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British Institute of International and Comparative Law

The Convention Relating to the Status of Stateless Persons


Author(s): Paul Weis
Source: The International and Comparative Law Quarterly, Vol. 10, No. 2 (Apr., 1961), pp.
255-264
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law
Stable URL: http://www.jstor.org/stable/756490
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THE CONVENTION RELATING TO THE STATUS OF
STATELESS PERSONS

By

PAUL WEIS *

THIS Convention ' was adopted by a Conference of Plenipoten-


tiaries in New York on September 28, 1954, and entered into force
on June 6, 1960, ninety days after the sixth instrument of ratifica-
tion, that of France, had been deposited with the Secretary-
General of the United Nations. Prior to that date, Denmark,
Israel, Norway, the United Kingdom of Great Britain and
Northern Ireland, and Yugoslavia had ratified the Convention and
since its entry into force Belgium and Luxembourg have deposited
their instruments of ratification. The United Kingdom has
extended the application of the Convention to the Federation of
Rhodesia and Nyasaland. The Convention has been signed, but
not yet ratified, by Brazil, Colombia, Costa Rica, Ecuador, El
Salvador, the Federal Republic of Germany, Guatemala, Hon-
duras, Italy, Liechtenstein, the Netherlands, the Philippine
Republic, Sweden, Switzerland and the Vatican City. It is open to
accession by non-signatory States.
In order to understand this Convention, one must consider its
history. As early as 1947, the Commission on Human Rights of
the United Nations expressed the wish that " early consideration
be given by the United Nations to the legal status of persons who
do not enjoy the protection of any government, in particular pend-
ing the acquisition of nationality, as regards their legal and social
protection and their documentation." 2 The Economic and Social
Council of the United Nations in 1948 requested the Secretary
General:

" (a) to undertake a study of the existing situation in


regard to the protection of stateless persons by the issuance of
necessary documents and other measures, and to make recom-
mendations to an early session of the Council on the interim

* PH.D. (London), DR.JUR. (Vienna), Legal Adviser, Office of the United Nations
High Commissioner for Refugees.
The views expressed in this article are those of the author; they do not
necessarily reflect the opinions of the Office of the United Nations High Com-
missioner for Refugees.
1 Treaty Series No. 41 of 1960; Cmnd. 1098.
2 UN Document E/600, paragraph 46.
255

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256 International and Comparative Law Quarterly [VOL. 10

measures which might be taken by the United Nations to


further this object;
(b) to undertake a study of national legislation and inter-
national agreements and conventions relevant to statelessness,
and to submit recommendations to the Council as to the desir-
ability of concluding a further convention on this subject." 3
The latter prepared a comprehensive study which has been
published under the title " A study of statelessness."1" In his
study, he suggested, inter alia, the conclusion of an international
convention concerning the legal status of stateless persons, whether
de jure or de facto. The Economic and Social Council appointed at
its Ninth Session an Ad Hoc Committee consisting of representa-
tives of thirteen governments possessing special competence in this
field to consider, inter alia, the desirability of preparing a revised
and consolidated convention relating to the international status of
refugees and stateless persons, and if they considered such a course
desirable, to draft the text of such a convention.4
The Committee drew up in 1950 a draft Convention relating to
the Status of Refugees and a draft Protocol relating to the Status
of Stateless Persons. The draft Protocol provided that certain
provisions of the Convention should apply mutatis mutandis to
stateless persons who are not refugees in the sense of the
Convention.
The General Assembly, by Resolution 428 (V) of December 14,
1950, decided to convene in Geneva a Conference of Plenipoten-
tiaries to complete the drafting of and to sign both the Convention
relating to the Status of Refugees and the Protocol relating to the
Status of Stateless Persons. This Conference, held in July 1951,
adopted a Convention relating to the Status of Refugees, but did
not find time to deal with the draft Protocol. The Economic and
Social Council therefore convened a special Conference of Pleni-
potentiaries to consider the Protocol, which was held in New York
in September 1954. The Conference discarded the proposed Pro-
tocol and adopted an independent Convention relating to the
Status of Stateless Persons which, however, is closely modelled on
the Convention relating to the Status of Refugees.
The International Law Commission of the United Nations like-
wise dealt with this problem in connection with its examination of
the question of " nationality, including statelessness." This work
has, as is known, resulted in the preparation by the Commission of
a draft Convention on the elimination of future statelessness and a

