Anna Dolidze, Lampedusa and Beyond: Recognition, Implementation, and Justiciability of Stateless...

Electronic copy available at: http://ssrn.com/abstract=1927033Electronic copy available at: http://ssrn.com/abstract=1927033Electronic copy available at: http://ssrn.com/abstract=1927033Electronic copy available at: http://ssrn.com/abstract=1927033

LAMPEDUSA AND BEYOND Recognition, Implementation, and Justiciability of Stateless Persons’ Rights under International Law

Anna Dolidze∗

The most recent humanitarian crisis on the Italian island of Lampedusa is an important point to reexamine critically the human rights of stateless persons under international law. This article identifies serious deficiencies across the international regime for the protection of stateless persons. By examining the genealogy of the international legal regime on statelessness, tracing it from recognition to implementation, the article argues that the lack of state participation and enforcement are the main impediments to the effectiveness of all categories of treaties related to statelessness. Through studying the justiciability of stateless persons’ claims under the European Convention on Human Rights and Fundamental Freedoms and its implementation machinery, the article traces procedural, substantive, and wider structural obstacles that stand in the way of realization of stateless people’s rights. Finally, the article proposes a set of recommendations that can partially remedy some of the problems raised.

Keywords: Statelessness, Arendt, the European Court of Human Rights, refugees, rights, recognition, justiciability

I. INTRODUCTION

ore than 250 people were reported missing after a boat carrying African migrants to the Italian island of Lampedusa sank on April 6, 2011.1 In early 2000, Lampedusa had become the destination

for migrants and asylum seekers from Africa who sought refuge in Europe.2 In early 2011, about 19,000 migrants arrived from Tunisia and Libya alone. For the island, where the habitual number of residents is 5,300, the influx of migrants has been overwhelming. 3 As increasing numbers of migrants have died in their quest for asylum and the

∗ Candidate for Doctor of the Science of Law, Cornell Law School. I am indebted to

Sidney Tarrow, Elizabeth Anker, Aziz Rana, Patrick Weil, Dan Danielson, Rose Casey, Buhm-Suk Baek, Anne-Claire Jamart, and Jaya Ramji-Nogales for useful suggestions on earlier drafts of this paper. I thank Christopher Garces and Valerie Hans in particular for providing thorough feedback. I am also indebted to Cornell J.S.D. Colloquium, Cornell Law School Graduate Conference, Cornell Eastern Europeanist Circle Seminar Series, Harvard Workshop on Global Law and Policy where I presented earlier drafts of this article. The remaining errors are solely mine.

1 250 Migrants Missing after Boat Sinks off Italy, N.Y. TIMES (6 Apr. 2011), www.nytimes.com/2011/04/07/world/europe/07migrants.html.

2 A Lesson from Lampedusa: Europe Has a Duty Toward Refugees, N.Y. TIMES (17 Nov. 2004), www.nytimes.com/2004/11/17/opinion/17iht-edwatson_ed3_.html.

3 The Tiny Italian Fishing Island Which Now Has More Migrants Fleeing Tunisia and Libya Than Inhabitants, DAILY MAIL REPORTER (30 Mar. 2011), www.dailymail.co.uk/news/article-1371204/Lampedusa-MORE-migrants-fleeing-Tunisia-Libya-inhabitants.html.

M

Electronic copy available at: http://ssrn.com/abstract=1927033Electronic copy available at: http://ssrn.com/abstract=1927033Electronic copy available at: http://ssrn.com/abstract=1927033Electronic copy available at: http://ssrn.com/abstract=1927033

124 Interdisciplinary Journal of Human Rights Law [Vol. 6:1

conditions for the reception of migrants at Lampedusa have drastically deteriorated, the United Nations High Commissioner for Refugees called on states to take measures to alleviate the “humanitarian situation” on the island.4

The Lampedusa crisis sparked a new debate on the rights of migrants, including stateless persons.5 At this point it is undoubtedly necessary to focus on the adoption of urgent measures to relieve the Lampedusa crisis. However, this is also the right moment to broaden the discussion to critically reexamine the degree of protection that international law accords to migrants in general.6

Statelessness emerged as a problem in the beginning of the 19th century.7 It was exacerbated by the events leading up to World War II.8 Yet, statelessness continues to be a pressing issue to this day.

According to Article 1(1) of the 1954 Convention Relating to the Status of Stateless Persons, a stateless person “is not considered as a national by any State under the operation of its law.” 9 One can become stateless through one of two ways:10 a person may be born stateless, or may become stateless by losing her nationality without acquiring another.11

The number of stateless people in the world is estimated between 5 million and 15 million. 12 Lack of protection of the rights of stateless persons is a problem in nearly all regions of the world. Stateless people inhabit countries on most continents of the world.13

4 UNHCR Calls for Action to Alleviate Humanitarian Situation on Lampedusa, Briefing

Notes, UNHCR, 22 Mar. 2011, www.unhcr.org/4d888f579.html. 5 See e.g., MEPs Debate “Human Tragedy” of Lampedusa Refugee Crisis, BBC

Democracy Live (4 Apr. 2011), http://news.bbc.co.uk/democracylive/hi/ europe/newsid_9443000/9443324.stm.

6 Asylum seekers, economic migrants, and stateless persons often find themselves in similarly dangerous situations in their quest for safe haven and better conditions, see generally, All in the Same Boat: The Challenges of Mixed Migration, UNHCR: UN REFUGEE AGENCY, www.unhcr.org/pages/4a1d406060.html.

7 See generally, John Torpey, THE INVENTION OF THE PASSPORT: SURVEILLANCE, CITIZENSHIP AND THE STATE (2000) (tracing to the 19th century the history of the development of the passport and other identity documents, as tools for controlling the inclusion and exclusion in the citizenship body).

8 See, generally, Caroline Sawyer, Legal Frameworks for Statelessness in Europe, in STATELESSNESS IN THE EUROPEAN UNION: DISPLACED, UNDOCUMENTED, UNWANTED (Caroline Sawyer & Brad K. Blitz eds., 2011).

9 Convention Relating to the Status of Stateless Persons, 360 U.N.T.S. 117, Art. 1(1), Sept. 28, 1954.

10 See, generally, United Nations High Commissioner for Refugees, Information and Accession Package: The 1954 Convention Relating to the Status of Stateless Persons and 1961 Convention on the Reduction of Statelessness (rev. ed. 1999).

11 Paul Weis, NATIONALITY AND STATELESSNESS IN INTERNATIONAL LAW, 166 (1979). 12 Katherine Southwick & Maureen Lynch, Nationality Rights for All: A Progress Report

and Global Survey on Statelessness, 1, REFUGEES INTERNATIONAL (March 2009), www.refugeesinternational.org/sites/default/files/RI%20Stateless%20Report_FINAL_031109.pdf.

13 For a compilation of case studies on statelessness across different countries, see e.g., Brad K. Blitz & Maureen Lynch (eds.), STATELESSNESS AND CITIZENSHIP: A COMPARATIVE STUDY ON THE BENEFITS OF NATIONALITY (2011).

2011–2012] LAMPEDUSA AND BEYOND 125

Except in rare cases,14 this situation of statelessness has been regarded as a grave worldly misfortune, a source of myriad complications and hurdles that those living without citizenship face in their lives. 15 Statelessness is often related to deprivation of basic rights, including the right to education, health care, and social security. The stateless can be prevented from owning property, signing contracts, and obtaining employment.16

Despite positive developments on the international plane, the regime of the protection of stateless 17 persons’ rights suffers from significant loopholes. This undermines the effectiveness of the regime. This article first traces the genealogy of the general international treaty regime on statelessness and its development, identifying deficiencies in state participation and the enforcement of states’ international obligations.

Second, the article argues that the international human rights machinery, represented by the European Court of Human Rights (ECtHR), suffers from significant deficiencies with regard to enforcement of stateless persons’ rights. At a glance, an overview of the jurisprudence provides an impression that the stateless might be capable of defending their rights as endorsed in the convention. Additionally, the ECtHR’s approach to statelessness has evolved over time in the direction of granting stateless persons greater protections. However, interpreting these positive instances as signals for better protection of stateless persons would be a mistake. A series of procedural, substantive, and larger structural deficiencies in the convention 18 framework hinders the majority of stateless persons in Europe from defending their rights through the ECtHR’s machinery.

