Wednesday, 14 December 2011

Nationality. Humanity.

No piece of paper, no state, no treaty, can ever affect one’s foundation of life.  All of us are born equal, with equal rights and for this reason it is only just to be treated alike. But above all, it is human. 

A stateless person, one without a nationality, is legally defined as follows: ‘A person who is not considered a national by any state under the operation of its law.’ Being a national comes along with the practice and protection of many rights. For example the right to travel, and the right to be protected outside your own state. But when citizenship is stripped away suddenly having those rights becomes a myth because in practice the rights will often vanish. Using citizenship in order to define a person creates the theory that a non-citizen has fewer rights to practice and therefore has almost no opportunity to live life equally to a citizen. Not having citizenship affects people in a manner that degrades human integrity. But does it make people any less human?

I would argue that it doesn’t. After all, it is important to keep in mind that citizenship is only one way of categorising or defining human beings. Four other factors that play a much bigger role in defining human beings are: anatomy, history, language and culture. Let us go through these factors and at the same time make the link to statelessness.

 So, what characterizes a human being? From a biological stance, one could be inclined to answer by an array of physical features, such as two arms, two legs, a torso, and a head. Evidently there may be inconsistencies with the provided definition due to congenital factors or as the result of various events in life, but in any case this should be potentially foreseeable enough for the definition to have sufficient grounding. A stateless person does not differ at all as a human being in the sense of this definition from a national.

Then, a man’s life is influenced by the history of his birthplace, by persisting cultural norms and values, by his religious beliefs, and by his personal experiences et cetera. For this reason it is wise to also consider social aspects when attempting to define a human being.
To start off with the past: the history of the place of origin, often one’s birthplace. Even though it is difficult for a man of the 21st century to identify with his ancestors of many centuries ago, we can still speak of a certain level of sympathy towards one’s past. It provides an unmistakable identity to a large population. This way an average Egyptian could proudly speak of the civilization in the time of the pharaohs, but a Libyan will not be as touched by the Egyptian antiquity. Stateless people have this particular history too, that provides them a source of recognition. This can often be the same as people who do have a nationality. There are cases in Lebanon for example in which the mother has the nationality but the son does not, because it is the father only, who is entitled to pass on nationality. When the stateless son gets married he will not be able to pass on his nationality to his child. Even though he and his child are legally not recognized as citizens of Lebanon, they still share the same past as their mother and grandmother, and therefore they cannot be disconnected from their birthplace.
To understand your own history it is important to speak the language of your past, literally. As plenty of philosophers have noted already, people usually misunderstand each other because of their inability to fully express themselves in words. Language, therefore, is an important feature when defining a group of people simply because it does not favour nationals above stateless people.
From the evolutionary perspective, belonging to a group has always been important for the survival of humans. This survival mechanism still applies in our modern societies. A group provides security, protection, understanding, and perhaps even love. Such groupings are strongly influenced by common characteristics relating to culture. An Afghan proverb goes as follows: gar ba share yak linga rafti, ba yak ling begard. Translation: when you go to the land of the one-legged, make sure you walk with one leg. This proverb, to me, describes the core of culture, no matter where on earth people are. It implies that when you are walking on one leg, in a one-legged land, make sure that you just hide the other leg, rather than cutting it off completely. This means that wherever people go, whoever they are, own culture always distinguishes them from other groups of people. These traditions apply in the exact same manner to stateless people, because culture does not discriminate between citizens and non-citizens.

Nationality has become a great tool to categorize people and to keep societies in good order. At the same time it condemns outsiders, who have no nationality. It robs them of the practice of their rights and even touches human integrity in a severe, intolerable manner. With the four above factors I have tried to demonstrate that not having a nationality does not change a man’s humanity. Stateless people have the same limbs and they speak an understandable language. They have a particular history and culture that often is identical to their neighbours who are citizens.
Statelessness does not imply that people who do not belong to any state are supposed to live and die without leaving any trace. The origin of man gives an integral sense of dignity, and no legal definition is able to change that. 

