YALE HUMAN RIGHTS & DEVELOPMENT L.J.
2017]
The Risk of Statelessness
VOL. XIX
89
that persons were “unprotected,” then a similar risk of being either
factually unprotected (refugee) or legally unprotected (stateless) would
trigger protected status. Moreover, there is an efficiency consideration,
inasmuch as a shared standard would capitalize on the already extensive
experience of states with refugee protection,274 as well as that of
international and national tribunals in adjudicating refugee relief.275
From a practical point of view, a shared standard would mean that a
person seeking statelessness protection would need to demonstrate a risk of
statelessness in the same manner that a refugee needs to demonstrate a risk
of persecution. A sufficient risk of statelessness would lead to a conclusion
that a person is stateless, just as a sufficient risk of persecution results in
refugee status. While the shared standard is attractive for the reasons
provided, this approach poses both legal and policy challenges that must be
reconciled.
The principal challenge posed by a shared standard is that the language
of the relevant conventions is not analogous. The 1951 Refugee Convention
protects a person as a refugee when she demonstrates a well-founded fear
of persecution in her country of nationality.276 The notion of a “wellfounded fear” implicitly refers to a level of risk. Indeed, much has been
written on this formulation, and some have advanced the position that this
suggests a one in ten chance of persecution.277 The question is whether a
10% risk of statelessness is similarly sustainable as a standard of proof to
find someone to be a stateless person protected by international law.
The 1954 Convention protects a person as stateless if she is not
“considered” a national under the “operation of laws” of any country. This
language suggests, and the discussion above confirms, a degree of
discretion in how officials “consider” requests and interpret the “operation
of laws.” While this may produce uncertainty, the balance of probabilities is
not as implicit in the statelessness definition as it is in the refugee
definition. However, the difficulties inherent in proving statelessness
support the notion that statelessness to a certainty should not be the
standard.278 The question then is whether the same “reasonable degree”
standard from refugee law should be applied in the statelessness context.
274. UNHCR, Handbook and Guidelines on Procedures and Criteria for Determining
Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of
Refugees, ¶ 42, U.N. Doc. HCR/1P/4/ENG/REV.3 (Dec. 2011) (noting in the refugee status
determination context, an individual can claim a well-founded fear of persecution by
establishing “to a reasonable degree, that his continued stay in his country of origin has
become intolerable to him for reasons stated in the [refugee] definition”).
275. See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (finding that a well-founded fear of
persecution is a 10% likelihood, based in part on the writing of international refugee law
scholars).
276. 1951 Convention, supra note 74, art. 1(A)(2).
277. The United States Supreme Court, for example, considered the writings of
international refugee law scholars and found that “[t]here is simply no room in the United
Nations’ definition for concluding that because an applicant only has a 10% chance of being
shot, tortured, or otherwise persecuted, that he or she has no ‘well-founded fear’ of the event
happening.” Cardoza-Fonseca, 480 U.S. at 440.
278. UNHCR Handbook on Protection of Stateless Persons, supra note 243, ¶ 91.
Electronic copy available at: https://ssrn.com/abstract=3111529
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