Part II reviews the theoretical debate on the problem of stateless people’s rights. Part III provides a typology of treaties in relation to statelessness and identifies the main deficiencies in state participation and enforcement. Part IV examines the European Convention machinery in relation to statelessness and identifies positive developments. It also critiques the loopholes and constraints in the enforcement of the rights of stateless individuals. The article concludes by offering key recommendations for addressing at least some of the mentioned deficiencies.

14 For a rare view on statelessness see, e.g., Clark Hanjian, THE SOVRIEN: AN

EXPLORATION OF THE RIGHT TO BE STATELESS (2003) (arguing that all human beings should have a fundamental rights to be stateless).

15 See, generally, Linda K. Kerber, Toward a History of Statelessness in America, AMERICAN QUARTERLY 57: 3, 727–749, 727 (2005).

16 Q&A: World’s 15 million stateless people need help, Interview with Philip Leclerk, REUTERS ALERTNET, www.alertnet.org/thenews/newsdesk/UNHCR/ 14bbdcab1076d21f508b51057342262f.htm.

17 This article focuses only on de jure statelessness, i.e. lack of nationality of a particular state per se, and not on de facto statelessness, which means a lack of effective nationality. For more on the definition of de jure statelessness and its deficiencies see Carol A. Batchelor, Stateless Persons: Some Gaps in International Protection, INT. JOURNAL OF REFUGEE LAW 7 (1995).

18 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 Nov. 1950, 213 U.N.T.S. 222 (hereinafter the European Convention).


II. INTERNATIONAL LAW AND THE RIGHTS OF STATELESS PERSONS

Scholarship on the rights of stateless persons under international law can roughly be divided into two main schools of thought. Hannah Arendt represents the school that expresses considerable skepticism on international law’s ability to protect stateless persons.

“How could I explain to you on the telephone or even in the context of a letter the infinitely complex red-tape existence of stateless persons?” Arendt wrote to her longtime friend, German philosopher Karl Jaspers.19 Hannah Arendt personally experienced difficulties associated with statelessness. She was herself slipped into this “infinitely complex red-tape existence” during the period between her flight from Nazi Germany in 1933 and gaining American citizenship in 1951.20

In the 1950s, when Hannah Arendt wrote one of the most powerful critiques of the condition of statelessness, international human rights instruments were still in the nascent stage.21 Mounting an intellectual attack on Enlightenment legacies, which stress an abstract human being and her “inalienable rights,”22 Arendt argued that the failure of universal human rights was most clearly evidenced by the problems of refugees and stateless populations. She pointed out that despite positing the autonomous sovereign subject as the foundation of universal rights, human rights were, in fact, first realized in particular national contexts during the French and American Revolutions. Importantly, she identified the perplexity of the modern conception of human rights as a contradiction between the idea of the nation-state and human rights.23

According to Arendt, the best international attempts to obtain redress for human rights abuses were beyond the reach of international law. International law is based on the contractual relationship of states. “[A]nd, for the time being,” Arendt wrote, “a sphere which is above the nations does not exist.”24

Having reviewed the legislation regulating the rights of immigrants and citizens in the European Union, 25 Seyla Benhabib concluded the contemporary European Union reveals both the desegregation of citizenship and the continuing practice of conjoining nationality with political privileges.26 Although certain improvements have occurred in the treatment of migrants, Benhabib argued that refugees’ and stateless peoples’ rights have been curtailed even in the most developed rights-

19 The Letter to Karl Jaspers, January 29, 1946 (New York) 25, in THE PORTABLE

HANNAH ARENDT (Peter Baehr ed.)(2003). 20 Elisabeth Young-Bruehl, HANNAH ARENDT—FOR LOVE OF THE WORLD, 113 (2nd ed. 2004). 21 Jerome Kohn & Ron H. Feldman (eds.), HANNAH ARENDT: THE JEWISH WRITINGS, xli

(2007). 22 Richard J. Berstein, HANNAH ARENDT AND THE JEWISH QUESTION, 77 (1996). 23 Patrick Hayden, POLITICAL EVIL IN A GLOBAL AGE: HANNAH ARENDT AND INTERNATIONAL

THEORY, 58–59 (2009). 24 Id. at 40. 25 Seyla Benhabib, THE RIGHTS OF OTHERS: ALIENS, RESIDENTS AND CITIZENS (THE SEELEY

LECTURES), 7 (2004). 26 Id. at 155.


based political regimes.27 According to Benhabib, refugees and asylum seekers “exist at the limits of all rights regimes and reveal the blind spot in the system of rights, where the rule of law flows into its opposite: the state of exception and the ever present danger of violence.”28 Randall Hansen has argued that citizenship continues to be grounded in the nation-state as the “single most important generator of rights.”29 He indicated that the most significant decisions impacting the rights of migrants have been taken at the national level by domestic courts.30 Hansen contended that international human rights are most forceful when they are put into effect by national courts.31

On the other hand, some scholars generally maintain that the conditions of statelessness nowadays are different from those that Arendt wrote about. 32 Yasemin Soysal posits that the mere assumption of citizenship as a gatekeeping mechanism for membership in a given polity has been supplanted by postnational conceptions. The new model suggested by Soysal gains its legitimacy not from citizenship as an instrument for granting national rights but from universal ideas of personhood, deriving from transitional discourse and structures based on human rights.33 As a result, she arrives at the conclusion that universal rights of personhood transcend the territorial boundaries of national states and create multiple modalities of membership. 34 Elaboration of international human rights treaties, including those that relate to noncitizens, influences the membership situation of those persons domestically by creating a separate legal category of migrants or by influencing domestic discourses and invocation of rights claims.35 In this vein, Soysal specifically mentions how the ECtHR has provided a significant number of rulings on human rights affecting immigration and family unification.36 The author argues that in a world where rights draw legitimacy from the discourses of universal personhood, any boundaries established by citizenship and nationhood will lose their relevance.37

According to David Jacobson, transnational migration has been gradually eroding citizenship—the traditional basis of the nation-state—accompanied by the rise in the importance of international human rights.38

27 Id. at 168. 28 Id. at 163. 29 Randall Hansen, The Poverty of Postnationalism: Citizenship, Immigration, and the

New Europe, 38 THEORY AND SOCIETY, 1, 5 (2009). 30 Id at 7. 31 Id. at 8; Hansen discusses just two judgments of the European Court of Human Rights,

rebutting the conclusions of postnationalist writers about the outcomes of these cases. 32 Linda K. Kerber, Toward a History of Statelessness in America, 57 AMERICAN

QUARTERLY 727 (2005). 33 Yasemin Soysal, THE LIMITS OF CITIZENSHIP: MIGRANTS AND POSTNATIONAL

MEMBERSHIP IN EUROPE, 3 (1994). 34 Id. at 164. 35 Id. at 149–156. 36 Id. at 150. 37 Yasemin Soysal, Towards a Postnational Model of Membership, in THE CITIZENSHIP

DEBATES: A READER, 208 (G. Shafir ed., 1998). 38 David Jacobson, RIGHTS ACROSS BORDERS: IMMIGRATION AND THE DECLINE OF

CITIZENSHIP (1996).


The author posits that the state’s sovereign right to define aliens/citizens is undermined by international human rights law, administered by international courts and international organizations.39

More recently, Linda Bosniak provides that the predominant understanding of citizenship as only limited to the borders of the nation-state is outmoded. 40 Bosniak argues that many core attributes of citizenship are extended to noncitizens based on their personhood and presence within national boundaries. International human rights in fact serve as a moral touchstone for standards of treatment of persons by states. “These standards, which encompass civil, social, and sometimes cultural rights, represent an alternative source of rights that transcends the jurisdiction of individual nation-states.”41

This article contributes to this trajectory of debate in two ways. First, the article puts forward a study of state participation and of enforcement of the international treaty regime on statelessness, allowing for novel conclusions as to what extent international law has been effective in protecting the rights of stateless persons. Second, the article enriches the aforementioned debate with the most recent specific analysis of the treatment of stateless persons’ rights by a major international human rights tribunal: the European Court of Human Rights.