Moshgan Wahedi, Intern, Statelessness Programme

Friday, 9 December 2011

'Best interests of the child' as a uniting principle for citizenship

When thinking about the Oecumene project, I reflect on what binds us together and what separates us in terms of our experiences of citizenship around the world. In my last blog, I wrote about the shared experience of statelessness, which has regrettably become a truly global case study for exploring how the absence of citizenship affects people. This time, I’d like to share some thoughts on another common or shared experience relating to citizenship, which caught my attention thanks to a recent decision of the African Committee of Experts on the Rights and Welfare of the Child. It would seem that, whether we are perusing international legal standards or delving into the domestic citizenship law of any state picked at random, one notion emerges as a uniting principle: the best interests of the child.

Every citizenship law includes provisions that regulate the attribution of a nationality ‘of origin’ or ‘by birth’- i.e. the granting of citizenship to a newborn child, providing that the child is linked to the state in some way. Thus, whether nationality is conferred under a particular law on the basis of parentage, place of birth or a combination of both, all states seem to agree on one thing: children should, in principle, acquire a nationality at birth. This approach is so universal as to go largely unquestionned. It seems simply to make sense to us that a child acquires this part of his or her identity immediately, even if this is bestowed without consultation or regard for the legal consequences that holding of a (particular) nationality may entail for the individual in later life. Only rarely does someone, perhaps a political scientist or a legal philosopher, query whether this is proper [see for instance The birthright lottery, Schacher, 2009]. Admittedly, there will be other motives for states to confer nationality at birth in this manner – not least the need to maintain a body of citizens in order to continue to exist as a state, a population being one of the constituent elements of statehood. Nevertheless, we can already cautiously conclude that this universal and mostly uncontended approach to citizenship also reveals the value that we place on the possession of a nationality. Perhaps this state practice is, in other words, evidence that to have a nationality – even an enforced one – from birth, is in the best interests of the child.

Such a conclusion is reinforced when the we dig deeper and see what importance is given by states, both individually and collectively, to the avoidance of childhood statelessness. I could name no more than one or two citizenship laws that do not encompass at least some form of safeguard to ensure that children do not become or remain stateless. True, many of these safeguards are inadequate, incomplete and often poorly implemented. Yet at a basic level, their very elaboration supports the idea that states see statelessness to be generally incompatible with the best interests of the child. Turning to international law, the principle of the best interests of the child becomes explicit. It is central, for instance, to the Convention on the Rights of the Child [article 3], which asks for the best interests of the child to be ‘a primary consideration […] in all actions concerning children’. As such, this overall principle applies to the enjoyment and therefore the interpretation and application of all rights under the convention, which includes the right to acquire a nationality [article 7]. This verifies the above assertion that states view the enjoyment of citizenship to be in the best interests of the child [see also, for instance, the 1961 Convention on the Reduction of Statelessness, articles 1-4].

This brings me to the recent decision of the African Committee on the Rights and Welfare of the Child which considered the situation of children of Nubian descent in Kenya [issued 22 March 2011]. Throughout the text of this decision, the best interests of the child was a recurring theme, relied upon by the Committee at numerous junctures to shape its ruling and place the children in question centre stage. The best interests of the child ‘demanded’ that the Committee consider the communication that had been brought to them on behalf of the children of Nubian descent. The best interests of the child also justified ‘an exception to the rule on exhaustion of local remedies’ in this case, because the children had been left in limbo for too long due to stagnation within the domestic court system in Kenya. And the best interests of the child was taken into account at every stage of the interpretation of Kenya’s obligations with regard to the right of a child to acquire a nationality under the African Charter on the Rights and Welfare of the Child [article 6]. The best interests of the child led the Committee to conclude that the practice of leaving children of Nubian descent without a nationality until they complete certain procedures when they are 18 years old is in violation of the African Children’s Charter. Continuing this line of reasoning, the Committee declared that the state has an obligation to implement safeguards against childhood statelessness (in the African context, a jus soli fall-back clause) ‘proactively’ and to prevent statelessness ‘as much as possible from birth’, because this is in line with the best interests of the child.

This case is one of the best examples to date of the concept of the best interests of the child being applied specifically – and explicitly – in the context of citizenship. But it is only one expression of what is emerging as a uniting principle, rooted in state practice, articulated in the aspirations of international law and gaining greater prominence in the battle against statelessness [see for instance the UNHCR expert meeting conclusions on the prevention of childhood statelessness, 2011]. It is food for thought that even if we don’t all share a common notion of what citizenship is and who should enjoy it, we do all seem to agree that it is something that no child should go without.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme
[This blog post was first published as part of the OECUMENE Project and can be found here]

Wednesday, 7 December 2011

A little inspiration from the UNHCR interministerial meeting!

