Wednesday, 20 July 2011

A state, within a state, within a state...

There’s a curious place you can visit, just a short stretch down the road from where the Statelessness Programme has its office in Tilburg. It’s called Baarle-Hertog and it’s a little patch of Belgium, entirely encircled by territory of the Netherlands. Then, inside this patch of Belgian soil, is another, smaller plot of land which is once again a part of the Netherlands, but cut off from the rest of the country completely by the area of Belgian territory. A state, within a state, within a state. Arising many centuries ago as a result of various treaties, land swaps and sales, it is an anomaly which, much to the bewilderment of many, has defied all efforts at being corrected. Over time, successive attempts to create a more regular border situation – including as recently as 1996 – were thwarted, thanks in part to the strong sentiment of proud residents in favour of maintaining the status quo. Today, with both Belgium and the Netherlands enveloped by the European Union, this geopolitical curiosity has little real significance and it serves largely as something of a tourist attraction.

Half-way around the world, in South Asia, we find a similar geopolitical anomaly of far greater significance. The border region of India and Bangladesh, in the districts of Cooch Behar and Jalpaiguri, is dotted with its own series of enclaves – little patches of one state that are surrounded by the territory of the other. The scale of the situation is impressive: although exact figures differ from one source to another, it appears that there are over 100 Indian enclaves in Bangladeshi territory and more than 50 Bangladeshi enclaves in Indian soil. Here, too, there are also some enclaves within enclaves, such as the Bangladeshi sub-enclave of Haluapara that is surrounded by the Indian enclave of Garati, in turn encircled by Bangladesh. For over fifty years, India and Bangladesh (previously East Pakistan), have intermittently and unsuccessfully discussed the exchange of these enclaves and the normalisation of the border. In 1974, an agreement was even reached about a land swap to resolve the situation of the enclaves, but this was never implemented. All the while, the tens of thousands of residents of both sets of enclaves have been left much to their own devices, their physical separation from the mainland state resulting in them becoming cut off from regular government services. Infrastructure (e.g. roads, postal service and electricity), healthcare, education, markets/trade, law enforcement, tax collection and politics – none reach effectively across the foreign divide from the mainland state and into the enclaves. Even travelling from the enclave to the mainland state became a real challenge when passport and visa systems were introduced but no provision was made for passport offices within the enclaves to issue documents to residents, forcing them to cross borders illegally just to file a passport application in their own state.

As one study summarised, the enclaves formed an “archipelago of stateless territories” and the inhabitants themselves have been described by numerous observers as stateless. Indeed, if their lives are untouched by their purported country of nationality due to the absence of any functions of the state in their place of residence and their inability to travel to the mainland state, perhaps there is no “state” which considers them as nationals and they could in fact be identified as stateless. Or perhaps they are not truly “considered as” nationals, given that they have been left stranded in their enclave with little to no interaction with the state. [A stateless person is someone who is not considered as a national by any state under the operation of its law]. It’s certainly the case that the peculiarities of their situation raise some fundamental questions about the meaning of statehood, the content of nationality and the interpretation of various components of the definition of statelessness.

Today, the Indian and Bangladeshi enclaves are making international headlines because the two countries seem to be taking unprecedented steps towards a resolution of the situation. This month, the first ever joint census of the population of the enclaves is being carried out, to get a complete picture of how many people live in these patches of territory. It looks as though, when the countries’ leaders next meet, the proposal of a land-swap or other settlement for this anomaly will be back on the agenda. If and when this does happen, the repositioning of the borders will inevitably lead to new questions about the nationality of those who live in these areas. As with all situations where sovereignty over a plot of land is passed from one state to another, the matter of citizenship will have to be carefully coordinated in order to ensure that no-one is left stateless. It would be a sad state of affairs indeed if normal state functions and services are finally secured for the enclaves, only to now leave the people without citizenship or forced to relocate in order to continue to enjoy a nationality.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme

Monday, 4 July 2011

Gender discrimination helps to avoid statelessness?