III. THE INTERNATIONAL TREATY REGIME ON STATELESSNESS

The international regime on statelessness consists of three pillars.42 The first pillar is comprised of treaties that have been concluded for the eradication and prevention of statelessness in general. The second consists of more specific instruments that relate to statelessness among vulnerable population segments, such as women and children. A third and final pillar is concerned with protecting particular rights of stateless persons, specifically their intellectual property.

A. General Treaties Related to Statelessness

International law has been slow in recognizing the plight of stateless persons. In pre-war international legal scholarship, stateless individuals possessed no rights whatsoever. The state that inflicted injury upon them was not liable for state responsibility.43

A renowned scholar of international law, Lassa Oppenheim observed that “the rules of international law relating to diplomatic protection are

39 Francis Fukuyama, Book Review, 75 FOREIGN AFFAIRS, May/Jun 1996, at 135 (reviewing David Jacobson, RIGHTS ACROSS BORDERS: IMMIGRATION AND THE DECLINE OF CITIZENSHIP).

40 Anna Dolidze, Book Review, 12 HUM. RTS. REV. 247, 247–249 (2011) (reviewing Linda Bosniak, THE CITIZEN AND THE ALIEN: DILEMMAS OF CONTEMPORARY MEMBERSHIP).

41 Linda Bosniak, THE CITIZEN AND THE ALIEN: DILEMMAS OF CONTEMPORARY MEMBERSHIP, 25 (2006).

42 The article deals with provisions contained only in international treaties. UN General Assembly resolutions or other documents fall beyond the scope of this article.

43 David S. Weissbrodt & Clay Collins, The Human Rights of Stateless Persons, 28 HUMAN RIGHTS QUARTERLY 248 (Feb. 2006).


based on the view that nationality is the essential condition for securing to the individual the protection of his rights in their international sphere.”44

The first international treaty aimed at dealing with the question of statelessness was the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws. It came into force in 1937.45 The convention mentioned abolition of statelessness as one of its objectives. Yet, only 23 state parties 46 have joined the convention. 47 When thinking of the degree of state participation, it is useful to keep in mind that currently 196 sovereign entities are members of the United Nations.48

The Hague Protocol Relating to a Certain Case of Statelessness was adopted the same day.49 The convention does not provide the definition of statelessness. It tries to limit the instances of statelessness by providing obligations for member states to confer nationality in certain cases.50 The special protocol contained an important obligation for participant states to admit a stateless person on their territory even if an individual had lost the nationality of that state and failed to acquire a new one.51 The protocol entered into force on March 15, 2004 (almost 80 years after its opening for ratifications). With only 12 state parties and signatories,52 it too remains largely unsubscribed.

The year 1951 marked the birthdate of the Convention Relating to the Status of Refugees. The Protocol Relating to the Status of Refugees was adopted in 1967. Stateless persons that fear persecution fall under the 1951 Refugees Convention. Otherwise, the 1954 Convention Relating to the Status of Stateless Persons is applicable to all other stateless individuals.53

Two conventions were specifically adopted to stem the proliferation of stateless identities: the 1954 Convention Relating to the Status of Stateless Persons54 and the 1961 Convention on the Reduction of Statelessness.55

These two treaties establish the core of international law regarding

44 Lassa Oppenheim, INTERNATIONAL LAW, Vol. 1, 611 (1911). 45 Convention on Certain Questions Relating to the Conflict of Nationality Law, 13 Apr.

1930, 179 LNTS 89. 46 The number of states parties indicates the number of states that have expressed an

agreement to be legally bound by the treaty, see Vienna Convention on the Law of Treaties, arts. 2(b), 11 and 14, 23 May 1969, 155 U.N.T.S. 331, 8 I.L.M. 679.

47 UNITED NATIONS TREATY COLLECTION, accessed 7 Mar. 2011. 48 Growth in the United Nations Membership, From 1945–present,

www.un.org/en/members/growth.shtml. 49 Special Protocol Concerning Statelessness, 12 Apr. 1930, 2252 U.N.T.S. 435. 50 Protocol Relating to a Certain Case of Statelessness, art. 1, 12 Apr. 1930, 179 LNTS 115,

www.unhcr.org/refworld/docid/3ae6b39520.html [accessed 22 March 2010]. 51Id. art. 1. 52 http://untreaty.un.org, accessed 22 Feb. 2011. 53 UN High Commissioner for Refugees, The 1954 Convention relating to the Status of

Stateless Persons: Implementation within the European Union Member States and Recommendations for Harmonization, Refuge, October 2003, www.unhcr.org/refworld/docid/415c3cfb4.html.

54 6 June 1960, 360 U.N.T.S. 117. Adopted 28 Sept. 1954 by a Conference of Plenipotentiaries convened by Economic and Social Council resolution 526 A (XVII) of 26 Apr. 1954, entry into force: 6 June 1960.

55 13 Dec. 1975, 89 U.N.T.S. 175.


statelessness.56

Adoption of the 1954 Convention Relating to the Status of Stateless Persons57 was an unprecedented instance whereby stateless persons were conferred a legal status within the framework of international law.58 Article 1(1) defines a stateless person as “a person who is not considered as a national by any State under the operation of its law.” This definition presents a codification of a now widely accepted concept. Whether a person meets the definition and should be accorded all the rights listed is entirely dependent on a point of domestic law.59 Moreover, the definition is problematic because it requires any potential applicant to prove the existence of the negative condition—the fact that one does not possess the nationality of any country.60

The 1954 convention established and strengthened guarantees accorded to the individual who would be recognized as “stateless.” It provides for civil and political, as well as social and economic rights.61 Yet, as of October 2009, there were only 65 state parties to the convention.62 Moreover, the United States, China, and the Russian Federation, permanent members of the United Nations Security Council, have neither signed nor ratified the convention.63

There are other problems with implementing the convention, even among countries that ratified it. Only half (51.4 percent) of the UNHCR Final Report’s responding states indicated (in 2004) that they implement a procedure to identify cases of statelessness as such.64 Providing satisfactory evidence of statelessness is often difficult enough, placing the burden of proving the absence of a nationality on the applicant. 65 Within the European Union, UNHCR has remarked that, unless countries adopt a harmonized procedure for identifying claims by stateless persons, it will be “impossible to harmonize implementation of the Convention overall.”66

56 Convention on the Reduction of Statelessness With an Introductory Note by the Office

of the High Commissioner for Refugees, 3, www.unhcr.org/3bbb286d8.html. 57 See, generally, Nehemiah Robinson, CONVENTION RELATING TO THE STATUS OF

STATELESS PERSONS: ITS HISTORY AND INTERPRETATION (1955) [Robinson Commentary], www.unhcr.org/refworld/docid/4785f03d2.html.

58 Lay Lee Tang, STATELESSNESS, HUMAN RIGHTS AND GENDER: IRREGULAR MIGRANT WORKERS FROM BURMA IN THAILAND 34 (2005).

59 Laura van Waas, NATIONALITY MATTERS: STATELESSNESS UNDER INTERNATIONAL LAW, 20 (2008).

60 Guy S. Goodwin-Gill, Convention Relating to the Status of Stateless Persons, United Nations Audiovisual Library of International Law, 4, http://untreaty.un.org/cod/avl/pdf/ha/ cssp/cssp_e.pdf.

61 Convention Relating to the Status of Stateless Persons, 28 Sept. 1954, 189 U.N.T.S 150. 62 States Parties to the 1954 Convention relating to the Status of Stateless Persons,

United Nations High Commissioner for Refugees, www.unhcr.org/protect/PROTECTION/ 3bbb0abc7.pdf.

