The
International Protection of Stateless Individuals:
A CALL FOR CHANGE
Ezekiel
Simperingham
June 2003
A dissertation
presented in partial fulfillment of the requirements for the degree of
Bachelor of Laws (hons), University of Auckland, June 2003
ABSTRACT
I.
INTRODUCTION
II. CAUSES AND CONSEQUENCES OF
STATELESSNESS
A. A Definition of
Statelessness
1. Two forms of
statelessness
B.
Causes of Statelessness
1.
Conflict of laws
2. Transfer of territory or of
sovereignty
3. Laws relating to
marriage
4.
Administrative
practice
5.
Discrimination
6. Laws relating to
the registration
of birth
7. Strict application
of the
principle of jus sanguinis
8.
Denationalisation
9.
Renunciation
10. Automatic loss by
operation of
law
C. Consequences of
Statelessness
1. A
legal problem
2. A problem for
international
relations
3. A
human problem
D. Conclusion
III. THE EFFECTIVENESS
OF THE CURRENT
INTERNATIONAL LEGAL
REGIME
A. The Sovereign Right to
Regulate
Nationality
B. Treaty Limits on the Right
to
Regulate Nationality
C. The Right to a
Nationality
D.
The Refugee Convention
1. What country of former
habitual residence is to be
assessed?
(a) The country of
original persecution
(b) The last country
of former habitual residence
(c) All countries of
former habitual residence
(d) Any country of former
habitual residence
(e) Any country plus the
Ward factor
(f) The New Zealand approach
2. What constitutes
a country of former habitual residence?
(a) A right of return
(b) A significant connection
(c) The New Zealand approach
IV. A
CALL FOR CHANGE
A.
The Case for Accession
B. An Alternative
Interpretation of
the Refugee Convention
V. CONCLUSION
This paper addresses
the issue of whether the current international legal regime is
effective in realising the dual aims of protecting stateless
individuals and reducing and eventually eliminating the causes of
statelessness.
The paper begins with an exploration of the causes and consequences of
statelessness. It is noted that there are a wide variety of
circumstances and settings in which statelessness can occur, but that
the catastrophic consequences of statelessness are universal. For the
individual, being stateless results in a dramatically diminished status
in domestic and international law. For States, statelessness proves to
be an undesirable source of tension in their international relations.
In part two, the paper notes that the overriding consideration in an
assessment of the effectiveness of the international legal regime in
reducing the problems of statelessness is that the sovereign right of
States to regulate nationality is near absolute. However, it is in the
limitations to the sovereign right of States in matters of nationality
that the international legal regime has been able to find success in
both protecting stateless individuals and reducing the occurrence of
statelessness. The paper notes that the two Conventions on
Statelessness, although limiting the right of States to regulate
nationality, do not provide effective protection to stateless persons
nor a comprehensive mechanism to prevent future causes of
statelessness. However, it is noted that they are a step on the right
path and as such provide, as a minimum, that persons will not be
arbitrarily deprived of nationality, that they will be granted
nationality under certain circumstances in which they might otherwise
become stateless and that adequate protection will be available to
those who, nonetheless, remain or become stateless. It is further noted
that the right to a nationality is also ineffective in reducing
statelessness, however, with the assistance of the doctrine of the
genuine and effective link it is possible that this right could in the
future prove to be an important tool in solving the problems of
statelessness. Part two concludes with an assessment of the
relationship between stateless persons and the Refugee Convention. It
is noted that not all stateless persons are refugees, but that it is
important that those stateless persons with a well-founded fear of
persecution are able to access the benefits of the Refugee Convention.
In this regard, the interpretation of the Refugee Convention as it
currently stands in New Zealand has the undesirable effect of all but
excluding stateless persons from being able to access and enjoy the
protection of the Refugee Convention.
The paper concludes by proposing two methods through which the
international legal regime could be more effective in realising the
dual aims of both protecting stateless persons and reducing and
eventually eliminating the problems of statelessness. It is first
proposed that an increase in State accession to the two Conventions on
Statelessness would increase awareness of the problems of statelessness
globally and would act as an impetus for all States to work towards the
protection of stateless individuals and the reduction and eventual
elimination of the occurrence of statelessness. The second proposal is
that an alternative interpretation of the Refugee Convention could be
adopted which would provide, in a practical sense, increased access to
the benefits of the Refugee Convention for stateless individuals.
This paper addresses the issue of whether the current international
legal regime relating to statelessness is effective in realising the
dual aims of protecting stateless individuals and reducing and
eventually eliminating the occurrence of statelessness.
Part one of the paper addresses the causes and consequences of
statelessness. This part begins by exploring the wide variety of
circumstances in which statelessness can be created. This part then
notes the catastrophic consequences that being stateless can have for
individuals, whilst also noting that statelessness is a cause of
tension for States in their international relations.
The second part of this paper assesses the effectiveness of the current
international regime in reducing the problems associated with
statelessness. It is noted that the principle aims of the international
legal regime in relation to statelessness are the protection of
stateless individuals and the reduction and elimination of future
statelessness. The second part begins by noting that in principle
nationality is within the domestic jurisdiction of States and that the
international legal regime can only be effective in reducing the
problems of statelessness insofar as it can limit the sovereign right
to regulate nationality. This part assesses the effectiveness of the
two Conventions on Statelessness in limiting the sovereign right to
regulate nationality and in turn reducing the problems of
statelessness. An assessment of the development of the right to a
nationality is then undertaken in the same regard. This part ends by
exploring the relationship between stateless individuals and the
Refugee Convention, noting that the extent to which stateless
individuals can access the rights and benefits of the Refugee
Convention has an important impact on the degree to which the
international legal regime can reduce the problems associated with
statelessness.
The final section of this paper proposes changes through which the
international legal regime could greater realise its aims in regards to
the phenomenon of statelessness. It is first proposed that through
increased State accession to the Conventions on Statelessness, that the
minimum protection and rights contained within those Conventions could
be greater afforded to stateless individuals as well as effecting a
more global reduction of the causes of statelessness. This part
concludes by proposing that an alternative interpretation of the
Refugee Convention could be adopted which would afford greater
practical assistance to stateless persons in accessing the rights and
benefits contained within the Refugee Convention.
A. Definition of Statelessness
The most widely accepted definition of statelessness is that contained
in Article 1 of the 1954 Convention relating to the Status of Stateless
Persons:1
1.
Two forms of statelessness
Statelessness comes about in two basic forms: de jure and de facto.2 A
person's inability to establish citizenship, or to be considered a
national by any State under operation of law, creates de jure
statelessness.3 De jure
statelessness may result when a person fails,
according to the law of a State, to acquire nationality at birth; this
is known as “original” or “absolute” statelessness.4
De facto stateless
persons are those that cannot establish their nationality, yet are not
declared de jure stateless because the country in which they live
believes that they hold, or should hold, nationality in another
country; the other country in turn believes that the individual ought
to have the nationality of the country in which they live.5
De facto
statelessness encompasses what is known as “subsequent” or “relative”
statelessness, whereby an individual loses their nationality without
acquiring another.6
B.
Causes of Statelessness
Globally, the prospect and occurrence of statelessness affects people
as far apart as Bedoons of Kuwait, Vietnamese seeking asylum in Hong
Kong, Kurds in Northern Iraq, Saami in Scandinavia, Roma in Eastern
Europe and Palestinians.7 However, statelessness
is not limited to
the groups enumerated above as there are a wide variety of
circumstances in which statelessness can be created.8
1.
Conflict of laws
The conflict of laws between States is one of the more frequent causes
of statelessness.9 For example, statelessness
can result where in
the State in which an individual is born nationality is granted
by descent (jus sanguinis) and in the State in which the parents of the
individual hold nationality, citizenship is granted by the fact of
birth within its territory (jus soli)
and not by descent.
2. Transfer of territory or of
sovereignty
Statelessness can occur as a result of transfer of territory or
sovereignty, including issues such as post-colonialism, State
independence, States dissolution, States succession and State
restoration. Following any of these events, where there is the adoption
of new laws or decrees on citizenship, or where new administrative
measures are introduced or old practices are reinterpreted in new ways,
individuals may be denied the opportunity to gain citizenship or
conflict of laws situations may be created which result in
statelessness.10
3.
Laws relating to marriage
The nationality practice of some States provides for the automatic loss
of nationality for women who marry foreign nationals. Statelessness may
be created in these circumstances where the woman does not receive the
nationality of her husband or where her husband has no nationality.
Statelessness may also be created if, after receiving the nationality
of her husband, the marriage is dissolved and the woman loses the
nationality acquired by marriage but does not automatically regain her
original nationality. The nationality of children in these situations
is also commonly unresolved.11
4.
Administrative practices
The acquisition, restoration and loss of nationality is often related
to numerous administrative and procedural requirements. These practices
can create statelessness where, for example, someone eligible for
citizenship may not actually receive that citizenship due to excessive
and unaffordable administrative fees, deadlines that cannot be met or
where required documentation is in the possession of a former State of
nationality and is unable to be produced.12
5.
Discrimination
Statelessness can be created through discriminatory legislation and
practice based on, for example, ethnicity, religion, gender, race and
political opinion. Individuals are not automatically entitled to
receive nationality in all States and as such States commonly have
nationality legislation that is based on distinctions between
individuals. It is the discrimination within a State between equally
situated persons that can create statelessness.13
6. Laws relating to the registration
of births
Evidence as to where and to whom a child is born is a principle
criterion in establishing entitlement to citizenship based on either
jus sanguinis or jus soli. The failure or refusal
of a State to ensure
the registration of births can lead to the inability to establish
identity and therefore to establish the basis of a claim to
citizenship.14
7. Strict
application of the
principle of jus sanguinis
Although the nationality laws of a large number of countries rests on a
combination of jus sanguinis
and jus soli,15
it is
clear that jus
sanguinis is more prone to create statelessness as it is
possible to
result in the inheritance of statelessness. Jus sanguinis, without
modifications based on place of birth, residency, or other factors,
extends to children the nationality status of their parents. The result
is that statelessness may be inherited and passed from generation to
generation regardless of place of birth, cultural ties or the fact that
in some cases the individuals concerned have neither entered or resided
in another State.16
8.
Denationalisation
Deprivation of nationality as an act of State, often based on
discriminatory measures and often followed by expulsion, where an
individual has no other nationality is a clear cause of statelessness.17
9.