Comments on the judgment of the US Court of Appeals, as confirmed by the judgment of the US Supreme Court, US v. Ruben Flores-Villar

A recent judgment of the Supreme Court upheld, to the surprise of statelessness experts, a very strange finding of the US Court of Appeals, namely that explicit discrimination on the basis of gender in national law is justified, among others, by the objective to avoid statelessness.

The case revolved around the question of the US citizenship of Mr Flores-Villar, who was born in Mexico, to a Mexican mother and an American father. His parents never married. US Nationality law distinguishes between mothers and fathers in their ability to transmit their US citizenship to their children born out of wedlock on the territory of a foreign state. Fathers need to meet much stricter requirement than mothers. Fathers need to have resided in the US for at least 10 years prior to the child's birth, at least 5 of which after the age of 14, and mothers only need to have resided in the US for 1 year prior to the child's birth. Since the father of Mr. Flores-Villar was 16 at the time of birth of Flores-Villar, it was impossible for him to fulfill the condition of having lived in the US for a least five years after the age of 14.

The US government successfully argued in favour of differential treatment of men and women, by saying that 'avoiding stateless children is an important objective that is substantially furthered by relaxing the residence requirement for women'.[emphasis added] The wording of this argument is very important, because it suggests that were the discrimination to be eliminated, it would not result in men being able to transmit their citizenship to children born abroad more easily. Instead, women would be held to the same strict requirements as men. This would, of course, lead to more cases of statelessness, since fewer American parents would be able to offer US citizenship to their children.

However, with such logic, any gender discrimination laws leading to statelessness can be reinterpreted as actually avoiding statelessness. For example, if a law obliges women, and not men, to renounce their nationality upon marrying a foreigner, it can be said to be avoiding statelessness by relaxing renunciation criteria for men – if men were also obliged to renounce their citizenship, many more cases of statelessness would be created.

Assessment of gender discrimination in nationality law in light of the problem of statelessness should focus on establishing the risks of becoming stateless (or having stateless children) for the disadvantaged group. Illustrating that certain favours extended to a priviledged group result in less statelessness than if such favours were not extended does not make gender discrimination justifiable.

Another aspect of this discriminatory law that was not clarified in the judgment is why men, and not women, are being discriminated against? Why do women need greater opportunity to pass on their nationality to children born abroad in order to avoid statelessness? In fact, there are many states that continue to adhere to a patrilineal jus sanguinis regime, which assumes that a child inherits the nationality of the father. If a child is born on the territory of such a state, or if the mother is a national of such a state, enabling men to transmit their citizenship is much more important for the purposes of avoiding statelessness.

The Court does not explain why statelessness is better avoided by favouring women. Instead, it endorses the US government's arguments involving archaic sexist perceptions of parenthood. Mothers were judged to have a better chance to establish a relationship with their child, because they inevitably meet their child at least once, i.e. during the birth. Mr. Flores-Villar, who was brought up by his father, suggested that the factual parent-child bond should be taken into account, but the Court disagreed. Why should we bother with the "subjectivity, intrusiveness, and difficulties of proof" related to the establishment of the factual parent-child relationship, when there is an "easily administered scheme" of biologically-based stereoypes to rely on?

And what about the discriminating attitude of the judgment (and of the US Nationality Law) towards children born out of wedlock? According to the legal provision at stake, they are obviously at a higher risk of becoming stateless than children born in a marriage, even if they are brought up by both parents. This question was not even touched upon in the judgment.

The way in which the US Court of Appeals used the argument of avoiding statelessness in this judgment is surprising. The fact that this reasoning was upheld by the US Supreme Court is disturbing. The only consolation is that the Supreme Court was divided, four judges against four, which indicates that not all judges in the Supreme Court misunderstand so deeply the relationship between gender discrimination and statelessness.

Katja Swider, Researcher/Advisor, Statelessness Programme