Thursday, 28 November 2013

"Nationality Matters", 5 years on: how far statelessness has travelled

Exactly five years ago today, I found myself in the main auditorium of Tilburg University, wearing a brand new dress, armed with a hot-off-the-press copy of my PhD manuscript “Nationality Matters”, ready to take the final step towards earning my ‘Dr’ title. In front of family, friends and colleagues, I stood on the podium, tackling questions on my research from a committee of professors who were clad in the traditional gowns of academia and who protocol dictated I address as “highly esteemed opponent”. I have no recollection now of either what was asked or what I answered, but I do remember the buzz that it gave me to – finally, in my eyes – have a truly captive audience for a discussion on ‘my’ topic and passion: statelessness. According to the rules in place in Tilburg, the examining committee and I, as well as our audience, would only be released from the task of exploring my research findings once a full 45 minutes had passed and the officiator (the “beadle”) re-entered the auditorium to strike the floor with the ceremonial staff he has charge of for this purpose and call an end to the proceedings. Although this is perhaps not the experience of everyone who has stood in my shoes and defended their PhD, I really enjoyed it! After 4 years of hard work, these 45 minutes were just the opportunity I had been waiting for to try to win some fresh hearts and minds on the issue. Thinking back to it today makes me smile.

What makes me smile more is thinking about all of the things that have happened since. I would be the first to admit that statelessness has not been resolved – far from it – and we are facing new and severe crises in terms of guaranteeing that stateless people are protected (think of the deterioration of the situation of stateless people in Myanmar) and ensuring that statelessness is avoided (think of the recent Constitutional Court ruling in the Dominican Republic that may create thousands of new cases). Yet the context in which this is happening, and even the very awareness that it is happening and that it is a problem, is very different today. Momentum to address statelessness has built in a manner I did not and could not have foreseen on the day I defended my PhD research. For example…

Growing the circle of ‘friends of statelessness’

While certainly not alone in my concern for statelessness over the course of my PhD project nor at its conclusion in 2008, there were only really a very small number of people worldwide who were interested or able to dedicate a significant amount of time and attention to the issue. Today, statelessness is no longer a lonely profession. All around the world students, activists, lawyers, policy makers and others are taking up the cause. Staffing within the Office of the United Nations High Commissioner for Refugees – the UN agency mandated by the General Assembly to address statelessness – is indicative of this trend. In my PhD I bemoaned the fact that of a 6000-strong staff, less than a handful were dedicated to statelessness. Five years on and the team at headquarters level has expanded in size, regional officers have been posted to help to coordinate and support work on statelessness in five major regions of the world, many national offices have dedicated staff and agency-wide there is far greater awareness of and capacity to contribute to statelessness work thanks to a concerted effort to hundreds more staff on the issue. Within civil society, there has also been a transformation, from a situation in which a few isolated individuals and organisations had devoted themselves to the unenviable task of dragging the issue out of obscurity, initiatives are now mushrooming. Within Europe, this engagement is even starting to take on a new level of sophistication. A region-wide coalition of civil society actors launched in the summer of 2012 – the European Network on Statelessness – has rapidly grown to an 80-member strong network and is already embarking on its first pan-European, coordinated campaign.

Embracing the UN statelessness conventions

The focus of my PhD research was the international legal framework relevant to addressing statelessness, placing centre-stage the two UN conventions that have been specifically designed for the purposes of responding to statelessness (deconstructing and contrasting these against norms found within international human rights law). Described, by UNHCR as recently as 1999, as “orphan conventions”, the 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness were certainly largely unknown, much less appreciated international law tools. Again I am reminded by my own manuscript that at the time of publication in 2008, these conventions had just 62 and 34 state parties respectively. Today, 5 years on, the tally has climbed to 79 and 54. These numbers may still fail to impress those who are used to the ratification figures for instruments like the Convention on the Elimination of All Forms of Discrimination Against Women (187 state parties) or the Convention on the Rights of the Child (193 state parties). Nevertheless, when put in perspective, the upward curve in accessions is significant. For instance, consider the fact that it took the 1961 Convention 40 years to gather its first twenty state parties and now it has achieved the same in just the last five years. It is no wonder that UN High Commissioner for Refugees António Guterres has described these developments as “unprecedented” and the public expressions of commitment by states to statelessness through these and other channels as a “quantum leap” for the issue. Having often wondered, during the tougher days of my PhD project, whether there was a point to poring over the text and interpretation of two old and neglected international treaties, it is particularly rewarding to see that their enduring value is not just being recognised, but also seized upon, as a way for states to reinvigorate their efforts to tackle the problem of statelessness.  

