Strategic litigation: An obligation for statelessness determination under the European Convention on Human Rights?

An array of issues could potentially be pursued through litigation to improve the situation of stateless persons in Europe. This paper concentrates on one very important issue: statelessness determination. Currently, many European countries do not (yet) have a statelessness determination procedure, but do have international obligations towards stateless persons. Therefore, it is important to explore how these obligations can be fulfilled in the absence of a procedure that determines statelessness. In this context as regards a state that lacks such a procedure, if the case can be made under the European Convention on Human Rights for an obligation to determine statelessness in order to avoid a violation of protected rights or provide just satisfaction where a violation of such rights occurs, the Convention would constitute an important tool to help ensure better protection for stateless persons in Europe. It would also promote the benefits of the introduction of a formal statelessness determination procedure in the state concerned.

This paper examines some important articles of the ECHR in order to assess whether an obligation to determine statelessness can be construed. This paper examines the following articles: the prohibition of torture and inhuman or degrading treatment or punishment (Article 3), the right to liberty and security (Article 5), the right to respect for private and family life (Article 8), the right to an effective remedy (Article 13) and the prohibition of discrimination (Article 14). For each Article, selected issues that have been considered by the Court, and that can be linked to statelessness determination, are discussed. The paper discusses the existing case law of the Court, the link to statelessness determination and the feasibility of pursuing the issue of statelessness determination through further strategic litigation. Among those issues with an evident link to statelessness and statelessness determination are, for example, expulsion, (arbitrary) detention, the right to a nationality and the mental suffering caused by uncertainty. The paper demonstrates that statelessness can play a role in legal proceedings relating to each of the Articles discussed. This demonstrates that statelessness, as well as the determination of statelessness, is an issue that is of concern to all States Parties to the ECHR in the fulfilment of the obligations flowing from this instrument.