How Statelessness is Dealt under Private International Law

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Photo taken from http://www.trust.org

“In the specific context of statelessness, this key right gains even greater value.
[A]s a vulnerable group, the stateless are known to commonly
experience substantial human rights violations, heightening the need
for access to courts as a means of redressing such treatment…”

-Laura van Waas (1981), International Law Expert [1]

For most of the people, nationality may not be a serious issue. Nationality is a label of identity immediately accorded to someone upon the day of one’s birth[1]. Since nationality is a label which we carry everyday along with us, we do not think of it on a daily basis. In reality, nationality only matters when we travel abroad, we practice our right of suffrage or we cheer for a fellow citizen in an international competition. More often than not, most of us treat nationality as a form of convenience rather than a hallmark of identity.

As what the Article 15 of the 1948 Universal Declaration of Human Rights stipulates, “[e]veryone has the right to nationality. No one shall be arbitrarily deprived of his nationality, nor denied the right to change his nationality.”[2] This has not always been the case. While it may not be an issue for most of us, determining nationality may be an obstacle for others. Along with the recognition of one’s nationality is the recognition of one’s rights such as education, health, employment and equality before the law. If people fail to show or determine their nationality, the aforesaid rights will not be duly accorded to them as nationality is a prerequisite for granting of these rights.

The statelessness of persons creates a predicament not only in public international law but, all the more, in private international law. What should be used as a test for determining stateless persons’ rights, their status and capacity? What should be employed as basis for stateless persons’ personal law? If dealing with cases which involve definite foreign elements were already convoluted, how much more for those cases which do involve dubious foreign elements? If such were the case, how should cases be resolved then? These and more will be discussed in the succeeding sections of this chapter.
 
Statelessness Defined and Conceptualized

Statelessness is generally defined as a condition where “a person is not considered as a national by any state under the operation of its law.”[3] It is also the condition where a person can­not acquire and/or prove his or her nationality due to legal, administrative, procedural and/or practical barri­ers.[4] In simpler terms, statelessness is the lack of nationality or the absence of recognized link between an individual and a state.

There are two types of stateless persons according to the United Nations High Commissioner for Refugees. Namely, these are: (1) a de jure stateless person who is not considered a national by any state under the operation of its law; and (2) a de facto stateless person who is deemed outside the country of his or her nationality and is unable or, for valid reasons, unwilling to avail him- or herself of the protection of that country[5]. The statelessness of de jure stateless persons is ascribed to laws and legalities while the statelessness of de facto stateless persons is mainly attributed to the practice of the state.

At an estimate, there are around 11 to 15 million stateless persons in the world.[6] But even the available statistics regarding the number of stateless persons all over the world poses a contention. People who are de jure stateless, as a general rule, should be counted. However, those persons who are de facto stateless are set aside in the statistics.  These stateless persons happen to constitute the majority of statelessness cases in the world as there are a significant number of people who have not been formally deprived of nationality. Further, there are stateless persons who “lacked the ability to prove their nationality or, despite documentation, are denied access to many human rights that other citizens enjoy.”[7]

Causes of and Grounds for Statelessness

The condition of statelessness may result from ordinary or extraordinary circumstances. It may result from the following[8]:

(a)  Conflicting laws. As Professor Salonga explains, this happens when the country of birth grants nationality if one of the parents has the nationality of the country (that is to say, the home country adheres rigidly to the principle of jus sanguinis or “law of blood”) while the country of citizenship of the parents confers nationality to a person born on its territory (that is to say, the country of birth imposes the principle of jus soli or “law of the soil”).[9]

(b)  Marriage laws. As political considerations may dictate changes in the way that citizenship laws are applied, some jurisdictions have diverse laws which render women deprived of nationality when they marry a foreign national.

(c)  Discrimination. Ethnic and gender discrimination is rampant in some parts of the world. Though persons may be eligible to acquire nationality, they are deprived to do so simply because of their race, gender, political ideology, age, religion and any other ground.

(d)  Persecutions and Racial Conflicts. Many individuals can be rendered stateless by persecution and racial prejudice. For instance, an ethnic minority may be persecuted by being denied citizenship. A number of Germanic and Polish Jews during the Second World War had become stateless as they were unreasonably banished from their hometowns.

(e)  Transfer and Alterations of Territory. The dissolution of a State, the emergence of a new State after the dissolution of its predecessor, and the recovery of a State from instability may render its citizens stateless. States may simply cease to exist while individuals fail to get citizenship in their successor states. Also, a group may live in frontier areas and state boundaries, prompting states on both sides of the border to deny them citizenship.

