Credits: Rostyslav Savchyn, (Unsplash.com)
This submission has been posted as part of a blog series that seeks to profile the newly created NNHRR Working Group on Economic, Social, and Cultural Rights blog series, its vision and plans, and to highlight the expertise of its members, showcasing their research and/or contributions to ESCR.
By: Caia Vlieks
Statelessness has been described as a pressing human rights issue that affects millions of people worldwide. A stateless person is legally defined as someone “who is not considered as a national by any State under the operation of its law” (Article 1(1) Convention on the Status of Stateless Persons (1954 Convention)). The absence of any nationality leaves many stateless people without legal protection, facing problems in effectuating basic rights. Indeed, the enjoyment of economic, social, and cultural rights (ESCR) is often negatively impacted by statelessness as States tend to limit access to these rights to citizens primarily. Accessing social protection, employment, housing, or education may, for example, be challenging for those who are stateless. This may lead to poverty and have far-reaching consequences, even beyond one generation.
“When you do not have documentation, you are not entitled to any assistance […] I have always worked, ever since I was very young. I have responsibility for my grandmother. She is also stateless.”
- Jirair (19), stateless in Georgia
Statelessness-specific legal framework
To address concerns around the existence of statelessness and to protect the rights of stateless people, specific legal instruments have been enacted after World War II in the context of the United Nations (UN). The 1954 Convention includes the aforementioned definition of statelessness as well as various rights for stateless people. This treaty was followed by the Convention on the Reduction of Statelessness in 1961 (1961 Convention), which aims to reduce statelessness as much as possible – at birth, but also later in life by preventing loss of nationality leading to statelessness.
As described by Laura van Waas, “an impressive array of provisions” in the 1954 Convention are focused on ESCR. These include labour-related rights, as well as rights to housing, education, and intellectual property. The different provisions of the 1954 Convention, like the 1951 Refugee Convention, require States to provide for a certain standard of treatment. This can mean that for some rights stateless people are to be treated the same as other aliens in the territory (baseline) and for other rights they are to be treated the same as nationals. Furthermore, many rights are only to be guaranteed depending on the attachment of a stateless person to the State; such attachment is premised on whether they are habitually or lawfully present in the territory. States only need to undertake to protect such ESCR as wage-earning employment (Article 17), housing (Article 21) and public relief (Article 23) for stateless people who are lawfully staying in the country.
Due to these limitations, it becomes less clear how stateless people can precisely benefit from the 1954 Convention in this regard. There is also no supervisory mechanism in place to oversee violations of the Convention and States might evade their obligations due to lack of procedures to determine and identify stateless people. Moreover, it should be remembered that only the States that have ratified the Convention are bound by these obligations and several States with large groups of stateless people in their territory have not done so (e.g. Bangladesh).
Role of human rights
As the effectiveness of the 1954 Convention in protecting ESCR for stateless people may thus be questioned, there could be an important role to play for human rights treaties such as the International Covenant on ESCR (ICESCR), with rights applicable to everyone, “regardless of legal status and documentation”. The Committee on ESCR has indeed made various recommendations to States on protecting ESCR for stateless people, including on access to health services and primary education.
That stateless people can derive ESCR from human rights treaties has also been demonstrated by case law from regional human rights courts. The African Court on Human and Peoples’ Rights found in the matter of Anudo Ochieng Anudo v. the United Republic of Tanzania for instance that the applicant’s deprivation of nationality and expulsion, from which various alleged violations of ECSR flowed, were arbitrary. The Court ordered reparations to inter alia compensate the applicant for the loss of income from his employment. An example from the European Court of Human Rights can be found in Hoti v. Croatia. In this case, the lack of procedure(s) “enabling the [stateless] applicant to have the issues of his further stay and status in Croatia determined” constituted a violation of the right to respect for private and/or family life. These issues had led to loss of access to social and economic rights as well. The case of the Girls Yean and Bosico v. Dominican Republic is illustrative too. Here, the Inter-American Court of Human Rights held that the fact that a stateless child was prevented from attending day school “exacerbated her situation of vulnerability,” which contributed to finding a violation of – amongst others – the right to nationality in relation to the rights of the child.
It should be noted, however, that whilst ESCR played a role in these cases, but were often relied on only in addition to other rights that are usually categorised as civil and political rights. Even if the latter have been the focus of the violations found by the Courts, these examples do show the relevance of ESCR in relation to statelessness as well as potential for further litigation.
Ongoing concerns and remaining questions
Despite the legal framework in place, statelessness, and ensuing problems with accessing ECSR, persist due to discriminatory nationality laws, gaps in legal provisions and administrative barriers. The COVID-19 pandemic particularly demonstrated the importance of taking ESCR seriously in relation to statelessness. In addition to often being denied access to health services, stateless people were also directly excluded from vaccines or were unable to produce the identity documentation necessary for receiving vaccinations. But stateless people faced specific challenges in other areas too, such as losing (all) income due to lack of formal employment and the informal labour sector coming to a halt due to lockdowns. It would therefore seem that acquisition of a nationality and access to identity documentation are key in providing access to ESCR for stateless people. Indeed, a “transformative power of citizenship” has been coined in a case study on the improvements in socioeconomic conditions of formerly stateless people. At the same time, questions remain with regard to the relationship between statelessness, nationality and ESCR. This requires further research, while it should also be stressed that ESCR are human rights that should be accessible to all, stateless or not.
Bio:
Caia Vlieks is assistant professor of constitutional law at Utrecht University and connected to the Montaigne Centre for Rule of Law and Administration of Justice. She is a fellow at the Netherlands Institute of Human Rights (SIM) and programme coordinator of the Legal Research Master. Caia previously worked as a lecturer, researcher (Tilburg University, University of London) and programme lead (Institute on Statelessness and Inclusion). Her research interests include nationality, citizenship, fundamental rights, and statelessness.