Today was the first day of the 2-day intergovernmental meeting at Ministerial level, organised by UNHCR in honour of the 60th anniversary of the 1951 Refugee Convention and the 50th anniversary of the 1961 Convention on the Reduction of Statelessness. A good number of the statements made have talked about statelessness - an achievement that would have been unthinkable even a few years ago. For a little inspiration, here's the relevant statelessness extracts from the opening speeches by the High Commissioner for Refugees himself, Antonio Guterres and by US Secretary of State, Hillary Clinton...

Antonio Guterres:
Turning now to the problem of statelessness, I am particularly heartened with the impact that commemorations activities seem to have had so far on the thinking and practice of states. An estimated 12 million people live without a nationality worldwide – a number comparable to that of refugees. Many of them are deprived of some of their most basic human rights: they cannot get married legally, go to public schools, enrol in university, or get a job. They are unable to obtain drivers licenses, birth certificates for their children, or death certificates when their loved ones pass away.  

Despite the millions of persons affected by it, statelessness has long been neglected on the global agenda. But this now seems to be changing. Four states – Croatia, Nigeria, Panama and the Philippines – have acceded in 2011 to one or both of the two statelessness conventions. Serbia and Turkmenistan will be depositing instruments of accession at the Special Treaty Event this evening. I am pleased that many more states have indicated their intention to announce their accession during the next two days.

At the same time, several states are already amending their national legislation to prevent and reduce statelessness, for example by allowing both men and women to pass their nationality on to their children. Statelessness is now literally “on the map” everywhere, with no region untouched by progress.

UNHCR is particularly grateful to the many states who have become champions of statelessness, lending their support to our advocacy work to move forward in this area.

But together we must go beyond acknowledging the problems of stateless people. What they really need are solutions that enable them to secure a nationality and enjoy the full rights of citizens.

Hillary Clinton:
Today, 12 million people on this planet wake up every morning stateless, belonging to no country at all. Most of them are in developing countries without sufficient resources. And more than 40 million people are displaced around the world. The pledges we are all making today will be an important step in helping them build a better future.

Later, Acting Assistant Secretary Robinson from the State Department’s Bureau of Population, Refugees, and Migration will speak in some detail about the 28 pledges the United States is delivering. I would like to briefly mention one that is a particular priority for the United States, and for me personally. It concerns one of the major causes of statelessness, which is discrimination against women.

At least 30 countries around the world prevent women from acquiring, retaining, or transmitting citizenship to their children or their foreign spouses. And in some cases, nationality laws strip
women of their citizenship if they marry someone from another country.

Because of these discriminatory laws, women often can’t register their marriages, the births of their children, or deaths in their family. These laws perpetuate generations of stateless people who are often unable to work legally or travel freely. They cannot vote, open a bank account, or own property. They often lack access to health care and other public services. And without birth registration or citizenship documents, stateless children often cannot attend school.

In this compromised state, women and children are vulnerable to abuse and exploitation, including gender-based violence, trafficking in persons, and arbitrary arrest and detention. And that hurts whole societies—because when women are given the opportunity to participate equally, they contribute to their countries’ democratic governance, peace and stability, and economic development.

The United States has launched an initiative to build global awareness about these issues, and to support efforts to end or amend those discriminatory laws. We will work to persuade government officials and members of parliaments to change nationality laws that discriminate against women, to ensure universal birth registration, and to establish procedures and systems to facilitate the acquisition of citizenship for stateless persons.

I encourage other member states to join this effort. I am pleased that High Commissioner Guterres has signaled his support. And I encourage UNHCR to work with UN Women, UNICEF, UNDP, and other UN partners to achieve equal nationality rights for women.

Tuesday, 6 December 2011

No Country, No Identity, No Rights?

Exhibition and Photography Workshop

Through the entire week of October 31 the exhibition “Nowhere People” by award-winning photographer Greg Constantine was displayed in the foyer of Dante-building of Tilburg University. The powerfully evocative and artistic black-and-white photos drew everyone’s attention. The special feature of the exhibition was the diversity of people who are stateless, from Bangladesh to Ukraine. It was also poignant to note that statelessness does not discriminate on age. The particular picture of a Nepalese man lying on the floor with a child in a hammock next to him showed that being stateless means that your children will be born stateless too. The great choice of black and white underlined the hopelessness and perpetuation of the issue of statelessness.