(f)   Renunciation of Nationality. There are instances where people become stateless due to personal circumstances. Statelessness can arise from people renouncing one nationality without having acquired another. One may also lose his or her nationality immediately through the operation of law; and

(g)  Administrative Procedures. Loss of nationality may be caused by the failure of submitting the required documents for acquiring a new nationality or complying with the rules and deadlines related thereto.

Statelessness within the Framework of Courts and Jurisprudence

In the preceding sections, much has been said on statelessness and stateless persons. Using these as foreground, the issue of statelessness in the framework of courts will now be tackled.

Let this case be employed. Assume that a certain stateless person named Kasdan resides somewhere in France. While walking along the road, Kasdan met a drunken man who stabbed him impulsively. Kasdan was rushed in the hospital and survived. He filed a case before the courts to make the drunken man accountable for what he has done to him. The drunken man is an American national who has a history of schizophrenia.

Such may be a bizarre case but let us take this for the purpose of our study. France is a civil law country which employs the nationality theory in cases involving foreign elements. That is to say, the law of nationality of the person governs the matters of rights, civil status and capacity of persons. In our example, two persons are involved: a stateless person and an American citizen. The former is the plaintiff while the latter is the defendant. In order to determine the rights to be accorded to the plaintiff, his law of nationality should be used as basis. However, there is a problem as regards this: Kasdan, the plaintiff, does not have nationality as he is stateless. If such were the case, how can nationality theory be employed in the determinacy of his personal law? How can this case be resolved?

The case exemplifies the apparent problem of statelessness in private international law, more particularly to those jurisdictions which use the law of nationality as basis for one’s personal law. For those jurisdictions which use the theory of domicile, the widely applied practice is that stateless persons are being subject to the law of their domicile or habitual residence. Most countries apply this rule, which has been adopted by the Hague Conference on International Private Law in 1928.[11]

The Right of Stateless Persons to Access to Courts

No matter who the person is or what status does he or she have, everyone has the right of access to courts. As one international law expert puts it, “[t]he right of access to courts is one element of a broader set of rights and principles that include the right to an effective remedy, the right to a fair trial and the principle of due process of law. These notions play a central role in the legitimacy of government and the individual enjoyment of rights.”[12] Indeed, the right of access to courts and related procedural rights “are of fundamental importance for they guarantee compliance with all other rights”.[13] This is the essential right which provides an opportunity for individuals to seek justice if they were wronged by a person or an entity. Also, this is the right which ensures individuals fair and impartial settling of disputes and prosecution of criminal offences.[14]

Stateless persons are not an exception to the rule. Though deprived of nationality, they are still vested the right to sue. It is because the right of access to courts is a right inherent to everyone. As such, courts bear the duty of settling cases which involve stateless persons. However, at the course of their duty, courts are plagued by the puzzling question of what law to apply to stateless persons.

The following sections will delve on how jurisdictions which apply nationality and domiciliary theories resolve the cases of stateless persons. These practices will be analyzed in the next chapter.

The Nationality Theory: Naturalization and Local Settlement

Though the nationality theory does not provide a systematic framework in dealing with cases of statelessness, the current practice in dealing with stateless persons is stipulated in the Article 32 of the 1954 Convention Relating to the Status of Stateless Persons which calls upon States “as far as possible facilitate the assimilation and naturalization of stateless persons. They shall in particular make every effort to expedite naturalization proceedings and to reduce as far as possible the charges and costs of such proceedings.”[15]

The stipulation offers two means of achieving this[16]:

(1)  Through local integration or naturalization where States are required to assimilate the integration of the stateless persons residing in their community. Naturalization can be loosely defined as “the act or proceeding by which an alien becomes a citizen.”[17] It can also mean “the act of adopting a foreigner and clothing him with all the privileges of a native citizen.”[18]; and

(2)  Through resettlement, where naturalization can be done in another country if local naturalization were deemed impossible. In both cases, acquiring nationality proves to be an ultimate, if not holistic, solution to statelessness of persons.

In practice, the States hold the discretionary power of prescribing the terms on which it will admit foreigners to citizenship. This is stipulated in the Article 1 of the Hague Convention of 1980 on Certain Questions relating to the Conflict of Nationality Laws. It states that the municipal law of each State, which is to determine who are the nationals of that State, “shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.”[19]

In Lebanon, for instance, a foreigner may acquire nationality through three instances: (1) If the foreigner has resided for a specified period of time; (2) If the foreigner has married a Lebanese and resided there for a long period of time; and (3) If the foreigner has done “estimable services” for the state.  The Lebanese law does not exclude persons who have lost their nationality, provided that they will adhere to the conditions that allow any other foreigner to acquire it.[20]

The same is true in the Philippines. It is noteworthy that the admission for Philippine citizenship is not a right as it is a privilege governed under the provisions of laws enacted by Congress. The present naturalization law in the country can be found in Commonwealth Act No. 473 alongside the amendments introduced by Commonwealth Act No. 535 and Republic Act No. 530.[21]

The Domiciliary Theory: Adoption of the Law of the Place of Domicile
 
Those countries which adopt domiciliary theory in determining one’s personal laws offer a more feasible and easier resolution of the statelessness predicament in private international law. Since stateless persons do not have nationality, it is practical that the law of the place where they are currently domiciled will be used in matters of a person’s status and capacity. The practice is widely applied as thousands of refugees in many parts of the globe become emergent.