Renunciation
Statelessness may result where an individual renounces their
nationality without the prior acquisition or guarantee of acquisition
of another nationality.18
10. Automatic loss
by operation of law
Statelessness may result where a State provides for the automatic loss
of citizenship after a set period of absence from the State or
residence abroad. This may be associated with administrative practices
that fail to notify individuals of these practices.19
C. Consequences of Statelessness
1. A
legal problem
Nationality has an important bearing on an individual's legal capacity
in both domestic and international law as it effectively provides the
link between an individual and a State.20
Statelessness, therefore, is a
problem of identity under the law resulting in the inability to enjoy
the rights and freedoms afforded by the law.21
Statelessness can have a disastrous legal impact on an individual,
including the inability to exercise the right to work, to own property,
to access health care, to education and the ability to travel,
including the vital right to leave and return.22
A State's right to grant
diplomatic protection and to represent an individual at the
international level is also based on nationality.23
The serious legal predicament that statelessness causes has been noted
in a number of judicial decisions, Chief Justice Warren stated in Perez
v Brownell that:
Justice Hammond stated
in the High Court decision of Yan v
Minister of
Internal Affairs, that:
Justice Hammond also
noted that the greatest caution should be
exercised before rendering a person stateless.26
The decision of Trop v Dulles
further described statelessness as
entailing a severe and dramatic deprivation of power of the individual
and denationalisation as the total destruction of an individual's
status in organized society.27
The catastrophic legal effects of statelessness have also been noted
extensively in academic literature, where the legal position of
stateless persons has been described as precarious28
and one of serious
disadvantage and difficulty at every front29 and
stateless individuals
have been characterised as res
nullius,30 void31 and
compared to vessels on
the open sea not sailing under any flag.32
2. A problem for
international
relations
In a world governed by nation States and strict rules concerning
nationality and citizenship, the international community has had
problems dealing with the issues of statelessness.33
As such,
statelessness is not only undesirable to individuals but also to States
and their international relations. In effect stateless persons are
outcasts from the international legal order and the global system of
States and their very existence has the potential to lead to friction
between States.34
3. A
human problem
Statelessness not only results in disastrous legal consequences for the
individual and creates a source of tension between States in their
international relations but it is also a human problem with human
issues and realities.35
There are many potentially unforeseen complications and predicaments
for stateless persons, including, for example, indefinite detention in
a foreign State, where the detaining State cannot determine the
individual's citizenship for the purpose of expulsion or where the
country of former residence will not accept the individual's return.36
Chief Justice Earl Warren stated in Perez
v Brownell:
The opinion of Chief
Justice Warren was cited with approval by Justice
Williams in the High Court decision of Lee v Deportation Review
Tribunal, claiming further that “citizenship is a fundamental
human
right".38
D.
Conclusion
Statelessness is a global phenomenon that affects a wide variety of
people in an equally wide variety of settings and circumstances. For
States, statelessness creates a source of tension in their
international relations.39 For individuals,
statelessness creates a
severely disadvantaged legal situation resulting in the inability to
exercise the rights and freedoms afforded by law.
The global consensus on the undesirability of statelessness40
has
resulted in the establishment of international legal order relating to
statelessness with two main aims: the protection of stateless persons
and the reduction and eventual elimination of the occurrence of
statelessness.
This paper now turns to an assessment of the effectiveness of the
current international legal order in realising the dual aims of
protecting stateless persons and reducing and eliminating the
occurrence of statelessness globally
A. The Sovereign Right to Regulate
Nationality
The overriding consideration in assessing the effectiveness of the
international legal regime is that as a manifestation of sovereignty
nationality is closely guarded by States.41 The
result is that, in
principle, it is not international law but the domestic law of each
State that determines who is and who is not to be its nationals.42
The International Court of Justice stated in the Nottebohm Case that:
This principle was
further confirmed by Manley O'Hudson who, as Special
Rapporteur of the International Law Commission, expressed the view that
“in principle, questions of nationality fall within the domestic
jurisdiction of each State.”44
However, it has also been noted that international law places some
limitations on State sovereignty in this regard, with the result that
the legislative competence of States in matters of nationality is not
absolute.45
As early as 1923, in its Advisory Opinion in the case concerning
Nationality Decrees Issued in Tunis
and Morocco, the Permanent Court of
International Justice emphasised that:
The Permanent Court
added that in respect of nationality matters, which
in principle were not regulated by international law, the right of a
State to use its discretion may be restricted by obligations undertaken
towards other States, so that its jurisdiction would be limited by
rules of international law.47
Article 1 of the 1930 Hague Convention on Certain Questions Relating to
the Conflict of Nationality Laws states further that:
The result is that,
despite the traditional acceptance that the
conferral and recognition of nationality are matters for States to
decide, it is an irresistible conclusion that international law
currently places limits on the manner in which States regulate
nationality.49
It is within these limitations to State sovereignty in matters of
nationality that international law is able to pursue its dual aims of
protecting stateless individuals and reducing and eventually
eliminating statelessness.
B. Treaty Limits on the
Right to
Regulate Nationality
International Law has developed limitations on the sovereign right to
regulate nationality through a number of international Treaties and
Conventions focusing on nationality and statelessness. The principle
international instruments in this regard are the 1954 Convention on the
Status of Stateless Persons and the 1961 Convention on the Reduction of
Statelessness. These Conventions also provide an important indication
of the dual aims of international law in relation to statelessness,
namely the protection of stateless individuals and the reduction and
elimination of the occurrence of statelessness.
The 1954 Convention on the Status of Stateless Persons focuses on the
protection of stateless persons and to this end lays down the basic
rights, obligations and standards of treatment for stateless
persons.50 For the most part, the 1954
Convention is the application of
the provisions of the Refugee Convention to stateless persons.51
For example, the provisions relating to expulsion, Article 31 in the
1954 Convention and Article 32 in the Refugee Convention are almost
identical. As the preamble notes, the primary purpose of the 1954
Convention was the regulation of treatment of stateless persons not
protected by the Refugee Convention.52
However, as regards to the number of rights and benefits, the
provisions of the 1954 Convention are less favourable than those of the
Refugee Convention.53 Whereas the 1954
Convention provides for the
issuance of a uniform travel document in Article 28, unlike the Refugee
Convention, the right of re-entry only has to be accorded to the holder
when the country to which he or she proposes to travel insists on the
document according the right of re-entry.54
Further, the Stateless
Convention does not contain freedom from penalties for unlawful entry,
as in Article 31 of the Refugee Convention.55
The 1954 Convention also
does not contain a provision prohibiting expulsion or return to
countries of persecution, as in Article 33 of the Refugee Convention.
However, the Final Act of the Conference notes that “Article 33…has
been recognised as an expression of the generally accepted principle
that no State should expel or return a person in any manner whatsoever
to the frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality, membership of
a particular social group or political opinion.”56
In an effort to strengthen the international commitment to the
provisions of the 1954 Convention in 1961 the United Nations adopted
the Convention on the Reduction of Statelessness.57
As its name suggests,
the focus of the 1961 Convention is the reduction of future cases of
statelessness and the eventual elimination of the occurrence of
statelessness.58
The 1961 Convention does not, however, require a Contracting State to
unconditionally grant its nationality to any stateless person but
rather bases the right to nationality on ties held with a State based
on either jus soli in Article
1 or jus sanguinis in Article
4. The
grant of nationality is further contingent on the fact that a person
“would otherwise be stateless”.59
Also, both Article 1 and 4 present a Contracting State with the
opportunity to impose further conditions on the grant of its
nationality to stateless persons, in addition to the jus soli or jus
sanguinis links that exist. These conditions include: that an
application under the Convention is lodged while the applicant is in a
prescribed age range, Articles 1(2)(a) and 4(2)(a); that the person has
habitually resided in the States territory for a fixed period of time,
Articles 1(2)(b) and 2(2)(b); that the person has not been convicted of
an offence against national security, Articles 1(2)(c) and 4(2)(c),
Article 1(2)(c) also includes that a person has sentenced to
imprisonment for five or more years on a criminal charge and that the
person has always been stateless, Article 1(2)(d) and 4(2)(d).
The two Conventions on Statelessness in combination provide both a
minimal level of protection to stateless persons and the opportunity to
reduce and potentially eliminate the occurrence of statelessness.
However, it is clear that although these Conventions provide a step on
the right path to realising these goals, there are a number of issues
where they fall short and as such they do not provide a comprehensive
solution to the phenomenon of statelessness.
First, as noted, the 1961 Convention only provides for the grant of
nationality in certain limited circumstances. In particular the 1961
Convention only provides for the grant of nationality to stateless
individuals within a contracting States territory based on de jure
stateless factors. These factors are further limited by the option for
contracting States to impose further conditions on the grant of
nationality. As a result there are a number of gaps in the prevention
of statelessness that the 1961 Convention does not envisage or remedy.
A clear example is that the Convention permits a contracting State to
refuse nationality for an individual who is on its territory and who
has either jus sanguinis or jus soli or both links with that
State,
simply because the individual is not of a predetermined age when he or
she applies. It is clear that the circumstances in which statelessness
is created are much wider and varied than that which the 1961
Convention attempts to prevent.
Secondly, in focusing on de jure
statelessness, neither Convention
includes de facto stateless
persons in its formal text; de facto
statelessness is instead consigned to a non-binding recommendation in
the Final Act.60 As a result, although there
are currently
thousands of people in a de facto
stateless situation,61 the two
Conventions do not provide adequate protection to de facto stateless
persons nor do they provide effective methods in which de facto
statelessness can be reduced.62
Although, as noted, the two Conventions are a clear step on the path
towards achieving both the reduction of statelessness and the
protection of stateless individuals, as they currently stand there are
many circumstances in which statelessness can still be created and many
stateless persons, especially those who are de facto stateless are not
guaranteed access to the rights and benefits contained within these
Conventions.
C.
The Right to a Nationality
Another key development in the field of nationality and a tacit
acknowledgement of the seriousness of statelessness has been the
development of the right to a nationality. The aim of this right is
not, however, to protect stateless individuals but rather it is focused
on the prevention and eventual elimination of the occurrence of
statelessness.
Article 15 of the Universal Declaration of Human Rights states:
The development of the
right to a nationality can be noted in a number
of other international legal instruments, including: the Hague
Convention on Certain Questions Relating to the Conflict of Nationality
Laws, 1930;64 the Convention on the Nationality of
Married Women, 1957;65
the International Covenant on Civil and Political Rights, 1966;66 the
Convention on the Elimination of all Forms of Discrimination against
Women, 197967 and the Convention on the Rights of the
Child, 1989.68
The right to a nationality can also be noted in a number of regional
instruments, such as the 1969 American Convention on Human Rights69 and
the 1997 European Convention on Nationality.70
However, although there has clearly been a widespread consensus on the
right to a nationality, perhaps even to the stage where it could be
said to have entered into customary international law,71
the major
practical limitation to the effectiveness of the right is that it does
not prescribe which nationality there may be a right to in any given
situation.