3 UN Publication 1949, XIV 2.


4 Resolution No. 248 (IX) B.

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APRIL 1961] The Status of Stateless Persons 257

draft Convention on the reduction of future statelessness. The


latter has been considered by a Conference of Plenipotentiar
held in Geneva in March/April 1959 and is to be considered furt
by a Conference to be held in New York in 1961.
The Commission also formulated, at its Sixth Session in 1954,
certain proposals on the problem of present statelessness which
though worded in the form of articles, were merely " to be
regarded as suggestions which governments may wish to take into
account when attempting a solution of this urgent problem." 5
The Commission considered it desirable that stateless persons
should be given the special status of " protected persons " in their
countries of residence, prior to the acquisition of a nationality.
Such stateless persons would have all rights accorded to nationals,
with the exception of political rights, and would be entitled to the
diplomatic protection of the government of the country of their
residence; the protecting State could impose on them the same
obligations as it imposes on its nationals, including those of mili-
tary service. Stateless persons who fulfil the statutory conditions
governing naturalisation, should be granted the nationality of the
country of residence, as of right.
These suggestions went rather far in assimilating stateless
persons to nationals of the countries of their residence. The Con-
ference of Plenipotentiaries did not take account of the proposals
of the International Law Commission but based itself on the
Convention relating to the Status of Refugees.
While that Convention establishes four standards of treatment
for refugees, viz.:
(a) national treatment, i.e., the treatment accorded to
nationals of the contracting State concerned,
(b) the treatment accorded to nationals of the country of
habitual residence,
(c) most-favoured-nation treatment, i.e., the most favourable
treatment accorded to nationals of a foreign country, and
(d) treatment as favourable as possible and, in any event, not
less favourable than that accorded to aliens generally in the
same circumstances,
the Convention relating to the Status of Stateless Persons estab-
lishes only three standards of treatment:
(a) national treatment,
(b) the treatment accorded to nationals of the country of
habitual residence, and
5 Report of the International Law Commission covering the work of its Sixth
Session, General Assembly Official Records, Ninth Session, Supplement No. 9
(Doc. A/2693), paragraph 36.

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258 International and Comparative Law Quarterly [VOL. 10

(c) treatment as favourable as possible and, in any event, not


less favourable than that accorded to aliens generally in the
same circumstances.

National treatment is to be granted to stateless persons as


regards freedom to practise their religion and the religious educa-
tion of their children (Art. 4), as regards access to courts, including
legal assistance and exemption from cautio judicatum solvi (Art.
16, paras. 1 and 2), rationing (Art. 20), elementary education
(Art. 22, para. 1), public relief and assistance (Art. 23) and in
matters of labour legislation and social security (Art. 24).
The same treatment as is accorded to nationals of the country
of their habitual residence is to be accorded to stateless persons
regarding the protection of their industrial property, such as
inventions, trade marks and trade names, and their rights in liter-
ary, artistic and scientific works (Art. 14), access to courts, legal
assistance and exemption from cautio judicatum solvi in countries
other than the country of their habitual residence (Art. 16,
para. 3).
In all other matters regulated by the Convention, treatment as
favourable as possible and, in any event, not less favourable than
that accorded to aliens generally in the same circumstances is
provided for: e.g., as regards acquisition of and other rights per-
taining to movable and immovable property (Art. 13), the right of
association in non-political and non-profit-making associations and
trade unions (Art. 15), the right to wage-earning employment (Art.
17), self-employment in agriculture, industry, handicrafts and com-
merce (Art. 18), the practice of liberal professions (Art. 19), the
right to obtain housing (Art. 21) and the right to higher education,
recognition of foreign diplomas and the award of scholarships
(Art. 22, paras. 2 and 3).
Like the personal status of a refugee, the personal status of a
stateless person is to be governed by the law of the country of his
domicile or, if he has no domicile, by the law of the country of
his residence (Art. 12).
The provisions concerning exemption from reciprocity (Art. 7,
paras 2-4), exemption from exceptional measures (Art. 8), con-
tinuity of residence (Art. 10), stateless seamen (Art. 11), adminis-
trative assistance (Art. 25), freedom of movement (Art. 26), fiscal
charges (Art. 29), transfer of assets (Art. 30), expulsion (Art. 31),
and naturalisation (Art. 32) are analogous to the corresponding
provisions of the Refugee Convention.
Like the latter, the Convention provides for the issuance of a
uniform travel document to stateless persons (Art. 28), but unlike
the Refugee Convention, the right of re-entry has only to be

