An unforgettable experience working on statelessness with UNHCR sponsored by the Statelessness Programme

In March 2013, I started an internship that I had long awaited with much excitement. Through the International Statelessness Internship Award I had the opportunity to intern at the Statelessness Unit of the UNHCR Regional Coordinator’s Office in Bangkok and work on an assignment I found interesting, challenging, and intellectually stimulating. This blog is to share my internship experiences with students and potential recipients of the International Statelessness Internship Award.

I arrived in Bangkok one week before the start date of my internship to settle down and to discover the city. After a week of acclimatizing myself to a new environment I was excited to start work. On my first day, I attended a regional team meeting where everyone gives an update on what they are working on, those who went on mission share their findings, and developments and approaches to deal with specific situations in the region were discussed. After the regional team meeting, I sat down to talk about my terms of reference and which assignment would be best to start with the other members of the statelessness team Nick Oakeshott (Regional Protection Officer(Statelessness)) and Bongkot Napaumporn (Protection Associate (Statelessness)).

The main objective of my internship was to conduct a legal analysis of the nationality laws of Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Viet Nam (ASEAN member states). This study aimed to provide an explanatory analysis of nationality laws and possible gaps, and identifying good practices in the region relating to the prevention, reduction, and protection of stateless people that can set an example for other member states on how to tackle statelessness-related issues. The underlying reason for this study was based on recommendations to reduce and prevent statelessness in the migration context made by the participants at  the Regional Workshop on Statelessness and the Rights of Women and Children held jointly between ASEAN Intergovernmental Commission on Human Rights (known as “AICHR”)and UNHCR.[1]

During the first week I was mainly occupied with background reading on the history of migration flows in Southeast Asia to obtain a better understanding of the situation and challenges in this region in relation to statelessness. I also read several studies on nationality laws and the main causes of statelessness in ASEAN member states that had already been completed in 2010 and 2011.[2]

Besides that, I also participated in other activities during the first week. For instance, I was invited to attend a regional policy meeting where staff at the senior level discussed key topics to further develop regional policy on protection issues, and to ensure that UNHCR policies at regional and national level are in line with global objectives. As a note taker it was a great opportunity to learn more about statelessness, maritime movements, Refugee Status Determination, and temporary protection in relation to certain groups of people in South East Asia.

During the 2^nd/ 3^rd week of March, I took the preliminary steps towards analysis of the nationality laws. I compiled a bibliography of all (legal) sources and verified whether the set of nationality laws and implementing regulations available on Refworld (UNHCR’s research tool available at www.refworld.org) were complete and up-to-date. Furthermore, I started writing a methodology and a plan of action for this study.

After feedback from my supervisors on the methodology, I started to analyze nationality laws. The nationality laws were assessed as follows: 

First, the relevant national provisions that relate to international standards to prevent and reduce statelessness were identified and further described by setting out the substantive and procedural requirements. Second, the substantial and procedural requirements listed in the relevant national provisions and the relevant international standards were compared in order to verify whether the national provision complies with the relevant international norm. Third, the international standards that are binding on the relevant ASEAN Member State were stressed, taking into account treaty obligations, and any reservations and declarations that a state has made, as well as norms of customary international law.

I received feedback from my supervisors after every country analysis which was always a great learning moment, especially in terms of how to explain in a clear and systematic way why a specific provision in a nationality law can cause statelessness. Interpreting nationality laws from ASEAN Member States, looking up relevant information provided through (non) treaty based monitoring mechanisms and other sources gave me a better understanding of the challenges that are faced in the region in relation to statelessness. Due to the fact that almost none of the ASEAN Member States are Parties to the Statelessness Conventions and are therefore not bound by them, the analysis included consideration of whetehr or not a State would hypothetically be in line with the Statelessness Conventions, as well as on the statelessness related international standards that are binding on the relevant ASEAN Member State (e.g. Article 7 of the Convention on the Rights of the Child and Article 9 of the Convention on the Elimination of All Forms of Discrimination Against Women). 

At the end of July, I started with the write up of the report. I noticed that the more I looked into the nationality laws, the more I came across new interesting issues relating to statelessness. Whilst writing a report of my findings, I realized that statelessness can in theory be caused in countless ways. Besides that, it should also be noted that a gap exists in law and practice which leads to new cases of statelessness that cannot be derived from analyzing the nationality laws on its own.

Looking back at close to 6 months interning at the Regional Coordinator’s Office, the first thought that comes into mind is that it has truly been a valuable experience. I first took interest in statelessness - the how and what, when I was interning for nearly a year with the Statelessness Programme where I looked into statelessness in the Netherlands. It comes with no surprise that I was thrilled to receive the Internship Award and get an opportunity to learn more about statelessness in South East Asia, a region where relatively more people are affected by this phenomenon compared to the Netherlands. Not only have I learned more about statelessness in South East Asia, I have also been able to put knowledge into practice that I gained by participating in the Statelessness Summer Course and a bachelor course on nationality, statelessness and human rights offered at Tilburg University.

