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Convention relating to the Status of Stateless Persons
New York, 28 September 1954
By Guy S. Goodwin-Gill
Senior Research Fellow, All Souls College, Oxford
During the 1920s, it was common to draw no distinction between those who were stateless – without a nationality – and those who were refugees; both were covered by the notion of being without the protection of the Government of their country of origin, or without the protection of any other Government by way of “new” nationality. Nationality problems, including multiple nationality, loss of nationality on marriage, and statelessness apart from the refugee context, were nevertheless a matter of concern to States and to the League of Nations, which promoted a number of measures to reduce the problem; see, for example, the 1930 Convention on Certain Questions relating to the Conflict of Nationality Laws, the 1930 Protocol relating to a Certain Case of Statelessness, and a further Special Protocol of the same year. With the massive population displacements and political re-ordering which followed the Second World War, this bundle of issues was soon again on the international agenda. At its first session in 1946, the United Nations General Assembly decided to refer the refugee question to the Economic and Social Council, “for thorough examination in all its aspects” (General Assembly resolution 8 (I) of 12 February 1946). The Council’s first priority, though, was the post-war refugee problem and the establishment of the International Refugee Organization (Economic and Social Council resolution 18 (III) of 3 October 1946). Stateless persons were also mentioned incidentally during the first session of the Commission on Human Rights in July 1947. The Drafting Committee on an International Bill of Human Rights had before it article 32 – the precursor to article 15 of the Universal Declaration of Human Rights – submitted by René Cassin. It provided not only for a right to a nationality, but declared also that, “It is the duty of the United Nations and Member States to prevent statelessness as being inconsistent with human rights and the interests of the human community” (Report of the Drafting Committee (E/CN.4/21, 1 July 1947), p. 21). At its second session in December 1947, attended incidentally by Paul Weis on behalf of the International Refugee Organization, the Commission adopted a resolution expressing its wish that the United Nations give early consideration to the legal status of “persons who do not enjoy the protection of any government” (Report of the Commission on Human Rights on the Second Session (E/600); Report of the Working Party on an International Convention on Human Rights (E/CN.4/56, 11 December 1947)). The Economic and Social Council duly took note, and in March 1948 it recognized, first, that interim measures to afford protection were called for, to be followed by joint and separate action by States in cooperation with the United Nations, “to ensure that everyone shall have an effective right to a nationality”. The Council requested the Secretary-General to undertake a study of the protection of stateless persons and, among other matters, to recommend to the Council whether a further convention was desirable (Economic and Social Council resolution 116 (VI) D of 1-2 March 1948 (E/777)). That study was published the following year. In fact, it paid comparatively little attention to non-refugee stateless persons, while nevertheless looking closely at the various categories of the “unprotected”, that is, those who do not benefit from the protection of a State of which they are a national. It proposed to draw a clear distinction between refugees, who might also be stateless de jure or de facto, and stateless persons who are not refugees, who might be stateless de jure or de facto. The study was also careful to exclude from its ambit “refugees” who were not stateless, such as internally displaced persons (United Nations, A Study of Statelessness (E/1112, 1 February 1949 and Add.1, 19 May 1949)). What was needed first was to improve the status of “stateless persons”, and secondly, to eliminate statelessness. For “receiving countries”, such persons were an anomaly, possessing “no definite legal status and without protection”. For the stateless themselves, their abnormal position might reduce their “social value”, and destroy “self-confidence”. In the organizing world of the late 1940s, status was required, together with international agreement on freedom of movement, residence and settlement, the exercise of trades or professions, education, relief and social security. Most important of all, the stateless needed protection, and that was best achieved by providing identity documents, consular services and legal status. So, ironically, the better protection of stateless person was to be secured by offering them the status of stateless person. At the same time, the phenomenon of “technical”, as opposed to refugee, statelessness, was to be eliminated by appropriate agreement: harmonization of nationality legislation; restrictions on deprivation of nationality as a penalty; better regulation of territorial settlements; and reduction of existing numbers through the facilitation of naturalization. The Economic and Social Council