Thursday, May 5, 2011

Statelessness versus Legal Invisibility under International Law

International law identifies two types of stateless people, de facto and de jure. International standards such as the Statelessness Convention are primarily designed to protect de jure stateless persons, ie, those who are legally without citizenship from any country. However, it has long been acknowledged that this definition accounts for only a portion of the individuals who are not receiving the protection of a nation state.

“De facto stateless persons” has been used in the past to refer to those individuals who do not meet the definition of the Statelessness convention, but other than being defined in the negative this term is not widely agreed  upon. A group of UNHCR experts recently defined de facto stateless persons as “persons outside the country of their nationality who are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country.” The “valid” reasons for its ineffectiveness generally connect to the reasons for one becoming a refugee under international instruments. For instance, being unwilling to avail oneself of government protection due to persecution on the basis of race, religion, political views, or membership in a particular social group. Escape from genocide or conflict are likely other valid reasons. 
The Equal Rights Trust has adopted a more expansive definition. In their “Draft Guidelines on the Detention of Stateless Persons” they write that “a person who has a legal nationality which is not effective- for example, a person who does not benefit from consular protection from his or her country of evident nationality- is considered de facto stateless.” The difference between the two definitions is that one indicates that the de facto stateless person is always at least a refugee, while the other one acknowledges that many individuals lack state protection in a way that falls short of outright persecution.

Regardless of which definition is accepted, it is doubtful that states are legally bound by the Stateless Convention to protect de facto stateless persons. However, many have argued that they should receive the same level of protection, since they are largely facing the same risks. UNHCR has on occasion argued that both categories should receive state protection and a 2010 UNHCR report on the topic argues that de facto stateless persons fall under UNCHR’s mandate, so long as they are outside of their country and unable to receive protection from their home country.
Legally Invisible Persons

If de facto stateless persons receive limited protection in comparison to de jure, then even less protected are individuals that fall short of either definition. For example, individuals of indeterminate nationality, or unable to prove their nationality, or inside the country of their origin but unable to receive the protection connected to citizenship.

For the purposes of this blog, individuals barred from enjoying effective citizenship for any reason (short of voluntary disavowal) shall be referred to as  “legally invisible,” a term borrowed from Praxis, a Serbian NGO that works with many such cases. As Praxis points out, legally invisible persons “do not have the possibility to live their lives like other citizens… [they are] not recognized as legal subjects.”  Since the distinction between “legally invisible” and “stateless” may be hazy in some cases, the following list attempts to differentiate between the two groups.

Stateless Persons:
  • Are not considered citizens by any state
  • Cannot, without hardship, produce documents allowing them to easily gain or regain citizenship
  • May have been deprived of citizenship by an act of state, or by the dissolution of the state
  • Are in most cases outside their state of origin
  • Are, in the case of de facto stateless, unable or unwilling to receive state protection because of recognized reasons, such as due to persecution

Legally Invisible Persons:
  • Have a valid claim to citizenship
  • Cannot prove this claim due to a number of reasons, such as lack of access to documents, complexity of registration process
  • May have automatically acquired citizenship at birth or through other operation of law
  • May be inside or outside their state of origin.

In sum, for a person to be stateless, they need to have no citizenship, ineffective or otherwise. Since a determination of this type requires, at the very least, information from both the records of the person and the records of the government, it is not immediately apparent whether a person seeking assistance is de facto or de jure stateless, or legally invisible. However, since the risks for both groups overlap heavily, it makes sense in my opinion to address the problems together, while keeping in mind that these concepts are different and are not totally agreed upon under international law.