63 Id. 64 United Nations High Commissioner for Refugees, Final Report Concerning the

Questionnaire on Statelessness Pursuant to the Agenda for Protection, 26 (2004). 65 Robinson Commentary, supra note 57. 66 United Nations High Commissioner for Refugees, The 1954 Convention relating to the

Status of Stateless Persons: Implementation within the European Union Member States and Recommendations for Harmonization, Oct. 2003, www.unhcr.org/refworld/docid/ 415c3cfb4.html [accessed 24 Feb. 2011] para.27, p.12.


The Convention on the Reduction of Statelessness entered into force on December 13, 1975.67 The convention aims at reducing statelessness through international agreement. 68 It established guarantees for possession of nationality in cases of changes in personal status.69 The convention also provides for the obligation of member states not to deprive a person of their nationality if that person would then become stateless.70 In accordance with Article 11, the UN General Assembly entrusted the United Nations High Commissioner for Refugees with the mission to protect stateless persons and prevent, reduce, and identify statelessness.71

However, to date, the convention has only 37 state parties. 72 Additionally, a number of states have deposited reservations, limiting the application of the convention and undermining its essence. Consider, for example, the declaration made by Germany, which indicates that Germany will apply said convention as required by the German Constitution. Ireland, in a similar vein, declared that the right to deprive a person of nationality shall be maintained pursuant to the Irish Nationality and Citizenship Act of 1956.73

B. Treaties Relating to Statelessness among Vulnerable Populations

The international treaty regime on statelessness consists of another group of treaties that specifically target statelessness among vulnerable populations.

The Convention on the Nationality of Married Women established certain common provisions for member states to avoid conflict of laws leading to the loss of nationality by women due to marriage. 74 The convention has 74 parties and 29 signatories.75

The Convention to Reduce the Number of Cases of Statelessness was concluded on September 13, 197376 in the framework of the International Commission on Civil Status.77 It is aimed solely at children, providing that a child must be granted his or her mother’s nationality, if otherwise that

67 Convention on the Reduction of Statelessness, 30 Aug. 1961, 989 U.N.T.S 175. 68 Id. Preamble. 69 Convention on the Reduction of Statelessness, 30 Aug. 1961, 989 U.N.T.S 175. 70 Id. art. 8. 71 G. A. Res. 3274 (XXIX) of 10 Dec. 1974; G.A. Res. 31/36 of 30 Nov. 1976; General

Assembly Resolution 50/152 of 21 Dec. 1995. 72 UNITED NATIONS TREATY COLLECTION, http://treaties.un.org/pages/ViewDetails.aspx?

src=TREATY&mtdsg_no=V-4&chapter=5&lang=en (accessed 4 Mar. 2011). 73 Id., Declarations and Reservations. 74 Convention on the Nationality of Married Women, 20 Feb. 1957, 309 U.N.T.S. 66. 75 UNITED NATIONS TREATY COLLECTION, http://treaties.un.org/pages/ViewDetailsIII.

aspx?&src=TREATY&mtdsg_no=XVI~2&chapter=16&Temp=mtdsg3&lang=en (accessed 1 Mar. 2011).

76 Convention on the Nationality of Married Women, Preamble, 20 Feb. 1957, 309 U.N.T.S. 66.

77 The Protocol on the International Commission on Civil Status was signed at Bern on 25 Sep. 1950. Currently, the Commission has 15 member states, International Commission on Civil Status: In Brief, www.ciec1.org/CIECenBref-EN-16-1-2009.pdf, updated Jan. 2009, accessed 3 Mar. 2011.


child would be stateless.78 Participation in this convention is also limited: currently, the convention has only nine members.79

Article 9 of the 1979 Convention on the Elimination of All Forms of Discrimination against Women provides an obligation for states parties to guarantee equal rights for men and women with respect to nationality. It specifically requires that changes in the nationality of the husband shall not automatically impact his wife’s nationality, or render her stateless.80 Currently, 186 states have ratified the convention. 81 However, the convention has been marred by a large number of reservations, and its implementation has been undermined by the lack of adequate procedural mechanisms for international enforcement. 82 Article 9 specifically has become a source of contention between those states that deposited the reservations and those countries that objected to these reservations.83

Among all the above-mentioned treaties, the Convention on the Rights of the Child84 enjoys the widest state support.85 Article 7 mandates that every child be registered immediately after birth and that every child is entitled to a nationality. 86 Despite this obligation, the United Nations Children’s Fund (UNICEF, the agency responsible for implementing development and relief programs for children),87 expressed alarm over the fact that millions of children have been living in stateless limbo because “the issue is not yet given the priority it warrants.”88

C. Treaties Protecting Specific Rights of Stateless Individuals

Protocol 1 of the 1971 Universal Copyright Convention is a treaty that protects the copyright of stateless persons. The protocol established that, for the purposes of the convention, stateless persons and refugees on the territory of member states should be considered similar to nationals.89

78 Id. art. 1. 79 Commission Internationale de l’ État Civil (CIEC)—Secrétariat Général, Liste de

Conventions, état de signatures, des ratifications and des adhésion, 10 Aug. 2010 www.ciec1.org/SignatRatifConv.pdf.

80 Convention on the Elimination of All Forms of Discrimination against Women, 18 Dec. 1979, art. 9, 1249 U.N.T.S. 13.

81 UN TREATY COLLECTION, http://treaties.un.org/Pages/ViewDetails.aspx?src= TREATY&mtdsg_no=IV-8&chapter=4&lang=en (accessed 12 Apr. 2011).

82 Catherine A. MacKinnon, ARE WOMEN HUMAN? AND OTHER INTERNATIONAL DIALOGUES, 6 (2006).

83 Countries that made reservations to the article include Lebanon, Morocco, Monaco, Iraq, Bahrain, Kuwait, Saudi Arabia, and Syrian Arab Republic. Canada, Austria, Czech Republic, Estonia, Denmark, and several other countries expressed their objection to these reservations. Supra, note 81.

84 Convention on the Rights of the Child, 20 Nov. 1989, U.N.T.S., vol. 1577, p. 3. 85 The convention currently has 194 state parties. See UNITED NATIONS TREATY

COLLECTION, http://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&lang=en (accessed 1 Mar. 2011).

86 Convention on the Rights of the Child, art. 7, Nov. 20, 1989, 1577 UNTS 3. 87 UN/GA/57 (I) of 11 Dec. 1946, 417 (V) of 1 Dec. 1950, 802 (VIII) of 6 Oct. 1953. 88 United National Press Center, News Note, 14 Mar. 2006,

www.unicef.org/media/media_31593.html (accessed 23 Mar. 2011). 89 Protocol No. 1, Annexed to the Universal Copyright Convention as Revised at Paris on

24 July 1971, Concerning the Application of that Convention to the Works of Stateless Persons and Refugees, art. 1, July 24, 1971 U.N.T.S.


Interestingly, the protocol has only 38 state parties. The Copyright Convention itself has 65 state parties.90

An overview of state participation and enforcement of the international treaty regime on statelessness shows that the regime suffers two major deficiencies. General international law instruments, such as the 1954 and 1961 international conventions, do not enjoy broad interstate support. Even those countries that joined the conventions are unsatisfactory enforcers of it. State participation is higher when international legal instruments relate to the statelessness of specific population groups, such as women and children. Yet, the question of the statelessness of such populations has not been made a targeted enforcement priority. Instruments that protect highly specified and therefore delimited rights (for example, Protocol 1 of the 1971 convention) usually garner minimal state participation.

But questions about the impact of these efforts specifically in relation to the stateless remain unanswered and underexamined.

IV. STATELESSNESS AND THE EUROPEAN COURT OF HUMAN RIGHTS

The emergence of international human rights law has eroded the position that states simply will not be held accountable for the ill-treatment of noncitizens. The principles of human rights maintain that being human is the sole nonarbitrary basis for the possession of rights.91 As Jack Donnelly succinctly puts it, “human rights are, literally, the rights that one has simply because one is a human being.”92 The essence of human rights principles is to protect human agency from abuse and oppression.93

From the Universal Declaration for Human Rights to the Rome Statute, increasing kinds of human rights have found expression in international law.94 Increasing numbers of states subject themselves to obligations by signing or ratifying human rights treaties. 95 The proliferation of international courts, tasked with enforcement of these obligations, has occupied a prominent place on the scholarly agenda.96 Many scholars assess positively the role that transnational judicial bodies play in the protection of human rights.97 To what extent has the emergence

90 The United Nations Educational, Scientific and Cultural Organization, Legal

Instruments, http://portal.unesco.org/en/ev.php-URL_ID=15381&URL_DO=DO_TOPIC&URL_ SECTION=201.html, accessed 4 Mar. 2011.

