Thursday, 29 March 2012

The Bidoon: A solution in sight?

Only three months in and 2012 is already bearing witness to significant developments for the Bidoon issue in Kuwait, a situation that has been left unsolved for decades.  This community, numbering over 100,000, is a stateless group who, despite living in Kuwait for decades, are not considered its citizens. They suffer from difficulties accessing a range of basic rights, including obtaining ID certificates, access to public education, health care, housing and employment.  Additionally they have no recourse to the state’s judicial system.

The tumult

Last year (2011), in February and March, many members of the Bidoon community took to the streets to demand full citizenship. This was the only large-scale protest to take place in the gulf region amidst the ongoing MENA uprisings. This tumult then calmed, until December last year when the protests were resurfaced. 

The response by the Kuwaiti authorities was two-fold.  On the one hand, there were brutal attempts to quell the protests.  Riot police were deployed – with tear gas, water cannons and batons reportedly used.  Many Bidoon were believed to have been injured and hundreds arrested and detained.  The government then threatened to deport stateless people who took part in the protests.  Other punitive measures included dismissing Bidoon from the army and the police force if they or their children had taken part in the protests, and threats were made to evict them from welfare housing.   The government also decided to confiscate security IDs from any Bidoon protesters - documents that constituted their only form of identification.  It is now believed that the ‘occupy the parliament’ campaign, where hundreds of mainly Bidoon demonstrators stormed the parliament, will be used against those who participated who might face years in jail.

At the same time, the reality of the need for steps to be taken to address the issue became clear to the Kuwaiti government. Saleh Al Fadhalah, the head of the inaptly named Central Agency for Illegal Residents that is mandated to deal with this issue, stated that they were to commence working on the cases of approximately 34,000 stateless people who they feel could qualify for citizenship. These, it was announced, would include, amongst others, children of Kuwaiti women, individuals serving in the army and police, and relatives of Kuwaitis. The degree to which this might be implemented, the identification procedure, the exact criteria and the naturalization process are all yet to have been established.  So, although this is a  potentially positive move, by ignoring the majority of the community it clearly falls short of what is needed to resolve the full problem. It also changes the angle from discriminating against the Bidoon to discriminating between the Bidoon as to who deserves to be naturalized and who doesn’t.

One of the consequences of these actions and the ambiguous reactions is that there has been increased international interest in the issue. The UK has sent a committee to observe developments, as has the US State department. The UN has also taken  a more vocal stance than has been seen in the past. UNHCR’s Director of International Protection, Volker Türk, visited the country to discuss developments with the authorities. He highlighted the importance to national interest of resolving the issue, stating that ‘if you stabilize a population, if you fight inequality, if you stop segregation and you try to integrate a whole population, it benefits the entire society.’  The Committee on the Elimination of Racial Discrimination also issued a statement relaying its most recent concerns regarding Bidoon issues, pointing in particular to the low rate of naturalizations, and the fact that basic human rights violations, such as access to adequate services, are commonplace among the population.

Alongside this however the national reaction to the developments is interesting. Coupled with growing involvement from civil society on the issue, the Kuwaiti media has been increasingly vilifying the Bidoon community in their news reports. There are, for example, continual and amplified reports on crimes being committed by Bidoons, with the fact that the individual involved is a Bidoon always being stressed. 

Where to now?

Over the past year, the Bidoon have seen protests, a storming of parliament, detention, threats of deportation and promises of citizenship, while very few have actually been naturalized.  What needs to be looked at now, besides all these events, is what concrete initiatives may come from all this and whether there is any real scope for positive next-steps.
The month of March has witnessed the issue slowly but seriously moving into parliamentary debate sessions.  One session was dedicated purely to addressing the issue with a Prime Minister ‘grilling’ opportunity.  A Kuwaiti MP stated that this discussion on the Bidoon was needed in order to ‘grant them their basic human rights and preserve their dignity,’ statements unheard of before the recent protests.  The same MP, Mubarak Al-Waalan, also asserted that ‘we need to pass a law that give Bidoon their civil rights to better their living conditions and to improve the image of Kuwait’s people, leadership, and parliament.’  On March 20th the parliamentary debate focused on the claim that some Bidoons are citizens of other countries but are hiding their documents to enjoy the privileges come with being Kuwaiti.  Although the approach seems negative, as Bidoons have been excluded from benefits of Kuwaiti citizenship for decades and the burden of proof of distinguishing hidden citizenships lies with the authorities, at a minimum the fact that such a discussion taking place is a step in the right direction for the government. 