One of the methods that international law has developed to resolve this
issue and thus make the right to a nationality more effective in
resolving the problems of statelessness is through the doctrine of the
genuine and effective link.72
The concept of the genuine and effective link was first enunciated by
the International Court of Justice in the Nottebohm Case as a means of
defining the nature of nationality:
The genuine and
effective link has since been developed into a broader
concept in the area of nationality legislation and practice based upon
the principles embodied in State practice, treaties and case law.74
According to State practice, birth, descent or residence can each be
presumed to support a genuine and effective link between the individual
and the State.75 While the choice of emphasis
varies from region to
region, one or more of the elements of the genuine and effective link,
often in conjunction with one another, are utilised to some degree by
all States in their nationality legislation and practice.76
However, as
most States do not grant nationality indiscriminately, these elements
are not applied on an equal basis but, rather, preference is indicated
by the State for either birth or descent, by basing national
legislation and practice in either jus
soli or jus sanguinis.77
Although the genuine and effective link is strongly evidenced in State
practice and is an appropriate and effective tool in determining which
nationality an individual may have the right to, the present state of
international law does not support the conclusion that a State has the
obligation to grant nationality to a citizen who has a genuine and
effective link with that State.78
However, although at present, the right to a nationality is an
ineffective method of preventing the occurrence of statelessness, it is
clear that the right is developing, as evidenced in the increasing
number of international Conventions and regional instruments that refer
to it. As such, it is possible that in the future, through increased
State willingness to recognise the right to a nationality and
subsequent State practice in granting individuals nationality on that
basis, the right could be an effective tool in the reduction and
elimination of statelessness.
D.
The Refugee Convention
The extent to which the Refugee Convention applies to stateless persons
has an important impact on the protection that international law offers
to stateless individuals. As previously noted, the Refugee Convention
contains more rights and benefits than the Conventions on Statelessness
and as such the ability of stateless persons to access those rights and
benefits has an important impact on the level of protection that
international law offers to stateless persons. The extent to which the
Refugee Convention applies to stateless individuals also has an
important impact on the effectiveness of international law in reducing
and eliminating statelessness, as individuals recognised as requiring
protection under the Refugee Convention are often granted, in
accordance with Article 34, the nationality of their country of asylum.79
However, the relationship between stateless individuals and the Refugee
Convention is not clear.
There has been jurisprudential and academic support for the
interpretation of the Refugee Convention that stateless persons need
only establish that they are presently unable to return to their
country of former habitual residence in order to qualify for refugee
status.80
However, this is a clearly untenable argument that runs contrary to the
language of Article 1(A)(2) of the Refugee Convention. To this end,
this view has been emphatically rejected in New Zealand and other
refugee law jurisprudence.81
A more widely recognised and supportable reading of the Refugee
Convention is that not all stateless persons are refugees and that a
stateless person must demonstrate a well founded fear of persecution
under one of the five grounds enumerated in the Refugee Convention
before acquiring protection as a refugee against any one country of
former habitual residence.82
This view is supported by paragraph 102 of the UNHCR Handbook, which
states:
As such, it is
appropriate to have a single test for refugee status,
with the only modification in the case of stateless claimants being
that they must show that they are unable, or owing to such fear,
unwilling to return to their country of former habitual residence.84
However, there remains two issues of interpretation which impact
strongly on the extent to which stateless individuals can access the
benefits of the Refugee Convention. The first is a determination of
what country, where the stateless refugee claimant has more than one
country of former habitual residence, is the relevant country for an
Article 1(A)(2) assessment. The second issue is as to what constitutes
a country of former habitual residence.
1. What country of former habitual
residence is to be assessed?
It is a necessary element of the refugee determination process in
relation to stateless persons, where there are two or more countries of
former habitual residence, to identify which of those countries is
relevant to the determination of the refugee claim.85
A
number of different approaches to this issue have been identified, each
with a differing impact on the protection that the Refugee Convention
can offer to Stateless persons.86
(a) The country of
original persecution
One approach is that the country of former habitual residence should be
the State in which the stateless refugee claimant first experienced
persecution, namely the “country of original persecution”.87
This view
suggests that a person becomes a refugee when he or she faces
persecution and remains a refugee so long as the threat of that
persecution remains in the original country.
The weakness of this view is that the appropriate question is not
whether an individual faces persecution, but whether the claimant can
be protected from that persecution, including that the individual is
without a safe alternative.88 Thus, while the
country of first
flight may be the State to which an individual retains the greatest
formal ties, the claimant may have as strong or stronger ties with
other countries, and as such, the assessment of refugee status by
reference only to the first country ignores the possibility of havens
in other States.89
(b) The last
country of former habitual residence
The Federal Court of Canada in Thabet
ruled that the claimant had to
make his refugee claim against the last country of former habitual
residence.90
This approach has a certain linguistic and logical coherence as well as
the benefit of being easy to administer.91
However, when the IRB
considered the law as set out in Thabet,
it was noted that this
interpretation could result in Canada committing refoulement.92
Where the
claimant has fled from persecution in a first country and settled in a
second country where he or she is not persecuted, if the person's claim
is judged only with reference to that second country then the claim
will surely fail, with the result that he or she may be returned to the
first country. As such this approach could see a claimant being
returned to a country where there was a genuine risk of persecution and
with no hearing on the merits of that claim.93
(c) All countries of
former habitual residence
This approach requires stateless refugee claimants to demonstrate a
well founded fear of persecution against all countries of former
habitual residence in order to be accepted as a Convention refugee.94
This approach is consistent with the need, in cases of multiple
nationalities, to establish a claim against all countries of which one
is a national, in this way, providing a degree of symmetry between the
concepts of nationality and habitual residence.95
However, it is not immediately clear where the benefits would lie in
attaining symmetry between these two concepts, especially in the
context of stateless refugee claimants. Whereas individuals with
multiple nationality are characterised by an abundance of protection
and a right to return to a number of States, stateless individuals are
characterised by a conspicuous absence of protection, with the result
that there is very rarely a State which they can in fact return to and
which can in fact offer them protection.
Furthermore, this approach could create the result of returning a
stateless refugee claimant who could not prove a claim against one
country of former habitual residence to a country where they could be
returned and where they faced a genuine risk of persecution. In this
way, this interpretation also puts States at risk of committing
refoulement.96
(d) Any country of
former habitual residence
The most generous of the alternatives available is that espoused by the
United Nations High Commissioner for Refugees and has been adopted in a
number of cases, including, Martchenko
et al v Canada (Minister of
Citizenship and Immigration), Maarouf
v Canada (Minister of Employment
and Immigration), 97 and the Australian
decision of Al-Anezi v Minister of
Immigration and Multicultural Affairs.98
The UNHCR Handbook on Procedures and
Criteria for Determining Refugee
Status states at paragraph 104:
Further, paragraph 105
of the UNHCR Handbook states:
However, this approach
does not take sufficient account of the
alternative protection options available to a claimant and insufficient
regard of the requirement that a stateless person, like other refugee
claimants, must establish unwillingness or inability to avail himself
or herself of the protection of places of former habitual residence.100
(e) Any country plus
the Ward factor
The approach adopted by the Canadian Federal Court of Appeal in Thabet
requires that a stateless person must show a well-founded fear of being
persecuted for a Convention reason in one country of former habitual
residence, and that she or he cannot return to any of his or her other
countries of former habitual residence.101
This approach more effectively deals with the issue of whether the
claimant has other countries of haven and treats stateless persons as
analogously as possible with those who have more than one nationality.
(f) The New Zealand approach
In a recent decision of the New Zealand Refugee Status Appeals
Authority, it was stated that where a stateless person has habitually
resided in more than one country, in order to be found to be a
Convention refugee, such person must show that he or she has a
well-founded fear of being persecuted for a Convention reason in at
least one country of former habitual residence, and that he or she is
unable or, owing to such fear, unwilling to return to each of his or
her other countries of former habitual residence.102
It is further noted
that this approach requires the well founded fear of being persecuted
for a Convention reason to be established in relation to each and every
country of former habitual residence before a State party has
obligations to the stateless person.103
However, the New Zealand decision further claims that this
interpretation is consistent with the essential premise of the decision
in Thabet.104
This raises the
issue of whether the effect of Thabet
is
that a stateless refugee claimant needs to prove that they have a well
founded fear of persecution against any one country of former habitual
residence and that they are unable to return to any of the other
countries as they are stateless and have no right of return; or whether
Thabet requires that the
inability to return to the other countries of
former habitual residence be based on a well-founded fear of
persecution in all of them.
It appears clear that the former is the more likely effect of Thabet
for two reasons: first, Thabet
expressly disavows the “all countries”
test and notes that the interpretation adopted is a variation of the
“any country” test.105 Second, the focus of
the Thabet interpretation is
on protection and not on fear of persecution, it is noted that “it will
suffice to show that one State is guilty of persecution, but that both
States are unable to protect the claimant.”106 To
this end it is clear
that a country that will not allow a stateless person a right to return
is not a country of protection.
As such, it is not entirely clear that the New Zealand approach is
consistent with the essential premise of Thabet. The essential
difference between the two approaches is that under the New Zealand
formulation a stateless refugee claimant is effectively required to
prove a well founded fear of persecution against all countries of
former habitual residence, an approach previously noted as
unsatisfactory, whereas the Canadian approach requires an assessment of
well foundedness against only one country of former habitual residence
and that the claimant cannot return to any of the other countries of
former habitual residence.
This difference between the two interpretations that leads to this
divergence is that the New Zealand approach requires the inability or
unwillingness of a claimant to return to the other countries of former
habitual residence to be based on a well founded fear of persecution,
whereas under the Thabet
formulation it is permissible that the
inability to return can be based on the fact of statelessness, which
can occur, as previously noted, in situations far removed from
persecution.
It is thus clear that the two approaches offer an entirely different
level of protection to stateless persons, the Thabet approach provides
a mechanism to protect stateless persons who have a well founded fear
of persecution and who have no place of safety,107
whereas the New
Zealand approach requires a far higher standard in requiring an
academic assessment of whether an individual has a well-founded fear of
persecution in countries where an individual has no nationality status,
no right of return and therefore no access to protection.
There is however, a further issue of interpretation which could have
the result of further limiting access to the benefits of the Refugee
Convention for stateless persons.
2. What constitutes a country of
former habitual residence?
The issue of whether a country can only be a country of former habitual
residence if the claimant has a right of return to that country clearly
has an important impact on the access to the benefits of the Refugee
Convention that stateless persons have. This issue arises as the
definition of country of former habitual residence is subjective and
open to a wide variety of interpretations.108
(a) A right of return
One view, adopted in both case law and academic writing, is that a
country is not a “country of former habitual residence” unless the
claimant has a right to return to that country.109
The result is that a stateless person cannot qualify as a refugee if
they are not returnable to a country of former habitual residence.110 This
interpretation of country of former habitual residence is premised on
the argument that if a stateless individual has no right of right of
return to any country of former habitual residence, then there would be
no country from which protection needed to be granted, with the result
that the individual would not require protection under the Refugee
Convention.
