Litigation Toolkit on Statelessness: Volume I October 2022 STATELESSNESS AND THE RIGHT TO A NATIONALITY IN INTERNATIONAL LAW The key international legal instruments relating to the protection of stateless persons and prevention of statelessness are the 1954 Convention Relating to the Status of Stateless Persons (‘1954 Convention’) and the 1961 Convention on the Reduction of Statelessness (‘1961 Convention’). In determining whether a person is stateless and should be entitled to protection, States must refer to the definition of a stateless person in Article 1(1) of the 1954 Convention, which defines as stateless “a person who is not considered a national by any State under the operation of its law”. This definition forms part of customary international law and is the internationally accepted definition of statelessness. 3 It should be used in the interpretation and application of any other legal instruments referring to stateless persons, including the 1961 Convention. Under the 1954 Convention and international human rights law, States must ensure that stateless persons on their territory have access to juridical rights, the right to work, economic and social rights including housing, education and social security, freedom of movement, identity and travel documents, and protection from expulsion. The 1954 Convention also requires that States facilitate the integration and naturalisation of stateless persons, ‘as far as possible’.4 As States cannot meet these obligations towards stateless persons without a mechanism to identify who on their territory is stateless, the obligation to identify and determine statelessness is implicit in the 1954 Convention. 5 The only way to fully resolve statelessness is to acquire a nationality. However, it is important to distinguish between the solutions required to address in situ statelessness (impacting people who are stateless in their own country) and statelessness in a migratory context. States should resolve in situ statelessness by confirming or granting nationality to those who lack it, and work to identify and eliminate discriminatory laws, policies, and practices that perpetuate intergenerational (risk of) statelessness affecting minoritized and marginalised populations. In the case of stateless migrants or refugees, States should have in place mechanisms and procedures to identify and determine who on their territory is stateless, formally determine their statelessness, and 3 International Law Commission, Draft Articles on Diplomatic Protection with commentaries, Yearbook of the International Law Commission, 2006 Vol. II (Part Two): https://www.refworld.org/docid/525e7929d.html. 4 Chapters II-V of the 1954 Convention. 5 UNHCR, Statelessness Determination Procedures and the Status of Stateless Persons (“Geneva Conclusions”) (2010): https://www.refworld.org/docid/4d9022762.html; Gyulai, G. ‘The determination of statelessness and the establishment of a statelessness-specific protection regime’, in Edwards, A. & Waas, L. (eds) Nationality and Statelessness under International Law, Cambridge: Cambridge University Press (2014), pp. 116-117. This obligation has been reiterated by UNHCR, the UN Human Rights Committee, and the European Court of Human Rights has also noted that Contracting States have an obligation to provide an effective and accessible procedure enabling the applicant to have the issue of their status determined with due regard to their private-life interests under Article 8 ECHR (see below). 4