When asked their nationality, most people can quickly answer the question without a thought.  It is hard to imagine, therefore, the idea of having no nationality at all – being in a condition referred to as “statelessness.”

Generally speaking, there are two principles that govern the granting of nationality.  First, under the principle of jus sanguinis, nationality is transferred “by blood” from parent to child.  Second, under the principle of jus soli, nationality is granted “by soil” at the place of birth.  States may also develop immigration and naturalization frameworks for foreign nationals to become citizens.  In the United States, the Fourteenth Amendment to the Constitution established the foundation for American nationality:  “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens . . . .”  Today, the Immigration and Nationality Act governs the issue of nationality, and its provisions are codified in scattered sections of the U.S. Code.  The Fourteenth Amendment’s requirement is currently codified at 8 U.S.C. § 1401, which establishes American nationality for persons born in the United States, as well as persons born outside the United States where one or both parents are American citizens or nationals (subject to certain conditions and residency requirements depending on the circumstances).  

With this framework in mind, it is difficult to imagine circumstances where an individual can be born or live with no nationality.  The UN High Commissioner for Refugees has estimated that at the end of 2009, worldwide numbers of stateless persons ranged from 6.5 to 12 million persons.  The causes of statelessness are numerous.  Political strife and war are the most serious and widespread causes of statelessness, either because refugees are rendered stateless when fleeing violence and lacking proof of nationality, or because government actors act to strip certain groups of their nationality in violation of basic human rights.  Capacity problems in developing countries also contribute to the rise of stateless persons, especially where ineffective systems to register births or maintain relevant records are present.  More recently, the UN High Commissioner for Refugees has also reported an increased threat of statelessness from climate change, which threatens entire populations in low-lying island nations.

From a legal perspective, international attention to the issue of statelessness arose after World War II with the issue of how to deal with the problem of mass refugees lacking documentation after the denationalization of Jews in Nazi Germany.  The 1948 Universal Declaration of Human Rights thus included in Article 15 the provision recognizing that a state may not arbitrarily deprive a person of “the right to a nationality.”  In 1954, the UN also sponsored the Convention Relating to the Status of Stateless Persons, which explicitly defined a stateless person as “a person who is not considered as a national by any State under the operation of its law.”  Just seven years later, a second convention on statelessness was established.  The 1961 Convention to Reduce Statelessness was aimed at preventing and reducing statelessness by having signatory states adopt measures to address the problem of statelessness and reduce deprivations of nationality.  Many other conventions and regional treaties also touch on the obligation of states not to deny nationality of citizens, especially if based on discriminatory attitudes towards minorities, women, and children.

For the United States, statelessness is an international problem with domestic application.  Two recent asylum cases highlight this point.

In Haile v. Holder, 591 F.3d 572 (7^th Cir. 2010), the Seventh Circuit decided that asylum may be granted in the United States on the basis of denationalization that leads to statelessness.  The case involved the nationality of an Eritrean individual born in Ethiopia while Eritrea was part of its territory.   At the time Eritrea became independent from Ethiopia in 1993, the petitioner’s parents moved to Eritrea and renounced their Ethiopian citizenship in favor of the new state of Eritrea.  The petitioner, however, remained in Ethiopia as an Ethiopian citizen.   Five years later, in 1998, Ethiopia and Eritrea became engaged in a war, and Ethiopia began a campaign to expel ethnic Eritreans or to strip them of their Ethiopian citizenship.  The petitioner fled Ethiopia and ended up in the United States, seeking asylum on the grounds that he had been persecuted through the actions of the Ethiopian government stripping him of his nationality and rendering him stateless.  

In reversing the Board of Immigration Appeals, the Seventh Circuit in Haile considered the extent of injury an individual had to prove to establish persecution on the grounds of denationalization.  The court analogized the actions of the Ethiopian government in stripping Eritrean residents of Ethiopian nationality to that of the early stages of Nazi treatment of Jews.  As such, denationalization on the basis of ethnic origin that leads to statelessness is sufficiently severe to amount to persecution.  Ethiopia’s past denationalization campaign was also sufficient to create a presumption that the petitioner had a reasonable fear of continued persecution if he returned to Ethiopia, which in turn could support a petition for withholding of removal.  The court also found that notwithstanding later actions of the Ethiopian government to allow the readmission of ethnic Eritreans, the threat of continued persecution was present because readmission to Ethiopia is not automatic, and those ethnic Eritreans who do return frequently do not enjoy the same rights as ethnic Ethiopians. 

Similarly, in Stserba et al. v. Holder, 646 F.3d 964 (6th Cir. 2011), the Sixth Circuit also had the opportunity to pass on the issue of the impact of statelessness on asylum decisions in the United States.  The case involved a Russian woman and her son who lived in Estonia when it formed a part of the Soviet Union.  When Estonia became independent in 1991, it denationalized citizens if either they or their ancestors had immigrated to Estonia after 1940.  The law essentially targeted ethnic Russians and their offspring.  Thereafter, the petitioners came to the United States legally and then sought asylum on the grounds of persecution and sought to avoid deportation back to Estonia.  In support of their application to withhold removal, they claimed persecution because of their Russian ethnicity, including the denationalization law and their consequent statelessness.  Like Haile, the Sixth Circuit reversed the decision of the Board of Immigration Appeals, finding that denationalization of ethnic groups that results in statelessness can amount to persecution sufficient to avoid removal from the United States.  Also like Haile, the Sixth Circuit found that the fact that the petitioners had later regained citizenship did not negate the possibility that they would suffer continued persecution because of their ethnicity if returned to Estonia. 

As both Haile and Stserba demonstrate, the issue of statelessness as a result of war and civil unrest abroad has legal significance not only at the international level, but in the domestic courts as well.

Links to the relevant treaties and additional information on the issue of statelessness can be found at the webpage of the UN High Commissioner for Refugees at http://www.unhcr.org/refworld/statelessness.html.