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APRIL 1961] The Status of Stateless Persons 259

accorded to the holder when the country to which he pr


travel insists on the travel document according the right o
(para. 13 of the Schedule to the Convention).
By analogy with the Refugee Convention, the Convent
tains a general clause (Art. 7, para. 1) to the effect that co
States shall accord to stateless persons the same treatmen
accorded to aliens generally, except where it contains mor
able provisions, and stipulates that nothing in the Convent
be deemed to impair any rights or benefits granted by co
States to stateless persons apart from the Convention (Art
As regards a number of rights and benefits, the provi
the Convention relating to the Status of Stateless Persons
favourable than those of the Refugee Convention: as rega
right of association, refugees are to be granted most-fav
nation treatment, stateless persons only treatment as fav
as possible and, in any event, not less favourable than that
accorded to aliens generally in the same circumstances; as regards
wage-earning employment, refugees are to be granted most-
favoured-nation treatment and on certain conditions, particularly
after three years' residence, full freedom from restrictions imposed
on aliens or the employment of aliens for the protection of the
national labour market. Here too, stateless persons are only to be
granted treatment as favourable as possible and, in any event, not
less favourable than that accorded to aliens generally in the same
circumstances, which, of course, entails a legal obligation for
general aliens' treatment only, with a recommendation for more
favourable treatment.

The Convention does not contain a provision corresponding to


Article 19, paragraph 2 of the Refugee Convention concerning t
exercise of liberal professions in dependent territories, nor as regards
freedom from penalties for unlawful entry, as in Article 31 of t
Refugee Convention, nor a provision prohibiting expulsion or retu
to countries of persecution, as in Article 33 of the Refugee Conv
tion. The latter point may be explained by the fact that, while fe
of persecution is an essential element of refugee status, this is n
the case for stateless persons. The Final Act of the Conference o
the Status of Stateless Persons declares explicitly, however, that:
" The Conference
" Being of the opinion that Article 33 of the Convention
relating to the Status of Refugees of 1951 is an expression o
the generally accepted principle that no State should expel o
return a person in any manner whatsoever to the frontiers o
territories where his life or freedom would be threatened on

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260 International and Comparative Law Quarterly [VoL. 10

account of his race, religion, nationality, membership of a


particular social group or political opinion,
" Has not found it necessary to include in the Convention
relating to the Status of Stateless Persons an article equivalent
to Article 33 of the Convention relating to the Status of
Refugees of 1951."
The difference in the provisions relating to the right of re-entry
has already been mentioned.
While Article 35 of the Refugee Convention provides that Con-
tracting States undertake to co-operate with the Office of the United
Nations High Commissioner for Refugees, or any other agency of
the United Nations which may succeed it, in the exercise of its
functions and shall in particular facilitate its duty of supervising
the application of the provisions of the Convention, no correspond-
ing provision is to be found in the Convention relating to the
Status of Stateless Persons. This is due to the fact that no such
agency charged with the protection of stateless persons exists
present. International protection of unprotected persons is at
present limited to refugees in the sense in which this term is used
in the Statute of the United Nations High Commissioner for
Refugees.6 Writers have frequently expressed the view that all
unprotected persons, whether stateless de jure or de facto, should
be protected by an international agency.7
The term " stateless person " is for the purpose of the Conven-
tion defined to mean " a person who is not considered as a national
by any State under the operation of its law " (Art. 1). The ques-
tion of so-called de facto stateless persons, i.e., of persons who
possess a nationality but do not enjoy the protection of the State
of nationality, nor of any other State, gave rise to much discussion
at the Conference of Plenipotentiaries which drafted and adopted
the Convention.8

The Belgian Delegation proposed the inclusion of " persons who


invoke reasons recognised as valid by the State in which they are
resident for renouncing the protection of the country of which they
are nationals " in the definition of the term " stateless person."'

