The Struggle Against Statelessness Advances in Strasbourg

Eighteen years ago, as the country of Yugoslavia began to break apart, Mustafa Kurić became stateless.

Born in 1935 in the Yugoslav republic of Bosnia-Herzegovina, Kurić moved at age 20 to Slovenia—then just another part of Yugoslavia—where, as a trained shoemaker, he lived and worked for more than 30 years.

On June 25, 1991, Slovenia declared independence from Yugoslavia, taking the first step down a path toward war. People living within its borders were given only six months to apply for citizenship in the new state. Then, on February 26, 1992, the Slovenian government "erased" Kurić from the civil registry, along with more than 18,000 other citizens of the former Yugoslavia who were legally residing in Slovenia but had failed to apply in time or whose applications had been rejected. In so doing, the government withdrew these persons’ legal resident status and placed them on a register of illegally resident foreigners. Several legal challenges were brought before the Slovene courts. Although the Constitutional Court declared the erasure illegal, the Slovenian government failed to restore legal residence status to the individuals whose names were erased.

Last week, the European Court of Human Rights took a small step toward redressing the injustice that Kurić and thousands of other long-term residents of Slovenia suffered. In Kurić v. Slovenia, the Court ruled that the failure to grant Kurić and others legal status as permanent residents breached their fundamental rights to private and family life under the European Convention. And the Court did not just declare a violation; it ordered the government of Slovenia to enact appropriate legislation to regulate the situation of the erased and issue them retroactive permanent residence permits.

The significance of the Strasbourg Court’s decision rests on two somewhat contradictory facts.

On the one hand, Kurić matters because statelessness is a global phenomenon. Striking though it was, Slovenia’s erasure of thousands of persons, rendering them stateless, was not unique. Statelessness afflicts more than ten million persons on every continent. Many more, if not clearly stateless, are condemned to a legal limbo of uncertain citizenship status.

Like Mustafa Kurić, many people become stateless without ever having willingly crossed an international border. In Kurić’s case, which took place in the context of state succession, the border crossed him. But in other countries—from the Dominican Republic to Kenya, from Cote d’Ivoire to Thailand—tens of thousands are denied nationality from the day they are born. As a result, they cannot go to school, obtain medical care, or vote.

Given the scale of statelessness, any judgment by one of the world’s most respected tribunals which addresses the problem is a major event.

But Kurić was important as well, precisely because it departed somewhat from the settled, if unsatisfactory, pattern of international law. That law has traditionally granted states broad discretion to regulate access to nationality, with only grudging regard for the human rights of individuals. Thus, although Article 15 of the Universal Declaration of Human Rights famously grants “everyone” the “right to a nationality,” nowhere does it specify which, if any, government must fulfill the right.

In similar fashion, the jurisprudence of the European Court has consistently reaffirmed that “no right to acquire or retain a particular nationality is as such included among the rights and freedoms guaranteed by the Convention or its Protocols.” Although the court had previously observed that “an arbitrary denial of citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual,” it had never before found that the impact of citizenship denial on Article 8 rights was sufficiently severe to constitute a violation.

Kurić marks a turning point.

First, the Court noted that Article 8 “does not merely compel the State to abstain from… interference [with the right to respect for private and/or family life]: in addition to this negative undertaking, there may be positive obligations inherent in effective respect for private and family life.”

Second, the Court affirmed a broadened view of the conception of private life protected by Article 8, which it extended to “the totality of social ties between settled migrants and the community in which they are living.”

Third, having put substantial flesh on the skeleton of Article 8, the Court found that “the prolonged refusal of the Slovenian authorities to regulate the applicants' situation comprehensively… in particular the failure to pass appropriate legislation and to issue permanent residence permits to individual applicants, constitutes an interference with the exercise of the applicants' rights to respect for their private and/or family life, especially in cases of statelessness.”  As a result, the Court found that Slovenia had breached Article 8 and, by failing to offer any domestic remedies for this breach, Article 13 as well.

Kurić thus has moved forward the goalposts of state obligation in the field of nationality. No longer is it sufficient for states to give long-term residents, as Slovenia did, six months to acquire citizenship or, should they fail to act during this limited window of opportunity, condemn them to legal limbo. Rather, states must affirmatively grant such persons secure legal status—by adopting the appropriate legislation and insuring issuance of the necessary documentation.

Moreover, Kurić made clear that states’ obligations are heightened where persons are at risk of being stateless. In doing so, the Court attached weight to international instruments prohibiting statelessness, such as the UN Convention the Reduction of Statelessness and the European Convention on Nationality, even though Slovenia had not yet ratified them.

Even as it advanced the state of international law, Kurić raised a number of questions.

If denial of legal status is impermissible in the context of state succession within the former Yugoslavia, what are the obligations of neighboring states—such as, for example, Italy—that absorbed large numbers of refugees and have yet to regulate their status, or that of their children?

Relatedly, in Kurić the Court found it sufficient as a remedy for the government to issue retroactive permanent residence permits. It left to another day the question of whether, with respect to persons who are otherwise stateless, that is sufficient—or alternatively, whether citizenship itself—the legal embrace of an individual by the political community he or she inhabits—is an essential component of private life under Article 8.

Finally, the Court in Kurić declined to address the claim that the applicants were made stateless or arbitrarily denied nationality for discriminatory reasons, in breach of Article 14. In many parts of the world, as in Slovenia, ethnic or racial animus is a common cause of statelessness; and ethnic and racial minorities disproportionately suffer the indignity of uncertain citizenship status. In the future, it is to be hoped that the Court will mandate effective protection against arbitrary denial of nationality, not only as a component of the right to private life, but also as an essential element of equal justice and nondiscrimination.