adopted two resolutions on refugees and statelessness on 6 and 8 August 1949 respectively. Resolution 248 (IX) A looked ahead to such arrangements as might be made on cessation of activities by the International Refugee Organization. Resolution 248 (IX) B took note of the Study of Statelessness and its various recommendations, and decided to appoint an ad hoc committee which, taking account of the distinction between displaced persons, refugees and stateless persons, would (a) consider the desirability of “a revised and consolidated convention relating to the international status of refugees and stateless persons”, drafting a text if appropriate; and (b) consider how to eliminate the problem of statelessness, including by way of asking the International Law Commission to take up the matter. The Ad Hoc Committee on Statelessness and Related Problems met twice in New York in 1950. At the very beginning, the French representative isolated two distinct issues in an approach which quickly became the majority view: the status of refugees, on the one hand, and the problems related to the legal status of stateless persons, on the other. A draft convention on the first issue was urgently required, but the elimination of statelessness was basically different: “rather a continuing concern of the world community than an acute situation which required immediate remedial measures”. On this approach, there were two categories of stateless persons: those who were also refugees, and those who were not. Almost all refugees were in need, hence the special urgency of their plight; but the same could not be said for non-refugee stateless persons. The United States representative agreed and pressed for separate treatment; the draft convention should be limited to refugees, and “should not be based upon a confusion between the humanitarian problem of the refugees and the primarily legal problem of stateless persons”. The issue of stateless non-refugees should be kept aside, “especially since there were doubtless stateless persons who were in no need of protection by the United Nations” (Ad Hoc Committee on Statelessness and Related Problems, Summary Record of the second meeting (E/AC.32/SR.2, 26 January 1950), paras. 6 to 8, 15 and 18; Summary Record of the third meeting (E/AC.32/SR.3, 26 January 1950), paras. 22 and 28). Other representatives were less sure, noting the similarities between refugees and stateless persons, the lack of legal protection, and the need for similar entitlements. The British representative also emphasized the necessity to distinguish measures to eliminate statelessness and measures taken to protect existing stateless persons until such time as their position had been regularized (Ad Hoc Committee on Statelessness and Related Problems, Summary Record of the second meeting (E/AC.32/SR.2, 26 January 1950), para. 20; Summary Record of the third meeting (E/AC.32/SR.3, 26 January 1950), para. 24). In the event, the Ad Hoc Committee decided to focus upon the refugee, strictly so called, given the sense of urgency which many participants attached to the issue. In its report to the Economic and Social Council, the Ad Hoc Committee offered the text of a draft refugee convention, but simply proposed an additional protocol on stateless persons, under which States might agree to extend the application of the refugee convention, mutatis mutandis, to stateless persons to whom it did not otherwise apply (see Report of the Ad hoc Committee, 16 January to 16 February 1950 (E/1618 (E/AC.32/5)), annex III). Measures to eliminate statelessness received even less attention, being dealt with in a Danish proposal of 10 articles to be used as a basis for drafting a convention on the issue (ibid., annex V). The Economic and Social Council followed up at its next session and adopted a set of resolutions on 11 and 16 August 1950. Resolution 319 A (XI) included the draft Statute for the Office of the United Nations High Commissioner for Refugees (UNHCR) (later revised and adopted by the General Assembly in resolution 428 (V) of 14 December 1950), while resolution 319 B (XI), sections I and II, addressed the report of the Ad Hoc Committee and the draft convention relating to the status of refugees. The Council finalised the preamble of the draft convention and the definition of the term “refugee” and returned the draft convention to the Ad Hoc Committee for further review, prior to its being considered by the General Assembly. Section III of resolution 319 B (XI) specifically dealt with the problem of statelessness. The Council was of the view that reducing the numbers of the stateless and eliminating causes could not be achieved except through cooperation and the adoption of international conventions. It “recommended” that States make provision for the avoidance of statelessness on the occasion of any territorial transfer, and that they “examine sympathetically” naturalization applications by habitually resident stateless persons, if necessary, reviewing also their nationality laws so as to reduce statelessness arising by operation of law. The Council noted with satisfaction that the International Law Commission was to take up the question of nationality, including statelessness, and urged it to draft the instrument or instruments necessary for its elimination.
