Thursday, 21 March 2013

Reflections on Thailand (3): Is the time ripe for a citizenship campaign?

This is the third in a short series of blog posts dedicated to the situation of statelessness among Thailand’s ethnic minority people (the ‘hill tribes’). They are inspired by our current research into the impact of statelessness on women in Thailand, which aims specifically to map the link with human trafficking – a project funded by the US Department of State’s Bureau for Population, Refugees and Migration.

In 2008, Thailand adopted a ground-breaking amendment to its Nationality Act which had the potential to massively reduce the number of cases of statelessness in the country by offering a pathway to citizenship. Yet, five years on, it does not yet appear to have had this effect. There are still just over half a million stateless people in Thailand, although it is believed that a significant number of these is now eligible for nationality. This blog discusses why the provision introduced into the Thai Nationality Act in 2008 could fundamentally alter the picture of statelessness and Thailand and touches on some of the obstacles that are reportedly obstructing access to Thai nationality for many who would otherwise benefit.

2008 Nationality Act seeks to correct historic problem

Under the original Thai Nationality Law (1913), nationality could be acquired at birth both by descent from a Thai parent (jus sanguinis) or by birth on Thai territory (jus soli). Any child born in Thailand automatically acquired Thai nationality, even if the parents were foreigners and regardless of whether they had permission to reside in Thailand at the time of the child’s birth. Hill Tribe people whose ancestral home was Thailand were entitled to Thai nationality under the law and those whose ancestral links lay in e.g. Vietnam or China would only remain foreign in the first generation – once arrived in Thailand, any children born would also be Thai. But, in 1972, Revolutionary Party Declaration No. 337 introduced a significant restriction on the jus soli enjoyment of Thai nationality. Where a child is born in Thailand to foreign parents, both parents must have permanent residence for the child to be granted Thai nationality jus soli. This rule was introduced not just for children born after this date, but was applied retroactively, such that nationality was revoked from anyone who had acquired it jus soli but whose parents had not been permanent residents at the time of their birth – even if it left them stateless. In 1992, the Declaration was repealed, but the jus soli restriction it sets out was incorporated into the Nationality Law proper (section 7bis) and it remains in force today.

In the meantime, from the 1950s, Thailand took steps to document its citizens for the first time. A national census was executed with a view to registering everyone in the country, but many Hill Tribe people were overlooked. They remained undocumented and invisible to the Thai authorities. When efforts were made some decades later to register these communities, many were recognised as citizens, but many others were issued coloured identity cards which documented their presence in Thailand, but did not recognise them as citizens. Other coloured cards were also issued to various waves of newly arriving ethnic minorities who settled in Thailand after fleeing violence or other strife, during a specific period of problems in their home country and who had arrived undocumented, the link to their home country severed. A coloured card meant that the person was deemed to be non-Thai but their presence in the country was tolerated – although officially still illegal. Under the nationality law, this status did not amount to the permanent residence which took on a central role and, in 1972, children born to these coloured card holders were (retroactively) barred from jus soli entitlement to Thai nationality. Thus, many members of the Hill Tribe population who have ancestral links to Thailand missed their initial window for registration as Thai nationals, were subsequently cast together with other categories of tolerated “illegal” foreigners and found that their children were later stripped of any right to Thai nationality. At the same time, other ethnic minority people who arrived throughout much of the early to mid-1900s, ended up in the same position. All of their children inherited the same temporary immigration status held by the parent as well as their statelessness. 

The new provision of the 2008 Nationality Act determined that anyone whose nationality was revoked by the 1972 Declaration or who failed to acquire nationality while this Declaration was in force (1972-1992) can acquire Thai nationality (section 23). To benefit, applicants must have evidence of their birth and subsequent domicile in Thailand and demonstrate good behaviour. Those whose parents had their nationality revoked or were unable to acquire nationality due to the 1972 Declaration are also eligible for Thai nationality. In short, it would now appear that anyone born in Thailand before 1992 – or with a parent who was born in Thailand before 1992 – and still residing there, should now have a pathway to citizenship.

