Conclusion

Chapter 7 concludes with a reflection on the relationship between stateless persons and the 1951 Refugee Convention, in the context of sixty years of doctrinal development in human rights law, and what this re-consideration may suggest for the protection of stateless persons pursuant to the 1951 Refugee Convention. It considers briefly the practical issues raised by this conclusion, particularly in those states that have a domestic procedure under both the 1951 Refugee Convention and the 1954 Convention. Finally, it reflects on the need for future research on distinct but related issues, suggesting scope for a rich scholarship to develop which will complement and support the international community’s efforts to protect stateless persons, and ultimately eliminate statelessness.

Statelessness as Persecution

Chapter 5 analyses the meaning of ‘being persecuted’ for a Convention reason as it applies to stateless persons, by examining its interpretation and application in the case law of the leading common law and civil law jurisdictions. It begins by addressing deprivation of nationality (namely, denial of nationality and active withdrawal of nationality), and denial of the right to enter one’s country. It then considers other forms of harm related to an absence of nationality such as the right to education, right to work, right to health, right to liberty, and right to family and private life. It concludes by examining instances where claims for refugee protection failed but complementary protection may nevertheless be relevant. This may be the case where, for instance, no nexus exists between persecution and the Convention reasons, where the level of harm was not sufficient to constitute persecution, or where Article 1F applied to exclude a stateless (refugee) person from protection.

A Tale of Two Conventions

Chapter 2 sets the context of the book by examining the history and background to the formulation of two distinct regimes for refugees and stateless persons, respectively: the 1951 Refugee Convention and the 1954 Convention. It briefly reviews the pre-Second World War position, before examining in depth the UN’s seminal 1949 Study on Statelessness, which was the precursor to the formulation of the 1951 Refugee Convention. It also analyses the extensive debate by the Ad Hoc Committee on Statelessness and Related Problems on whether to separate issues relating to statelessness from the Refugee Convention. While the focus of the book is very much on the 1951 Refugee Convention, important insight into the contemporaneous understanding of the connection between stateless persons and refugees is provided in the drafting history of the 1954 Convention—given its proximity to the 1951 Refugee Convention. Chapter 2 therefore also analyses this history in order to assess whether it provides further insight into the scope, as understood at the time, of the 1951 Refugee Convention vis-à-vis stateless persons.

The Evolving Role of Nationality in the Protection and Enjoyment of Human Rights

Chapter 3 considers the role of nationality in the protection and enjoyment of human rights. It examines the history of international law’s involvement in and regulation of matters concerning nationality, thereby providing a crucial link between Chapter 2 and Chapters 4, 5, and 6. It begins by reviewing the traditional position whereby considerations of nationality, including the practice of re-admission for non-nationals, fell within the reserved domain of states through their own nationality laws. The chapter outlines the evolution of international human rights law and its impact on state discretion, such that in many instances, deprivation of nationality (i.e. denial of nationality and/or withdrawal of nationality) may now well violate norms of international law. The chapter therefore examines deprivation of nationality, and the consequences for the persons concerned, in treaty law, UN documents, and the jurisprudence of international and regional courts.

Denial of Refugee Protection for Stateless Persons

Chapter 6 considers in what circumstances a stateless person may cease to be entitled to protection or indeed excluded from refugee protection. It begins by examining in what situations Article 1C of the 1951 Refugee Convention may apply to a stateless person, before turning to consider the application of Article 1D (in relation to Palestinians) and Article 1E (de facto nationality) to refugee claims by stateless persons. It also examines the application of Article 1F to stateless persons. This issue is particularly pertinent given a renewed focus by states on the invocation of citizenship laws, and in particular the withdrawal of citizenship, to respond to the threat of so-called ‘home-grown’ terrorists.

Access to the Refugee Convention for Stateless Persons

Chapter 4 discusses preliminary issues relating to access to refugee status for stateless persons. It begins by considering the fundamental question of whether stateless persons should be protected per se under the 1951 Refugee Convention or whether they must meet the same criteria as those with a nationality, namely well-founded fear of being persecuted on a Convention ground. The chapter further provides guidance on establishing lack of nationality in the refugee status determination context and considers questions such as the determination of the country of reference, voluntary renunciation, and the imposition of nationality without consent, concluding with an examination of the meaning and interpretation of ‘country of former habitual residence’.

Statelessness through the Prism of International Refugee Law

Chapter 1 introduces the context and relevance of the book; its scope, its methods, and outline. It articulates the challenges faced by the international community as a result of the separation of the international regime for the protection of refugees and stateless persons respectively into two distinct instruments. It explains that the book focuses on the potential of stateless persons who are outside their country of former habitual residence to obtain protection as refugees in international law. Hence, it is primarily concerned with stateless persons on the move between states, or stateless persons who have already moved (and not with the stateless in situ), because it is members of this group who require recognition of their status in order to establish themselves in a new country following a decision to flee.