Welcoming much-needed conceptual guidance

… Throughout my PhD research there was one particular challenge that I kept coming back to, again and again: the question of what exactly the scope of the definition of a stateless person is and how this definition should be applied in practice to identify whether a particular individual is stateless. While this was not ultimately central to answering my research question, it is something that nagged at me. I clearly remember feeling frustrated by the absence of the kind of core conceptual guidance on these questions that exists, for example, in the field of refugee law. In the end, I included a comment to this effect in my conclusion, suggesting that further clarification was sorely needed on these and other aspects of statelessness law and that UNHCR should lead this process. Five years on and UNHCR is well on its way to elaborating a handbook on statelessness! It has already issued highly informative guidelines on the definition of a stateless person, how to go about the process of identification/determination of statelessness and what status a stateless person should enjoy in accordance with international obligations. There is even guidance on how the safeguards to prevent statelessness at birth must be interpreted and implemented; and soon there will be a clarification of the norms and standards around loss and deprivation of nationality. To someone like me, who struggled alone in an office with a whiteboard and marker, scribbling and re-scribbling ideas/diagrams/flowcharts to try to make sense of it all, the issuance of this much-needed guidance is perhaps the greatest and most significant change. We now have a shared understanding as our starting point and a very well-crafted set of documents that lay the conceptual foundations for anyone who wants to provide training, undertake research or engage in debate on statelessness issues. I have had the pleasure of being involved in many rewarding statelessness activities since completing my PhD and it would be difficult to pick a particular one that stands out from among them. However, I feel particularly privileged to have been able to participate in the expert meetings held to date, the conclusions of which informed the subsequent UNHCR guidelines – and some of my fondest statelessness memories are of collectively thrashing out, once and for all, these fascinating conceptual questions.

Setting bold ambitions for the future

… I also have the sense that, for want of a better way to describe it, the language of statelessness has changed over the last five years. Where once people were almost apologetic about raising the issue or mentioning the relevant conventions at events or in publications, given the above developments there is now a sense that statelessness has earned its place on the agenda and it is spoken about with greater confidence. There is also much more and more diverse information, research, stakeholders, activities, etc regarding statelessness. With the broader engagement of actors, wider acknowledgement of the issue and the relevance of the international framework, clearer conceptual understanding and increase in confidence, it feels as though there is also a shift in ambition. Perhaps the boldest expression of this new level of ambition is the explicit call made by UN High Commissioner for Refugees, António Guterres, to the agency’s executive body to work to eradicate statelessness, in a decade. Council of Europe Commissioner for Human Rights, Nils Muiznieks, has said that there should be no stateless children in Europe. Just this month, UN Secretary General Ban Ki Moon reportedly called for an end to statelessness ahead of a visit to Latvia, where almost 300,000 people are still without a nationality. Every year since I started my research, but especially in the last five years, I have watched closely as bigger, bolder and more exciting initiatives have unfolded. Certainly, there is no more question as to whether statelessness is an issue in its own right: it is and more must and will be done.