91 David S. Weissbrodt & Clay Collins, The Human Rights of Stateless Persons, HUMAN RTS Q., 28: 1, 245, 248 (Feb. 2006).

92 Jack Donnelly, UNIVERSAL HUMAN RIGHTS: IN THEORY AND PRACTICE, 10 (2nd ed.) (2003).

93 See generally, Michael Ignatieff, HUMAN RIGHTS AS POLITICS AND IDOLATRY (2001). 94 See generally, Judith E. Goldstein, Miles Kahler et al. (eds.), LEGALIZATION AND

WORLD POLITICS (2001). 95 For an illustrative table on the proliferation of human rights treaties, see Todd

Landman, PROTECTING HUMAN RIGHTS: A COMPARATIVE STUDY 23 (2005). 96 See generally, M. Volcansek & J. F. Stack, Jr. (eds.), COURTS CROSSING BORDERS:

BLURRING THE LINES OF SOVEREIGNTY (2005). 97 See, e.g. Karen J. Alter, Do International Courts Enhance Compliance with

International Law? 25 REV. ASIAN & PAC. STUD. 51, 51 (2003) (arguing that international


of the international human rights regime improved the protection of the rights of stateless persons in practice? The European Convention of Human Rights’ apparatus continues to suffer from serious loopholes that render the protection of stateless persons’ rights largely ineffective.

A. Immigration Status in the European Convention

The European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) was signed in 1950. The European Court of Human Rights (ECtHR) was established in 1959 when eight state parties delivered their instruments recognizing compulsory jurisdiction of the court. 98 From its time as a feeble regional institution, the court has subsequently developed into “a quasi–constitutional court for the whole of Europe” and “has developed into a regional human rights protection system of unparalleled effectiveness.”99

The ECHR’s system of considering individual claims of human rights violations is the hallmark of the regime.100 After a major reform in 1998, individuals acquired the right to apply directly with a complaint to the court.101 Article 41 of the convention establishes that the court can award just satisfaction to the injured party if it has been previously found “that there has been a violation of the Convention or the Protocols thereto.”102

The convention maintains three distinct categories in accordance with the legal status of the rights-bearer: rights guaranteed to everyone notwithstanding their legal status, the rights of citizens, and the rights of aliens.

Article 1 provides that states parties “shall secure to everyone within their jurisdiction the rights and freedoms guaranteed in this instrument.” This provision, therefore, applies to all individuals despite their citizenship status.103

Furthermore, when enumerating specific rights, the convention refers to “everyone” in contrast to “citizens,” “legal residents,” or any other specific identity category. For example, Article 2 of the convention states, “[e]veryone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided

adjudication can support compliance to international law through a variety of means, including through mobilizing litigants to monitor violations, and by providing an independent venue to solve conflicts).

98 Paul Mahoney, Developments in the Procedure of the European Court of Human Rights: The Revised Rules of the Court, 3 YEARBOOK OF EUR. LAW 127 (1983).

99 Rolv Ryssdall, The Coming of Age of the European Convention on Human Rights 1 EUR. HUM RTS. L. REV 22 (1996).

100 See generally, Michael D. Goldhaber, A PEOPLE’S HISTORY OF THE EUROPEAN COURT OF HUMAN RIGHTS (2007).

101 Steven Greer, THE EUROPEAN CONVENTION ON HUMAN RIGHTS: ACHIEVEMENTS, PROBLEMS AND PROSPECTS, 37–38 (2006).

102 European Convention, art. 41. 103 J.E.S. Fawcett, THE APPLICATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS,

18 (1969); Burden v. the United Kingdom, [GC], App. No. 13378/05, para. 58, ECHR 2008; Gaygusuz v. Austria, 16 Sep. 1996, para.36, Reports of Judgments and Decisions, 1996-IV; Thlimmenos v. Greece, [GC], App. No. 34369/97 para.40, ECHR 2000-IV.


by law.” Similarly, Article 4 stipulates, “[n]o one shall be held in slavery or servitude.” In a similar vein, Article 5 establishes, “Everyone has the right to liberty and security of person.” (Emphasis added for all quotations.) The same formula is repeated in Articles 3, 4, 7, 8 to 11, and 13. Nevertheless, there is no provision explicitly requiring equal treatment of nonnationals, and there is no requirement for a member state to recognize anyone as a citizen or resident.104

The convention contains specific articles where it provides for the possibility of putting restrictions on the activity of nonnationals.

First, Article 5 (1f) stipulates that a person may be deprived of his liberty to prevent his entering a country without authority or when he is being deported or extradited.105

Second, Article 16 provides, “[n]othing in the Articles 10, 11, and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activities of aliens.”106

Third, Article 1 of Protocol 1 provides that deprivation of possession is not permitted “except in the public interest and subject to conditions provided for by law and by general principles of international law.” In the case of Gudmundsson v. Iceland, the court confirmed that drafters meant property relations between the state and foreign nationals.107

In addition, Article 2 of Protocol 4 makes a careful distinction between those lawfully present on the territory of the state and others. It stipulates that “everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.”108 Article 4 of Protocol 4 specifically prohibits the collective expulsion of alien individuals.109

B. Rights of Stateless Individuals in the Court’s Jurisprudence

The ECtHR’s jurisprudence regarding applications brought by stateless persons evidences that the long-term struggles for bringing their cases to the supranational level sometimes lead to redress of their claims. Some individual stateless persons do, in fact, persevere in defending their rights through the court.

In the case of Veselyashkin and Veselyashkina v. Russia, the application was brought forward by two stateless persons alleging that Russia breached their right to a fair trial by the delay of local authorities to enforce court judgments awarding them compensation for illegal

104 Caroline Sawyer, Legal Frameworks for Statelessness in Europe, in STATELESSNESS IN

THE EUROPEAN UNION: DISPLACED, UNDOCUMENTED, UNWANTED 95 (Caroline Sawyer & Brad K. Blitz eds.) 2011.

105 European Convention, article 5(1f). 106 Id., article 16. 107 Gudmundsson v. Iceland, 1960 Y.B. EUR. CoNv. oN H.R. 394, 422–424. 108 Protocol 4 to the Convention for the Protection of Human Rights and Fundamental

Freedoms, Securing Certain Rights and Freedoms Other Than Those Already Included in the Convention and in the First Protocol Thereto, 16 Sept. 1963, article 2.

109 Id., article 4.


treatment by police. The court found a violation of the applicants’ rights.110 In Pekinel v. Turkey, one of the applicants was a stateless person of

Turkish origin. The applicants argued that the lengthy trial related to their property rights violated their right to a fair trial. The court found that the length of the proceedings did not fit in the “reasonable time” requirement and affirmed a violation of the convention.111

In the case of Soldatenko v. Ukraine, the applicant, allegedly stateless, claimed that his extradition from Ukraine to Turkmenistan would violate Ukraine’s obligations under Article 3 of the convention (prohibition of torture). The court found that by extraditing him, Ukraine would indeed violate its obligations under Article 3.112

The applicant in the case of Al-Nashif v. Bulgaria was a stateless person of Palestinian origin who argued that deportation of his family from Bulgaria violated their right to respect for private and family life and that Bulgarian legislation did not provide adequate domestic remedies for the protection of their rights. The court found a violation of the applicants’ rights in both respects and awarded compensation for nonpecuniary damage.113

In Hummatov v. Azerbaijan, the applicant was a politician from Azerbaijan who had been detained by the authorities and stripped of his citizenship upon release. The court adjudicated that the applicant’s rights had been violated by the respondent state114 and granted just satisfaction for pecuniary and nonpecuniary damage.115

In the case of Slivenko v. Latvia,116 the court established that the removal of the applicant and his family from Latvia constituted a violation of the right to private and family life (Article 8). In Tatishvili v. Russia (2007), the applicant was a citizen of the former USSR. On December 31, 2000, she became stateless. She resided in Moscow. She alleged that the refusal of the Russian authorities to certify her residence substantially complicated her daily life. The court concluded that her rights under Article 2 of Protocol 4, as well as under Article 6 (1) of the convention, had been violated.117

A study of outcomes of certain complaints filed by stateless applicants at the European Court attests that the court does provide certain remedies for their rights violations. The court’s jurisprudence leads to the conclusion that the stateless have vindicated a wide array of rights, including the right to receive social security benefits, the right to physical security, and the freedom of movement.