To address the problem, two multipartite treaties were concluded on 1933 and 1936, namely the Convention relating to the International Status of Refugees and Convention concerning the Status of Refugees coming from Germany. These treaties assert that “the personal law of stateless refugees is to be determined by the law of the country of domicile or, in default thereof, by that of the country of residence.”[22] A statute from Poland also uses the same system: if a person’s nationality is deemed non-existent, personal capacity will be governed by the law of the place of his domicile.[23]

FOOTNOTES


[1]  Indira Goris & Julia Harrington Reddy. 2009. Statelessness: What It Is and Why It Matters. Retrieved 18 March 2013, from http://www.opensocietyfoundations.org/voices/statelessness-what-it-and-why-it-matters
[2] Goris & Reddy, op. cit. As the article explains, the inclusion of the right to nationality in Article 15 of the Universal Declaration of Human Rights, like the UDHR as a whole, was motivated by the impulse to respond to the atrocities committed during the Second World War, among them mass denationalizations and huge population movements.
[3] Guidelines to Protect Stateless Persons from Arbitrary Detention (2012). Retrieved 18 March 2013, from http://www.equalrightstrust.org/view-subdocument/index.htm?id=886
[4] Ibid, p. 10.
[5] UN High Commissioner for Refugees (2010). Expert Meeting – The Concept of Stateless Persons under International Law (“Prato Conclusions”). Retrieved 18 March 2013, from http://www.unhcr.org/refworld/docid/4ca1ae002.html (Hereinafter referred as UNHCR).
[6]   Goris & Reddy, op. cit.
[7] Goris & Reddy, op. cit. As the authors comment: Although individuals who have legal citizenship and its accompanying rights may take both for granted, what they enjoy is one extreme of a continuum between full, effective citizenship and de jure statelessness, in which individuals have neither legal citizenship nor any attendant rights. In between these extremes are millions of de facto stateless persons denied effective protection.”
[8] Taken from a number of sources: (a) Frontiers Ruwad Association (2009). Invisible Citizens: A Legal Study on Statelessness in Lebanon. Retrieved 8 March 2013 from http://www.refugeelegalaidinformation.org/sites/srlan/files/fileuploads/Invisible_Citizens_A_Legal_Study_on_Statelessness_in_Lebanon_Nov_2009.pdf; (b) Salonga, op. cit., pp. 176-178. (c) World Jewish Congress (1955). Convention Relating to the Status of Stateless Persons. Retrieved 17 March 2013, from http://www.unhcr.org/home/PUBL/3d4ab67f4.pdf; (d) Goris & Reddy, op. cit.
[9] Salonga, op. cit., pp. 176-177
[10] Oxford Department of International Development – Refugees Studies Centre. (2009). Statelessness, Protection and Equality. Retrieved 18 March 2013, from http://www.rsc.ox.ac.uk/publications/policy…/RSCPB3-Statelessness.pdf
[11] Salonga, op. cit, p. 177.
[12] Laura van Waas, op. cit., p. 265. To quote van Waas: They [the right to access to courts and related procedural rights] provide an avenue for individuals to complain about – and seek redress for – arbitrary acts of government, but also means for settling a dispute that arises between private individuals or for ensuring the fair and impartial prosecution of criminal offences. Furthermore, access to court has long been considered pivotal in the protection of individual rights, including for non-nationals through the regime of diplomatic protection.”
[13] Carmen Tiburcio. (2001). “Chapter X. Procedural Rights” in The human rights of aliens under international and comparative law, Kluwer Law International, The Hague. p. 245.
[14] Ibid, p. 265.
[15] Frontiers Ruwad Association, op. cit, p. 5.
[16] Ibid, p. 11.
[17] Salonga, op. cit., pp. 157-158.
[18] Salonga, loc. cit.
[19] Dr P Weiss (1956). Nationality and Statelessness in International Law. In International and Comparative Law Quarterly, 7. pp. 794-795.
[20]  Frontiers Ruwad Association, op. cit., pp. 5-6.
[21]  Salonga, op. cit., p. 159.
[22]  Salonga, op. cit., pp. 177-178.
[23]  Salonga, op. cit., p.129.

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