Most importantly, with this internship I have gained a better understanding of how statelessness fits in the field of human rights, the relevance of (non) treaty based monitoring mechanism and the way UNHCR implements its mandate to prevent, protect and reduce (and hopefully eradicate) statelessness by, among others, gathering information on statelessness, promoting accession to the Statelessness Conventions, dealing with cases of stateless persons and supporting legislative changes/ improvement to existing procedures to help stateless people acquire a nationality.

Furthermore, during this internship I had the chance to look into a case of a stateless person and to sit in several UN security debriefings and I was fortunate enough to attend events aimed at promoting awareness for international human rights. Some of these events were for instance; lectures given by experts working in the field of human rights and professors on different human rights related issues, a red carpet premiere of the ‘Girl Rising’ movie which tells the stories of nine brave girls from around the globe who have had to overcome hardship in their lives, the Refugee Film Festival in conjunction with World Refugee Day to shed light on some of the hardships encountered by families torn apart by war.

I would encourage future recipients of the International Statelessness Internship Award not to only focus on their own project but also try and get involved in the day-to-day statelessness work and participate in other events. I would, for instance, recommend integrating in your terms of reference to assist the Statelessness Officer(s) in their daily practices one day a week besides working on your own project. This would not only give more variation in your own tasks but it would be an opportunity to get to know the organization better and to find out if you are keen on working at UNHCR in the future.

Accommodation and living in Thailand:

Before flying out to Bangkok, I looked into apartments that are for rent in areas near the office and made an appointment with a reliable agent to view one of the apartments that she rented out. When I was in Bangkok I realized that it is easy to find apartments and condos for rent so there is no need to look into housing arrangements too much prior to arrival. I decided to stay in a hotel for a week and look for accommodation in the meantime. The average cost of renting an apartment varies greatly, depending what your requirements are.

Funding received from the Statelessness Programme is sufficient to cover accommodation and living in Bangkok. Accommodation can easily be found between 200 to 300 euros if you live outside the city center and the use of public transport (BTS) is very convenient. It is also possible to find shared apartments. It is very common to find apartments and studios without a kitchen since it is convenient and cheaper to buy  food from of the many food stalls on the street for less than 2 euros a meal. Besides that many restaurants can be found that serve delicious dishes from all regions of the world. I opted to look for an apartment within walking distance from the office (downtown Bangkok) and preferred to have a kitchen. These factors have to be taken into consideration because your monthly expenses will increase and you may need some of your own savings.

Bangkok is an fantastic city to live in because it is a blend of Asian and Western traditions. There is always something to do, people are very sociable and I personally like the culture, the norms and values. Interning at UNHCR also means being introduced to a big international community, many interns and expats are working and living in Bangkok and it is easy to meet them and exchange experiences. I would recommend to save some money and plan trips and undertake activities during weekends such as exploring the city, visiting temples, going to the beach or one of the islands, visiting national parks, going out with colleagues, having drinks on one of the many rooftop bars and enjoy the stunning view over the city, or seeing a live game of ‘Muay Thai’ (a combat sport) and horse races in the heart of Bangkok.

 

 

To conclude, I am very grateful to Laura van Waas for giving me the opportunity to enhance my knowledge on statelessness, and to the other members of the Regional Office’s statelessness team, Nick Oakeshott and Bongkot Napaumporn for taking time to share experiences about statelessness related issues in South East Asia and providing elaborate feedback on my work throughout the entire internship. I have learned so much more than I initially imagined before starting the internship. I truly value this experience, that has given me so much insight into a field of study I have become so passionate about and that I couldn’t have necessarily learned in a classroom setting.

I am excited to be back in Tilburg and to complete my masters in International and Human Rights Law and I am thrilled to be interning again at the Statelessness Programme and to learn more about statelessness by interviewing stateless persons in the Netherlands.

Sangita Jaghai, Recipient of the first Statelessness Programme International Internship Award

 

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[1] UN High Commissioner for Refugees (UNHCR), UN High Commissioner for Refugees and ASEAN Intergovernmental Commission on Human Rights, Report of the ASEAN Regional Workshop on Statelessness and the Rights of Women and Children , 19 November 2011, available at: http://www.refworld.org/docid/50f674c42.html [accessed 21 October 2013].