However, this result is clearly controversial as the end result is that
stateless individuals without a right of return to a country of former
habitual residence are left in a legal limbo.111
It would be legally
impossible for stateless individuals without a right of return to any
country to obtain protection under the Refugee Convention, in effect, a
large proportion of stateless persons would be excluded from the
benefits of the Refugee Convention irrespective of any well-founded
fear that they might have.
(b) A significant connection
Another approach to this issue is that adopted in the Canadian decision
of Maarouf, which states:
(c) The New Zealand
Approach
This issue was also considered in the New Zealand Refugee Status
Appeals Authority decision, Refugee
Appeal No 72635. This decision
states that the issue of return to a country of former habitual
residence is an issue of whether return is possible as a matter of
fact, not as a matter of law. It was further noted, in answer to the
claim that the denial of a right of return may constitute an act of
persecution that once an individual is outside the relevant country and
it is factually impossible for that person to return there, there is no
well-founded fear of being persecuted in that country in the future.113
The end result reached in New Zealand is that there must be a
prospective risk of persecution should an individual return to the
relevant country and that such risk cannot exist where re-entry is, as
a matter of fact, not possible.114 The New
Zealand decision also
notes that the “resulting predicament” of the individual is to be
assessed under the Convention relating to the Status of Stateless
Persons and that if the country of intended refuge is not a party to
that Convention, the individual is without remedy.115
It is difficult to see in practice how a stateless person could return
to a country of former habitual residence in spite of not having a
legal right to enter that country. The New Zealand decision claims that
“it may be possible in practice to remove persons to a State which they
are not legally entitled to enter”,116 however, as
noted States have a
strong sovereign right to regulate nationality and could deny entry to
an individual despite the existence of even a genuine and effective
link. As such, almost by definition, only a very limited number of
stateless individuals would be able to return to a country of former
habitual residence without any legal right to do so. The practical
result of the approach adopted in New Zealand, as stateless persons
almost by definition cannot in fact return to any country, is that the
vast majority of stateless persons are excluded from the benefits of
the Refugee Convention.
The result of the New Zealand approach, as outlined in Refugee Appeal
No. 72635, is that in addition to requiring that a stateless
refugee
claimant prove that they have a well founded fear of persecution in all
countries of former habitual residence, is that they must also prove
that they can in fact return to those countries in order to access the
benefits of the Refugee Convention. The combination of these two
interpretations clearly has an incredibly limiting effect on the
practical ability of stateless individuals to access the benefits of
the Refugee Convention, despite any well founded fear and absence of
alternative protection that they might have.
A.
The case for Accession
As previously noted, the Conventions on Statelessness, in realising the
aims of international law with regards to statelessness are a step on
the right path, but are not, as they currently stand, entirely
effective in either protecting stateless individuals or providing a
comprehensive mechanism in which to reduce the occurrence of
statelessness.
However, another issue in assessing the effectiveness of these
Conventions especially as they limit State sovereignty in matters of
nationality is that they only regulate Contracting States parties. As
of August 2002, there were only 54 State parties to the 1954 Convention
and 26 State parties to the 1961 Convention. It is further notable that
New Zealand is not a party to either Convention.117
It is proposed that an increase in global accession to these legal
instruments would increase their effectiveness and in applying to more
States would provide both increased protection to stateless individuals
and would further the aim of reducing and eliminating the occurrence of
statelessness.
It is important from a number of perspectives that there is increased
accession to these Conventions. First, accession is an essential step
in the furtherance of international efforts towards reducing the
problem of statelessness as these instruments, despite not being
entirely effective, ensure, as a minimum, that persons will not be
arbitrarily deprived of nationality, that they will be granted
nationality under certain circumstances in which they might otherwise
become stateless and that adequate protection will be available to
those who, nonetheless, remain or become stateless.118
Furthermore, the
1954 Convention provides stateless persons with many of the rights
necessary to live a stable life and accession to the 1961 Convention
would serve to resolve many of the situations which result in
statelessness and provides a useful reference point for nationality
legislation that could assist in resolving certain conflict of laws
problems.119
Secondly, it is clear that the success of international efforts to
reduce statelessness is dependent on nationality legislation and
practice at State level. Although the UNHCR has a role in
promoting accession to these Conventions and has been requested by the
General Assembly to assist States in reducing statelessness;120 that the
International Law Commission has undertaken a Study on Statelessness121
and that efforts have been undertaken at the regional level to reduce
statelessness,122 it is clear that neither the
UNHCR, nor any other
international or regional organisation, nor third States can pronounce
authoritatively on nationality in one State or the other.123
Whilst
organizations and other States may promote the recognition of a genuine
and effective link and encourage recognition of these links where they
exist, only the State concerned can indicate whether it acknowledges
these links.124
In this regard, one of the major obstacles to the success of the
international regime in realising its aims towards statelessness is the
level of general apathy towards the problem of statelessness, as
witnessed in the relatively small number of States that have taken the
step of acceding to the two Conventions on Statelessness. An increase
in accession to and ratification of these instruments would increase
awareness of the problems of statelessness globally and would act as an
impetus for all States to work towards the protection of stateless
individuals and the reduction and eventual elimination of the
occurrence of statelessness.125
B. An Alternative
Interpretation of
the Refugee Convention
As noted above, the practical effect of the New Zealand interpretation
of the Refugee Convention as it relates to stateless individuals is to
exclude all stateless persons, except those that can return to
countries of former habitual residence, from the benefits of the
Refugee Convention. This has an important impact, as although not all
stateless persons are refugees and as such do not require protection
under the Refugee Convention, it is important that those stateless
persons with a well-founded fear of persecution can have the equivalent
ability to seek protection as those individuals with nationality.
The approach adopted in New Zealand appears to be more limited than
that which was envisaged in Article 1(a)(2) of the Refugee Convention,
the preamble to the 1954 Convention and the interpretation126
adopted by
the UNHCR.127
The alternative approach proposed is that a stateless refugee claimant,
if having more than one country of former habitual residence, must have
a well-founded fear of persecution against any one of those countries
and that they cannot in fact return to any of the other countries of
former habitual residence. Further, a country can be interpreted as
being of former habitual residence if the individual has a significant
period of de facto residence
in that country.
It is suggested that this approach is more in line with Thabet and
avoids many of the difficulties noted above. It is important to note
that the interpretation adopted in New Zealand is not an incorrect or
impermissible interpretation of the Refugee Convention. However, it is
suggested that this alternative approach would also be permissible and
would include many practical advantages to stateless persons absent
from the New Zealand approach. These would include, offering increased
protection to stateless persons and excluding the undesirable result
that the predicament of stateless individuals with a well-founded fear
of persecution and no right of return to any country is to be addressed
under the Stateless Convention and not the Refugee Convention and that
if a stateless individual seeks refuge in a country that is not a party
to the Stateless Convention, then the individual is without remedy.128
There are a wide variety of circumstances and settings in which
statelessness can be created. However, the catastrophic consequences of
statelessness are universal. For individuals, being stateless results
in a severely diminished status in both domestic and international law
with the result that access to the rights and benefits normally
afforded by the law is difficult if not impossible. For States,
statelessness creates an undesirable source of tension in their
international relations.
The overriding consideration in assessing the effectiveness of the
international legal regime is that State sovereignty in matters of
nationality is near absolute. However, it is in the limitations to the
right of States to regulate nationality that the international legal
regime has managed to find the most success in reducing the problem of
statelessness. This paper notes that the two Conventions on
Statelessness, whilst providing a step on the path towards the
protection of stateless individuals and the reduction of future
statelessness, do not provide an entirely effective solution nor
provide a comprehensive mechanism to prevent all causes of
statelessness. It is further noted that at present, the right to a
nationality, even with the assistance of the doctrine of the genuine
and effective link, is not effective in reducing statelessness.
However, it is clear that this right is developing and could in the
future be an important tool in reducing the problems of statelessness.
The application of the Refugee Convention to stateless persons is
clearly an important element in the protection of stateless
individuals. Whilst it is clear that not all stateless persons are
refugees, it is important that those who have a well founded fear of
persecution have the ability to access the benefits of the Convention.
It is noted that the approach adopted in New Zealand in interpreting
the relationship between stateless individuals and the Refugee
Convention has the undesirable result of all but excluding stateless
persons from accessing the rights and benefits contained within the
Convention.
It is suggested that there are two methods through which the
international legal regime could provide a more effective solution to
the problems of the statelessness. The first is through increased State
accession to the two Conventions on Statelessness. It is noted that
with a strong sovereign right to regulate nationality, that change
needs to occur primarily at the State level and that increased
accession is an essential step in the furtherance of international
efforts towards reducing the problem of statelessness. The second
proposal is that an alternative interpretation of the Refugee
Convention could be adopted which would provide, in a practical sense,
increased access to the benefits of the Refugee Convention for
stateless individuals.
Articles
Batchelor, Carol A “Statelessness and the Problem of Resolving
Nationality Status” (1998) volume 10 International Journal of Refugee
Law.
Batchelor, Carol A “UNHCR and Issues Related to Nationality” (1995)
volume 14 number 3 Refugee Survey Quarterly 91.
Batchelor, Carol A “Stateless Persons: Some Gaps in International
Protection” (1995) volume 7 International Journal of Refugee Law.
Biancheria, Christine “Restoring the Right to Have Rights:
Statelessness and Alienage Jurisdiction in light of Abu-Zeineh v
Federal Laboratories Inc” (1996) American University Journal of
International Law and Policy 195.
Blackman, Jeffrey L “State Succession and Statelessness: The Emerging
Right to an Effective Nationality under International Law” (1998)
volume 19 Summer 1998 Michigan journal of International Law 1141.
Chan, Johannes M.M “The Right to Nationality as a Human Right: The
Current Trend Towards Recognition” (1991) volume 12 number 1-2 Human
Rights Law Journal.
Corrigan, Edward C “The Legal Debate in Canada on the Protection of
Stateless Individuals under the 1951 Geneva Convention” (2003) volume
23 part 2 Immigration Law Reporter.
Donkoh, Bemma “A Half-Century of International Refugee Protection:
Who's Responsible, What's Ahead?” (2000) Berkeley journal of
International Law 260.
Greiper, Ellen H “Stateless Persons and Their Lack of Access to
Judicial Forums” (1985) volume 11 Brooklyn Journal of International Law.
Hall, Stephen “The European Convention on Nationality and the right to
have rights” (1999) volume 24 European Law Review 586.
Khan, Irene “UNHCR's Mandate Relating to Statelessness and UNHCR's
preventative strategy” (1995) 49 Austrian Journal of Public
International Law 93.