Obstacles to implementation

Since the aforementioned provision of the 2008 Nationality Act seeks to correct the way in which Thailand’s jus soli policy was being implemented, its implementation – as also indicated in the article – hinges on proof of birth in Thailand. The big snag there is that under Thailand’s previous civil registration law (also significantly and positively reformed in 2008), children born in the country whose parents were “illegal” foreigners, were often refused access to birth registration. This means that the group which should benefit from the new pathway to citizenship is precisely the group which may have difficulty proving their facts of birth, including – critically – date and place of birth. Similarly, where first the parent or grandparent’s entitlement to nationality must be established, the children or grandchildren’s ability to benefit from the same route to nationality depends on their ability to establish the family connection – also tricky without a birth certificate. This means that the processing of applications under the 2008 Nationality Act is not straightforward and other forms of evidence must be gathered in order to satisfactorily establish the facts of a person’s birth, such as witness testimony, a hospital or other health record, or a DNA test. A significant investment in time and resources may be required in order to achieve this – something which may be beyond the means of the people concerned.

Notwithstanding the evidentiary problems, with such a large stateless population in the country and therefore a potentially huge number of beneficiaries of the 2008 Nationality Act, the sheer number of cases that require processing presents its own difficulties. The ultimate authority to approve an application for nationality under this provision lies with the Interior Ministry at the central level, thereby placing a massive burden on time and resources, with cases becoming easily bottlenecked. At a seminar we attended during our research trip to Thailand, a representative of the Ministry of Interior explained how there was, quite simply, a problem of man-power that was causing a backlog in the processing of applications and the issuance of paperwork to those whose cases had been approved. At the same time, there are also capacity issues at the district level where the civil registrar is the person responsible for accepting an application and preparing the documentation for submission to the central level for approval. In many districts, the registrars do not have the required knowledge to ensure that the files are completed and all necessary evidence is included for the case to be processed successfully. Again, at the symposium, a problem raised was the lack of sufficient resources to provide training to registrars (of whom there are more than 2000 spread across the country) and there is also a problem of institutional memory since the registrars don’t tend to stay in their jobs for long, taking their knowledge of the relevant procedures and of the community they serve with them when they move on. This is hugely unfortunate since there are significant success stories of districts in which a single registrar who has taken the time to comprehensively prepare all of the accompanying paperwork with the applicant has been able to help dozens or even hundreds of people to acquire nationality.

Other impediments that were pointed out to us during our research trip, in particular by the various NGOs that are working with beneficiary communities to help them process their applications for nationality, related to discriminatory attitudes towards ethnic minority people encountered among government officials, as well as corruption. In some instances, registry officials refuse to accept applications, deliberately forward incomplete files or demand a high ‘processing fee’ (which is not prescribed by law). Since the implementation of the 2008 Nationality Law are ultimately dependent on the cooperation of their district registrar – this is where applications must be submitted – such situations at the local level stand in the way of the successful reduction of statelessness regardless of the policy that the central authority has put in place. Other key actors, such as the village head whose testimony may be required as evidence of the facts of an applicant’s birth, may also obstruct the process by demanding payment or refusing to cooperate. Moreover, although many NGOs are working to guide people through the process of acquiring nationality, some raise concerns about whether these groups hold all of the required knowledge and there is a sense that many organisations are working towards the same goal, but without necessarily cooperating closely and sharing expertise or success stories. There appears therefore to be room for capacity building within civil society as well.

Time for a citizenship campaign?

It is somewhat remarkable that Thailand’s 2008 reform to its nationality law, with its apparent potential for reducing the number of cases of statelessness in the country, has not received more attention and analysis. While it is always tricky to compare countries, given their specific cultural and political intricacies, it is worth questioning why a fully-fledged citizenship campaign has not developed in Thailand, as it did for instance in Sri Lanka following its adoption of a law that resolved statelessness for some 300,000 people. Could there not be a similar concerted effort to guide people down the pathway to citizenship that was created by Thailand’s 2008 Nationality Law, with a big awareness-raising, attitude-shifting and capacity-building push? Would it not be sensible to hold off on any discussions about further legal or policy reform that may be required in Thailand to ensure that statelessness is fully resolved or prevented in future, just long enough to harness the potential of this existing reform and then take stock of where the real gaps are left? Is this not something that international donors, the Thai government, UN agencies and civil society could all rally around? What is certain, is that if indeed Thailand’s 2008 Nationality Law holds the key to the resolution of statelessness for several tens, if not hundreds of thousands of people, a citizenship campaign would be well worth it and not only improve many people’s lives but also make a real dent in the problem of statelessness worldwide.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme

Thursday, 14 March 2013

Start the clocks: countdown to the FIRST GLOBAL FORUM ON STATELESSNESS

It's official, in exactly 18 months time, the First Global Forum on Statelessness will be convened in the Hague (the Netherlands), to mark the 60th anniversary of the adoption of the 1954 Convention relating to the Status of Stateless Persons. A joint initiative of the Statelessness Programme (Tilburg University) and the Office of the United Nations High Commissioner for Refugees, this 3-day event will bring together some 300 academics, government representatives, international organisations, NGOs and stateless people from around the world to present their research, policy work and experiences on statelessness.
The overarching theme of the First Global Forum on Statelessness is “Exploring challenges and sharing good practices in research and policy on statelessness”. Three sub-themes have been identified as the main focus for presentations and discussion:
1.   Stateless Children
Topics that may be considered under this theme include: securing a child’s right to a nationality, including in contexts such as international surrogacy arrangements, where children are abandoned or orphaned , or in the case of disabled children; the importance of birth registration and documentation; the impacts on children of gender discrimination in nationality matters; and addressing the psychological effects of statelessness on children
2.   Statelessness and Security
This theme encompasses questions of the impact of statelessness on  human security, national and international security. Issues to be explored may include: the impacts of statelessness on economic, social and cultural rights;  links between statelessness and forced displacement, human trafficking and arbitrary detention; or the role of nationality and statelessness as they relate to conflict and peace-building and; the impacts of statelessness on minority or indigenous communities.
3.   Responses to Statelessness
Academic and policy perspectives examining both the challenges and good practices when responding to statelessness may be considered. Areas of interest include research methods to study statelessness; the function and content of protection mechanisms for stateless persons; addressing protracted statelessness situations; successful efforts to reform nationality laws ; and addressing statelessness and its effects in the context of development assistance or disaster relief projects.
How to get involved: the success of the First Global Forum on Statelessness depends on its ability to attract a broad range of participants, from a broad ranges of backgrounds, disciplines and countries. If you have been researching statelessness and would like to present and discuss your findings, you will have the opportunity to apply to participate in a panel discussion. The same is true if you are working on statelessness policy or advocacy work, or if you would like to voice your experiences as a stateless or formerly stateless person. If you are only just starting out with some work on statelessness, don't worry: there's still time. The Global Forum is still 18 months away, but start planning! You can also get involved by sponsoring the event, by helping to support someone's participation or simply by helping us to spread the word about statelessness and about this gathering in particular.
More details will be available on Tilburg University and UNHCR's websites in a few weeks time...

Sunday, 3 March 2013

Reflections on Thailand (2): linking statelessness and trafficking in persons

This is the second in a short series of blog posts dedicated to the situation of statelessness among Thailand’s ethnic minority people (the ‘hill tribes’). They are inspired by our current research into the impact of statelessness on women in Thailand, which aims specifically to map the link with human trafficking – a project funded by the US Department of State’s Bureau for Population, Refugees and Migration.

Statelessness, trafficking and Thailand

Numerous articles and reports point to the link between statelessness and trafficking in persons. In particular, they discuss how international trafficking victims may be at heightened risk of ending up “not considered as a national by any state under the operation of its law” (definition of a stateless person under international law), primarily due to problems of establishing their identity and their connection to their state of origin thanks to the circumstances under which they migrated. At the same time, scholars, NGOs and policy makers agree that the fact of statelessness puts a person at greater risk of becoming a victim of trafficking in persons. This is explained by a variety of logical and compelling reasons, including the problem that stateless people face – due to their lack of nationality – limited opportunities for formal employment or for accessing regular migration channels such that they are more likely to become entwined in illicit and exploitative movements.  

One of the specific country contexts in which this link between statelessness and increased vulnerability to human trafficking is commonly cited is Thailand. There, the lack of nationality of the ethnic minority (hill tribe) population has been described as “the single greatest risk factor” for trafficking in this community. What better place, then, to pilot a new methodology that aims to better map and more fully understand how and why statelessness heightens the risk of trafficking in persons. This is precisely the ambition of the project for which the Statelessness Programme received funding from the US Department of State Bureau for Population, Refugees and Migration and for which we travelled to Thailand in February 2013.

Reaching workable hypotheses

The first step in exploring the relationship between statelessness and trafficking is to develop a hypothesis to test. Given the existing literature on the causal link between these phenomena and the statements made about Thailand, our hypothesis is that:

A stateless person is more likely to become a victim of trafficking in persons than a person with citizenship.

For example, if we measured the rate of trafficking in the hill tribe community and found the average rate of trafficking cases to be 1 in 10,000, we might expect to find the rate of trafficking cases among stateless people from the same community to be 5 in 10,000 (i.e. for a stateless person to be 5 times more likely to be trafficked). However, to measure the relative vulnerability to trafficking in this way, you would have to find a way to comprehensively identify victims of trafficking from a particular, defined and measurable community and count the number of stateless versus the number of citizens. This is a very tricky quest indeed, since trafficking often goes unreported and unidentified, plus the victims of trafficking may be found in many different destinations spread across Thailand and even abroad. As such, this kind of methodology would be unfeasible. Nor would such a statistic tell us very much about why stateless people are more exposed to trafficking, so it would do little to inform anti-trafficking policy, which is the ultimate objective of the research.

Instead, we needed to think more carefully about how the process of trafficking in persons works and further break down our hypothesis. We came up with the following two sub-hypotheses:

A stateless person is more likely to move away from home to seek a better life


A stateless person is more likely to become exploited in the process of seeking a better life away from home

In other words, if the rate by which a person who moves away from home becomes a victim of trafficking is the same for everyone, stateless people will be trafficked more often because they are more often on the move. Or, if the rate by which a person moves away from home to seek a better life is the same for everyone, stateless people will be trafficked more often because this more often goes “wrong” for them, leading to their exploitation. Or both rates are higher for stateless people than those with citizenship.

Focusing on intrinsic factors

In addition to elaborating these more focused hypotheses, we also decided to focus on the intrinsic or internal factors that contribute to a greater or smaller risk of trafficking: i.e. what is happening at the supply side, in the lives and minds of the people who are the potential victims. An alternative would have been to look at other, external factors, such as what is happening at the demand side or the behaviour of traffickers (e.g. another explanation for a higher risk of trafficking among stateless populations is that they are more “in demand” by the employers who would exploit them or that traffickers are deliberately identifying and targeting only those people without citizenship in their schemes). Our focus on the intrinsic or internal factors – on people’s own capacity, attitudes and decision-making patterns – is the best match for our aim of informing anti-trafficking projects that target the at-risk population. By getting a better picture of whether and at what point in the migration or opportunity-seeking process statelessness plays a part in a person’s ultimate vulnerability to trafficking, the effectiveness of anti-trafficking activities which include stateless people can be improved because they can be tailored to deal with this area of vulnerability.

The field research

To summarise, the field research that we travelled out to Thailand to set up, looks at whether the capacity, attitude and decision-making patterns of stateless hill tribe people makes them relatively more likely – as compared to hill tribe people with citizenship – to seek to improve their lives by moving away from their village and/or to become exploited if they move away from their village. The main tool that we are using for this is a survey which will capture data from 450 randomly selected members of Thailand’s hill tribe communities in and around Chiang Mai province. The same questionnaire will be used for all respondents, but roughly half of the people interviewed will be stateless and half will hold citizenship, so that we are able to compare the results and establish the relative vulnerability. We will supplement the survey results with some qualitative research (in-depth interviews with trafficking victims) that looks more closely at the process by which hill tribe people become victims of trafficking, so that we are fully equipped to interpret the survey results.

The questionnaire relies heavily on the theory of Subjective Legal Empowerment: i.e. by measuring a person’s self-belief in his or her ability to resolve a dispute or conflict you get a measure of how likely that person is to indeed be able to resolve the situation (based on the psychological theory of self efficacy – if you believe you can do something, you are more likely to put in the time and effort necessary and to indeed be successful). For the purposes of our research, that means we will be presenting the respondents with scenarios that describe problems they could encounter in their everyday lives and ask whether and through what channels they think they could resolve these issues. When the survey is complete and we can analyse the data, we hope to understand whether stateless people have a lower Subjective Legal Empowerment in particular areas of their lives which make them more prone to take the decision to move away in order to deal with their problems or to get trapped in exploitation. We are already unreasonably excited about seeing, analyzing and understanding the survey results!

Laura van Waas, Senior Researcher and Manager, Statelessness Programme