From a traditional international law approach to a human rights-based approach to statelessness

Abstract

This paper sets out two approaches that have been taken to address statelessness over the past century: a traditional international law approach and a human rights-based approach. According to traditional international law, stateless persons cannot enjoy diplomatic protection or other benefits associated with a nationality. To protect stateless persons and to reduce statelessness worldwide, two global conventions were adopted in the middle of the 20th century: the Convention relating to the Status of Stateless Persons (1954) and the Convention on the Reduction of Statelessness (1961). Over the past decades, scholars and practitioners have increasingly taken a human rights-based approach to statelessness. They have complemented provisions of the Statelessness Conventions with provisions from human rights treaties, such as the International Convention on the Rights of the Child (1989) and the International Convention on the Elimination of All Forms of Racial Discrimination (1965). Numerous provisions of international human rights law directly relate to statelessness; the most apparent example is the right to a nationality (as guaranteed by Article 15 of the Universal Declaration on Human Rights), but other rights deserve mentioning as well, such as the right of a child to be registered at birth. This human rights-based approach relies on the fundamental premise that rights and protection are not offered on the basis of nationality, but on the basis of humanity and human dignity. Hence, it seems that scholars perceive the human rights-based approach as the ‘fairer’ one within current international law and its underpinning values. The present paper explores the differences between the two approaches and analyses the weaknesses of the Statelessness Conventions, and the strengths of the human rights law regime. Through this analysis, the paper attempts to answer the following question: Why do scholars and practitioners consider a human rights-based approach to statelessness as fairer, and is this effectively the case?