analysis on issues surrounding the statelessness of refugees, this piece can read a
slightly speculative. This is acknowledged, though it should be remembered that
such an analysis is a crucial first step in understanding any aspect of
statelessness, which is, at its heart, a legal phenomenon. Further to this the
findings will be supplemented with additional empirical research as the project
develops. This analysis flags key concerns and gaps in law and policy that can
lead to indefinite statelessness. It is hoped that it can act as a catalyst for further
research on the issue, research which is very much needed.
Statelessness and Refugee-ness Under International Law
Exploring the relationship between statelessness and refugee-ness is of
importance as the current framing of this nexus in the discourse of international
law is based on an assumption of the primacy of protection under international
refugee law as compared to international statelessness law. Stateless refugees
are under the protection mandate of the 1951 Convention and the 1954
Convention Relating to the Status of Stateless Persons (1954 Convention) (UN
General Assembly, 1954) simultaneously. However, as UNHCR advises,
‘[a]lthough an individual can be both stateless as per the 1954 Convention and
a refugee as per the 1951 Convention, at a minimum, a stateless refugee must
benefit from the protection of the 1951 Convention and international refugee
law’ (UNHCR, 2014, p. 7).
This position has become a norm in international refugee law. This is often
justified as the 1951 Convention provides refugees with crucial rights not
guaranteed under the 1954 Convention, non-refoulment and not to be
penalised for illegal entry. As a consequence, assumptions such as ‘for stateless
refugees, legal remedies should be found in international refugee law, namely,
the 1951 Refugee Convention’ (Lambert, 2014, p. 56) have remained largely
unchallenged or unquestioned. However, such a position assumes that stateless
refugees face no specific protection concerns due to their statelessness, and that
their statelessness is both identified and poses no obstacle to securing protection
and solutions on par with non-stateless refugees. The case studies of Denmark
and Sweden problematise these assumptions.1
It is important to note that the possibility that a refugee may be stateless is
recognised in the definition of a refugee in the 1951 Convention:
1
There is not space here to detail this norm of the imperative to protect stateless refugees under
refugee law, which by and large side-lines the specific vulnerabilities that stem from refugee’s
statelessness. Challenging what I term the ‘protection hierarchy’, which sees the statelessness of
refugees as secondary or inconsequential as compared to the protection concerns stemming
from their refugee-ness, is part of larger research project.
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