In February 1952, the General Assembly welcomed the conclusion of the 1951 Refugee Convention the previous year, but deferred consideration of the draft protocol on stateless persons for lack of time (General Assembly resolutions 538 (VI) of 2 February 1952 (Assistance to and protection of refugees) and 539 (VI) of 4 February 1952 (Draft Protocol relating to the Status of Stateless Persons)). At its seventh session later that year, the General Assembly asked the Secretary-General to circulate the draft protocol to States for comments, specifically on which provisions of the 1951 Refugee Convention they would be prepared to apply to stateless persons. The General Assembly also requested the Economic and Social Council to study the comments received and to take such action as seemed useful in order that a text might be opened for signature following the entry into force of the Refugee Convention (General Assembly resolution 629 (VII) of 6 November 1952 (Draft protocol relating to the status of stateless persons)). Two years later, a United Nations Conference was convened in New York, further to Economic and Social Council resolution 526 A (XVII) of 26 April 1954. Attended by twenty-seven participating States and five States as observers, the Conference adopted the Convention relating to the Status of Stateless Persons (hereinafter referred to as “the 1954 Convention”), an independent convention being preferred to the draft protocol initially proposed by the Ad Hoc Committee in 1950. Article 1 defines a stateless person to mean, “a person who is not considered a national by any State under the operation of its law”. This definition was proposed by the United Nations Secretariat in its draft protocol, drawing on the words of Manley O. Hudson, the International Law Commission’s Special Rapporteur, in his first report as Special Rapporteur on “Nationality, including Statelessness” (A/CN.4/50, 21 February 1952, p. 17). Whether the Special Rapporteur intended to define stateless persons as such, as opposed to distinguishing those stateless de jure from those stateless de facto, is a moot point. Like the 1951 Refugee Convention, however, the 1954 Convention then “excludes” various categories not considered to deserve or need protection, such as those presently receiving protection or assistance from United Nations agencies other than the Office of the United Nations High Commissioner for Refugees (UNHCR), those enjoying in fact the rights and obligations of citizenship in their country of residence, and war criminals, serious non-political criminals and similar cases. Others among the unprotected are for the most part beyond the scope of the Convention, save that the Conference recommended that “each Contracting State, when it recognizes as valid the reasons for which a person has renounced the protection of the State of which he is a national, consider sympathetically the possibility of according to that person the treatment which the Convention accords to stateless persons”. The 1954 Convention’s definition of its beneficiaries is problematic, particularly insofar as it would seem to require a potential claimant to establish a negative condition – that he or she is not considered a national by any State under its law. Article 1A, paragraph 2, of the 1951 Refugee Convention deals separately with refugees with and refugees without a nationality, and thus covers some categories of stateless refugees. But even if the above-mentioned recommendation is applied liberally, a large number of stateless persons will likely remain outside its scope. The standards of protection under this treaty parallel in large measure those set down in the 1951 Refugee Convention, although in some respects stateless persons are not as well off as refugees. For example, there is no equivalent guarantee against penalization for illegal entry, and no monitoring body like UNHCR to which to turn for support in establishing their status or in making their claim for protection (a situation now remedied to some extent under the 1961 Convention on the Reduction of Statelessness). Similarly, stateless persons are entitled to very limited protection in time of war or other armed conflict; article 44 of the 1949 Fourth Geneva Convention on the Protection of Civilian Persons cites only the case of refugees: the Detaining Power is not to treat as enemy aliens, exclusively on the basis of their nationality, refugees who do not in fact enjoy the protection of any Government. The 1977 Protocol I Additional to the 1949 Geneva Conventions goes scarcely farther, including as protected persons only those who, before the beginning of hostilities, were considered as stateless persons or refugees (article 73). The limited purposes of the 1954 Convention are worth recalling: first, to define a class of stateless persons and secondly, to regulate and improve their status and to assure to them the widest possible exercise of fundamental rights and freedoms. The reduction and elimination of statelessness, however, were to require further international cooperation and the coordination and harmonisation of national laws. This was to be the goal set for the International Law Commission and its work towards the 1961 Convention on the Reduction of Statelessness. This Introductory Note was written in April 2010.
