Invisible Citizens: Statelessness in Europe
DEVELOPMENTS
Although human rights are inherent in all individuals by virtue of their humanity, citizenship has been called “the right to have rights” because of the primary role that states play in protecting human rights. The Universal Declaration of Human Rights, provides that everyone has a right to a nationality and that no one is to be arbitrarily deprived of it (Article 15). But with the creation and development of the European Union and EU citizenship status, some argue that the importance of holding the citizenship or nationality of a certain State has significantly diminished and that in the EU, “citizenship as a legal status and as a bundle of rights has moved beyond the boundaries of a nation-state.”
To the extent that customary international law and certain treaties, conventions, and charters, both by the UN and the EU, expressly prohibit discrimination based on race (including ethnicity), or national or social origin, or in some conventions, nationality (among other things) — and this prohibition applies to everyone regardless of citizenship or other legal or illegal status — that position may have some merit. These legal instruments, however, for the most part have not resulted in conferring specific enforceable rights and protections on stateless persons or otherwise eliminated statelessness. This is in large part because within the EU (and universally), the decision of who becomes a citizen remains nearly exclusively within the purview of individual States as a matter of national sovereignty. The EU does not have the authority to require Member States to naturalize anyone. Furthermore, citizenship in the EU derives from being a citizen of a Member State: no one acquires EU citizenship without already being a citizen of a Member State.
The European Union (EU) currently consists of 27 Member States, with Romania and Bulgaria becoming members most recently in 2007. The greatest enlargement occurred in May 2004 with the accession of 10 States (Czech Republic, Cyprus, Estonia, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia). Croatia, Macedonia, and Turkey are candidate countries. Serbia, Albania, Bosnia and Herzegovina, and Kosovo are potential candidate countries. With respect to the issue of statelessness, one group of note within the Member States of the EU and other European countries are the Roma, an ethnic minority living throughout Europe, but concentrated in Central Eastern Europe.
BACKGROUND
Statelessness in Europe may be traced in part to citizenship laws that reflect the principle of jus sanguinis, or law of the blood, by which citizenship is transferred based on descent from one or more citizens of the country of origin and not on place of birth (jus soli or law of the soil). When territory is transferred and/or when a new, successor State is formed, such as occurred in the former communist States, restrictive immigration and nationality laws may be enacted to expel and/or exclude people from citizenship based on ethnic preference. Lack of documentation and prolonged detention of undocumented foreigners who cannot be returned to their country of origin or of habitual residence also result in effective or de facto statelessness.
The Office of the United Nations High Commissioner for Refugees (UNHCR) is mandated by the UN General Assembly to prevent and reduce statelessness and to protect stateless persons. According to its Statistical Yearbook 2008 Annex, there are an estimated 674,000 stateless people in Europe, although because of the sensitivity of the topic and the difficulty in locating and counting such persons, the actual number is probably significantly higher. The problem of statelessness in Europe is not new; however, with the collapse of communism in 1989 and the subsequent breakup of the communist federations (Soviet Union, Czechoslovakia, Yugoslavia) in the 1990s additional stateless populations arose. The subsequent accession of the three Baltic States, the Czech Republic, Hungary, Slovakia, and Slovenia into the European Union in 2004 and of Romania and Bulgaria in 2007, brought the issue to the EU. Before the accession of these Eastern, Central and Southern European states, many EU Member States, including Austria, Germany, Italy, and the United Kingdom, enacted exclusionary citizenship laws to prevent a feared mass immigration of populations considered ethnically undesirable, specifically, the Roma of Central and Eastern Europe, into their territories.
Hundreds of thousands of Russian speakers in the Baltics have been subject to discrimination, although conditions have improved over time. In Estonia, which primarily recognizes citizenship by descent or naturalization, approximately 101,000 people remain stateless after Estonia’s declaration of independence in August 1991. In Latvia, ethnic Russians make up 28% of the population, with two-thirds holding Latvian citizenship and one third remaining stateless. At the end of 2009, there were approximately 344,000 stateless persons residing in Latvia, of which about 211,000 were ethnic Russians. They cannot vote of hold a Latvian passport as they have chosen not to apply for Latvian citizenship, which requires that they pass a Latvian language proficiency exam. However, as permanent residents, Latvia grants stateless persons the legal status of “noncitizens,” entitling them to a set of rights and obligations beyond the minimum rights prescribed by the 1954 Convention, including a noncitizen “passport” or travel document.
Upon declaring independence in 1991, Slovenia enacted a discriminatory citizenship law in order to prevent Bosnians, ethnic Albanians from Kosovo, Macedonians, Roma, and Serbs from becoming citizens and in 1992 “erased” the permanent residence registry records for at least 29,000 former Yugoslavian citizens rendering them not lawfully present in Slovenia if not stateless. However, on March 8, the law was amended, restoring the rights of those who had been erased.