110 Veselyashkin and Veselyashkina v. Russia, App. No. 5555/06, 18 Dec. 2008. 111 Pekinel v. Turkey, App. No. 9939/02, 18 Mar. 2008. 112 Soldatenko v. Ukraine, App. No. 2440/07, 23 Oct. 2008. 113 Al-Nashif v. Bulgaria, App. No. 50963/99, 22 June 2002. 114 Hummatov v. Azerbaijan, App. Nos. 9852/03 and 13413/04, 29 Nov. 2007. 115 Hummatov v. Azerbaijan, App. Nos. 9852/03 and 13413/04, 29 Nov. 2007. 116 Slivenko v. Latvia, App. No. 48321/99, October 9, 2003. 117 Convention on the Nationality of Married Women, Preamble, 20 Feb. 1957, 309

U.N.T.S. 66.


C. The European Court’s Evolving Approach to Statelessness

The court’s approach toward stateless persons has evolved in several respects. First, the threat or the fact of expulsion of stateless persons has acquired a bigger potential for being recognized as a violation of the convention. The court’s direct statement in this regard is illustrative. Second, the recent case law indicates emerging socioeconomic obligations of host countries toward stateless individuals.

In Giama v. Belgium, the court held that repeated expulsion of an individual whose identity was impossible to establish to a country where his/her admission is not guaranteed may raise an issue under Article 3 (prohibition of torture). “Such an issue may arise, a fortiori, if an alien is over a long period of time deported repeatedly from one country to another without any country taking measures to regularize his situation.”118 The statement was later confirmed in other cases where applicants had claimed to be stateless.119

In Kaftailova v. Latvia, the court pronounced that the “expulsion of a stateless person may give rise to serious issues under Article 8 of the Convention.”120 The court advanced the principle articulated in the Giama judgment in two directions. First, it applied the principle specifically to stateless persons. Second, the court mentioned that the expulsion of the stateless could raise issues under another heading, Article 8 of the convention. This statement, made for the first time, sends an unambiguous signal to states that the actual expulsion of a stateless individual will be taken seriously.

In the judgment of Andrejeva v. Latvia, the court took another important step. 121 The court specifically indicated that considerable importance should be attributed to the fact that the applicant was stateless and that Latvia “objectively, can assume responsibility for her in terms of social security.”122 The statement is noteworthy because it suggests that host states can no longer rely exclusively on the link of citizenship to dispense with its social-economic obligations.

D. Deficiencies in the System of Protection of Stateless Persons’ Rights

Despite the positive trends indicated above, the ECtHR suffers from a number of serious loopholes that undermine its effectiveness with regard to protecting stateless persons’ rights. This is not to deny the long-term effect that the court’s jurisprudence has had on domestic policy changes in member countries. This impact is amply documented elsewhere. 123

118 Giama v. Belgium, Application No. 7612/76, DR 21/73 1980 Y.B. Eur. Conv. on

Human Rights 428 (Eur. Comm'n on. Human Rights). 119 Z. v. Netherlands, App. No. 104000/83, D.R. 38, p. 145, 14/05/1984; Harabi v. the

Netherlands, 5 Mar. 1986, Eur. Comm’n H.R. Dec. D.R. 46 p.112. 120 Kaftailova v. Latvia, App. No. 59643/00, 7 Dec. 2007 para.53. 121 See Hayden, supra at 23. 122 Andrejeva v. Latvia, App. No. 55707/00, 18 Feb. 2009, para. 88. 123 See generally, Helen Keller & Alec Stone Sweet, The Reception of the ECHR in


However, the policy changes implemented domestically in accordance with the court’s jurisprudence should not be confused with the lack of immediate redress.

1. Lack of Consistent Principles on Recognition of Statelessness

The court’s jurisprudence remains far from being consistent in relation to principles regarding recognition of statelessness. The court approaches the issue of statelessness on an ad hoc basis, without developing consistent, important legal principles on statelessness, sometimes even overlooking significant factual information.

In Z. v. Netherlands, the applicant was born in Nigeria from Guinean parents. He claimed to be stateless. He was arrested and expelled from the Netherlands for an illegal stay at least seven times. The applicant alleged that the Dutch authorities’ refusal and multiple deportations to Belgium, where he did not have a legal entitlement to stay, constituted torture. He also complained about the lawfulness of his four-month detention. Ultimately, the European Commission declared his case inadmissible due to the applicant’s uncooperative attitude in identifying his nationality.124

Approximately at the same time, the Commission on Human Rights declared the application of Harabi v. The Netherlands inadmissible.125 The applicant was born in 1935 in Algeria. He claimed to be stateless. He took up residence in France in 1952. Then he left France during the Algerian rebellion in 1958. Afterwards, he traveled between several countries without any travel documents. Harabi was deported and expelled at least 30 times from different countries and had to spend months in jail in various places. Contrary to the above cited Z. v. the Netherlands decision, the Human Rights Commission rejected Harabi’s application because “the applicant has not submitted any evidence that he ever attempted to have his alleged Algerian nationality recognized by the Algerian authorities, nor are there any indications that the applicant would not have been admitted to Algeria had he decided to go to that country.”126

In Tatishvili v. Russia, the court reversed its approach regarding the burden of proof for establishing stateless identity. The applicant alleged that the respondent government’s denial to register her residence (and domestic proceedings related to adjudication of her claims) violated her rights under the convention.127 The applicant was initially a citizen of the Soviet Union. In 2000, she lost her citizenship.128 The government simply presumed, as the applicant was born on the territory of Soviet Georgia,

National Legal Orders, in EUROPE OF RIGHTS: THE IMPACT OF THE ECHR ON NATIONAL LEGAL SYSTEMS (Helen Keller & Alec Stone Sweet, eds.) (2008) (arguing that member states had incorporated the European Convention in their domestic legal systems and indicating that the court exerts influence on the national legal systems).

124 Z. v the Netherlands, App. No. 104000/83, Eur. Comm’n H.R. Dec. D.R. 38, p. 145, 14 May 1984.

125 Harabi v. the Netherlands, 5 Mar. 1986, Eur. Comm’n H.R. Dec. D.R. 46 p.112. 126 Harabi v. the Netherlands, 5 Mar. 1986, Eur. Comm’n H.R. Dec. D.R. 46 p.112. 127 Tatishvili v. Russia, App. No. 1509/02, 22 Feb. 2007, para. 3. 128 Id. at 7.


that the applicant held Georgian citizenship.129 Here, however, the court placed the burden of proving the applicant’s citizenship on the government.130 The court found that the government’s allegation that the applicant was of Georgian citizenship had no evidentiary basis, as the authorities failed to provide any evidence substantiating this contention.131

Later in 2007, the court changed its approach again. In Kaftailova v. Russia, the respondent government offered to grant the stateless person status to the applicant if the latter would provide “documents issued by the competent authorities in the Republic of Georgia and the Russian Federation,” verifying that the applicant was not a national of or entitled to the nationality of either country.132 The applicant, who has lived in Latvia since 1984, claimed that she did not possess the required documentation.133 The court rebuked the applicant for not making “any attempt, however small, to get in touch with authorities and to try to find the solution to whatever difficulties may arise.”134

