Statelessness in Modern International Law – By James Hall

The issue of stateless persons is a dilemma as old as the concept of a modern nation state. However, the mechanisms regulating it are relatively new, and these mechanisms are facing mounting challenges.

Recently, the revision of citizenship lists in the north-eastern Indian province of Assam, and the efforts of states to strip the citizenship of terrorists and their associates, have been central to debates on the consequences of the laws and customs surrounding statelessness.

Internationally, statelessness is defined and discouraged by two major United Nations documents: The Convention relating to the Status of Stateless Persons (1954) and the Convention on the Reduction of Statelessness (1961). These conventions are designed to work in tandem to identify stateless people, define their rights and to encourage member states to actively engage in reducing statelessness worldwide.

For an individual to be considered stateless under the auspices of the 1954 Convention, they must be a person who is ‘not considered a national by any state under the operation of its law.’Recently, the revision of citizenship lists in the north-eastern Indian province of Assam, and the efforts of states to strip the citizenship of terrorists and their associates, have been central to debates on the consequences of the laws and customs surrounding statelessness.

As well as these documents, numerous international agreements, including the Universal Declaration of Human Rights, confirm that it is accepted as custom in international law that the right to a nationality is a human right.

In 2018, the United Nations’ annual report into global trends in the forced displacement of people found that, where data was available, 3.9 million individuals were stateless. The report further acknowledged that due to stateless individuals being underreported in national census data, official reports and other sources of demographic information, this number is likely a drastic underrepresentation of the true total.

Citing this information, UNHCR Chief Filippo Grandi has suggested that the true number of stateless people globally could be in excess of 12 million people. However, even these higher estimates could soon be completely incorrect due to the unfolding situation in the Indian province of Assam.

Assam, nestled in India’s north-east and sharing a border with Bangladesh, has had historic concerns over illegal immigration from Bangladesh and challenges in maintaining citizenship records. In response to these concerns, the Indian government revised the ‘National Register of Citizens’, a list of individuals it considers to have been resident in Assam prior to the declaration of independence of Bangladesh from Pakistan in March 1971.

At the stroke of an administrative pen, this decision has created one of the single largest statelessness crises in modern times, with around 1.9 million individuals in Assam at risk of being rendered stateless.

With an appeals process existing with a pathway to India’s Supreme Court, the list does not automatically render all those excluded from it stateless. However, it does place a vast number of people at risk of extensive legal battles, indefinite detention and potential statelessness should their appeals fail. Critically, India is a signatory to neither the 1954 nor the 1961 Conventions, meaning that individuals made stateless as a result of the revision of the National Register of Citizens will not be guaranteed such rights as freedom of religion, access to education, employment and freedom from expulsion from India.

This issue is not set to be resolved any time soon, as an amendment to the key legislation governing the determination of citizenship appeals –the ‘Foreigners (Tribunals) Order 1964’ –now allows for the expansion of the measures taken in Assam across all of India, potentially impacting millions more. Moreover, the issue of statelessness has been raised in relation to the stripping of citizenship from individuals who have committed terrorism-related offences. This particular pathway to statelessness has been highlighted recently through government attempts worldwide to revoke the right of terrorists and their ideological sympathisers to return to their country of origin.

Recent noteworthy examples include the cases of British national Shamima Begum and Australian national Neil Prakash. These cases highlight the universality of issues of statelessness, even in nations which have signed and ratified both major United Nations conventions on the issue. In both of the aforementioned cases, the legality of the decision to strip citizenship was justified on the basis that the individuals had claims to citizenship of other nations, Bangladesh in the case of Begum and Fiji in that of Prakash. In response, both purported ‘backup’ nations have made public announcements denying this assertion.

These cases highlight the complex practicalities of citizenship disputes, not to mention the moral and legal quagmire of state responsibility for a citizen’s actions, which confront states when dealing with the realities of internationalised terrorism and statelessness.

So, what is being done to combat statelessness? In recent years, prominent cases of individuals and groups being rendered stateless have spurred government and nongovernment actors into action to attempt to confront the issue. Statelessness is receiving increasing levels of attention from the United Nations, with the organisation launching the ‘#IBELONG’ ten-year campaign in 2014 to raise awareness of the issue, encourage states to act, and engage the global public. The Executive Committee of the UNHCR will also hold a ‘High-Level Segment on Statelessness’ during its upcoming meeting in October 2019, both marking the halfway point in the decade long campaign to end statelessness and to assist in raising the issue to public consciousness.

Along with work done through the United Nations, NGOs such as the Institute on Statelessness and Inclusion as well as crisis response organisations such as the Red Cross are championing efforts to both eradicate statelessness and ameliorate its current impacts. Ultimately, the burden of dealing with statelessness falls upon individual states, bound by commitments to international conventions, norms and domestic law. The future for those rendered stateless remains challenging, as does the fate of multinational efforts to eradicate the issue. However, sustained media attention on the plight of stateless people, political and social advocacy, and international condemnation of actions which contribute to statelessness are key elements of a global solution to statelessness.