To date, events have been unfolding rapidly and at times with real promise in Kuwait, yet without a clear picture of actual change.  The Rapporteur of the Kuwaiti Human Rights Committee, MP Mohammed Hayef has stated that the next meeting with Saleh Al-Fadala will be on April 8th.  Here, he states, the next question that will need to be addressed by the head of the Central Agency for Illegal Residents is for him to present a clear plan on how he will naturalize or provide ID documents to the 35,000 individuals alluded to.   It is hard to interpret whether this means the plans are progressing or merely being delayed by these discussions. It is up to the international watchdogs that have taken an interest, to ensure that sight is not lost of the majority of Bidoon who are being left out of even this debate. The worry, especially as there seems to be a disjuncture between national and international sentiments on these questions, is that this debate will just be a prolonged discussion that eventually loses momentum again without bringing about the much-needed and long-awaited change.  Stay tuned for new installments as we continue to follow this issue closely…

Zahra Albarazi, MENA Statelessness and Nationality Project Coordinator, Statelessness Programme

Monday, 12 March 2012

Rottmann and Genovese: How will Europe’s nationality laws stand up to the scrutiny of its regional courts?

For such a core area of domestic law, that goes to the very heart of the question of who we are and who belongs within our community, it is somewhat surprising how often the rules relating to nationality are held up for review. Just in the past week or so, nationality policy has been in the news again in the Netherlands. The latest proposal centres upon an apparent desire to limit the incidence of dual nationality – i.e. to make it more difficult for people to hold both Dutch and a foreign citizenship simultaneously. The suggested legal reform would result in people automatically losing their Dutch nationality if they were to naturalise abroad, while would-be Dutch nationals will also be expected to forfeit their original citizenship once they have been approved for naturalisation. In itself, such a reform would not necessarily raise any difficulties in terms of the Netherlands’ international legal obligations with regard to nationality policy, since it neither looks to be discriminatory nor should it immediately lead to cases of statelessness. However the further tightening of naturalisation requirements that is also part of this reform proposal will inevitably make access to Dutch nationality more complicated, potentially also for vulnerable groups such as stateless people or refugees for whom facilitated access to naturalisation is of vital importance.

Moreover, the debate surrounding this newest proposal to amend the Dutch nationality act does not address an existing area of discrepancy between the law and the state’s international commitments. As pointed out by numerous actors, most recently in a December2011 UNHCR report, the Dutch nationality act requires a period of “lawful stay” for a child who is born stateless on Dutch territory to acquire citizenship under the requisite safeguard. This is not in conformity with the Netherlands’ obligations under the 1961 Convention on the Reduction of Statelessness, to which it has been a party since 1985. It is unfortunate that the latest debate on Dutch nationality rules concentrates on a fascination with dual nationality – a phenomenon that in reality has both pros and cons for the state, and is not currently a major international concern – rather than a desire to fully implement key international standards relating to the prevention and reduction of statelessness.

The foregoing is somewhat remarkable given that overall legal developments within Europe demonstrate increased scrutiny of domestic nationality policy, precisely with a view to combating statelessness and discrimination. There are, indeed, regional instruments dedicated specifically to steering states’ regulation of nationality in which these principles play a guiding role, including the innovative European Convention on Nationality adopted in 1997. Moreover, the development of jurisprudence by the European Court of Human Rights and the Court of Justice of the European Union and culminating, respectively, in the Genovese and Rottmann rulings demonstrate just how closely examined European states may expect their nationality policy to be in future. Each marks the culmination of developments over a 15-20 year period, during which the respective courts progress from a largely theoretical acknowledgement that they are empowered to scrutinise states’ nationality laws to an actual ruling on the lawfulness of a particular nationality policy. It would therefore seem wise for European governments, including that of the Netherlands, to take this into account if they are considering amendments to the nationality law and keep a keen eye on their international obligations in this field.

