will help end arbitrary detention of stateless people.
Thank you for taking the time and we look forward to future collaboration on addressing statelessness in Europe.