Niraj Nathwani “The Purpose of Asylum” (2000) 12 International Journal
of Refugee Law 354.
Sen, Sumit, “Stateless Refugees and the Right to Return: The Bihari
Refugees of South Asia – Part 2” (2000) volume 12 number 1
International Journal of Refugee Law 41.
Settlage, Rachel “No Place to Call Home: Stateless Vietnamese Asylum
Seekers in Hong Kong” (1997) volume 12 Georgetown Immigration Law
Journal 187.
Warnke, Adam M “Vagabonds, Tinkers, and Travelers: Statelessness among
the East European Roma” (1999) Indiana Journal of Global Legal Studies
335.
Weis, Paul, “The United Nations Convention on the Reduction of
Statelessness” (1961) Volume 11 International and Comparative Law
Quarterly 1073.
Books
Battifol, Henri and Paul Lagard Droit
international prive (Seventh
edition, volume 1, Librairie generale de droit et de jurisprudence,
Paris, 1981).
Brownlie, Ian Principles of Public
International Law (Fifth Edition,
Clarendon Press, Oxford, 1998).
Donner R The Regulation of
Nationality in International Law (Second
Edition, Irvington-on-Hudson, 1994).
Grahl-Madsen, Atle The Status of
Refugees in International Law (Volume
1 AW Sijthoff 1966).
Guy S Goodwin Gill The Refugee in
International Law (Second Edition,
Clarendon Press, Oxford, 1996).
Hathaway, James C The Law of Refugee
Status (Butterworths, Canada,
1991).
Holborn, Louise W Refugees: A
Problem of Our Time, The Work of the
United Nations High Commissioner for Refugees, 1951 – 1972 (The
Scarecrow Press Inc, New Jersey, 1975).
Jennings, Robert and Arthur Watts (eds) Oppenheim's International Law
(Ninth edition, Longman House, Essex, 1992).
Lauterpacht Hersch International Law
and Human Rights (Archon Books,
USA, 1968).
Macalister, Peter and Gudmundur Alfredsson (eds) Atle Grahl Madsen: The
Land Beyond, Collected Essays on Refugee Law and Policy
(Martinus
Nijhoff Publishers, The Netherlands, 2001).
Robinson, Nehemiah Convention
Relating to the Status of Stateless
Persons, Its History and Interpretation: A Commentary by Nehemiah
Robinson (Institute of Jewish Affairs, World Jewish Congress,
1955,
Republished by the Division of International Protection of the United
Nations High Commissioner for Refugees, 1997).
Watts, Arthur The International Law
Commission, 1949 – 1998, Volume 1:
The Treaties (Oxford University Press, New York, 1999).
Weis, Paul Nationality and
Statelessness in International Law (Second
edition, Sijthoff & Noordhoff, The Netherlands, 1979).
Ziemele & Schram “Article 15” in Alfredsson & Eide The
Universal Declaration of Human Rights: A Common Standard of Achievement
(Martinus Nijhoff, 1999 page 297).
International Documents
A Study of Statelessness UN
Doc E/1112, 1 February 1949.
Cordova, Roberto, Special Rapporteur International Law Commission
Report on the Elimination or
Reduction of Statelessness (UN Doc A/CN
4/64) 30 March 1953.
Human Rights Watch The Bedoons of
Kuwait: Citizens without Citizenship
(1995).
Mikulka, Václav, Special Rapporteur International Law Commission
First Report on State Succession and
its Impact on the Nationality of
Natural and Legal Persons (Un Doc A/CN.4/467 17 April 199)
(n45);
Second Report on State Succession and
its Impact on the Nationality of
Natural and Legal Persons (UN Doc A/CN.4/474, 17 April, 1996)
and Third
Report on Nationality in Relation to the Succession of States
(UN Doc
A/CN.4/480, 27 February, 1997).
O Hudson, Manley, Special Rapporteur International Law Commission
Nationality, including Statelessness
(UN Doc A/CN 4/50) 21 February
1953.
UNHCR Training Package:
Statelessness and Related Nationality Issues (1
January 1998).
UNHCR Division of International Protection Information and Accession
Package: The 1954 Convention Relating to the Status of Stateless
Persons and The 1961 Convention on the Reduction of Statelessness
(June
1996, revised January 1999).
UNHCR Handbook on Procedures and
Criteria for Determining Refugee
Status.
Caselaw
Abdel-Khalik v Canada (Minister of
Employment & Immigration) (1994)
23 Imm LR (2d) 262 Fed TD.
Advisory opinion on the Nationality
Decrees Issued in Tunis and Morocco
Permanent Court of International Justice, Ser. B, no. 4 (1923,
24; Whiteman, viii. 37-42).
Afroyim v Rusk 387 US 253; 18
L Ed 2d 757 (1967).
Lee v Deportation Review Tribunal
[1999] NZAR 481.
Maarouf v Canada (Minister of
Employment & Immigration)
(1993) 23 Imm LR (2d) 163 (Fed TD).
Perez v Brownell 356 US 44.
Re Amendments to the Naturalization
Provisions of the Constitution of
Costa Rica (Advisory Opinion of 19 January 1984).
Refugee Appeal No. 72635/01 (A
decision of the New Zealand Refugee
Status Appeals Authority delivered by RPG Haines on 6 September 2002).
Thabet v Canada (Minister of
Citizenship & Immigration) (1995) 105
F.T.R 49 (Fed T.D); (1998) 48 Imm LR (2d) 195 (n91) (Fed CA)
The Nottebohm Case (Liechtenstein v
Guatemala) 1955 ICJ Reports 4
Trop v Dulles (1958) 356 US 86
at 101-102.
Yan v Minister of Internal Affairs
[1997] 3 NZLR 450 at 456.
Ward v Canada (Minister of Employment
& Immigration) (1993) 20 Imm
LR (2d) 85 (SCC).
International Legal Instruments
American Convention on Human Rights
22 November 1969 O.A.S.Treaty
Series No. 36, 1144 U.N.T.S. 123 (entered into force July 18, 1978).
Convention on Certain Questions
relating to the Conflict of Nationality
Laws (in force since July 1st, 1937 in accordance with articles
25 and
26).
Convention on the Elimination of all
Forms of Discrimination against
Women adopted and opened for signature, ratification and
accession by
General Assembly resolution 34/180 of 18 December 1979 (entry into
force 3 September 1981 in accordance with article 27(1)).
Convention on the Nationality of
Married Women opened for signature and
ratification by General Assembly Resolution 1040 (XI) of 29 January
1957 (entry into force 11 August 1958, in accordance with Article 6).
Convention on the Rights of the Child
adopted for signature,
ratification and accession by General Assembly resolution 44/25 of 20
November 1989 (entry into force in 2 September 1990 in accordance with
article 49).
Convention relating to the Status of
Stateless Persons, adopted on 28
September 1954 by a Conference of Plenipotentiaries convened by
Economic and Social Council Resolution 526 A (XVII) of 26 April 1954
(entry into force 6 June 1960 in accordance with Article 39).
European Convention on Nationality
opened for signature 6 November 1997
(entry into force 1 March 2000).
International Covenant on Civil and
Political Rights adopted and opened
for signature, ratification and accession by General Assembly
resolution 2200 A (XXI) of 16 December 1966 (entry into force 23 March
1976 in accordance with article 49).
Universal Declaration of Human Rights,
adopted and proclaimed by
General Assembly Resolution 217 A (III) of 10 December 1948.
Websites
www.unhcr.ch
www.un.org
www.unhchr.ch
www.refugee.org.nz
www.refugeeappeals.org.nz
www.mfat.govt.nz
1 Convention relating to the Status of Stateless Persons, adopted on 28 September 1954 by a Conference of Plenipotentiaries convened by the Economic and Social Council resolution, 526 A (XVII) of 26 April 1954, entry into force: 6 June 1960, in accordance with Article 39, "1954 Stateless Convention".
2 Paul Weis Nationality and Statelessness in International Law (Second Edition, Sijthoff & Noordhoff, The Netherlands, 1979) p161-165.
3 Ibid 161-162.
4 Ibid 161 -
162.
5 Carol A
Batchelor "Statelessness and
the Problem of Resolving Nationality Status" (1998) Volume 10
International Journal of Refugee Law, p 172, 178.
6 Paul Weis, Nationality
and Statelessness in International Law above n 2, p161-162.
7 Adam M Warnke
"Vagabonds, Tinkers and
Travelers: Statelessness amongst the East European Roma" (1999) Indiana
Journal of Global Legal Studies, p 352; see also Human Rights Watch The Bedoons of Kuwait: Citizens Without
Citizenship (1995); Rachel
Settlage “No Place to Call Home: Stateless Vietnamese Asylum-Seekers in
Hong Kong" (1997) Volume 12 Georgetown Immigration Law Journal 187.
8 Refugee Appeal 72635/01 (a decision of the New Zealand Refugee Status Appeals Authority, delivered by RPG Haines on 6 September 2002) notes that some of the possible causes are described by Manley O'Hudson, Special Rapporteur, Nationality, Including Statelessness (UN Doc A/CN.4/50) 21 February 1952; Roberto Cordova, Special Rapporteur, Report on the Elimination or Reduction of Statelessness (Doc A/CN.4/64) 30 March 1953; UNHCR Division of International Protection Information and Accession Package: The 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness (June 1996, Revised January 1999) at 5; UNHCR Training Package: Statelessness and Related Nationality Issues (1 January 1998) at paragraph 22.
9 It is noted that statelessness as a result of the conflict of nationality laws is a 'more frequent cause', in Johannes MM Chan "The right to a nationality as a human right: The Current Trend towards Recognition" (1991) Volume 12 Human Rights Law Journal 13. It is further noted in Refugee Appeal 72635 para [81] above n 8, that "even States with laws aimed at paying full regard to international law in the matter of nationality and the prevention of statelessness may have legislation which, due to conflict with another States legislation, or for other good reason, inadvertently results in statelessness".
10 Refugee Appeal 72635 above n 8, para [80].
11 Ibid para
[80].
15 Ian Brownlie Principles of Public International Law (Fifth Edition, Clarendon Press, Oxford, 1998)
p392.
16 Carol A Batchelor "UNHCR and Issues
Related to Nationality" (1995) Volume 14 Number 3 Refugee Survey
Quarterly 104.
17 Refugee
Appeal 72635 above n 8, para
[80].
18 Refugee Appeal 72635, above n 8, para [80].
19 Refugee Appeal 72635, above n 8, para [80].
20 See for example: Re Amendments to the Naturalization Provisions of the Constitution of Costa Rica (Advisory Opinion of 19 January 1984); Lauterpacht, Hersch International Law and Human Rights (Archon Books, USA, 1968) pages 346-350 as cited in Sumit Sen "Stateless Refugees and the Right to Return: The Bihari Refugees of South Asia - Part 2" (2000) Volume 12 Number 1 International Journal of Refugee Law p 41; see also Paul Weis 'The United Nations Convention on the Reduction of Statelessness" (1961) Volume 11 International and Comparative Law Quarterly 1073.