These are just a few reflections on how far statelessness has travelled in just five years – there is undoubtedly plenty more to say on the matter. These comments should not by any means be mistaken as insinuating that the change has come about because of the publication of my PhD. To the contrary, I am grateful that the issue ‘found’ me at the time that it did and that I have been able to watch and where possible contribute to some of these developments. Statelessness remains, 5 years on from that exciting day in Tilburg University’s auditorium and almost 10 years on from the day I first crossed paths with the issue, an intrinsically fascinating, intellectually stimulating, deeply moving and truly rewarding problem to work on.

A single regret

On this personal statelessness anniversary, as I reacquaint myself with my own PhD manuscript and think back to where my journey started, I have just one regret in terms of the path that I have chosen. It was the simple story of a worried father and a baby without a nationality that first spurred my interest in the topic. Had I never met this man – a client at the local refugee advice centre where I was volunteering at the time – and heard about his son, I would never have picked statelessness as the focus of my PhD. I am very grateful to this family for opening my eyes to an issue I had previously never contemplated or even heard of and my one regret is not being conscious of the significance of the encounter at the time. Because of that, I quickly lost touch of them and didn’t follow up on their story, so I am ignorant as to if and how it was resolved. I am also very conscious now of the fact that I also did not have the appropriate knowledge or understanding of the issue at the time to know how to help. Still, perhaps instead I can offer their story again here, as told in the opening of my PhD, in the hope that it may help others to understand my first answer to the question “why statelessness?” and perhaps inspire more people to be compassionate towards or even take up the cause of the stateless…

This is the story of the first stateless person I knew:

Once upon a time, in a town in the Southeast of the Netherlands, a baby boy was born. His parents were thrilled and named him Omar, seeing this extension of their family as a good sign for the future and a fresh start for them all. Omar’s parents had been forced to flee their homes in the Middle East some years before, leaving everything that they had behind. They eventually won the right to settle in the Netherlands and were making the most of it. Omar’s father found a job and quickly picked up the language. As soon as he was eligible, he successfully applied for the Dutch nationality in order to affirm his new link with the country. But what he most dearly wanted was to be able to marry Omar’s mother. Sadly, they did not have the documents required by Dutch law to do so. Instead, they muddled along in the hope that one day they would be able to afford to send for the right documents or pay for the replacements in order to get married.  

Then Omar was born and they were overjoyed. Omar’s father went straight from the hospital to the town hall to register the birth, all the while oozing the pride of a man who has newly become a father. Omar was registered: his name, date and place of birth recorded. But when the registrar logged “unknown” in the box marked “nationality”, Omar’s father grew worried. After all, he was Dutch and his son was born on Dutch soil, so surely Omar would also be Dutch.  

Little did he know that just a few months previously a new law had come into force. This law required him to register the imminent birth of his son while his girlfriend was still pregnant. Failing to do so - and because he and Omar’s mother were not married - he would not automatically be recognised as the boy’s father and his son would not acquire his nationality. 

Omar’s father quickly made the necessary arrangements at the local court to be legally recognised as the father, but this procedure did not grant Omar the Dutch nationality. Nor could Omar acquire the nationality of his mother, as she was the national of a country that did not allow women to pass on their nationality to their children. Omar’s nationality was therefore more than unknown: it was absent. He was stateless. 

After they had recovered from the shock, Omar’s parents began to discover the consequences of his statelessness. Omar could not obtain a passport, or be included in the passport of either of his parents, he could only apply for a foreigners’ travel pass at substantial cost. Omar was also registered by the immigration service as “a foreigner who entered the country for family reunification purposes” – an interesting feat for a baby just a few days old. His parents would have to pay a sizeable fee for a residence permit for Omar, without which he could, in theory, be subject to expulsion.  

Later, in order to have any hope of resolving his plight, Omar’s parents would have to fight for his formal recognition as a stateless person. This may then allow Omar to benefit from provisions in the Dutch law that offer nationality to a stateless child after three year, so long as he remains within the country in that time and under the care of his Dutch father.
This initial experience of statelessness provides much food for thought and one possible answer to the question “why statelessness?” can arguably already be found in the personal struggle of this family. Statelessness presents a real, human dilemma for this one boy and his parents.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme

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