Thursday, 16 May 2013

GUEST POST: Nationality in the Land of the Free

As part of the course 'Nationality, Statelessness and Human Rights', taught every spring semester at Tilburg Law School, we ask students to analyse a country's nationality law against relevant international standards and then write a comment piece about it. Students who write the most compelling comments are invited to publish these here, on our blog site. Below is one of the three student pieces composed in 2013, we hope you enjoy it...

Nationality in the Land of the Free

Thailand is called ‘The land of the free’ because it was not colonized by European powers. Nevertheless, it did not escape a very Western concept: nationality. Since it was introduced in Thailand in 1913, Nationality has had the principle of jus sanguinis (nationality passed through bloodlines). As long one of your parents is Thai, you are entitled to Thai nationality. Later, jus soli was introduced (acquiring nationality by birth in Thailand). Finally, Naturalization and acquiring nationality through marriage also became possible.

These principles could theoretically solve most statelessness problems, but then the jus soli principle become subject to certain conditions. Now certain people born in Thailand can be stateless. For example, if none of your parents have Thai nationality and at least one of them is illegal in the country, you will not acquire Thai nationality.

Thailand has many migrants because of its location and economic growth. Most of these were not registered in their own countries, but through naturalization and residency permits Thailand can either help solve their statelessness, or give them a legal status in the country. The problem is that there are still indigenous people, immigrants, and refugees that are stateless and sometimes unregistered in Thailand, so this condition to the jus soli principle will perpetuate statelessness for their newborn children. This is not in accordance with the International norms that apply to Thailand stating that ‘all children have a right to nationality’.

Since 2005 Thailand has started the “Strategy to address the Problem of Legal Status and Right to Identity”. Many efforts are being made to at least ensure that everyone is registered, has identity documents, and inform them of their entitlement to nationality where applicable. Because of the high level of statelessness amongst children, a taskforce was made to identify stateless students and help them attain nationality. This is related to Thailand’s international responsibility to ensure that every child has an education. Children cannot receive their diplomas or certificates if they are stateless. It is also worth noting that the newest nationality act applies retroactively, so if previously you were stateless but based on new laws you should have been entitled to your Thai nationality, you may receive it if you fulfil the conditions.

These efforts are impressive and say a lot when we compare Thailand to other countries dealing with statelessness. An area in which Thailand has no obligations but still has measures in accordance with prevention of statelessness is for renunciation of nationality. It seems that a condition to renounce Thai nationality is having acquired, or being able to acquire another one, and if you lose that other nationality you can retrieve the Thai nationality.

It does have international obligations against gender and racial discrimination, but it complies with these. The only gender distinction in Thai nationality law is one where both foreign men and women can acquire Thai nationality when married to a national, but women have a privileged process. This is a great step up if we consider that at first Thailand had many reservations on the Convention on the Elimination of All Forms of Discrimination Against Women.

An area where it does not comply with its international obligations, besides the aforementioned statelessness situation upon birth, is in the context of loss or deprivation of nationality. People can be deprived of their nationality even if this results in statelessness based on certain conditions that are to the ‘discretion of the minister’. This can be considered arbitrary because of its scope of abuse, since conditions for depriving people of their nationality are ‘insulting the nation’, ‘acting against good morals’, and ‘committing acts in conflict with state interest’. Making the loss or deprivation of nationality subject to less abstract conditions, and taking statelessness into account could definitely improve this.  

Other things that can be improved are making provisions for foundlings, and informing the Thai population about nationality laws. Currently there are many stateless people that are entitled to nationality but simply do not know it.  A good example of how this could be done is by supporting or replicating UNICEF projects of legal assistance, such as ‘the stateless classroom’ project, where stateless persons are given legal assistance and are taught the law. That way people can learn how they can deal with their specific situations and help their acquaintances with their knowledge (The stateless classroom, 2009). Finally, the officials responsible should be better informed and have more structured procedures. This would reduce arbitrary decisions, and increase transparency. This way, those few trapped in statelessness, ignorance, or subject to arbitrary measures, have a better chance of enjoying the privileges of nationality, such as freedom of movement. Privileges that one should have in a place referred to as the Land of the Free.

Veronica Perozo Alberti, a second year student on Liberal Arts and Sciences at Tilburg University, majoring in European Law. Veronica was born in Venezuela, grew up in Curacao and holds naturalised Dutch nationality.


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