DPCE online, 2020/4 – Saggi
ISSN: 2037-6677
Governing through uncertainty? Migration Law
and governance in a comparative perspective
and possible policy responses related to prevention, identification and protection.
The action concerning resolving statelessness relates mostly to in situ stateless
population, as the goal of the action was defined in the document as ‘all major nonrefugee stateless situations resolved’14.
By analysing compatibility of the accomplishments in addressing
statelessness, it would be also possible to draw a parallel with the SDGs. One of
the targets of Goal 16 aims at providing ‘legal identity for all, including birth
registration’.
a. Legal framework.
Admittedly, determining individual statelessness is the mixed question of
fact and law15. Institutional effectiveness, however, relies on clear guidelines and
legal coherence, thus sociological, psychological and anthropological perspectives
are not discussed in detail within the scope of this paper, in spite of their utmost
importance in statelessness research.
Notwithstanding the fact that legal certainty is not the only component
required to comprehensively address statelessness, a clear legal framework is
indispensable to do so.
The main pillars in international law – the 1954 and 1961 Conventions
contain the crucial provisions, however their impact is limited because of the low
amount of countries that ratified them and because of the lack of monitoring
mechanism to support their implementation16. The impact of regional
instruments, such as the European Convention on Nationality (hereinafter ECN)
or the Council of Europe Convention on the Avoidance of Statelessness in Relation
to State Succession encounter the same limitations: a lack of enforcement
mechanisms and a low number of ratifications. In spite of these obstacles, the
Council of Europe contributed to the development of regional customary law, for
example by advancing the principle of gender non-discrimination in citizenship
laws17. Growing concern about the problem of statelessness and denial of
nationality led the Member States of the African Union to the initiation of the
Draft Protocol to the African Charter on Human and Peoples’ Rights on the Specific
Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa18 .
14 Ibidem, 7.
15 B. Manby, Citizenship in Africa The Law of Belonging, Oxford, 2018, 20.
16 F. Costamagna, Statelessness in the context of state succession, in A. Annoni, S. Forliati (Eds),
The Changing Role of Nationality in International Law, London and New York, 2013, 39.
17 O. Vonk, Dual nationality in the European Union: a study on changing norms in public and
private international law and in the municipal laws of four EU member states, Leiden, 2012, 90.
18 African Union, Draft Protocol to the African Charter on Human And Peoples’ Rights on the
Specific Aspects of the Right to a Nationality and the Eradication of Statelessness in Africa, 2018,
available
at
www.achpr.org/public/Document/file/English/draft_citizenship_protocol_en_sept2015_ac
hpr.pdf, accessed on 7-7-2020.
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