Not all countries in the world are able to report data on statelessness. Figures for different countries are compiled from different data sets—that use different methodologies—and do not always reveal the full picture. The data collated by the United Nations High Commissioner for Refugees (UNHCR) is drawn from information produced by different actors, in different places, using different approaches—not all of which deliver the same level of reliability or produce readily-comparable data (ENS, 2015). Only persons exclusively under UNHCR’s statelessness protection mandate are reported in its statelessness statistics: UNHCR’s statistical reporting on statelessness excludes stateless persons who also fall within the protection mandates of other UN Agencies (at present, only the UN Relief and Works Agency—UNRWA), and those who also come under other UNHCR protection mandates (such as refugees or asylum seekers).
The identification of stateless persons and the collation of statistical information on statelessness, is relevant not only to assess states’ compliance with the statelessness treaties, but also with the more widely ratified human rights treaties. It is important to point out that in finding a person to be stateless, it is not relevant where in the world that person is. A child can be stateless in the country in which he or she was born, has always lived and has all family ties (Policek, 2016). Equally, a child can be stateless in a migratory context—for instance, losing nationality prior to, as a consequence of or at some point after crossing an international border (Blitz & Lynch, 2011). Statelessness rests on the fact of lacking any nationality, nothing more. Most stateless children have not moved from their homes and live in what can be described as their own country. Yet, due to the added vulnerability of stateless persons to discrimination, human rights abuse and even persecution, statelessness can also prompt forced displacement. Some stateless children, then, become internally displaced persons (IDPs), asylum seekers and refugees. Where a person who is not considered as a national by any state under the operation of its law also falls within the scope of the 1951 UN Convention relating to the Status of Refugees, he or she is a stateless refugee. That someone can simultaneously be both stateless and a refugee, asylum seeker or IDP does not lessen their experience of statelessness, which should be taken into consideration when protecting and finding durable solutions for them.
With regard to the identification of stateless children, for the purposes of statistical reporting or otherwise, it is also important to note the distinction between statelessness and the situation of being undocumented, of undetermined nationality and/or at risk of statelessness. Universal birth registration and the provision of other life documents remains a significant challenge in many parts of the world (Cai, 2013). The lack of such documentation can mean that the child is stateless (e.g. where denied documentation because the state does not consider the person to be a national), but more often, such lack of documentation does not mean a lack of nationality, despite it being a significant barrier to proving nationality (De Genova, 2013). Indeed, children without documentation are at heightened risk of statelessness when compared with those who do have adequate documents, and some may become stateless in the future (e.g. where unable to establish or prove links to the state of nationality such that this state no longer considers the person as a national) (Goris et al., 2009).
In some countries, there is no commonly held definitive proof of nationality, therefore evidence of statelessness may be built up over multiple rejections for documentation by the state (refusal to register to vote, refusal of ID card, refusal of passport, for example) (Hayter, 2000). When dealing with children, it is appropriate to question if identifying them as stateless would serve any protection purpose. The starting point must be to push for them to be recognised as nationals by the country to which they have the strongest links (High, 2013). This would often require scrutiny and assessment of nationality laws and policies, their implementation and the documentation that confirms nationality. If children of undetermined nationality and/or at risk of statelessness are ultimately recognised as nationals of a particular country, without ever being deemed to be stateless, this would be the ideal outcome (Manby, 2012). However, the question of how long their status is to remain undetermined, before concluding that they are actually stateless is a difficult one, to which international law does not seem to have a complete answer (Policek, 2016).
The grey area between statelessness and nationality highlights how it can be harmful to address the one without sensitivity to the impact on the other. There are a variety of circumstances that give rise to statelessness at birth or in later life, and there is often an element of discrimination and/or arbitrariness at play, when children or even entire groups become stateless (Milbrandt, 2011). Discrimination and arbitrariness can manifest itself in an obvious, aggressive and even persecutory manner, such as when large communities are deprived of their nationality based on ethnicity or religion (Southwick & Lynch, 2009); or it can be more subtle and latent, such as the failure of states to prioritise legal reform that would plug gaps in the law which could cause statelessness (Tucker, 2014). While states do have significant freedom to set out their own membership criteria, they also have a responsibility to protect against discrimination and arbitrariness, and to uphold international standards.
Unless safeguards are in place in the law to prevent statelessness from arising, the regular operation of these states’ nationality laws can leave people stateless. While this may seem like an unlikely and marginal occurrence, the scale of international migration today is such that conflicts of nationality laws are becoming more commonplace, increasing the need for safeguards to ensure the avoidance of statelessness (ENS, 2015).
A specific context in which the risk of a conflict of nationality laws is high, and where a large number of persons may simultaneously be affected, is that of state succession (Aird et al., 2002). When part of a state secedes and becomes independent, or when a state dissolves into multiple new states, the question emerges as to what happens to the nationality of the persons affected (Ball et al., 2017). The new nationality laws of successor states may conflict and leave people without any nationality, while the re-definition of who is a national of the original state (where it continues to exist) may also render people stateless. Most often in the context of state succession, it is vulnerable minorities who are associated with either the successor or parent state who are deprived of nationality, exposing the discriminatory motivations and arbitrary nature for such exclusion. Common types of state succession which have resulted in large-scale statelessness are the dissolution of federal states into independent republics (for instance, in the countries of the former Soviet Union and Yugoslavia) (Aird et al., 2002; Shulze, 2017)) and the more recent cases of state secession (for instance, with the splitting off of Eritrea from Ethiopia and South Sudan from Sudan) (Twomey, 2012). Situations of emerging or contested statehood complicate this picture further, leading to unique challenges around nationality and statelessness, for instance, for the Palestinians and the Sahrawi (Smith, 1986).
Many of the large scale and entrenched situations of statelessness in the world were born out of the experiences of colonisation, de-colonisation and consequent nation-building (Spivak, 1999) where borders were erected for a reason: they place people on the “outside” (Torpey, 2000). In such contexts, newly independent states (many of which never had a common pre-colonial national identity) have had to deal with borders arbitrarily drawn (often dividing ethnic groups) peoples forcibly migrated (for labour) and the consequences of decades, sometimes centuries of colonial rule which successfully opposed different ethnic and religious groups against each other, privileging some and marginalising others, as part of a wider divide and rule policy (Garelli & Tazzioli, 2013). It is not surprising that many newly independent states thus struggled with nation building, national identity and the treatment of minorities. For them, borders are a reminder of their colonial past. While colonial history does not justify in any way discrimination, arbitrariness and disenfranchisement, this historical context must be understood and addressed in order to reduce statelessness.
Large-scale statelessness can also be caused by the arbitrary deprivation of nationality outside the context of state succession (Doná & Veale, 2011). Arbitrary acts can involve the collective withdrawal or denial of nationality to a whole population group, commonly singled out in a discriminatory manner on the basis of characteristics such as ethnicity, language or religion, but it can also impact individuals who are deprived of their nationality on arbitrary and discriminatory grounds. In many cases, the group concerned forms a minority in the country in