In this blog, Betsy L. Fisher, an advocate and ally with United Stateless and lecturer at the University of Michigan Law School,* examines the previously unpublished travaux of the 1954 Statelessness Convention. She argues that they provide evidence of how stateless people were excluded from processes directly concerning them – a reality that is only now starting to be challenged.
In recent years, stateless individuals and communities have increasingly advocated, not just for their own rights, but to be centered in discussions about their rights. Recent examples include: United Stateless, an organization led by stateless individuals that advocates for the rights of stateless people in the United States; the activism of Romani women in Europe in collaboration with the European Network on Statelessness, and the inclusion of perspectives from stateless people in a prominent edited academic volume. These important efforts are notable because they go against the longstanding default of excluding the expertise of people with lived experience of statelessness.
A historic resource that is newly available demonstrates how the longstanding exclusion of stateless people from policymaking about them goes back to the very process that defined statelessness. The travaux préparatoires, or the drafting documents, of the 1954 Convention relating to the Status of Stateless Persons were not previously compiled and publicly available. They have now for the first time been published online. These documents include notes on the discussions of the delegates to the drafting convention and drafts of the Convention.
A treaty’s drafting history may be considered as a supplementary source for treaty interpretation, as explicitly stated in Article 32 of the Vienna Convention on the Law of Treaties, and may reveal the thinking held by the drafters. In the case of the 1954 Convention, the travaux underscore a harsh, if unsurprising, truth: the very definition of stateless people was drafted without consulting individuals who were being described and whose rights were being defined.
We now understand the role of colonial powers in imposing exclusive nationality laws on colonized territories, which often contained gender discriminatory principles, denied nationality to entire groups of people, and divided families across artificial boundaries. Yet, like the 1951 Refugee Convention, the 1954 Convention was predominantly drafted by colonial powers, who, as is evident in the travaux, also largely dominated discussion at the drafting conference—a conflict of interest to say the least.
Similarly, in 1954, it was clearly known that statelessness was a concern that uniquely impacts women due to gender discrimination in nationality law: the 1930 Convention on Certain Questions Relating to the Conflict of Nationality Law dedicated four articles to ensuring that women did not become stateless if they married someone of a different nationality. Despite this, and despite the decades of protest against such exclusions, nearly all the delegates, alternates, and observers at the Conference were men. In fact, an asterisk next to (most) names of attendees on the list denotes that the individual was “accompanied by wife” (pp. 349-51).
Critically, though unsurprisingly, there was no effort made to seek input from individuals who had experienced statelessness. One delegate, Jacob Robinson, was a prominent leader in the Lithuanian Jewish community who fled to the United States before representing Israel at the drafting conference. He had thus experienced forced migration, but his immigration documents make it seem unlikely that he was stateless (p. xii). In any case, it is fair to say that the drafting process did not seek input based on lived experience from individuals whose status and rights would be impacted by the instrument being drafted.
The limited perspectives of the drafters show themselves in the conference’s substantive discussions on whether to include “de facto”stateless persons. Two delegates initially considered “de facto” stateless persons to fall into one of two situations. They could be refugees, in which case they would be covered by the 1951 Convention. Or, the delegates thought, they could be individuals who were voluntarily stateless and thus undeserving of protection (pp. 93-94, 178). But the delegates were not working with a clear definition of the terms “de facto” and “de jure” statelessness—in fact, there is still no binding definition of the term “de facto”statelessness.”
We now know that there are many situations in which a person may lack state protection for involuntary reasons without receiving international protection as a refugee, and where recognition as a stateless person would meaningfully improve their status. An example is in situations where a state has not joined the refugee regime by acceding to the 1951 Convention or its 1967 Protocol.
Experience has also proven the concept of “de facto” statelessness to cause more confusion than clarity. The delegates discussed abstract concepts like “de facto” statelessness without reference to lived experience. Delegates later commented that “the question of de facto stateless persons” had become “confused” and “had given rise to more difficulties than any other” (215). Might consultation with people who lacked state protection have avoided decades of confusion on these terms? This history of exclusion underscores the critical importance to ensure that advocacy about statelessness considers the experience of stateless people.
The travaux for the 1951 Refugee Convention have been an invaluable resource, referenced by senior courts and in academic commentaries. But the 1954 Convention travaux have not been readily available or searchable until now. This compiled volume, now available in a searchable and indexed format,should prove a valuable tool for those interpreting the 1954 Statelessness Convention and advocating for the human rights of stateless people. But in doing so, the travaux should also serve to remind scholars and practitioners of international law on statelessness, as well as allies of stateless people, to “center those directly impacted by statelessness as experts of their own experience.”
*All views are the author’s only.
More from the Critical Statelessness Studies Blog Series
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