Related Material
The Working Party on an International Convention on Human Rights, established by the Commission on Human Rights at its second session in 1947 (E/600, para. 15), presented to the Commission, at the same session, a report containing, inter alia, a draft resolution recognizing the desirability of giving early consideration to the position of stateless persons (E/CN.4/56, p. 15). On that basis, the Commission adopted a resolution expressing, inter alia, the wish that early consideration be given by the United Nations to the legal status of persons who do not enjoy the protection of any government, in particular pending the acquisition of a nationality, as regards their legal and social protection and their documentation (see report of the Commission on Human Rights, E/600, para. 46). The question was considered by the Economic and Social Council in plenary on 5 February and 2 March 1948, and at its Social Committee on 20 February 1948. On 19 February 1948, the United Kingdom proposed a draft resolution (E/AC.7/62), which was adopted with minor amendments by the Social Committee on 20 February 1948 and by the Economic and Social Council in resolution 116 D (VI) of 2 March 1948. In that resolution, the Economic and Social Council requested, inter alia, the Secretary-General, in consultation with interested commissions and specialized agencies, to undertake a study on the existing situation with regard to the protection of stateless persons, and on national legislation and international agreements and conventions relevant to statelessness, and to make recommendations to the Council on interim measures that might be taken by the United Nations and as to the desirability of concluding a further convention on the subject. At its ninth session, in 1949, the Economic and Social Council considered the study submitted by the Secretary-General (E/1112, and Add. 1 and 2), as well as a communication from the International Refugee Organization (E/1392) containing a memorandum on the problem of statelessness. By resolution 248 B (IX) of 8 August 1949, the Economic and Social Council established an ad hoc committee, composed of representatives of thirteen Governments, which it entrusted to consider the desirability of preparing a convention relating to the international status of refugees and stateless persons. In its report of 17 February 1950 (E/1618 and Corr.1), the Ad Hoc Committee on Statelessness and Related Problems recommended the instrument of a convention as the most effective approach to the solution of the problem. The Economic and Social Council examined the report of the ad hoc committee at its eleventh session, in 1950, and, by resolution 319 B III (XI) of 16 August 1950, it requested the Secretary-General to seek information from States with regard to the problem of statelessness. On 25 August 1950, the ad hoc committee submitted a report (E/1850) to the General Assembly, which contained, in addition to a revised draft convention relating to the status of refugees, a draft protocol relating to the status of stateless persons. The General Assembly considered the report and adopted, on the recommendation of its Third Committee, resolution 429 (V) of 14 December 1950, by which it expressed the desirability of convening a conference in which both Member States of the United Nations and non-Member States would be able to participate and decided to convene in Geneva a conference of plenipotentiaries to complete the drafting of, and to sign, both the Convention relating to the Status of Refugees and the Protocol relating to the Status of Stateless Persons. The United Nations Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, which met from 2 to 25 July 1951, decided not to take a decision regarding the draft Protocol relating to the Status of Stateless Persons and referred it back to the appropriate United Nations organs for further study (A/CONF.2/108/Rev.1). In accordance with the Economic and Social Council’s resolution 319 B III (XI), the Secretary-General submitted the information received from States for consideration by the Council at its twelfth session, in 1951. By resolution 352 (XII) of 13 March 1951, the Economic and Social Council deferred further discussion on the topic to its fourteenth session, in 1952. It also requested the Secretary-General to address another communication to Governments, inviting them to submit their observations and to produce a consolidated report on the basis of the replies received from Governments. On 2 February 1952, the Third Committee of the General Assembly had before it a memorandum by the Secretary-General (A/1913) transmitting the resolution adopted by the Conference of Plenipotentiaries by which it had referred the draft Protocol relating to the Status of Stateless Persons back to the appropriate organs of the United Nations for further study. The General Assembly adopted resolution 539 (VI) of 4 February 1952 by which it decided to defer consideration of the draft Protocol relating to the Status of Stateless Persons until its seventh regular session. In accordance with resolutions 319 B III (XI) and 352 (XII) of the Economic and Social Council, the Secretary-General prepared a consolidated report analyzing the information that he had received from Member States (E/2230 and Add. 1). Although the report was transmitted to the Economic and Social Council, it was not considered by the Council at its fourteenth session, in 1952. At its seventh session, the General Assembly adopted resolution 629 (VII) of 6 November 1952, by which it requested the Secretary-General to collect comments from Governments concerning the draft Protocol. It further requested the Economic and Social Council to study the text of the draft Protocol and the comments received from Governments, and, in the light of these comments, to take whatever action seemed useful in order that a text may be opened for signature after the Convention relating to the Status of Refugees had entered into force. On 26 April 1954, the Economic and Social Council adopted resolutions 526 A and B (XVII), by which it decided that a second conference of plenipotentiaries should be convened in order to revise and adopt the draft Protocol. The United Nations Conference on the Status of Stateless Persons, which took place at United Nations Headquarters in New York from 13 to 23 September 1954, decided that it was more appropriate to adopt an independent convention dealing with stateless persons, considering the fact that Governments unwilling to ratify the Convention relating to the Status of Refugees might nonetheless wish to become parties to an instrument benefiting the stateless. The Conference adopted the Convention relating to the Status of Stateless persons on 28 September 1954 (for the Final Act of the Conference and the text of the Convention, see United Nations, Treaty Series, vol. 360, p. 117). The Convention was opened for signature from the same date until 31 December 1955. It entered into force on 6 June 1960, in accordance with its article 39. Text of the Convention Selected preparatory documents Report of the Working Party on an International Convention on Human Rights, Commission on Human Rights, Second Session (E/CN.4/56, 11 December 1957) The Convention entered into force on 6 June 1960. For the current participation status of the Convention, as well as information and relevant texts of related treaty actions, such as reservations, declarations, objections, denunciations and notifications, see:
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