[2] See for instance, UN High Commissioner for Refugees (UNHCR), Regional Expert Roundtable on Good Practices for the Identification, Prevention and Reduction of Statelessness and the Protection of Stateless Persons in South East Asia, 2 March 2011, available at: http://www.refworld.org/docid/4d6e09932.html [accessed 21 October 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.

 

GUEST POST: Is nationality always relevant? – Reflections on time spent with a Lahu Community in Northern Thailand

Northern Thailand is a hauntingly beautiful mountainous region, rich in tourism, agriculture and biodiversity.  One draw for visitors is their curiosity in experiencing the culture of remote hill tribe communities.  This does bring interest in the tribes’ lives and some wealth to the area, however attention to their precarious political, social, cultural and economic situation is superficial, tour operators can lack transparency and communities are often made into a spectacle.  The real issues affecting the hill tribe communities, such as statelessness, often fail to be highlighted.  Whilst recently travelling in northern Thailand I wished to visit hill tribe communities to discuss first-hand their opinions about and experiences of statelessness. Thus, this blog piece is a collection of my own reflections after spending time with a Lahu community close to Mae Hong Son.

 

The Lahu are just one of the approximately twenty ethnic groups classed as hill tribes in northern Thailand. Many originate from Burma, Laos and China and are also spread across these countries.  As of January 2012 an estimated 500,000 people in Thailand still lacked citizenship despite efforts by the Government, NGO’s and the UN to help hill tribe and rural communities to attain nationality. See an earlier Statelessness Programme blog post for more background on this population.  Consequently, the hill tribe communities can experience, inter alia, difficulties accessing health care and education, human trafficking, restrictions on movement and forced relocation.  In the case of the stateless hill tribe communities social exclusion from wider Thai society is heightened by the fact they live in remote forest areas, are nomadic and survive by subsistence farming which is dependent on the environment in which they live. 

 

Preservation of their traditional way of life whilst utilising certain positive aspects of living in developed Thailand is a big challenge for the Lahu.  Included in the dilemma of adjusting to modern life is the acquisition of Thai nationality, participatory citizenship and whether these are necessary or not.  Whilst nationality for all is commonly seen as desirable, is included in the Universal Declaration of Human Rights and is often reiterated as the “right to have rights”, my experience with the Lahu lead me to play devil’s advocate and to question whether nationality is always relevant?  The catalyst for this was the responses given by Lahu persons when asked about nationality and statelessness.

 

Thai law does not preclude ethnic minorities from attaining citizenship, however a number of loopholes and impracticalities in gaining nationality results in statelessness for those who, for example, are not registered at birth, cannot prove where they come from or cannot afford administrative fees.  This makes the task of gaining nationality arduous for the hill tribe communities who may see money and time invested in obtaining nationality better spent on improving living conditions, farming techniques and cultural preservation.  Whilst citizenship is often the key to obtaining the vote, land ownership, education and healthcare, those who are nomadic subsistence farmers may rarely come into contact with a society where administrative authorities, schools or hospitals exist, instead using the support network of their communities to provide these functions.  Furthermore, when hill tribe people do come into contact with the authorities, discrimination may result in skepticism about intentions and cause avoidance in seeking assistance.  For example, cases of forcible eviction (where the authorities seek out the hill tribes) can create distrust.

 

When talking, some Lahu people were not aware of or did not understand statelessness or nationality.  Instead they discussed their status and social inclusion only in relation to the communities in which they live.  For them lack of identity as a result of statelessness was not an imminent worry as they focused solely on their multifaceted roles within the hill tribe, for example as Chief, hunter or wife.  This could demonstrate that hill tribe society compensates for or mitigates loss of legal rights due to de jure statelessness and creates a situation where hill tribe persons do not recognise their own statelessness. It also highlights the very Western concept of nationality, which may be undesirable to some hill tribe people who fear that gaining nationality may be a tacit form of accepting a new identity, their indoctrination into Thai society and cultural erosion.

 

The Lahu people I met did talk about the imbalance of power between their communities and the Government, one example being the restrictions imposed on their traditional farming techniques.  In an ideal world one could envisage a system where indigenous groups have an autonomous status in society whilst individuals retain both a recognised membership of their communities and the nationality of the state in which they live.  Both formal bonds would be equal so as to prevent a hierarchy between national citizenship and community membership.   This way the hill tribes could seek to maintain their identity whilst benefiting from rights which derive from Thai nationality.  However in reality it is unlikely that the Thai state is willing and complicated administrative logistics would have to be overcome in order to allow such a system.