Greg Constantine has spent six years documenting the daily lives of stateless groups around the globe to produce the “Nowhere People” series. In a one-off workshop, Constantine discussed his approach to photography and to the people who are the subject of his pictures, including a guided tour of his exhibition through a PowerPoint presentation. The three-hour workshop was held on the 2nd of November.
Constantine opened the workshop by asking the participants to introduce themselves to get a good impression of the diversity of the audience. Immediately one could feel the intimate mood of the gathering, intensified by the occasional hoarse voice of Constantine, the small group of people, the twilight and the touching photos.

He started telling about the way he approached stateless people. Whenever a photographer wants to capture people’s lives, he must get to know the people first. Therefore he never brought the camera with him while visiting people the first couple of days. By having long conversations and winning their trust, he got to know the stateless people and their problems. Especially with stateless people trust is key, because they often take risks by talking with outsiders. More important is the fact that stateless people have been neglected for too long, and they are not willing to speak to anyone. When a project has resulted in a series of photographs the struggle of selling it to the audience begins. It is important, Constantine made sure, that you believe in your own project in order to present it to a audience without prior knowledge or interest in the subject.
Symposium The official launch of the Statelessness Programme took place on November 3. The symposiums aim was to create a unique opportunity to better understand the problem of statelessness and how it affects people, both around the world and in the Netherlands. At the symposium, the guest speakers each talked about their effort to shed light on the problem of statelessness.
The symposium began with a short movie in which 10 facts about statelessness emerged. After the movie Dr. Laura van Waas, senior researcher of the Statelessness Programme, made an opening speech. She spoke briefly about the subject, and presented the following guest speakers.
Greg Constantine, the aforementioned photographer, was the first one to speak. He has worked intensively for the last six years to produce the powerful “Nowhere People” series. Through photo essays he started telling the world about the bare life conditions of stateless people. The different stateless groups included the Rohingya of Burma, the Dalit of Nepal, the Bihari of Bangladesh, the Hill Tamils in Sri Lanka, the children of Sabah (Malaysia), the Nubians of Kenya, the ex-Soviets of Ukraine, and the stateless people of the Ivory Coast.  He also gave us a short glimpse of one of his new projects; the stateless people of the Dominican Republic.
Constantine spoke about the impact that the denial of citizenship has on stateless people everywhere. It can be a root cause of critical issues like forced migration, human trafficking and even armed conflict. Not only physical trouble is an every day reality, stateless people are also denied to get married or the right to reproduce, as is the case with the Rohingya in Myanmar. Constantine gave an impeccable first impression with his photo essays of statelessness around the world. He made it clear that groups of people are excluded from society by forces beyond their control. More importantly, he proved that these people need our attention to give them their rights back.
The second lecture was on the stateless people of Lebanon and Latvia given by Els Duran and Evelien Vehof. Els and Evelien are journalists who are writing about statelessness within their project “Citizens of Nowhere”. In Lebanon Els and Evelien were struck by the gender issues of statelessness. The newly wed couple they talked about were totally unaware about the fact that their children would be born stateless, because the woman could not pass on her nationality and the man was himself stateless. In Latvia they came across probably one the most interesting groups, “Russian Speakers”. During one of their bus tours their tour guide, Alexander, spoke about his pride on being stateless. He stated that being stateless was not a disadvantage in a corrupt state. It was refreshing to understand that with statelessness the hardship was overall the same, but stateless people have diverse opinions about their status as the circumstances of the state they live in differ.