The Roma, who, with an estimated population of eight to twelve million throughout Europe, comprise the largest ethnic minority in Europe. The Roma migrated to Europe from Northern India a millennium ago and have suffered exclusion, persecution, violence, and discrimination ever since, including genocide during World War II. The exact number of Roma (and Ashkali and Balkan Egyptians, collectively, RAE) who are stateless is not known. Many who may have a claim to citizenship are effectively stateless because they lack documentation such as birth records and registered addresses, rendering them ineligible for social or medical services and unable to enroll their children in school. Today the greatest number of Roma live in Central Eastern Europe: Romania, Slovakia, Bulgaria, Hungary, and the former Yugoslavia. For example, according to nongovernmental organizations, there may be up to 2.5 million Roma in Romania, although according to the Romanian government there are 430,000. As of 2008, the number of stateless Roma in Romania is unknown.
In addition to customary international law and international conventions on human rights, there are several UN conventions and Council of Europe instruments that address nationality and statelessness. The Universal Declaration of Human Rights, which the United Nations General Assembly adopted on December 10, 1948, provides in Article 15 that “(1) Everyone has the right to a nationality; and (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” The 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness, also create obligations on member States to protect stateless persons and to reduce statelessness. As of February 28, 2010, 27 and 14 European States are parties to the 1954 and the 1961 Conventions, respectively, Article 1 of the 1954 Convention defines “stateless person” as “a person who is not considered as a national by any State under the operation of its law.” The 1961 Convention on Reduction of Statelessness requires that a Member State grant its nationality to a person born in its territory who would otherwise be stateless “at birth by operation of law” or upon application. Resolution I of The Final Act of the United Nations Conference on the Elimination or Reduction of Statelessness recommends that persons who are de facto stateless should be treated the same way as persons who are de jure stateless, to the extent possible to enable them to acquire an effective nationality. The definition of nationality enunciated in the Nottebohm Case, (Liechtenstein v. Guatemala), which was decided by the International Court of Justice in 1955, supports this recommendation. Article 6(4) of the 1997 European Convention on Nationality establishes an obligation to facilitate the acquisition of nationality for “stateless persons and recognized refugees lawfully and habitually resident on its territory.” It defines nationality as “the legal bond between a person and a State and does not indicate the person’s ethnic origin.” As of May 18, 2010, 29 countries are signatories, 19 have ratified or acceded to the 1997 European Convention on Nationality. Finally, in 2006, the Council of Europe promulgated the Convention on the Avoidance of Statelessness in Relation to State Succession. This treaty entered into force on January 5, 2009 with the ratification of three Member States, Hungary, Moldova, and Norway, soon followed by Montenegro. Otherwise, only Austria, Germany, and Ukraine have signed.
The 1951 Convention Relating to the Status of Refugees and its 1967 Protocol codify the rights and protections for persons who are outside of their country of nationality or, if without nationality, habitual residence owing to a well founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group, or political opinion and who are unable, or because of that fear, unwilling to avail themselves of the protection of the county or nationality.
Article 33 of the Refugee Convention prohibits Member States from expelling or returning a refugee to territories where his life or freedom would be threatened because of his race, religion, nationality, membership of a particular social group or political opinion. This obligation is referred to as “non-refoulement.” Article 34 obligates Member States to facilitate assimilation and naturalization of refugees, in particular by expediting naturalization and reducing the cost of the proceedings. In order to become a Member of the European Union (EU), among other criteria defined by the Copenhagen European Council of June 1993, states must have stable institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities.
ANALYSIS
The problem of statelessness persists within the Member States of the EU (as well as in other parts of Europe and the world) in part because of the inherent tension between the near universal recognition that States, as a matter of sovereignty, determine who may become a citizen and who may lawfully remain within a State’s territory and the internationally recognized human right to a nationality. Ethnic or racial discrimination may also play a large role. Progress is being made, however. The UNHCR and the EU Member States and candidate or potential candidate states have successfully provided legal assistance to register RAE. As she stated in her remarks on International Roma Day (April 8, 2010) on behalf of President Obama and the American people, protecting and promoting the human rights of the Roma throughout the world is a personal commitment for Secretary of State Hillary Clinton.
To reduce the economic, social, and political impact of statelessness on individuals, their families, and the nations which they inhabit, an interim, if not durable, solution may be to harmonize among EU Member States the interpretation and implementation of relevant human rights and statelessness conventions and to establish an EU wide minimum standard of protection for those who are legally or effectively stateless, which may include equal access to social services, housing, employment, health care and public assistance benefits. This might also include a definition of statelessness that considers protection for persons who are without an effective nationality. To that end, in April, the European Economic and Social Committee (EESC) issued its favorable Opinion on the Proposal for a Directive of the European Parliament and of the Council on minimum standards for third country nationals or stateless persons as beneficiaries of international protection submitted by the Office of the UN High Commissioner for Refugees. One of the Committee’s conclusions highlighted the belief that “the various budgetary constraints ensuing from the economic crisis should not lead to a reduction in the level and quality of protection received by beneficiaries.”
Carol E. Farrand is an attorney advisor at the Department of State in the Bureau of Consular Affairs and works on citizenship and privacy issues.
The views presented are the author’s and do not reflect those of the U.S. Department of State.