In Rottmann, the case centred on the question as to whether a decision to revoke citizenship acquired through fraudulent naturalisation raised problems under EU law, given that it would result in the concomitant loss of EU citizenship and indeed statelessness. The Court of Justice reasserted its position that regulating access to nationality was, in principle, a sovereign matter for each state, but that EU member states must have due regard for EU law when setting the conditions for the acquisition and loss of nationality. As such, it was possible for nationality issues to fall within the jurisdiction of the court and the potential loss of EU citizenship was enough reason for the court to proceed in assessing the legitimacy of such a decision in this case. The court decided that responding to fraud could be legitimate reason for withdrawing nationality, but that the decision to do so in an individual case must weigh the facts of the fraudulent act against the ultimate consequences of loss of citizenship. In other words, a proportionality test needs to be met, taking the person’s overall legal situation into account. Elsewhere in the Rottmann ruling, the court also ponders the question as to whether the influence of EU law – and the reach of the court’s own jurisdiction – also stretches to decisions relating to acquisition of nationality. The circumstances of the case allow the court to defer this question for the time being, but the wording of its assessment suggests that such matters could also be held up for scrutiny in the future. Thanks to the link to EU citizenship, it appears that there is now every scope for the Court of Justice to test EU states’ nationality policy against core EU principles such as proportionality and non-discrimination. Nor is the court afraid to seek further inspiration for its rulings in other areas of international law, such as the 1961 Convention on the Reduction of Statelessness and the European Convention on Nationality, both cited as part of the court’s assessment in the Rottmann case.

Similarly, the Genovese case illustrates how the European Court of Human Rights now deems questions relating to the regulation of nationality to be firmly within its jurisdiction, despite the absence of the right to a nationality in the European Convention on Human Rights. Here, the court determined that even though Malta had gone “beyond its obligations” under the European Convention on Human Rights in creating an entitlement to citizenship by descent within its law, this did not put the law itself beyond scrutiny and it must, as such, meet the non-discrimination test. Maltese legislation failed this test because it discriminated both on the basis of gender (different rights in terms of transmission of nationality to children for men and women) and on the basis of illegitimacy (different rights in terms of acquisition of nationality from a parent for children born in and out of wedlock). Central to the court’s assertion that the Maltese nationality law could be scrutinised in this manner was its recognition of citizenship as a part of a person’s social identity, thereby bringing this issue generally within the scope of the protection offered by article 8 of the European Convention on Human Rights as an element of private life. This broad statement on the meaning of nationality and the link to the European Convention on Human Rights will allow the court a wide margin in the exercise of its jurisdiction over questions of nationality policy in future – on top of which previous jurisprudence already indicated that other articles of the Convention could potentially also be invoked.

The clear recognition of the regulation of nationality as an area over which, given the right circumstances, jurisdiction can be exercised by both these two regional courts should make European states give more careful consideration to this area of policy in future. The inconsistency of Dutch nationality law with its obligations under the 1961 Convention on the Reduction of Statelessness is just one example of the many difficulties that can still be encountered in Europe. Across the region, there is evidence that legislative safeguards that should protect people from statelessness are being implemented inadequately – as seen, for instance, in the citizenship scandal in Denmark that hit the media in 2011. There are also other pockets of evidently discriminatory nationality law or practice, like that of Malta, which was found to violate the state’s obligations under the European Convention on Human Rights in Genovese. Again, Denmark can be cited here, but also Austria and several others. Following the Rottmann and Genovese rulings, there is increased scope for such policy to be brought to the attention of – and struck down by – Europe’s regional courts. So, as nationality law reform is contemplated by any European government in the coming years, this should be informed not only by changes in popular sentiment or notions of public interest, but also clearly guided by the state’s international commitments to the avoidance of statelessness and to a non-discriminatory nationality policy.

An article looking in detail at the Rottmann and Genovese rulings and their position among overall legal developments within the EU and Council of Europe with regards to the regulation of nationality by states has been submitted for publication in the European Journal of Migration and Law. If accepted, the piece will appear in a special edition of this Journal, featuring a series of reflections on the issue of statelessness.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme