Statelessness in Public Law

Name: Statelessness in Public Law
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Author: Dorota Pudzianowska
ISBN: 978-3-631-90705-4

Pudzianowska, Dorota

Statelessness in Public Law

by Dorota Pudzianowska (Author)

Law, Economics & Management

Series: Ius, Lex et Res Publica, Volume 26

Summary

This book discusses the fundamental issues of public law in the area of statelessness from the perspectives of comparative law and international law standards. The author proposes an approach in which statelessness is not a homogeneous concept but is best analysed and responded to through the lens of different categories of statelessness. This accounts not only for the existence of different categories of stateless persons (e.g., voluntary or involuntary) but also for different assessments and needs of their respective situations for purposes such as prevention mechanisms. The book demonstrates the conceptual and regulatory relevance of this important differential aspect of the international law on statelessness (with implications for domestic legal systems).

Excerpt

Cover
Title
Copyright
About the author
About the book
This eBook can be cited
Contents
List of Abbreviations
Introduction
Part I
Chapter I Statelessness: Introduction to the Problem
1. The evolution of the legal concept of statelessness
2. The concept of statelessness and the law of statelessness
3. The legal essence of statelessness
4. Causes of statelessness
5. The regulation of statelessness in international law
5.1. Statelessness as a human-rights issue
5.2. Statelessness and the protection of refugees
5.3. United Nations conventions on statelessness
5.3.1. The 1954 Convention relating to the Status of Stateless Persons
5.3.2. The 1961 Convention on the Reduction of Statelessness
5.4. The regulation of statelessness in Europe
6. Basic legal mechanisms for regulating statelessness
7. Conclusions
Chapter II Defining the Stateless Person
1. The meaning of the term ‘stateless person’
2. Definition of a stateless person in international law
2.1. General problems
2.2. Semantic challenges
2.2.1. Narrow interpretation of the definition of a stateless person in the 1954 Convention
2.2.2. Broad interpretation of the definition of a stateless person in the 1954 Convention
3. Problems with the definition of a stateless person in selected jurisdictions
4. The various categories of stateless persons
5. Conclusions
Chapter III Counteracting Statelessness
1. Preventing statelessness
1.1. Introductory remarks
1.2. Prevention of statelessness upon renunciation of nationality
1.3. Statelessness prevention in involuntary loss of nationality
1.3.1. Loss of nationality due to the lack of an effective link to the state
1.3.2. Loss of nationality due to fraud in naturalization procedures
1.3.3. Loss of nationality due to disloyal conduct
1.3.4. Loss of nationality by a child due to parentage redetermination, adoption or parental loss of nationality
2. Reducing statelessness
2.1. Introductory remarks
2.2. Reduction of statelessness occurring at birth
2.3. Reduction of statelessness occurring later in life
2.3.1. The international standard
2.3.2. Regulatory frameworks in selected jurisdictions
3. Conclusions
Chapter IV Protection of Stateless Persons; Statelessness-Determination Procedures
1. Preliminary issues
2. Procedures for the determination of statelessness
2.1. Preliminary issues
2.2. UNHCR guidance on the introduction of statelessness-determination procedures in domestic jurisdictions
2.2.1. Preliminary issues
2.2.2. The administrative framework
2.2.3. The accessibility of the procedure
2.2.4. Procedural safeguards
2.2.5. Burden and standard of proof
3. Regulatory frameworks in selected jurisdictions
3.1. Preliminary issues
3.2. The administrative framework
3.3. The accessibility of the procedure
3.4. Procedural safeguards
3.5. Burden and standard of proof
4. The status of statelessness
4.1. The 1954 Convention relating to the Status of Stateless Persons
4.2. Regulatory frameworks in selected domestic jurisdictions
5. Conclusions
Part II
Chapter V The Category of ‘Women’ in the Law of Statelessness
1. Causes of statelessness in women
1.1. Introductory remarks
1.2. Women’s statelessness upon marriage
1.3. Women’s statelessness during marriage
1.4. Women’s statelessness resulting from the termination of marriage
2. Prevention of statelessness in women
2.1. Prevention of women’s statelessness on the international level
2.2. Prevention of women’s statelessness in domestic jurisdictions
3. Current issues relating to the prevention of women’s statelessness and protection of stateless women
3.1. Preventing statelessness
3.2. Reducing statelessness
3.3. Protection of stateless women
4. Conclusions
Chapter VI The Category of ‘Children’ in the Law of Statelessness
1. Introductory remarks
2. Causes of children’s statelessness
3. General principles in international law
4. Reducing statelessness in children
4.1. Reducing statelessness in foundlings
4.1.1. The international standard
4.1.2. Regulatory frameworks in selected domestic jurisdictions
4.2. Reducing the statelessness of ‘otherwise stateless’ children
4.2.1. The convention standard
4.2.2. Purported modifications of the convention standard by soft law
4.2.3. Regulatory frameworks in selected domestic jurisdictions
5. Prevention of statelessness in children
5.1. Prevention of statelessness upon loss of nationality due to parentage redetermination or adoption
5.1.1. The international standard
5.1.2. Regulatory frameworks in selected domestic jurisdictions
5.2. Prevention of statelessness in children’s loss of nationality triggered by parental loss of nationality
5.2.1. The international standard
5.2.2. Regulatory frameworks in selected domestic jurisdictions
6. Counteraction of statelessness and birth registration
7. Protection of stateless children
8. Conclusions
Chapter VII The Category of Individuals Distinguished on the Grounds of Public Interest
1. Preventing statelessness
1.1. Preventing statelessness in denaturalization for fraud
1.1.1. The international standard
1.1.2. Selected domestic jurisdictions
1.2. Statelessness prevention in cases of conduct disloyal to the state of nationality
1.2.1. The international standard
1.2.2. Selected domestic legal frameworks
2. Exclusions from protection mechanisms
2.1. Exclusions: Overview
2.2. Individuals excluded from protection by Article 1(2)(iii)(a) of the 1954 Convention
2.3. Individuals excluded by Article 1(2)(iii)(b) of the 1954 Convention
2.4. Individuals excluded from protection by Article 1(2)(iii)(c) of the 1954 Convention
2.5. Selected domestic regulatory frameworks and court decisions
2.6. Ex-post exclusion
2.6.1. Expulsion of a stateless person
2.6.2. Withdrawal or cancellation of stateless status
2.7. The individual’s situation following exclusion
3. Reducing statelessness
4. Conclusions
Chapter VIII The Category of Individuals Distinguished on Account of ‘Voluntarity’
1. The concept of ‘voluntary stateless persons’
2. Legal qualification of ‘voluntarity’ in the context of protection
2.1. The international standard
2.2. Selected domestic regulatory frameworks and court decisions
3. The legal qualification of ‘voluntarity’ in the context of statelessness reduction
4. Prevention of ‘voluntary’ statelessness
4.1. The international standard
4.2. Selected domestic jurisdictions
5. Conclusions
Afterword
Court Cases
Legislation
Bibliography
Series Index

List of Abbreviations

Legislation

CEDAW — Convention on the Elimination of All Forms of Discrimination against Women, adopted in New York on 18 December 1979, United Nations General Assembly, UN Treaty Series (UNTS), vol. 1249, p. 13.

ECN — European Convention on Nationality, signed in Strasbourg on 6 November 1997, Council of Europe, European Treaty Series (ETS) No. 166.

ECHR — Convention for the Protection of Human Rights and Fundamental Freedoms, done at Rome on 4 November 1950, amended by Protocols 3, 5 and 8 and supplemented by Protocol 2, ETS 5.

Charter of the United Nations (UN Charter) — Charter of the United Nations, Statute of the International Court of Justice and agreement establishing the United Nations Preparatory Commission, 24 October 1945, 1 UNTS XVI.

Constitution of the Republic of Poland (Polish Constitution) — Constitution of the Republic of Poland of 2 April 1997 (Polish Journal of Laws: Dz.U.78.483, as rectified and amended).

The 1951 Geneva Convention (1951 RC) — Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951 (UNTS, vol. 189, p. 137).

The 1930 Hague Convention (1930 HC) — Convention on Certain Questions Relating to the Conflict of Nationality Law, signed on 13 April 1930 in the Hague, League of Nations Treaty Series, vol. 179, p. 89, No. 4137.

The 1954 Convention — 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, UNTS, vol. 360, p. 117.

The 1957 Convention — Convention of the Nationality of Married Women, opened for signature in New York on 20 February 1957, United Nations General Assembly, A/RES/1040.

The 1961 Convention — Convention on the Reduction of Statelessness, adopted on 30 August 1961 by a Conference of Plenipotentiaries in pursuance of General Assembly Resolution no. 896 (IX) of 4 December 1954, UNTS, vol. 989, p. 175.

CRC — Convention on the Rights of the Child, adopted by the United Nations General Assembly, UNTS, vol. 1577, p. 3.

ICCPR — International Covenant on Civil and Political Rights, opened for signature in New York on 19 December 1966, UNTS, vol. 999, p. 171.

UDHR — Universal Declaration of Human Rights, adopted by General Assembly Resolution 217 A(III) on 10 December 1948 in Paris, 217 A (III).

Act on Polish Citizenship — Act of 2 April 2009 on Polish Citizenship (Polish Journal of Laws: Dz.U.2018.1829).

Official journals and periodicals

Dz.U. — Polish Journal of Laws

ETS — European Treaty Series

Other

CCPR — Centre for Civil and Political Rights

ECtHR — European Court of Human Rights

FAC (Switzerland) — Federal Administrative Court of Switzerland

OAR — Spanish Asylum and Refugee Office

OSCE — Organization for Security and Co-operation in Europe

OFPRA — French Office for the Protection of Refugees and Stateless Persons (Office français de protection de réfugiés et apatrides)

UN — United Nations

SIP — statelessness-identification procedures

SDP — statelessness-determination procedures

ECOSOC — United Nations Economic and Social Council

SEM — Swiss Secretariat of State for Migrations (Secrétariat d’Etat aux migrations)

FSC (Switzerland) — Federal Supreme Court of Switzerland

CJEU — Court of Justice of the European Union

UNHCR — United Nations High Commissioner for Refugees

Introduction

For a long time, topics relating to statelessness in public law had remained an area of neglect, to experience a reawakening of interest only in the last decade.¹ To this date, statelessness continues to be an important legal category. This is the consequence of how, despite efforts undertaken since the 20s of the 20^th century, its elimination has never been achieved, whilst legal protection offered to stateless persons by the general human-rights system has not been fully effective.

The purpose of this book is twofold. Firstly, it is to offer an introduction to the problems of statelessness and an analysis of the fundamental problems pertaining to the legal dogmatics of the public law in this area, such as the definition of statelessness, the legal definition of a stateless person, the regulatory framework of statelessness, or the status of a stateless person. These will be discussed on selected examples from domestic legislations in the context of the standard established by international law.

This research goal is warranted by how available literature on the subject emphasizes the aspects pertaining to international law. By contrast, thus far, the topic of statelessness has not been able to claim its rightful place in analysis done from the perspective of domestic provisions. Accordingly, some authors explicitly remark that research efforts in the area of statelessness should focus on domestic aspects in a greater degree.²

Another novelty in this approach is that my analysis is not limited to aspects of counteraction of statelessness³ but extends to the protection of stateless persons. Throughout the last several decades, the already scant attention paid by the global subject literature to statelessness focused largely on the counteraction of statelessness (and that mainly in international law). The matter of a protection status for stateless persons in domestic legislation has remained completely in the margins, for which reason a need for studies in this area has been suggested.⁴

The second of the principal goals of this work is to prove a thesis born of several years of my studies into statelessness. My attention has been drawn primarily to how the analysis of statelessness in available studies is often done en bloc, as though all cases were similar. For example, it is often simply remarked that stateless persons are particularly vulnerable individuals in need of protection.⁵ Not infrequently, that is indeed the case. In my professional practice, I have assisted stateless persons, often children, finding themselves in an outright Catch-22 situation due to the lack of a comprehensive regulatory framework for statelessness in Poland’s domestic legal system.⁶ Certain cases, however, do not fit under this umbrella. Several preliminary observations led to the formulation of thesis of this book.

The first indication that the en bloc approach might not be an appropriate theoretical and regulatory perspective came from the observation that the analysis of statelessness done in this manner consigns to the margins the question of whether states’ obligations to counteract statelessness and protect stateless persons are applicable to all persons in the same degree. For example, the problem emerges whether states are required to offer equal treatment to those who are voluntarily stateless persons as to those whose statelessness is not voluntary (e.g. caused by having been deprived of one’s original nationality⁷ with no hope of recovering it).

Another indication that the en bloc approach might not be appropriate came from reflection on W.E. Conklin’s thesis of the ineffectiveness of international regulation in the area of statelessness. In his opinion, the continued existence of statelessness despite the international community’s efforts to eliminate it poses an enigma.⁸ In this general perspective, however, Conklin’s thesis fails to account for the circumstance that with regard to certain groups of stateless persons such regulation has proved its effectiveness. For example, the statelessness of women due to the conflict of nationality laws has been eradicated successfully.

The third and last clue was the observation that failure to appreciate the differences among the various cases of statelessness leads to recommending one-size-fits-all solutions for all of its types. The predominant approach is that statelessness ought to be reduced as a matter of principle, meaning that a stateless person should eventually be granted the nationality of some state or other. Not only does this approach ignore the already mentioned fact that not all stateless persons may wish to obtain the nationality of any state, it also leads to a lack of complex thinking about the different mechanisms for the regulation of statelessness in all of its different types.

The above clues have prompted the concentration of my efforts on the study of the regulatory frameworks for statelessness in international law and in domestic legal systems in juxtaposition with the various types (categories) of statelessness. I was particularly interested in tracing the manifestations of a regulatory approach that was looking through the lens of the different categories of individuals who can be stateless persons. My research hypothesis was that the provisions of international law and domestic legal systems reflect not an en bloc approach to statelessness but rather one that could be termed ‘categorial’ — consisting in the delineation of categories of individuals to which a specially adapted regulatory approach is taken. Closer analysis has revealed that existing legal frameworks of statelessness in international law and in domestic jurisdictions do to a certain extent categorize statelessness into different cases or scenarios.

In the above light, the overarching thesis of my book is that, firstly, an approach to statelessness from the perspective of the different categories of individuals is already present in statelessness regulation, and, secondly, that it constitutes a useful theoretical and practical perspective. The idea of this paradigm — which, for the sake of brevity, I will refer to as the ‘categorial approach’ — is not only that, in the simplest terms possible, there are different categories of statelessness persons, such as voluntarily stateless persons as opposed those whose statelessness results from a situation forced on them. It is also that the different situations in which different persons find themselves may be viewed differently for the purposes of e.g. statelessness-prevention mechanisms. For example, as I will illustrate with some examples, deprivation of nationality resulting in statelessness is an available sanction for perpetrators of specific criminal offences in some countries.

For reasons of analytical structure demanded by the thesis, this book is divided in two parts. In the first part, I demonstrate that inherent to statelessness as an area of research is its internal diversification in all of its various cases. Analysis of the general considerations of statelessness reveals traces of a categorial approach in the legislation touching on this problem area.

Chapter I offers a general introduction to the problem of statelessness. There, I explain the meaning of the concept of statelessness (which is not synonymous with a stateless person) and define the scope of the problem area of statelessness. I discuss the legal nature of the concept of statelessness, as well as its underlying causes. What follows is an overview of the preliminary issues relating to the regulation of statelessness in international law, whether in general instruments for the protection of human rights or specific instruments dealing with statelessness. The chapter ends with the identification of two core legal mechanisms for the regulation of statelessness — instruments counteracting statelessness versus instruments protecting stateless persons — which provide the axis of later discussion in this book.

Chapter II concerns itself with the definition of a stateless person. There, I identify and discuss the various meanings of a stateless person in legislation and in the literature of international law since the end of World War II, noting the distinction between de facto and de iure statelessness. Afterwards, I analyse the definition of a stateless person provided by Article 1(1) of the 1954 Convention and discuss the interpretative problems surfacing in modern debate. I also identify problems relating to the definition of a stateless person in the various states’ domestic legislation.

Chapter III provides a synthetic overview of topics relating to statelessness-counteraction mechanisms. It discusses on the one hand the instruments for the prevention of statelessness adopted in international law and in domestic legal systems, and on the other hand instruments for the reduction of statelessness. Chapter IV deals with topics of protection of stateless persons, focusing on statelessness-determination procedures and the status of a stateless person.

The second part of the book revisits some of the aspects identified in the first part and aims to provide a detailed analysis of mechanisms for the counteraction of statelessness and protection of stateless persons with regard to sample categories of individuals. I distinguish four categories of individuals as lens for the analysis of the statelessness-counteraction and stateless-protection mechanisms in international law and selected domestic jurisdictions identified in the first part:

(1) ‘women’,

(2) ‘children’,⁹

(3) individuals distinguished on the grounds of protection of the public interest,

(4) individuals distinguished on the grounds of being ‘voluntarily stateless’.

Details

Pages: 272
Year: 2023
ISBN (PDF): 9783631907047
ISBN (ePUB): 9783631907054
ISBN (Hardcover): 9783631860724
DOI: 10.3726/b21117
Language: English
Publication date: 2023 (September)
Keywords: Law on statelessness Defining the stateless person Counteracting statelessness Protection of stateless persons Statelessness-determination procedures The category of ‘women’ in the law on statelessness The category of ‘children’ in the law on statelessness Voluntary statelessness
Published: Berlin, Bern, Bruxelles, New York, Oxford, Warszawa, Wien, 2023. 272 pp., 3 fig. b/w.

Biographical notes

Dorota Pudzianowska (Author)

Dorota Pudzianowska is a graduate of the University of Warsaw, where she is now Associate Professor of Law. She has also studied at the École normale supérieure in Paris. She specializes in public law, with a special focus on human rights, migration law, nationality law and antidiscrimination law. As a member of Warsaw Bar Association, she represents clients before the European Court of Human Rights, in addition to domestic courts.

Statelessness in Public Law

Summary

Excerpt

Table Of Contents

List of Abbreviations

Introduction

Details

Biographical notes

Key Subject Areas