2016]
The Protection of Stateless Persons in Australian Law
447
simultaneously avoid violations of Australia’s international obligations with
respect to arbitrary detention.
As noted above, although the 1954 Convention does not set out a procedure for determining who is stateless, a dedicated mechanism is crucial to
identify who is owed the rights and entitlements provided for in that treaty,
and thus ensure that states fulfil their protection obligations under that
instrument.246 Indeed, the Inter-American Court of Human Rights has
interpreted that treaty as necessarily involving a ‘duty to identify … as well as
protect’ stateless persons,247 also noting the importance of determining
statelessness beyond the refugee context.248
In recent years, there has been a marked increase in the number of states
that have adopted a domestic procedure for statelessness status determination.249 At least 15 states have some kind of process in place,250 while several
others have signalled their intention to create one.251 The UNHCR’s goal is
Asylum in Australia: Immigration Detention, Human Rights and Mental Health Care’ (2013)
21 Australasian Psychiatry 315.
246
UNHCR, Handbook on Protection of Stateless Persons, above n 20, 6 [8]; UNHCR, Geneva
Conclusions, above n 136, 2 [1]. See generally van Waas, Nationality Matters, above n 39,
423–32, who outlines a number of the issues subsequently adopted in various guidelines.
247
Rights and Guarantees of Children in the Context of Migration and/or in Need of International
Protection (Advisory Opinion) [2014] Inter-American Court HR (ser A) No 21, 38 [94].
248
Ibid 39 [95]–[96].
249
For an overview see Gábor Gyulai, ‘The Determination of Statelessness and the Establishment of a Statelessness-Specific Protection Regime’ in Alice Edwards and Laura van Waas
(eds), Nationality and Statelessness under International Law (Cambridge University Press,
2014) 116, 120–3.
250
See Gyulai, ‘ENS Guidelines’, above n 136, 7. These include France, Georgia, Hungary, Italy,
Latvia, Mexico, Moldova, the Philippines, Slovakia, Spain, Turkey and the United Kingdom.
In Finland, although there is no dedicated statelessness determination procedure, statelessness may be identified through the determination of citizenship procedure under s 36 of the
Nationality Act 2003 (Finland). That procedure was not specifically created to identify stateless persons, but the Supreme Administrative Court has interpreted the section broadly,
emphasising the need to prevent statelessness and highlighting this as one of the procedure’s
purposes: UNHCR Regional Representation for Northern Europe, Mapping Statelessness in
Finland (2014) 29, citing 30.4.2012/1046 KHO:2012:28 (Finland). Details on process and
status are explained at 29–44. In addition, according to the Institute on Statelessness and
Inclusion,
Statelessness:
Monthly
Bulletin
(online),
April
2016
<http://www.institutesi.org/stateless_bulletin_2016-04.pdf>:
Both Costa Rica and Bulgaria introduced statelessness determination procedures (SDPs)
into their legal systems [in April 2016]. On 7 April Costa Rica signed the relevant decree … [t]wenty days later, on 27 April, Bulgaria’s council of Ministers approved draft
amendments, introducing the notion of ‘stateless status’ and a SDP.
251
For example, at the 2011 Ministerial Intergovernmental Event, Belgium, Brazil, Peru, the
United States and Uruguay pledged either to introduce or to encourage the introduction of