Statelessness Working Paper Series No. 2017/08
of Europe. The legal instrument would serve as an incentive for States to establish statelessness
determination procedures and set out regionally harmonised minimum standards.
This article began by looking at the current legal environment of statelessness determination, starting
from the national level. A statelessness determination procedure is a logical prerequisite for accessing
the rights set out in the 1954 Convention. As of the time of writing, 10 European states have SDPs in
place in their national legislations. With only 14 SDPs worldwide, this number is considered as
exceptionally high. The work then provided a brief overview on statelessness in legal instruments on
the regional level, namely, in legally binding instruments of the CoE and the EU. Since obligations under
the aegis of both the CoE and the EU contain implicit obligations for statelessness determination,
harmonisation could be done by one of these organisations adopting a legal instrument which could
serve as guidance for States to implement their own statelessness-specific protection mechanisms.
After discussing some relevant soft law tools and policy initiatives of both organisations, this article also
looked at the possible avenues for the EU and the CoE to codify the obligation for statelessness
determination. After taking the available possibilities into account, this article advocated for the
adoption of a Council of Europe soft law document. This decision was made after weighing different
sets of arguments: first, the specificities of stateless populations across Europe and current efforts to
protect them; second, legal and political feasibility. Existing literature argues for an EU directive on the
protection of stateless persons; the author agrees with the concept, but suggests the CoE soft law
instrument for several reasons.
The CoE covers the majority of Europe; it brings together the EU Member States with non-EU countries
which have large numbers of stateless persons under their jurisdictions. As a legally binding tool, the
adoption of a CoE convention is a possibility. However, after discussing arguments for and against, this
article has found that it is useful to move towards soft law instruments, which are not legally binding,
but legally relevant. Possible ways for the CoE to adopt soft law documents were discussed by looking
at the organisational structure of the CoE and the types of relevant soft law tools. Soft law documents
are not enforceable, but they can serve as an important incentive for national policymakers and
legislators. A Committee of Ministers recommendation is the strongest soft law instrument of the
organisation, given that the Committee of Ministers is the most important organ of the CoE. The author
argues that statelessness is an issue that should be recognised at the highest levels. Nonetheless, a
Parliamentary Assembly recommendation could also serve the cause well, as its objectives may be
pushed further by the Committee of Ministers. The idea of adopting a legally binding regional
instrument can still be a long-term goal.
Luckily, there has been a paradigm shift in addressing statelessness: its perception has evolved from a
technical matter to a multifaceted human rights problem that must be solved. Thus, the conviction that
no number of stateless persons is negligible permeated international awareness. Academia, NGOs and
international organisations should continue to jointly raise awareness of the issue. The most important
message should be to promote the protection and integration of stateless persons into society. While
being realistic about possible solutions, it is necessary to remain optimistic about the objectives. This
article hopes that Europe will reach out to stateless persons and protect them according to their needs.
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