The last lecture was given by the Head of Office of the UNHCR, Rene Bruin, and one of the researchers of the UNHCR on statelessness in the Netherlands, Karel Hendriks. Bruin started off with telling about some disturbing findings of the UNHCR while doing the research. One might not expect that statelessness is a big issue in the Netherlands, but the fact that a proper procedure to deal with stateless people has not been established indicates that statelessness has not been taken seriously yet. Another matter is the poor documentation of people who are not defined as Dutch nationals, foreign nationals or stateless people. The last point Bruin made was about the sometimes long-term or repeated detention of stateless people due to their lack of a regular immigration status. Hendriks gave an example of the effects of detention on stateless people by telling about a stateless person, John, living in the Netherlands. John is originally from Suriname, but has also spent a long time living abroad, including Holland. A problem occurred when both Suriname and the Netherlands were not sure anymore about how long John had been in each country and which nationality he was entitled to. For many he has been struggling living on the street in Holland, and eventually getting detained several times simply because Suriname and the Dutch state could not recognise him as a citizen but there was also no protection for him in the Netherlands as a stateless person. It is remarkable that a person can be denied a nationality due to a simple formality and live most of his life struggling to prove that he has an entitlement to a nationality.
After the lectures a discussion with the audience took place. The questions showed the frustration that was raised because of the issue. Especially the question of a lawyer on how long it would take before the Dutch government will solve this problem, illustrated the hopelessness of everyone faced with statelessness. The disappointing answer was: we can expect it take at least 5 years for a law to be introduced that would establish a statelessness procedure.

All in all, it is fair to say that at the end of the week the issue of statelessness has touched everyone who heard or saw something about it. A first attempt to reach people who are unfamiliar with these people who are forgotten has been successful, but this does not imply that our job is done. The Statelessness Programme is at its beginning on helping to understand, to research and to solve the issue of statelessness. In pursuit of these goals everyone is welcome to join, because statelessness is not simply an interesting legal subject, it prevents to live a life at its fullest. A person cannot be defined by any kind of document, but we live in a legal order where citizenship is of importance in order to practice most of our rights. With this in mind I would like to end with a citation of Hannah Arendt: “To be stripped of citizenship is to be stripped of worldliness; it is like returning to a wilderness as caveman or savages… they could live and die without leaving any trace.”

Moshgan Wahedi, Intern at the Statelessness Programme

Thursday, 1 December 2011

Citizenship and the European Court on Human Rights: The case of Genovese v. Malta

Although the right to a nationality is prescribed under several international legal frameworks, it is not contained as a provision in the European Convention of Human Rights.  Subsequently, cases of denial of nationality could not be brought before the European Court, unless one of the consequences of this denial was to violate a separate provision.  In October 2011 however a judgement on a case relating to gender discrimination in Maltese nationality law was passed before the court. The implications of the decision could potentially be a very important step in the right to nationality being accepted under the courts jurisprudence.

The case

Mr. Ben Alexander Genovese was born, out of wedlock, to a British mother and a Maltese father in 1996. Under Maltese law, a child born out of wedlock outside of Maltese territory can only obtain nationality if the mother is Maltese.  The applicant was able to obtain British citizenship, but claims that his right to potentially have a relationship with his father has been violated due to gender discrimination in Maltese nationality law which did not allow him to acquire his father’s citizenship.  The judges considered that the applicant’s right to a private life had been violated due to discrimination in the law.  They voted six to one that there had been a violation of Article 14;

“The enjoyment of the rights and freedoms set forth in (the) Convention shall be secured without discrimination on an ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property birth or other status.’’

In conjunction with Article 8,
’Everyone has the right to respect for his private life, his home and his correspondence.’’

What could this mean?

In this case, discrimination in nationality law has been seen to violate Article 14 in conjunction with Article 8.  Article 8 is a dynamic provision that is continually undergoing renewed interpretation, and now the possibility is that citizenship cases could more readily be brought in and tested under this article.  What is significant about this judgement is that lack of access to nationality can be seen to violate Article 8.  It is implied that not granting nationality could violate the article ‘’because of its impact on the private live of an individual, which concept is wide enough to embrace aspects of a person’s social identity.’’  This implies that denying Genovese’s access to Maltese citizenship is impacting on him exercising his full social identity.  Hence, this is violating his right to a private life, which ultimately is a violation of Article 8.  

What does this mean for other cases regarding nationality that may not involve discriminatory nationality laws?  The applicant in this case had another nationality and therefore it would be difficult to argue that he could not fully exercise his right to a social identity.   However, if an individual is stateless, would that mean that there exists complete violation of their social identity, regardless of whether there was discrimination in the state’s law?   Would citizenship cases of stateless individuals therefore be seen to independently violate Article 8 and be brought to the court on that basis, without also requiring the applicant to invoke article 14?  Although the ambiguity surrounding this relevant paragraph in the judgement does not allow it to explicitly state that denial of citizenship is a violation of Article 8, the door appears to have been eased open.

Zahra Albarazi, MENA Project Coordinator, Statelessness Programme