21 Jeffrey L Blackman "State Succession and Statelessness: The Emerging Right to an Effective Nationality under International Law" (1998) Volume 19 Summer 1998 Michigan Journal of International Law 1141, p 1177; see also Batchelor "Statelessness and the Problem of Resolving Nationality Status", above n 5,p 182.
22 Batchelor "Statelessness and the Problem of Resolving Nationality Status", above n 5, p 159; Article 13(2) of the Universal Declaration of Human Rights provides that "Everyone has the right to leave any country, including his own, and to return to his country". It is noted in Warnke "Vagabonds, Tinkers and Travellers" above n 7, p 355-356 that although it is not a legally binding covenant, the Universal Declaration carries considerable weight. The near-unanimous adoption of the Universal Declaration by the United Nations General Assembly, and subsequent recognition by the international community, have elevated its status nearly to that of customary international law; See also Carol A Batchelor "Stateless Persons some gaps in international protection" (1995) Volume 7 International Journal of Refugee Law p 237.
23 Batchelor "Statelessness and the
Problem of Resolving Nationality Status" above n 5, p 159.
24 Perez v Brownell 356 US 44 at 64; 2 L Ed 2d 603 (1958) (US:SC) at 616, Warren CJ (dissenting), the majority decision was subsequently overruled in the US Supreme Court decision of Afroyim v Rusk 387 US 253; 18 L Ed 2d 757 (1967).
25 Yan v Minister of Internal
Affairs [1997] 3 NZLR 450 at 456.
27 Trop v Dulles (1958) 356 US 86 at 101-102.
28 Weis Nationality
and Statelessness above n 2, p
162.
29 A Study of
Statelessness UN Doc E/1112, 1
February 1949, p 21-23.
30 Weis "The United Nations Convention
on the Reduction of Statelessness" above n 20, p 1073.
32
Ibid p 1073.
33 Edward C
Corrigan "The Legal Debate
in
Canada on the Protection of Stateless Individuals under the 1951 Geneva
Convention" (2003) Volume 23 Part 2 Immigration Law Reporter, p 196.
34 Weis Nationality and Statelessness in International Law above n 2, 162; It is also noted in Batchelor "Statelessness and the Problem of Resolving Nationality Status" above n 5, p 157 that "statelessness has gained more attention in recent years as its potential as a source of involuntary displacement and regional tension has come to be recognised.
35 Weis "The United Nations Convention on the Reduction of Statelessness" above n 20, p 1090 notes that from a practical perspective the reduction and elimination of statelessness is first and foremost a humanitarian problem; see also Batchelor "Statelessness and the Problem of Resolving Nationality Status", above n 5, p 182.
36 Batchelor "Statelessness and the
Problem of resolving Nationality Status" above n 5 p 159.
37 Perez v Brownell above n 24, at 64.
38 Lee v Deportation Review Tribunal [1999] NZAR 481, Williams J at 494.
39 It is also
noted that Statelessness
has presented the international community with complex economic,
political and legal questions, in Corrigan "The Legal Debate in Canada
on the Protection of Stateless Individuals under the 1951 Geneva
Convention" above n 33, p 196.
40 Weis Nationality and Statelessness in International Law above n 2, p 161, noting that it has been held that statelessness is not to be presumed by the Swiss Federal Tribunal in Von Fliedner v Beringen (Off. Coll. of Dec. 72, vol 1, page 263; Annual Digest 1933-1934, Case No. 113) and by the Israel Supreme Court in Hirschenhorn v Attorney General (21 Int. Law Reports page 168); see also Chan "The right to a nationality as a human right" above n 9.
41 Chan Ibid p 2.
42 Robert
Jennings and Arthur Watts (eds) Oppenheim's
International Law (Ninth
Edition, Volume 1, Parts 2-4, Longman,
London, 1992) p 852.
43 The Nottebohm Case
(Liechtenstein v Guatemala) 1955 ICJ Reports 4 at 20.
44 O'Hudson
Nationality Including
Statelessness above n 8; note also that Brownlie Principles of Public International Law above n 15 at p 385 states that this is the
preferred view.
45 Henri Battifol and Paul Lagarde Droit international prive (Seventh Edition, Volume 1 Librairie Generale de Droit et de Jurisprudence, Paris, 198), pages 69-70 as cited in Václav Mikulka, Special Rapporteur International Law Commission First Report on State Succession and its Impact on the Nationality of Natural and Legal Persons (A/CN.4/467 17 April 1995) p 22.
46 Advisory opinion on the Nationality Decrees Issued in Tunis and Morocco Permanent Court of International Justice, Ser. B, no. 4 (1923, 24; Whiteman, viii. 37-42) as noted in Brownlie Principles of Public International Law above n 15, p 385
47 Jennings and Watts Oppenheim's International Law, above n 42, p 852, notes two examples of treaty obligations conferring on questions of nationality an international character so as not to be exclusively a matter for the state concerned: first, the arbitration between Germany and Poland concerning the Acquisition of Polish Nationality (1924), RIAA, 1, page 401; secondly, the decision of the Inter-American Court of Human Rights in Proposed Amendments to the Naturalization Provisions of the Political Constitution of Costa Rica (1984), ILR, 79, which noted that while the conferment and regulation of nationality fell within the jurisdiction of the State, this principle was limited by the requirements imposed by international law for the protection of human rights.
48 The reference to three primary sources of international law in Article 1 of the Hague Convention was later encoded into Article 38 (1) of the Statute of the International Court of Justice
49 Weis Nationality and Statelessness in International Law, above n 2, pages 88-91, 121 notes that even if domestic law is found to be inconsistent with international law, the domestic law remains valid though unlawful and the national status of the individual concerned continues to be governed by that law.
50 Convention relating to the Status of Stateless Persons, adopted on 28 September 1954 by a Conference of Plenipotentiaries convened by Economic and Social Council Resolution 526 A (XVII) of 26 April 1954, (entry into force 6 June 1960 in accordance with Article 39), "1954 Convention"
51 Nehemiah Robinson Convention Relating to the Status of Stateless Persons, Its History and Interpretation: A Commentary by Nehemiah Robinson (Institute of Jewish Affairs, World Jewish Congress, 1955, Republished by the Division of International Protection of the United Nations High Commissioner for Refugees, 1997) p1.
52 The preamble of the 1954 Convention notes: "Considering that only those stateless persons who are also refugees are covered by the Convention relating to the Status of Refugees...and that there are many stateless persons who are not covered by that Convention...consider that it is desirable to regulate and improve the status of stateless persons by an international agreement; also see Warnke "Vagabonds, Tinkers and Travellers" above n 7, p 354.
53 Refugee
Appeal No 72635 above n 8 para
[92].
54 Refugee Appeal No 72635 above n 8 para [92].
55 Article 31(1) provides that: "The
Contracting States shall not impose penalties, on account of their
illegal entry or presence, on refugees who, coming directly from a
territory where their life or freedom was threatened in the sense of
Article 1, enter or are present in their territory without
authorization, provided they present themselves without delay to the
authorities and show good cause for their illegal entry or presence."
56 Refugee
Appeal No 72635 above n 8 para
92.
57 Weis Nationality
and Statelessness in International law above n 2, p 166.
58 Batchelor "Stateless Persons: Some
gaps in International Protection" above n 22, p257 notes that the
Convention was originally intended as a Convention on the elimination
of statelessness and only after this was considered too radical a step
was the focus changed to the reduction of future statelessness.
59 Article 1 provides: "A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless". Article 4 provides: "A Contracting State shall grant its nationality to a person, not born in the territory of a Contracting State, who would otherwise be stateless, if the nationality of one of his parents at the time of the person's birth was that of that State."
60 Batchelor "Stateless Persons: Some gaps in International Protection" above n 22, p 258 notes that the division of de facto and de jure statelessness was the result of two things. The first was a desire to extend protection to those who legally had a nationality but who had none of the attributes of a nationality. The second was a misconception regarding who would qualify, at the time and over the years, as a refugee."
61 Batchelor "Statelessness and the Problem of Resolving Nationality Status" above n 5, p 173 notes that there are currently thousands of persons in a de facto situation.
62 Batchelor "Stateless Persons: Some gaps in International Protection" above n 22, p 257 notes that despite the efforts of a number of individuals and groups, de facto statelessness remained outside the definition adopted in the 1954 Convention; it is suggested that this occurred because it was presumed that de facto stateless persons would be protected by the Refugee Convention.
63 Universal Declaration of Human Rights, adopted and proclaimed by General Assembly Resolution 217 A (III) of 10 December 1948.
64 Convention on Certain Questions relating to the Conflict of Nationality Laws (in force since July 1st, 1937 in accordance with articles 25 and 26).
65 Convention on the Nationality of Married Women opened for signature and ratification by General Assembly Resolution 1040 (XI) of 29 January 1957 (entry into force 11 August 1958, in accordance with Article 6), seeks to grant women equal rights with men to acquire, change or retain their nationality. The Convention also seeks to prevent a husband's nationality status automatically changing the nationality of the wife, thus rendering her stateless
66 International Covenant on Civil and Political Rights adopted and opened for signature, ratification and accession by General Assembly resolution 2200 A (XXI) of 16 December 1966 (entry into force 23 March 1976 in accordance with article 49), Article 24(3) provides for the right of children to acquire nationality.
67 Convention on the Elimination of all Forms of Discrimination against Women adopted and opened for signature, ratification and accession by General Assembly resolution 34/180 of 18 December 1979 (entry into force 3 September 1981 in accordance with article 27(1)), also aims for women to have equal rights with men with respect to the nationality of their children, avoiding both discrimination against the women and the inheritance, where applicable, of the father's statelessness.
68 Convention on the Rights of the Child adopted for signature, ratification and accession by General Assembly resolution 44/25 of 20 November 1989 (entry into force in 2 September 1990 in accordance with article 49), stipulates that children should be registered immediately after birth, a crucial factor in establishing both place of birth and descent for purposes of acquiring nationality.
69 American Convention on Human Rights 22 November 1969 O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123 (entered into force July 18, 1978), states in Article 20: "Every person has the right to a nationality. Every person has the right to the nationality of the State in whose territory he was born if he does not have the right to any other nationality. No one shall be arbitrarily deprived of his nationality or of the right to change it."