In Konstantinov v. the Netherlands, the court discussed the applicant’s statelessness in passing and overlooked important factual information related to it. The applicant was born in the former Federal Republic of Yugoslavia. Her request to reside in the Netherlands was declined. Initially, she submitted the passport issued by the Yugoslav Socialist Federal Republic, which was valid until 1996. Her application was not considered for seven years. In the meantime, she was convicted of committing a number of crimes. Her subsequent appeals were refused based on the reasons mentioned in the beginning and the fact that she had committed several criminal acts. The final decision rejected her claim that she should be regarded as a stateless person due to uncertainties about her citizenship status. The court did not consider the circumstances underlying the applicant’s plea to be recognized as stateless. The court just noted in passing “that . . . her claim of having become stateless after the dissolution of this Federal Republic is no more than conjecture.”135

The court’s brief dismissal of the claim does not correspond to the number of legal issues raised by the applicant’s claim of statelessness. The Socialist Federal Republic of Yugoslavia, which had issued the applicant’s passport, was in the process of dissolution on November 29, 1991,136 and was proclaimed dissolved on July 4, 1992.137 By this time, Konstantinov had already applied for a residence permit in the Netherlands. There was no international consensus on acknowledging the Federal Republic of Yugoslavia as the sole successor of the Socialist Federal Republic of

129 Id. 130 Id at 40. 131 Id. 132 Kaftailova v. Latvia, App. No. 59643/00, 7 Dec. 2007, para. 33. 133 Id. at 50. 134 Id. 135 Id. at 52. 136 Alain Pellet, The Opinions of the Badinter Arbitration Committee: A Second Breath

for the Self-Determination of Peoples, 3 E.J.I.L. (1992) 178. 137 Opinion #8 of the Arbitration Commission of the Peace Conference on Yugoslavia 4

July 1992.


Yugoslavia.138 Before 1996, legislation on citizenship was not enforced for strategic reasons of ethnic distinction. Among others, Article 13 of the citizenship law stated that the citizenship of Yugoslavia could be granted to Yugoslav emigrants if they were not sentenced to imprisonment and were loyal to the country.139 However, Konstantinov had been convicted for committing multiple criminal offences in the Netherlands. Therefore, the question of whether the applicant was a Yugoslav citizen or a stateless person deserved a more serious consideration than the court accorded it.

2. Disadvantage in the Procedure of Third-Party Intervention

Stateless persons are disadvantaged compared to citizens in a third-party intervention procedure. Article 36 provides, “[i]n all cases before a Chamber or the Grand Chamber, a High Contracting Party one of whose nationals is an applicant shall have the right to submit written comments and to take part in hearings.”140 The Article is further elaborated in the Rules of the Court.141 This right of third-party intervention has been often utilized by member states to support indirectly applications by their nationals in a variety of cases.142 For example, in Slivenko v. Latvia, the applications were brought by former stateless residents of Latvia that later received Russian citizenship.143 Russia exercised its rights under Article 36(1)144 to support the applicants’ contentions.145 Russia again intervened in support of applications in Sisojeva et al. v. Latvia.146

Third-party interventions provide the court with particular information or expertise.147 In general, scholars concur on the influence of third-party interventions on the court. 148 However, the right of states’

138 Kondrad G. Bühler, STATE SUCCESSION AND MEMBERSHIP IN INTERNATIONAL

ORGANIZATIONS: LEGAL THEORIES VERSUS POLITICAL PRAGMATISM, 187–190 (2001). 139 Egidijus Bieliunas, Approach of New States Concerning State Succession and

Accession to Universal Treaties and Human Rights Obligations: Issues of Citizenship, Citizenship and State Succession, Science and Technique of Democracy #21, Vilnius. Lithuania 16–17 May 1997 Proceedings, European Commission for Democracy Through Law, Council of Europe 1998.

140 Article 36,the European Convention 141 Rules of the Court, Rule 61 (2) (July 2009). 142 E.g., in Scozarri and Giunta v. Italy, Belgium intervened in support of the application

of its nationals, App. Nos. 39221/98 and 41963/98, 13 July 2000, para 8; In the case of A, B and C v. Ireland, the Lithuanian government exercised its right under article 36(1) and intervened with a third party submission to support the claims of a Lithuanian national, A, B and C v. Ireland, App. No. 25579/05, 19 Dec. 2010, para. 5.

143 Slivenko v. Latvia, App. No. 48321/99, 9 Oct. 2003, para. 46. 144 Slivenko v. Latvia, App. No. 48321/99, 9 Oct. 2003, para. 6. 145 Slivenko v. Latvia, App. No. 48321/99, 9 Oct. 2003, para. 90–92. 146 Sisojeva et al. v. Latvia, para. 114. 147 Luisa Vierucci, International Courts and Compliance Review Mechanisms, NGOS IN

INTERNATIONAL LAW: EFFICIENCY IN FLEXIBILITY?163 (Pierre-Marie Dupuy & Luisa Vierucci, eds.) (2008).

148 Anthony Lester, Amici Curiae: Third-Part Interventions before the European Court of Human Rights, in PROTECTING HUMAN RIGHTS: THE EUROPEAN DIMENSION, STUDIES IN HONOR OF GERARD J. WIARDA, 341–351 (Franz Matscher & Herbert Petzold, eds.) (1988); Frederic Edel, Les Amici Curiae devant La Cour europeene des Droits de L’homme, Institut des Hautes Etudes Europeenes, Conseil de L’Europe, Bibliotheque de Droits de L’homme (1995).


third-party intervention only exists in relation to applications by citizens. A stateless person is deprived of the possibility of having a third-party intervener support his or her case. As a result, this fundamental discrepancy in the representation of interests places stateless persons at a considerable disadvantage vis-à-vis persons who hold the nationality of member states. This discrepancy deprives stateless individuals of one more instrument through which their claims could be explained and supported.

3. Constraints Related to the Length of Time and Costs of Litigation

Another important impediment to the court’s effectiveness is the length of time that applicants have to spend before submitting an application or while waiting for it.

First, it should be kept in mind that the court considers on merits only a tiny number of applications. The court declares some 90 percent of applications inadmissible. 149 Hence, the applications that are deemed admissible are the tip of the iceberg of all claims of rights violations in Europe.150 Even more so, the number of those instances in which the court rectified the violations of rights is minimal compared to rights violations experienced by stateless persons. The convention mandates that local judicial remedies should be exhausted before any case reaches the European Court. 151 Although the requirement to exhaust domestic remedies can be waived in some circumstances,152 statelessness does not serve as an excuse to avoid their exhaustion. The stateless themselves usually do not make such requests. In all cases at hand, the applicants exhausted local legal remedies as required by the court. In certain cases, (i.e. those in response to overly excessive claims made by the government), the court exhibited a small measure of flexibility in exercising the requirement.153

The process of exhausting legal remedies, coupled with the time spent waiting for the court’s judgment, usually spans from five years to more

149 Council of Europe Factsheet, Protocol 14—The Reform of the European Court of

Human Rights, www.echr.coe.int/NR/rdonlyres/57211BCC-C88A-43C6-B540-AF0642E81D2C/ 0/CPProtocole14EN.pdf.

150 For more information on the majority of applications that are rejected by the court, see Gregory Dikov, The Ones That Lost: Russian Cases Rejected at the European Court, 7 Dec. 2009, http://www.opendemocracy.net/od-russia/grigory-dikov/ones-that-lost-russian-cases-rejected-at-european-court (arguing that as the majority of applications are rejected by the ECtHR, researchers should devote more attention to studying the dynamic in the applications that had been declared inadmissible).

151 Article 35(1) of the Convention. 152 Alberto M. Aronovitz, Notes on the Current Status of the Rule of Exhaustion of Local

Remedies in the European Convention on Human Rights, 25 ISR. Y.B.HUM. RTS., 73, at 89–98 (1995).

