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.