70 European Convention on Nationality opened for signature 6 November 1997 (entry into force 1 March 2000), also provides a valuable reference point for contemporary consensus on issues of nationality and statelessness. The European Convention stipulates that account should be taken of the legitimate interests of States and of individuals with reference to nationality. The avoidance of statelessness, the right to a nationality and a prohibition concerning discriminatory distinctions are principles underlying all provisions of the Convention. Also, in proclaiming a general right to nationality, the European Convention endows this right with substance as a convention norm giving rise to specific obligations on State parties as noted in Batchelor "Statelessness and the Problem of Resolving Nationality Status" above n 5, pages 162-165.
71 Ziemele & Schram, "Article 15" in Alfredsson & Eide (eds) The Universal Declaration of Human Rights: A Common Standard of Achievement, above n 71, p321, claims that Article 15 has entered into Customary International Law, however, it has also been claimed in Stephen Hall "The European Convention on Nationality and the right to have rights" (1999) 24 European Law Review 586, p 588, that Article 15 is simply aspirational in nature, and that where it is one thing to declare a general right of persons to possess a nationality, it is quite another to impose a duty on a State to confer, or refrain from withdrawing, its nationality in particular circumstances, this latter view is cited with approval in Refugee Appeal No 72635, above n 8, at para [85] noting that this is the "better view". Refugee Appeal further notes at para [85] that Article 15 "co-exists with very widespread State practice of withdrawing nationality from persons in a broad spectrum of situations ranging from residence abroad to treason even where statelessness results for the affected person."
72 Batchelor "Statelessness and the
Problem of Resolving Nationality Status", above n 5, p 182.
73 The Nottebohm
Case (Liechtenstein v
Guatemala) 1955 ICJ Reports as
cited in Batchelor "Statelessness
and the Problem of Resolving Nationality Status", above n 5, p 161.
74 European
Convention on Nationality, above
n 70 and the Principles on
Citizenship Legislation Concerning the
Parties to the Peace Agreement on Bosnia and Herzegovina
(adopted by the Expert Meeting on Citizenship Legislation held in
co-operation with the United Nations High Commissioner for Refugees,
the Council of Europe, Office of the High Representative, and State
party delegates from the five States on the territory of the Former
Yugoslavia); both instruments refer explicitly to the genuine and
effective link and request States to apply this doctrine in specific
circumstances as cited in Batchelor "Statelessness and the Problem of
Resolving Nationality Status", above n 5, p 161; it is further noted
that "the genuine and effective link is a subtle and fluid concept,
which can be evidenced in many factors, including social attachments,
centre of interests and extended family ties. It is not limited to
place of birth, descent or residence. The latter are, however, matters
of fact, which makes them far easier to identify and apply in an
objective and non-discriminatory manner than some of the more subtle
signs of attachment which can be used as a supplementary means of
determining ties; also in Batchelor "Statelessness and the Problem of
Resolving Nationality Status", above n 5, p 161; The genuine and
effective link has been used in recent times by the International Law
Commission's Special Rapporteur as the basis for the ILC's work on
nationality and State succession, Mikulka First Report on State Succession and its impact on the
Nationality of Natural and Legal Person, above n 45, Second
Report on State Succession and its impact on the Nationality of Natural
and Legal Person (UN Doc
A/CN.4/474, 17 April, 1996) and Third
Report on Nationality in Relation to the Succession on States (UN Doc A/CN.4/480, 27 February, 1997).
75 Batchelor "Statelessness and the
Problem of Resolving Nationality Status", above n 5, p 160.
76 Ibid p 157,
noting that while many
States tend to emphasise descent as the primary factor in nationality
determinations, in the America's place of birth is an important factor
in determining nationality.
77 Ibid p 161.
78 Weis
Nationality and Statelessness in
International Law, above n 2 , p
162.
79 Article 34 provides: "The Contracting
States shall as far as possible facilitate the assimilation and
naturalisation of refugees. They shall in particular make every effort
to expedite naturalization proceedings and to reduce as far as possible
the charges and costs of such proceedings."
80 This is the view taken in Adan v Secretary of State for the Home Department [1997] 1 WLR 1107, 1115H; [1997] 2 All ER 723, 730f (CA) and at first instance in Savvin v Minister for Immigration and Multicultural Affairs (1999) 166 ALR 348 (Dowsett J). This position has also been espoused by Professor Guy S Goodwin-Gill in a report for the plaintiff in Revenko v Secretary of State for the Home Department [2001] QB 601 (CA).
81 As noted in Refugee Appeal No 72635, above n 8, para [67] that this view was rejected by the House of Lords on appeal in Adan v Secretary of State for the Home Department [1999] 1 AC 293, 304C-E (HL) (decision of the Court of Appeal reversed) and by the Court of Appeal itself in Revenko v Secretary of State for the Home Department [2001] QB 601, 623C, 631G, 642B (CA). The argument has also been rejected in Australia, for example, Rishmawi v Minister for immigration and Multicultural Affairs (1997) 148 ALR 366, 372-373 (Cooper J); Diatlov v Minister for Immigration and Multicultural Affairs (1999) 167 ALR 313, 320-321 (Sackville J) and Minister for Immigration and Multicultural Affairs v Savvin (2000) 171 ALR 483, 484, 488, 494-518 (Spender, Drummond and Katz JJ) reversing the decision of Dowsett J. The reasoning of the English Court of Appeal in Adan was rejected in Refugee Appeal No. 1/92 Re SA (30 April 1992) 83-84. The position in Canada is the same: Thabet v Canada (Minister of Citizenship & Immigration) (1998) 160 DLR (4th) 666 at [16] & [17] (FC:CA) (Linden & McDonald JJA and Henry DJ).
82 Corrigan "The Legal Debate in Canada", above n 33, p 198; Refugee Appeal No 72635, above n 8, para [109] notes that today neither de jure nor de facto statelessness necessarily signifies the existence of a well founded fear of persecution under the terms of the Refugee Convention; It has been noted that there is no correlation, either positive or negative, between refugee status and statelessness in Atle Grahl-Madsen The Status of Refugees in International Law (Volume 1, AW Sijthoff, 1966), p 77; That statelessness per se does not give rise to a claim to refugee status James C Hathaway The Law of Refugee Status (Butterworths, Canada, 1991) p 6; and that not all stateless people are refugees nor are all refugees technically stateless Guy S Goodwin Gill The Refugee in International Law (Second Edition, Clarendon Press, Oxford, 1996), p 42; Refugee Appeal No. 72635, above n 8, para [152] reaches the conclusion that statelessness per se does not give rise to a claim to refugee status and at para [152] that before a stateless person can be recognised as a refugee, that person must establish owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a social group or political opinion, he or she is outside the country of his or her former habitual residence and is unable, or owing to such fear, unwilling to return to it; Sackville J in Diatlov v Minister for Immigration and Multicultural Affairs, above n 81, at [28] and [29) comments: "The Stateless Persons Convention...represented an attempt, as the recitals indicate, to regulate and improve the status of stateless persons. The Stateless Persons Convention proceeds on the basis that only those stateless persons who are refugees are covered by the Refugees Convention and that many stateless persons are not so covered."; Clarke LJ also comments in Revenko v Secretary of State for the Home Department, above n 81, at 628H-629B that: "It is, I think, clear that the purpose of the 1951 [Refugee] Convention was not to afford general protection to stateless persons. The Final Act of the 1951 UN Conference on the Status of Refugees and Stateless Persons resolved to refer the draft Protocol relating to stateless persons back for further consideration. The problem was subsequently met by the 1954 Convention relating to the Status of Stateless Persons..."; Further, the preamble to the Convention Relating to the Status of Stateless Persons, 1954 expressly acknowledges: "Only those stateless persons who are also refugees are covered by the Convention relating to the Status of Refugees of 28 July 1951, and that there are many stateless persons who are not covered by that Convention."
83 UNHCR Handbook on Procedures and Criteria for
Determining
Refugee Status, para 102.
84 Refugee
Appeal No 72635, above n 8, at
para [68].
85 Corrigan "The Legal Debate in Canada", above n 33, pages 199-200 notes that the Supreme Court of Canada decision of Ward v Canada (Minister of Employment & Immigration) (1993) 20 Imm LR (2d) 85 (SCC) found that when there are two or more countries of nationality, the claimant must show a well founded fear of persecution against both (or more if there are more). Corrigan concludes that in a situation where individuals are stateless, there is no country of citizenship and no right of return and that as such Ward, which deals with citizens with nationality and who are vested with a right of return, is not binding on individuals who are stateless and are from countries of former habitual residence with no legal right of return and no effective national protection.
86 Thabet v Canada (Minister of Citizenship and Immigration) (1998) 160 DLR (4th) 666 at [18]-[30] identifies five possible approaches to the question of which country of former habitual residence is relevant to the determination of a refugee claim, as noted in Refugee Appeal No 72635, above n 8, para [118].
87 This is the view of Grahl-Madsen The Status of Refugees in International Law, above n 82, p 161 as noted by Corrigan "The Legal Debate in Canada", above n 33, p 199, Grahl-Madsen states: "It would seem to be best in keeping with the intention of the drafters if in the greatest possible number of cases application of the term "country of former habitual residence" would lead to the same practical result as application of the term 'country of nationality'...the country from which a stateless person had to flee in the first instance remains the "country of his former habitual residence" throughout his life as a refugee, irrespective of any changes of factual residence."
88 This is the approach adopted in the Canadian Supreme Court decision of Ward, above n 85. It is noted in Refugee Appeal No 72635, above n 8, at para [120] that the Ward decision "has long underpinned the jurisprudence of this [the New Zealand Refugee Status Appeals Authority] authority and in Butler v Attorney-General [1999] NZAR 205, 217 (CA) the New Zealand Court of Appeal expressly adopted the articulation be the Supreme Court of Canada in Ward of the rationale underlying international refugee protection, namely that international refugee law was formulated to serve as a back up to State protection. It was meant only to come into play in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home State for protection before the responsibility of other States becomes engaged. The lynch pin is the State's inability to protect. The true object of the Refugee convention is not to assuage fear, however reasonably and plausibly entertained, but to provide a safe haven when fear of persecution is in reality well founded."
89 Hathaway The Law of Refugee Status, above n 82, p 62; The Federal Court of Canada also noted in Maarouf v Canada (Minister of Employment & Immigration) (1993) 23 Imm LR (2d) 163 (Fed TD), at 174-175 that: "A 'country of former habitual residence' should not be limited to the country where the claimant initially feared persecution."
90 The applicant in Thabet v Canada (Minister of Citizenship and Immigration) (1995) 105 F.T.R 49 (Fed T.D), was a stateless Palestinian who had been a student in the United States but had no legal status in the United States and no legal right of return or legal right of protection. The Federal Court ruled that the refugee claim must be made against the last country of former habitual residence, the United States, and not against Kuwait, a second country of former habitual residence and where a fear of persecution was also alleged.
