Opinion
Radha Govil, Deputy Director of Melbourne University’s Peter McMullin Centre on Statelessness

Why did we create a Global Caselaw Database on Statelessness?

First of all, it needs to be stated that statelessness is a serious and insidious human rights issue that afflicts at least 4.4 million people around the world, with the majority found in the Asia Pacific, including in Australia which reports over 8000 stateless people in the country.

Although statelessness can be examined from many angles and disciplines, it is first and foremost a legal issue. The 1954 Convention Relating to the Status of Stateless Persons defines a stateless person as ‘a person who is not recognised as a national by any State under the operation of its law’. The ‘right to a nationality,’ which is the corollary of statelessness, is found in numerous international human rights legal instruments, including the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the Convention on the Rights of the Child.

It is interesting then, that despite its fundamentally legal character, one of the key legal tools that could be used to address the problem – litigation – has not been used more extensively. This is despite the fact that legal challenges to statelessness, over time and in vastly different contexts, have been critical to overturning decades-long statelessness for significant groups around the world.

For example, in Asia, we can start in Bangladesh, where two major court cases—Abid Khan and Others v Government of Bangladesh (2003) and Sadaqaat Khan v Chief Electoral Commission (2008)—helped end one of the world’s largest cases of statelessness. After the 1947 partition of India, many Urdu-speaking people moved to East Pakistan (which later became Bangladesh). Following Bangladesh’s independence in 1971, many Urdu speakers were confined to camps and denied recognition as citizens because some had supported Pakistan during the liberation war. In 2001, members of the Urdu-speaking community challenged their exclusion in court. In the Abid Khan case, the Supreme Court granted citizenship and voting rights to the ten petitioners.

However, the ruling did not automatically apply to all Urdu speakers. In the Sadaqaat Khan decision, the Supreme Court expanded the ruling, declaring that all Urdu-speaking residents were Bangladeshi citizens and ordering the government to issue them national identity cards and include them on electoral rolls. This resolved the statelessness of more than 300,000 people. In Malaysia, the recent High Court case of Suriani Kempe paved the way for reforms to remove gender discrimination from the Malaysian Constitution, so that now both Malaysian mothers and fathers are able to confer their nationality on the same basis to their children born overseas.

In Africa, we can look to the decision of the Nubian Community of Kenya v the Republic of Kenya, which addressed the statelessness of the 100,000 strong Nubian community living in Nairobi. The Nubian community are descendants of Sudanese soldiers conscripted by the British colonial administration and they have lived in Kenya for over a century.  Despite their long-standing presence, they were not granted citizenship at Kenya’s independence in 1963 and have since faced systemic discrimination, particularly in obtaining Kenyan nationality and identity documents.  In 2015, the African Commission on Human and Peoples’ Rights found that ‘without IDs, [Nubians] are unable to enjoy a broad range of rights guaranteed in the [African] Charter [of Human and People’s Rights]’ and held that ‘by failing to take measures to prevent members of the Nubian Community from becoming stateless and by failing to put in place fair processes, devoid of discrimination and arbitrariness for the acquisition of identity documents,… the Government of Kenya had failed to recognize the legal status of Nubians, in violation of Article 5 of the Charter.’

An earlier case, brought on behalf of Nubian children, led the African Committee of Experts on the Rights and Welfare of the Child to interpret statelessness to be the ‘antithesis’ of the well-accepted principle of the ‘best interests of the child’, providing helpful guidance to States in Africa and beyond on how to interpret their obligations to children under the Convention on the Rights of the Child, as well as equivalent regional human rights instruments.

In Europe, numerous cases at both the domestic and regional levels have successfully protected the rights of stateless persons on the grounds of the right to private and family life, to help prevent family separation, revocation of nationality, and non-recognition of parent-child relationships in surrogacy arrangements.

In the Americas, we have powerful judgements, such as the one in Trop and Dulles from the US Supreme Court, which found deprivation of an individual’s nationality leading to statelessness in the context of desertion from the US army to be, ‘a form of punishment more primitive than torture, for it destroys for the individual the political existence that was centuries in development.’

Precedents set by the InterAmerican Court of Human Rights, such as in the watershed case of Yean and Bosico v the Dominican Republic, established that the right to nationality is fundamental and that states cannot create statelessness by refusing to register children based on their parents’ immigration status, thereby directly tackling systemic discrimination against hundreds of thousands of people of Haitian descent in the Dominican Republic.

And of course, in Australia in 2023 we had the landmark High Court case of NZYQ v Minister of Immigration, which overturned the 20-year precedent set in the case of Al Kateb, which had allowed the detention of stateless people to continue indefinitely in situations in which there was no country  to which they could be removed.

These, and many other judgments —including those that do not go in the favour of stateless persons — together with comprehensive summaries and related commentary, can now be found in the Global Caselaw Database on Statelessness.

But back to the question of why there has not been greater use of litigation as a tool to address the problem despite the important precedents on statelessness set by courts around the world  and the catalytic effect that many judgements have had in resolving statelessness.

Apart from the obvious responses of expense and leaving litigation to the option of last resort, there is the fact that communities affected by statelessness are often the least empowered to challenge their exclusion in the courts. This leaves the job to time and resource-poor NGOs or pro bono lawyers, who may not have the tools to identify relevant caselaw or to strategize about the applicability of cases from other jurisdictions.

Is it in response to this gap that in 2024, UNHCR and the Open Society Justice Initiative published a Practitioner’s Guide to Litigating the Right to Nationality. The Practitioner’s Guide aims to assist potential litigants navigate the obstacles thrown up by the fact that nationality law is often not only legally complex but also politically sensitive.

The Practitioner’s Guide makes references to more than 100 cases but, until now,there has not been a repository for those cases, providing practitioners with a detailed account of the summary of facts, the legal arguments made by the parties, or the outcomes of those judgments.

The Global Caselaw Database on Statelessness serves as a companion tool to the Practitioner’s Guide, providing a summary of all the cases directly concerned with issues of statelessness, plus a few more. In making this Database public, our aim is to strengthen access to jurisprudence on nationality, statelessness, and related human rights issues.

By doing this we hope to increase the capacity and expertise of lawyers, advocates, decision-makers, scholars and affected community members to bring real change to the lives of stateless people, and contribute to the development of national, regional and international law and practice.

The Global Caselaw Database on Statelessness was developed with the support of UNHCR, the European Network on Statelessness, and Mallesons. It is an evolving tool, to which new cases will be added.