The determination of statelessness
121
shelf. Nearly six decades after the adoption of the 1954 Convention, stateless individuals still lack an opportunity to claim and enjoy protection
in most countries, and existing protection regimes are far from ideal. In
recent years, this issue has started to attract greater international attention, yet the analytical literature available is extremely limited. A fundamental paradigm shift seems necessary in order to improve this state
of play. Therefore, this chapter introduces new terminology and a simple
classification method in the hope of stimulating and providing a conceptual foundation for future debates and research initiatives.
In the process of establishing a functioning international protection
system for people without a nationality, introducing the concept of a ‘statelessness-specific protection mechanism’ can be of great utility. Th is label
indicates that statelessness per se provides a ground for protection. One
does not need to establish a statelessness-plus ground for protection, that
is, there is no need to be stateless and a refugee, to be stateless and a legal
resident, or to be stateless and present compelling humanitarian grounds
for non-returnability. In such a system, an individual is able to claim protection based on her or his statelessness, and if this fact is objectively confirmed, she or he will receive a legal status on this ground alone. The 1954
Convention and international human rights law provide a firm basis for
the creation of a statelessness-specific protection regime. Nevertheless, as
already noted, most states parties still ignore this obligation.
Some countries do offer some kind of protection status to stateless persons, but not on the ground of their statelessness. The relevant protection ground is rather something commonly related to statelessness, or a
phenomenon thereof. In a migratory context, for example, this usually
means that legal and/or practical obstacles to expulsion give an entitlement to residence (at least after a certain amount of time). While this ‘nonstatelessness-specific’ protection helps to avoid an enduring situation of
legal limbo, it still raises a number of concerns. Rights attached to such
statuses regularly remain below the standard set by the 1954 Convention,
while this ‘half-way’ solution maintains the invisibility of statelessness.
Most countries at the time of writing fail to provide any sort of protection machinery at all for stateless people. The negative consequences can
be numerous: unjustifiable lengthy immigration detention, enduring legal
limbo, social exclusion and destitution –to mention just a few examples.19
19
See, for example, UNHCR, ‘Mapping Statelessness in The United Kingdom’ (22 November
2011), Chapter 5; UNHCR, ‘Mapping Statelessness in the Netherlands’ (November 2011),
Chapter 3.4.
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