153 In Hummatov v. Azerbaijan the applicant exhausted all remedies except the civil action seeking compensation for inadequate medical treatment. The respondent government argued that the applicant failed to exhaust domestic remedies. The court paid attention to the “peculiar” situation of the applicant (the fact that he was stripped of citizenship and had to leave the country) and considered that notwithstanding this last omission, the applicant “has done as much as could reasonably be expected of him” to exhaust local remedies, Hummatov v. Azerbaijan, App. Nos. 9852/03 and 13413/04, 29 Nov. 2007 #93-96.


than a decade. For example, in Kaftailova v. Latvia, the applicant lodged her first legal request with the interior ministry in February 1993.154 She had to litigate for 11 years until the ECtHR handed down the judgment in her case in 2007.155 In the case of Sisojeva and others v. Latvia, the applicants applied for regularization of their stay in 1993.156 The final decision of the Senate of the Supreme Court denying their appeals was handed down April 12, 2000.157 The ECtHR handed down the judgment on January 15, 2007.158 In other words, the applicant spent approximately 14 years waiting for the verdict from the court and for the solution to her legal status.

The problem is exacerbated by the court’s enormous backlog of cases. By 2009, the ECtHR had a backlog of 119,300 cases.159 Commentators have emphasized the court’s difficulty in handling the backlog and the toll it takes on the length of proceedings.160 The backlog significantly contributed to the current situation, where cases remain on the court’s docket sometimes for longer periods than the court allows for domestic courts of respondent states.161 Both outsiders and representatives of the court stress the negative effect that the backlog has had on claimants’ rights.162

Prohibitively high financial costs associated with such prolonged domestic and international litigation is another factor that stands in the way of bringing claims. For example, the ECtHR considered that USD 25 is a reasonable hourly rate for legal work in Bulgaria,.163 In another situation, the court considered a rate of GBP 100 (about USD 157) for preparing a case before the Grand Chamber as reasonable.164 Although the legal fees fluctuate from one country to another, even the lowest common denominator of these fees is a heavy burden for stateless individuals, who usually are economically at the margins of society.165

Moreover, Legal Aid Fund has granted aid to some applicants whose complaints were examined above.166 Legal Aid Fund was established to

154 Kaftailova v. Latvia, at 19. 155 Id. 156 Sisojeva and others v. Latvia, Application No. 60654/00, 15 Jan. 2007, para.19. 157 Id. at 33. 158 Sisojeva and others v. Latvia, Application No. 60654/00, 15 Jan. 2007. 159 Council of Europe FactSheet, Protocol 14—The Reform of the European Court of

Human Rights, www.echr.coe.int/NR/rdonlyres/57211BCC-C88A-43C6-B540-AF0642E81D2C/ 0/CPProtocole14EN.pdf.

160 See, e.g., Lucius Caflisch, The Reform of the European Court of Human Rights: Protocol No. 14 and Beyond, 6 HUMAN RIGHTS LAW REVIEW 403 (2006) (explaining in detail the threats posed by the court’s increasing backlog).

161 Laurence R. Helfer, Redesigning the European Court of Human Rights: Embeddedness as a Deep Structural Principle of the European Convention, EUR. J. INT’ L, Vol. 19, Issue 1, 125–159, at 133.

162 See generally, Alastair Mowbray, Crisis Measures of Institutional Reform at the European Court of Human Rights, HUMAN RIGHTS LAW REVIEW 9 (4): 647–656 (2009).

163 Al-Nashif v. Bulgaria, App. No. 50963/99, 20 Sept. 2002, p. 20. 164 Kaftailova v. Latvia, App. No 59643/00, 7 Dec. 2007 at 58. 165 See, infra at 5–6. 166 See, e.g., Hummatov v. Azerbaijan, App. Nos. 9852/03 and 13413/04, 29 Nov. 2007

#2; Sisojeva and others v. Latvia, App. No. 60654/00, 15 Jan. 2007 at 2; Slivenko v. Latvia, App. No. 48321/99, 9 Oct. 2003 at 2; Tatishvili v. Russia, App. No. 1509/02, 22 Feb. 2007 at 2.


assist in litigation costs before the ECtHR. However, eligibility for the fund is highly selective. Applicants can only get legal aid at the later stage of proceedings after the respondent government writes its observations on the admissibility of the case or when the ECtHR declares the case admissible.167 Most member states of the Council of Europe do not provide domestic legal aid for litigation at the ECtHR.168

Consequently, the vast majority of applicants must bear the costs of litigation themselves. Due to their disadvantaged socioeconomic situation, such financial overlays are particularly burdensome. As a result, many of the grievances of stateless persons will never reach the ECtHR.

V. CONCLUSION

The recent humanitarian crisis at the Italian island of Lampedusa has drawn the attention of the international community to the rights of migrants. It is high time to resuscitate the debate about the general protection of the rights of migrants under international law. Enriching the scholarly debate with the most recent findings on recognition, implementation, and justiciability of stateless persons’ rights, this article reaffirms the skepticism of Hannah Arendt on the effectiveness of international law for vindicating the rights of the stateless. A number of steps could be taken in response to some of the criticisms raised in this article. These steps include both political and legal measures.

First, it is necessary to continue raising government leaders’ awareness of the problems encountered by stateless individuals. “Information politics” 169 and other efforts of transnational advocacy groups and international institutions, some of which are mentioned in this article, should be strengthened. The most recent article by award-winning journalist Jose Antonio Vargas in the New York Times, telling a compelling story of his life as an undocumented immigrant in the United States,170 is an illustration of a successful and courageous step in this direction.

Second, in relation to the machinery of the ECtHR, the judges, court personnel, the lawyers frequently appearing before the court, and NGOs, as well as counsel for states, should be made aware of the inconsistencies in the case law relating to the status of statelessness.

The ECHR should be amended to remedy the disadvantages that the stateless face in third-party intervention. As no state can intervene in support of their application, in such cases the UNHCR should be given the opportunity to intervene as a third party. The agency has accumulated extensive experience on this matter. It has already been active in

167 Andrew S. Butler, Legal Aid Before Human Rights Treaty Monitoring Bodies, 49: 2 INT. AND COMP. LAW QUARTERLY 360, 363–364 (2000).

168 Id. at 365–366. 169 Among influential strategies by Transnational Advocacy Networks, Margaret E. Keck

and Kathryn Sikkink include “information politics” as meaning “the ability to quickly and credibly generate politically usable information and move it to where it will have most impact.” M. Keck & K. Sikkink, Activists Beyond Borders (1998), p. 16.

170 Jose Antonio Vargas, My Life as an Undocumented Immigrant, N.Y. TIMES, 22 June 2011.


advocating for migrants, including stateless persons, through submitting amicus curiae briefs before the international tribunals, including before the European Court of Human Rights.171 Therefore, the agency can serve as the best possible interlocutor when third-party intervention on behalf of a stateless person becomes necessary.

Last, but not least, some of the most serious obstacles for vindicating the rights of the stateless are posed by the time-consuming nature of, and expenditures related to, international litigation. The most recent reforms in Europe targeted these issues.172 In essence, I share the ethos of Randall Hansen’s arguments. He argues that domestic national courts are of primary importance for redressing the claims of migrants.173 The ECtHR can only survive as a viable institution if it retains its subsidiary nature in relation to the national judiciaries of member countries. It is upon the member states and their national judiciaries to meet the obligations under the ECHR and to guarantee the protection of rights of all persons within their jurisdiction. Here the personal legal status of individuals should be only of as much relevance as the convention mandates. Therefore, striving for the improvement of domestic mechanisms guaranteeing access to justice remains an important task.

171 See, in general, amicus curiae interventions by the United Nations High

Commissioner for Refugees, www.unhcr.org/refworld/type,AMICUS,UNHCR,,,0.html; in relation to the ECtHR specifically, see e.g., M.S.S v. Belgium and Greece, App.No.30696/09, 21 Jan. 2011 para.7; Human Rights Watch, Application No. 2947/06: Ismoilov and Others v. Russia Intervention Submitted by Human Rights Watch and AIRE Centre, 24 July 2007, Number 2, www.unhcr.org/refworld/docid/46a7607c2.html [accessed 28 June 2011].

172 See, e.g., High Level Conference on the Future of the European Court of Human Rights, Interlaken Declaration, 19 Feb. 2010, suggesting a number of steps for improving the human rights protection machinery of the convention. www.coe.int/t/dghl/standardsetting/conferenceizmir/INTERLAKEN%20DECLARATION%20final_en.pdf.

173 See U.N.T.S., supra n. 54.

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