6 General Assembly Resolution No. 428 (V) of December 14, 1950.


7 Cf. for instance G. Scelle, " Le probleme de l'apatridie devant la Commission
du Droit international de l'O.N.U.," in Die Friedenswarte, Vol. 52 (1954),
pp. 142-153.
8 The present writer has elsewhere (" Legal aspects of the Convention of July
28, 1951, relating to the status of Refugees " (1953) 30 B.Y.I.L., p. 480)
expressed the view that the terminology de facto and de jure stateless
is probably inexact, as statelessness is a purely legal concept. He proposed
to speak instead of de jure and de facto unprotected persons, but the present
terminology is followed in this article as it is in common use.
9 Doc. E/Conf. 17/L.3.

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APRIL 1961] The Status of Stateless Persons 261

A drafting Committee on the definition of stateless persons


mitted in addition to the definition of stateless persons whic
been incorporated in Article 1 of the Convention, three altern
for a second paragraph designed to cover de facto stateless
persons:
" Alternative A:
For the purpose of this Protocol (Convention), the term
'stateless person ' shall also include a person who invokes
reasons recognised as valid by the State in which he is a resi-
dent, for renouncing the protection of the country of which he
is a national.

" Alternative B:

A Contracting State may, at the time of signature, ratifi


tion or accession make a declaration extending the provisio
of this Protocol (Convention) to any person living outside
own country who, for reasons recognised as valid by the S
in which he is a resident, has renounced the protection of
State of which he is, or was, a national.
Any Contracting State which has not made a declaration
at the time of signature, ratification or accession may at
any time extend its obligations by means of a notification
addressed to the Secretary-General of the United Nations.
" Alternative C:

Nothing in this Protocol (Convention) shall be construed t


mean that its provisions cannot be made applicable to any
person living outside his own country who, for reasons recog-
nised as valid by the State in which he is a resident, has
renounced the protection of the State of which he is, or was, a
national." 10

In the ensuing discussion, several delegates opposed the inclu-


sion of de facto stateless persons in the definition. When a vote
was taken, the definition of de jure stateless persons and alterna-
tive C were adopted."1 Subsequently, the United Kingdom Dele-
gation proposed to add to the wording adopted for paragraph 2 of
the definition, the words " or who has been refused protection and
assistance by the State of which he is a national." 12
Doubts arose, however, in the minds of delegates whether the
inclusion of de facto stateless persons by a contracting State by
virtue of the permissive clause adopted would have extra-territorial
effect, i.e., whether it would bind other contracting States to apply

10 Doc. E/Conf.17/L.6.
11 Doc. E/Conf.17/SR.10, pp. 14 and 15.
12 Doc. E/Conf.17/L.21.

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262 International and Comparative Law Quarterly [VOL. 10

the provision of the Convention to such de facto stateless persons.


The President of the Conference then proposed as a compromise
the adoption of a recommendation inviting States to consider
favourably the possibility of granting the benefits of the Convention
to any person to whom the State in whose territory that person
resided had decided to accord those benefits. The Conference
finally decided not to include in the Convention a clause concer
de facto stateless persons which would have extra-territorial
effect,13 but adopted the following recommendation which was
included in the Final Act of the Conference:

" The Conference,


" Recommends that each Contracting State, when it recog-
nises as valid the reasons for which a person has renounced the
protection of the State of which he is a national, consider
sympathetically the possibility of according to that person the
treatment which the Convention accords to stateless persons;
and

" Recommends further that, in cases where the State in whose


territory the person resides has decided to accord the treat-
ment referred to above, other Contracting States also accord
him the treatment provided for by the Convention."
In order to include de facto stateless persons, this recommenda-
tion seems incomplete, as it refers only to persons who have
renounced the protection of the State of their nationality, and does
not mention persons who have been refused protection by the State
of their nationality.14 It is also obvious that such a recommenda-
tion cannot give extra-territorial effect to the decisions of a con-
tracting State to accord the benefits of the Convention to de facto
stateless persons. In fact, however, such extra-territorial effect
might result from the recognition of a travel document issued to
such a person.
Another question which gave rise to discussion at the Confer-
ence was the relationship between the Convention relating to the
Status of Stateless Persons and the Convention relating to the
Status of Refugees in the case of persons who fulfil the definitions
of both Conventions. Various proposals to define this relationship
were made but not adopted. The view taken that the Refugee
Convention as the more favourable instrument (the lex mitior)
should be applied to such persons seems to find support in Article 5
of the Convention relating to the Status of Stateless Persons which
provides that nothing in the Convention shall be deemed to impair
13 Doc. E/Conf.17/SR.14. p. 10.
14 Cf. the proposed United Kingdom amendment to the article containing the
definition, mentioned above (Doc. E/Conf.17/L.21).