91 Thabet
v Canada (Minister of
Citizenship & Immigration)
(1998) 48 Imm LR (2d) 195 (Fed CA).
92 Corrigan "The Legal Debate in
Canada",
above n 33, p 204, notes that the IRB made the following observation in
rendering a positive decision in a claim involving a stateless
Palestinian who had a genuine fear of persecution in Syria and had the
right to return to Syria but who also had Tunisia as a country of
former habitual residence but had no right to return to Tunisia,
according to the law set out in Thabet this claimant could not qualify
as a Convention refugee: "In our opinion...such a result would be
perverse. Were we to find the claimants not to be Convention refugees
on that basis, the fact remains that they cannot be returned to
Tunisia. They are returnable to Syria, but that is where they face a
reasonable chance of persecution. How could Canada, a signatory to the
1951 Convention, commit refoulement? Can the Maarouf
decision possibly mean that claimants are at risk of being sent to a
country where they have a well founded fear of persecution simply
because they do not have such a fear with respect to another country to
which in any event they cannot be returned? Such a perverse result
would not, in our opinion, be in keeping with Canada's international
obligations."
93 Corrigan "The Legal Debate in
Canada", above n 33, p 204.
94 Ibid p 202, notes that this was the
approach adopted in a number of decisions of the Canadian IRB.
95 Refugee Appeal No 72635, above n 8, para [118].
96 Corrigan
"The Legal Debate in
Canada",
above n 33, p 203, notes that "this approach creates a legal absurdity
in that it could create the legal result of returning a stateless
refugee who could not prove a claim against one country of former
habitual residence to a country where they could be returned and where
they faced a genuine risk of persecution."
97 In Maarouf v Canada, above n 89, at pages 174-175, Justice Cullen found that "a `country of former habitual residence' should not be limited to the country where the claimant initially feared persecution."
98 Refugee Appeal No 72635, above n 8, at para [123] notes that Al-Anezi v Minister of Immigration and Multicultural Affairs (1999) 92 FCR 283 (Lehane J) "is also illustrative of this approach and that although Thabet was decided twelve months earlier, the Canadian decision appears not to have been drawn to the attention of Lehane J with the result that the compelling reasons given by the Canadian Supreme Court of Appeal for rejecting this approach are not addressed in the decision. Specifically the Australian judgment does not address the fundamental point made by Ward, namely if a person in danger of persecution has other protection alternatives, these must be exhausted before the claim can be determined under the Refugee Convention)."
99 Corrigan "The Legal Debate in Canada", above n 33, p 203 notes that the Supreme Court of Canada has commented on the persuasiveness of the UNHCR Handbook in Ward, above n 85, at 103: "While not formally binding on signatory States, the handbook has been endorsed by the States which are members of the Executive Committee of the UNHCR, including Canada, and has been relied upon by the Courts of signatory States."
100 As such, this approach was rejected by the Canadian Court of Appeal in Thabet on the basis that it takes no account of the existence of alternative protection options (ie the Ward factor), at 26: "If the claimant has available a place of former habitual residence which will offer safety from protection, then he or she must return to that country."
101 The Federal Court of Appeal in Thabet, above n 91, at para 16, states: "There is no reason why stateless persons should be any more or less accommodated in their claims to refugee status. There is no question that stateless persons may qualify as refugees; the definition acknowledges this explicitly. However, people are not refugees solely by virtue of their statelessness. They must still bring themselves within the terms of the definition set forth in the Convention. And they must still comply with those other sections of the Act which restrict access to the refugee determination process. Statelessness does not give a person an advantage over those refugees who are not stateless." As noted in Corrigan "The Legal Debate in Canada", above n 33, page 208. Further, Linden J writing for the Federal Court of Appeal in Thabet, at para 30, summarises the law on statelessness as follows: "In order to be found a Convention refugee, a stateless person must show that, on the balance of probabilities he or she would suffer persecution in any country of former habitual residence, and that he or she cannot return to any of his or her countries of former habitual residence."
102 Refugee
Appeal No 72635, above n 8, para
[121].
103 Ibid para
[121].
104 Ibid at [122]: As Linden JA
states...the Court [in Thabet] merely makes explicit what is implicit
in Ward and in the philosophy of refugee law in general."
105 Thabet v Canada, above n 91, states: "The best answer to this riddle is really a variation of the 'any country' solution."
107 Corrigan "The Legal Debate in
Canada", above n 33, p 209.
108 Ibid p
198.
109 This
legal viewpoint is based on the
academic position adopted by Hathaway in his book The Law of Refugee Status,
above n 82, p 61-63. Hathaway notes at 63, that: "a state is only a
state of former habitual residence if the claimant is legally able to
return there." Hathaway's view is that if a claimant is not at risk of
return to persecution, assessment of the fear of returning to that
country is a non-sensical exercise, as the claimant cannot be sent back
there in any event, as noted in
Refugee
Appeal No 72635, above note 8,
at para [126].
110 This is the view adopted in the decision of the Refugee Status Branch (published on 12 April 2001) that is on appeal in Refugee Appeal No 72635, which concludes that: a stateless individual has no legal right of return to any country and that, as a matter of fact, they are unable to return to any country, they cannot be persecuted with the result that they are unable to establish a well-founded fear of being persecuted, as noted in Refugee Appeal No 72635, above n 8, para [3].
111 Corrigan "The Legal Debate in Canada", above n 33, p 200, notes: "The position taken by Hathaway and those on the IRB who adopted his views on country of former habitual residence was contrary to the preferred IRB legal position paper on statelessness, namely Guy Goodwin-Gill "Stateless Persons and Protection under the 1951 Convention for Refugees: Beware of Academic Error!" (Unpublished paper) Director, Legal Services, 'Treatment of Stateless Refugee Claimants at CRDD", March 11, 1992.
112 Maarouf, above n 85, p 175; note that this view was supported by Abdel-Khalikk v Canada (Minister of Employment & Immigration) (1994) 23 Imm LR (2d) 262 Fed TD at para 3, the facts involved a stateless Palestinian from the United Arab Emirates who was out of that country during the Gulf War and prevented from returning due to the fact that she was a Palestinian. Madame Justice Reed stated: "In the case of a stateless person, one cannot look to the country of the person's nationality but considers instead the country of the individual's former habitual residence. The applicant is a Palestinian. She was born and lived most of her life in the United Arab Emirates. A person born in the United Arab Emirates does not automatically become a citizen of that country. Citizenship depends on the nationality of the father. Both counsel for the appellant and respondent agree that the applicant is a stateless person and that the board applied the correct test and properly identified the applicant's country of former habitual residence as the United Arab Emirates. The denial of a right to return to that country can be an act of persecution." As noted in Corrigan "The Legal Debate in Canada", above n 33, p 201.
113 Refugee Appeal No 72635, above n 8, para [134], further noting that it is a first principle of refugee law that past persecution alone cannot satisfy the requirements of the refugee definition; if the person cannot be returned to the country of former habitual residence in which the harm is anticipated, then refugee status is not appropriate [131]
114 Ibid para [136].
115 Ibid para [136].
116 Ibid para [133].
117 The New
Zealand Ministry of Foreign Affairs and Trade is presently considering
these Conventions with a view to acceding to both instruments. As such,
Both the 1954 Convention on the Status of Stateless Persons and the
1961 Convention on the Reduction of Statelessness are on the list
of "concluded multilateral treaties which New Zealand is
considering for possible accession", this list can be found on the New
Zealand Ministry of Foreign Affairs website at
http://www.mfat.govt.nz/support/legal/treatynegnewb.html); If the New
Zealand Government decides to become party to either of these
Conventions, the treaties will be tabled in the House for scrutiny by
the Foreign Affairs, Defence and Trade select committee under the
treaty examination process provided in the Cabinet Manual and the
Standing Orders, before any binding action, such as ratification or
accession is taken. This procedure is noted on the New Zealand Ministry
of Foreign Affairs website, located at
http://www.mfat.govt.nz/support/legal/treatynegnewb.html.
118 UNHCR Information
and Accession Package: The 1954 Convention
and The 1961 Convention, above n
8, p 4.
119 Ibid p 4.
120 Article
11 of the 1961 Convention on
the Reduction of Statelessness provides: "The contracting states shall
promote the establishment within the framework of the United Nations,
as soon as may be after the deposit of the sixth instrument of
ratification or accession, of a body to which a person claiming the
benefit of this Convention may apply for the examination of his claim
and for assistance in presenting it to the appropriate authority", this
responsibility and role was eventually extended to the UNHCR, as noted
in Refugee Appeal No 72635, above n 8, para [97]. In 1974 the United
Nations General Assembly asked UNHCR to provide limited legal
assistance to stateless individuals and in 1996 mandated the agency to
broaden its role by promoting the avoidance and reduction of
statelessness on a global scale, UNHCR has thus been charged with a
mandate that enables the agency to intervene on behalf of, and to
promote solutions for statelessness, including cooperation with States
and providing technical assistance on issues of nationality legislation
and related matters, as noted in Bemma Donkoh "A Half-Century of
International Refugee Protection: Who's Responsible, What's Ahead?"
(2000) Berkeley journal of International Law 260, p 267; To this end
the United Nations General Assembly and the UNHCR Executive Committee
have adopted resolutions and conclusions stressing the importance of
the principles embodied in international instruments, and the need for
States to adopt measures to avoid statelessness, including the United
Nations General Assembly resolution 50/152 (9 February 1996) which
calls upon States to adopt nationality legislation with a view to
reducing statelessness, consistent with the fundamental principles of
international law pertaining to nationality, as noted in Batchelor
"Statelessness and the Problem of Resolving Nationality Status", above
n 5, p 160.
121 The work of the International Law Commission on statelessness was all that survived from what began as a more ambitious project to tackle the broader topic of 'Nationality, including Statelessness' as noted in Arthur Watts The International Law Commission, 1949 - 1998, Volume 1: The Treaties (Oxford University Press, New York, 1999), p 139. This book includes a more general and detailed discussion on the work of the International Law Commission in the area of nationality and statelessness at pages 139 - 142, including the comment at 140 that the Commission's attempts to deal with Nationality, including Statelessness, "can be seen not to have been resoundingly successful."
122 Batchelor "Statelessness and the Problem of Resolving Nationality Status", above n 5, p 158 notes that efforts to reduce and eliminate statelessness have been undertaken at the regional level by the Organisation of American States, the Organisation for Security and Cooperation in Europe and the Council of Europe.
123 Ibid p 174 notes that it is the State concerned which must indicate whether the individuals in question do or do not have its nationality as it is that State which has both the privilege and the obligation to determine who its citizens are in accordance with international law.
125 UNHCR Information
and Accession Package: The 1954 Convention
and The 1961 Convention, above n
8, p 4.