90. Finally, two Council of Europe conventions contain provisions which address the problem
of statelessness. The first is the 1997 European Convention on Nationality (hereafter: 1997
ECN), Articles 4 and 6–8 of which have a bearing on statelessness.132 The second is the
2006 Convention on the Avoidance of Statelessness in Relation to State Succession,133
which entered into force on 1 May 2009.134
The 1954 and 1961 Statelessness Conventions
91. The Netherlands is also a party to the 1954 and 1961 Statelessness conventions.
The 1954 Convention entered into force in the Netherlands on 12 April 1962.135 Upon
ratification of the 1954 Convention, two reservations were made.136 The first states that
“the government of the Kingdom reserves the right not to apply the provisions of Article
8 of the Convention [which concerns exemption from exceptional measures] to stateless
persons who previously possessed enemy nationality or the equivalent thereof with
respect to the Netherlands”. The second reservation provides that “with reference to
Article 26 of the Convention [which concerns freedom of movement], the Government
of the Kingdom reserves the right to designate a place of principal residence for certain
stateless persons or groups of stateless persons in the public interest”.
92. Article 1 of the 1954 Convention relating to the Status of Stateless Persons gives a
definition of statelessness which has subsequently been copied in national legislation in
many countries: “For the purposes of the Convention, the term “stateless person” means
a person who is not considered as a national by any State under the operation of its
law.”137
93. As mentioned in section 3.2, the GBA operational guideline does not specify precisely how
statelessness is to be determined. The Netherlands does not have a specific procedure
to establish statelessness. While the 1954 Convention does not require a State to grant
entry and residence if it finds a person to be stateless, the 2010 UNHCR Expert Meeting
in Geneva on Stateless Determination Procedures and the Status of Stateless Persons
has concluded:
“When States recognize individuals as being stateless, they should provide such
persons with a lawful immigration status from which the standard of treatment
envisaged by the 1954 Convention flows. Having a lawful status contributes
significantly to the full enjoyment of human rights.”138
94. In this context, it should be noted that in the Netherlands stateless people, who are still
in an (asylum) procedure and are thus lawfully resident in the Netherlands, experience
trouble establishing their identity. As was seen in the demographic analysis, they are in
theory entitled to a W2 document, but do nonetheless not receive it because no identity
132
Trb. 1998, 10 and 149. Entry into force in the Netherlands on 1 July 2001.
133
rb. 2010, 99. The Convention was signed by the Netherlands on 16 September 2010, ratified on 30
T
June 2011 and entered into force on 1 October 2011.
134
See generally L. van Waas, “Statelessness: A 21st century challenge for Europe”, 133-146.
135
Trb. 1957, 22.
136
Stb. 1961, 468.
137
As outlined in greater detail in section 4.2 below, this definition is reproduced in Dutch legislation.
138
NHCR “Stateless Determination Procedures and the Status of Stateless Persons”, Summary
U
Conclusions, of the Expert Meeting, Geneva, 6–7 Dec. 2010, para. 25. See also para. 27 regarding
possible exceptions, such as for a stateless person who could immediately return to a State of
former habitual residence, enjoy permanent residence and the full range of civil, economic, social
and cultural rights there, and have a reasonable prospect of acquiring nationality there .
in the Netherlands
41