CYIL vol. 15 (2024)

VERONIKA D’EVEREUX 1. Distinction of causes and types of statelessness, overview of the legal framework

Stateless persons, based on the circumstances under which they fulfil or do not fulfil the respective legal definition, might be divided into several categories. The UN Study on Statelessness identifies five causes of statelessness, which include: gaps in and conflicts of national legislation, state succession, denationalisation, persecution, and mass emigration caused by the transformation of the political and social system of the country of origin. 3 Dr Buechel noted that the first three causes result in de jure statelessness at birth or later in life, whereas the last two causes lead to de facto statelessness, in case the affected individual is not also denationalised. 4 Within the theoretical framework, he identified three different subtypes of statelessness. The first is voluntary statelessness and it occurs in case the individuals or collectives renounce nationality voluntarily, so they are de jure stateless , or in case the country of origin does not recognise their right to the nationality and in such case, people reject (some other) nationality that they are offered. This phenomenon typically relates to some of the (both internally and externally) displaced Palestinians, who are not refugees and are de jure stateless. Some of the externally displaced have been offered a non-Palestinian citizenship by states, in which their ancestors fled due to the wars with Israel. These people typically understand the naturalisation as the erasure of their Palestinian identity. Some of the internally displaced Palestinians are not eligible to obtain Palestinian citizenship due to the various administrative obstacles. 5 The second subtype is structural statelessness , which is a de facto statelessness, and it occurs in case of a ruling of the international court. A typical example was the case of Friedrich Nottebohm, who was by birth German citizen, he resided in Guatemala, and he acquired the nationality of Lichtenstein in order to avoid any negative consequences, which might have arisen from being associated with belligerent country at the outbreak of the World War Two. The International Court of Justice ruled that there must be a genuine link between the person and the state and did not recognise the diplomatic protection (representation) of Lichtenstein. 6 The third subtype is denigrative statelessness, which occurs in several situations. The de jure denigrative statelessness arises in the countries which grounds nationality exclusively on the ius sanguinis principle , so the children might be de jure stateless if their parents are unknown or stateless. The domestic laws of the countries concerned do not include the ius soli principle, based on which the children born or found on the territory of the state are eligible to acquire the nationality of the state. It also relates to the situation of women’s discrimination by domestic laws, not allowing the women to confer nationality to their children. Unless the children are eligible to confer nationality based on their fathers, the children are de jure stateless by birth. This applies to 27 countries. Finally, there are cases of other discrimination, based on bureaucratic domestic rules (such as unreasonable application deadlines, requirements for the duration of the residency of the parents, obligation to trace ancestry), obstacles and legal exceptions in which some groups of people are unable to obtain nationality (some countries delineated the territorial borders relevant only to some groups of inhabitants, who are unable to obtain 3 UN Economic and Social Council. A Study of Statelessness, United Nations, August 1949, Lake Success – New York , UN Doc E/1112;E/1112/Add.1 (August 1949), 168 p. 4 BUECHEL, B. A Typology of Statelessness. In: Statelessness &Citizenship Review, 2022, vol. 4(2), p. 243. 5 Ibidem, p. 246. 6 Nottebohm Case ( Liechtenstein v Guatemala) ; I.C.J. Reports 1955, p. 4.

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