Why Take the 1954 Statelessness Convention Seriously?
Betsy L. Fisher
Photo: United States Mission Geneva
The UN High Commissioner for Refugees (UNHCR) Global Action Plan to End Statelessness by 2024 (Global Action Plan) aims, among other things, to dramatically increase the number of state parties to the 1954 Convention relating to the Status of Stateless Persons (1954 Convention). In the aftermath of World War II, the global community set out to draft international instruments to prevent future mass atrocities. This effort led to the 1951 Refugee Convention and, three years later, to the 1954 Convention. The 1954 Convention borrows significantly from the 1951 Refugee Convention’s content and structure, providing similar rights to stateless persons as the earlier convention does to refugees.
The 1954 Convention first defines a stateless person as “a person who is not considered as a national by any State under the operation of its law;” it then sets out the legal obligations that parties to the 1954 Convention owe to stateless persons. Above and beyond the critiques of human rights instruments, generally, the 1954 Convention raises additional concerns about effectiveness and implementation.
As summarized by leading statelessness law scholar Laura van Waas, “[t]here is now a genuine concern that the norms espoused in the [1954 and 1967] Statelessness Conventions have been outrun by practical and legal developments since the promulgation of these instruments.” Problems animating that concern include:
- The 1954 Convention is remedial rather than preventive. While, for example, the 1967 Convention on the Reduction of Statelessness sets out provisions to reduce statelessness, the 1954 Convention neither prevents nor reduces statelessness; it simply states what should be done with people who already are stateless.
- The 1954 Convention does, in its first substantive contribution, provide a formal definition for a stateless person. However, according to the International Law Commission, this legal standard is already customary law. Customary international law binds states, regardless of whether these states have signed on to the instrument that originally gave the definition.
- In its second substantive contribution, the 1954 Convention guarantees certain rights of a stateless person, but it makes many of these rights contingent upon the stateless person being legally present in a state of residence. In many cases, it is simply impossible for a stateless person to maintain legal status in a single state of residence. Many stateless people are born without legal documents, and are therefore considered “illegal” residents of the only country in which they have ever lived. These complexities affect rights under the 1954 Convention as broad as the right to employment, public benefits, and travel documents [in Articles 15, 17, 19, 21, 23, 24, and 28]. It is incoherent to make the rights of stateless persons—who generally do not have the ability to leave a state—contingent upon maintaining legal status within their state of residence.
- Lastly, later human rights instruments have now generally exceed the rights of stateless people outlined in the 1954 Convention. As Dr. Laura van Waas states in her seminal book, Nationality Matters, the guarantees in the 1954 Convention generally fall below the minimum level of rights guaranteed in the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights, among other international instruments.
So Why Bother?
Despite these obstacles, the 1954 Convention remains important, providing an initial point for states to show engagement and interest in aiding stateless persons. Thus, ratification of the 1954 Convention’s should be encouraged because:
- Perhaps most importantly, the first substantive contribution of the 1954 Convention, the definition of a stateless person, is significantly more detailed than the portion cited as customary international law. In addition to affirmatively defining that a stateless person (“a person who is not considered as a national by any State under the operation of its law”) has human rights, the 1954 Convention also defines who is not entitled to international protection by virtue of serious criminal activity or enjoyment of other state protection. This means that the 1954 Convention has meaningful legal content that is not supplied in customary law or any other instrument.
- The 1954 Convention is what we have as an international community. Although the rights guaranteed by the 1954 Convention are limited by legal residency requirements and later instruments give more robust human rights guarantees, the 1954 Convention is the only treaty to date that seeks to define a comprehensive set of rights for stateless people. Unless and until another treaty particular to the rights of stateless people is formulated, the 1954 Convention is the primary instrument by which states can formalize a commitment to the rights of stateless persons.
- The 1954 Convention is a good starting point. In its Global Action Plan, the UNHCR lists accession to the 1954 Convention, jointly with the 1961 Convention, as the ninth of ten actions. This is appropriate; acceding to the Convention without implementing its provisions will not help stateless people, but it provides a starting point to engage states on protecting the rights of stateless people.
- Accession to the 1954 Convention facilitates greater guidance and supervision for signatory states than customary law. According to Article 38 of the governing document for the International Court of Justice, custom and treaties are equally valid sources of international law, but no single international body has authority to supervise implementation of customary law. Instead, the United Nations General Assembly entrusted UNHCR with a mandate on statelessness, and the UNHCR’s recent, influential guidance on the meaning and application of the 1954 Convention means that states have notice on how the 1954 Convention should be interpreted.
Universal accession to the 1954 Convention will not lead to the end of statelessness or universal protection of stateless persons. However, it is one of two international instruments that take a primary interest in the status and rights of stateless persons. As such, states should be encouraged to accede to the 1954 Convention as a first, meaningful step toward ending statelessness.
Betsy L. Fisher is Policy Director of the International Refugee Assistance Project. She is a graduate of the University of Michigan Law School, the University of Michigan’s Center for Middle Eastern and North African Studies, and Denison University. This article is published in her personal capacity.