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APRIL 1961] The Status of Stateless Persons 263

any rights and benefits granted to stateless persons apart fr


Convention.
The Convention will probably not affect to any great extent the
status of stateless persons in the States at present parties to the
Convention, as most of the rights and benefits provided for in the
Convention may already be accorded to them under municipal
law. Its most important provisions are those designed to have
extra-territorial effect, such as the exemption of stateless persons
from cautio judicaturn solvi and their right to legal assistance in
countries other than the country of their habitual residence, and
their right to an internationally recognised travel document.
Experience has, however, shown that the Refugee Convention has
led to the inclusion of special provisions relating to refugees as
defined in the Convention in other international agreements and to
the adoption of special international instruments relating to such
refugees and in this way to an improvement in their status. The
European Convention on the Abolition of Visas for Refugees,1"
which exempts from the visa requirement for temporary travel
holders of the travel document issued in accordance with the Con-
vention on the Status of Refugees of July 28, 1951, or the Agr
ment on the Adoption of a Travel Document for Refugees of
October 15, 1946, is a case in point. A similar development may
take place in the case of stateless persons. A Convention on the
Abolition of Visas for Stateless Persons has in fact been proposed
to the competent organs of the Council of Europe.
The main significance of the Convention lies, however, in its
very existence. So far, international efforts to define the status of
unprotected persons have been concentrated on refugees. This is
probably due to the fact that refugee movements are more likely to
arouse international interest from the humanitarian and political
angle. Stateless persons, on the other hand, are a rather amor-
phous group. There are those who are born stateless, i.e., persons
born in jus sanguinis countries who do not derive a nationality
from one of their parents; persons who have lost their nationality
without acquiring another in consequence of a change in their
personal status, for instance, by marriage; persons who have been
deprived of nationality by way of penalty or for political reasons;
and lastly-and this is probably the largest group-persons who
have become stateless in consequence of territorial changes.
Efforts for the elimination of statelessness have so far not been
very successful and it is therefore certainly desirable that the stat
of stateless persons in international law should be defined.

15 European Treaty Series, No. 31.

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264 International and Comparative Law Quarterly [VOL. 10

The present writer has in another article 1 pointed out that


unprotected persons can be divided into four categories:
(a) Persons enjoying an international legal status established
by treaties and international protection exercised by an inter-
national agency: refugees " as a result of events occurring before
January 1, 1951," in States which have ratified or acceded to the
Convention relating to the Status of Refugees of July 28, 1951;
(b) Persons enjoying international protection but not enjoying
an international legal status: refugees in States which have not
ratified or acceded to the 1951 Convention and not covered by
other international agreements to which the State concerned is a
party; refugees in States which are parties to the 1951 Convention
and not covered by it because the events as a result of which they
became refugees occurred after January 1, 1951; and refugees " as
a result of events occurring elsewhere than in Europe before
January 1, 1951," in States which, at the time of signature, ratifica-
tion or accession to the 1951 Convention, have availed themselves
of the optional restriction clause;
(c) Persons enjoying international legal status but not enjoying
international protection: stateless persons in States which have
ratified or acceded to the Convention relating to the Status of
Stateless Persons of September 28, 1954, once that Convention will
have entered into force;
(d) Persons neither enjoying an international legal status nor
international protection: stateless persons in States which will not
become parties to the 1954 Convention.
Thus, there still exist unprotected persons who are not pro-
tected by an international agency nor by an international instru-
ment defining their status. Since the Convention relating to the
Status of Stateless Persons does not include de facto stateless
persons in its definition, and since there does not exist at present
an agency for the protection of stateless persons, the Convention
has not filled the gap, although it has narrowed it. This is
certainly a welcome development towards the equal protection of
all members of the human family enjoined by the Universal
Declaration of Human Rights.

16 "The International Status of Refugees and Stateless Persons" (1956)


Journal du Droit International, pp. 4-69, at p. 66.

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