 

For now it is submitted that nationality may not be relevant at a local community level for the hill tribes, however gaining Thai citizenship will rectify statelessness whilst making a step towards remedying some of its symptoms, as well as gaining a stronger platform from which the hill tribes can advocate their human rights and protect their traditional way of life.  For this to be positive the communities should be educated about nationality in a way which they understand and is relevant to their lives, such as how they can seek to elect politicians who are favourable to minority rights.  In return the Thai Government, NGO’s and the UN should focus on training officials in easing access to nationality and social services for the communities, including mutual capacity building programmes where both hill tribes and others discuss and learn about how citizenship of the Thai state could be used to preserve culture and traditional ways of life.  Moreover more should be done to raise awareness among tourists to northern Thailand about the human rights issues affecting the hill tribes; this way visitors can act as a social watchdog. 

Ultimately hill tribe communities, like the Lahu, need an educated choice regarding Thai citizenship, to have some individual and community control over the process of naturalisation and to be reassured that gaining it will not necessarily be to the detriment of their traditional way of life.  After all if Thai nationality was gained by all hill tribe persons it would not necessarily matter if the benefits it conferred lay dormant, so long as hill tribe persons had the opportunity to take advantage of privileges stemming from nationality should they wish to do so.

 

Claire Balding, LL.M in Public International Law (Nottingham), Intern at the United Nations Assistance to the Khmer Rouge Trials

 

The small Lahu community discussed were visited in their remote village from 2 to 4 February 2013 in the Mae Hong Son region of Thailand.

Contesting Cultures? Statelessness Programme intern Deirdre Brennan reflects on her research on statelessness in Thailand

Completing an internship is a mandatory component of my master’s programme and in November of last year I began my search for a position with an organisation working in the area of statelessness. My interest in statelessness began in 2011 when I interned at the human trafficking prevention non-governmental organisation DEPDC/GMS in northern Thailand. A large number of DEPDC/GMS’s target group are stateless hill tribe people, many of whom became, and still are, dear friends of mine. As is described in the series of short blogs dedicated to the situation of statelessness in Thailand, there are several impediments facing the 500,000 stateless people there. Personally, I was most taken aback by their restricted movement. Some of the people attending DEPDC/GMS had never left the immediate area, and the multiple check-points scattered along the surrounding roads ensure that it stays that way. The idea that friends of mine live with this kind of uncontrollable claustrophobia has stuck with me ever since. And so, here I am, thrilled to be part of a crucial project that aims to map the link between human trafficking and statelessness. I was also a culprit of regurgitating this so-called link without acknowledging that it had not been methodologically confirmed. While we eagerly await the findings of the surveys being conducted in northern Thailand, I have been busy transcribing interviews and composing a discussion note on recommendations for a planned intervention strategy that is due to be piloted this summer.

Already, much of the information garnered through interviews has got our minds grappling with the multifaceted relationship between human trafficking and statelessness, and with the complexities of an ever-changing human trafficking modus operandi. As with many research projects, new and previously unaccounted pieces of information arise as the research kicks into full swing. The cultural aspect was one piece of the puzzle not wholly taken into consideration before the Thailand Project team took off to the field. Several key informants flagged aspects of Thai culture as potential catalysts to the causes of human trafficking. The interviewees’ reflection on the Thai custom known as ‘bun khun’ caught my attention. Simply put ‘bun khun’ is a customary belief that children should give back to their parents or respected elders from the ages of twelve and upward. Out of obligation and respect for parents for giving their child life and raising them, the child should “make merit” to their parents. For boys this usually means entering monkhood for a duration of time. Due to Buddhism’s female-exclusionary traditions a girl cannot make merit in this way and her obligation of ‘bun khun’ is commonly redeemed through monetary means. How can stateless women, or girls, meet this expectation when formal channels to employment are inaccessible? I want to investigate this from the standpoint of our target group; is this practise still prevalent and how is it affecting the lives of stateless women in northern Thailand?

At the same time, how to work in a developing country context as a non-native has become a fervent interest of mine since beginning a Masters degree in Women’s Studies. Prior to the Masters programme I had completed a Bachelor degree in International Development and Food Policy. Transitioning from a social science programme to studying within the humanities has challenged me to engage in a new way of critical thinking. My overriding concerns lie with how development organisations can avoid accusations of modern-day imperialism or Westernization. Furthermore, what approach does one use to address and represent the subordination of women in different cultural contexts in a world where ‘female emancipation’ is a miscellaneous definition? Suggesting women should adhere to a specific level of liberation can fall subject to relativistic linking of differences. Alternatively, feminist scholars have argued that “respecting cultural difference” is a euphemism for denying women’s rights. Is there a ‘happy medium’ between these polar positions?

My Masters thesis aims to address the cultural component of Thailand Project’s planned intervention strategy. I want to employ a feminist lens to examine how we can take cultural and gender expectations into account during the development of this intervention strategy. Adding feminist theory to this development means engaging stateless women’s situated knowledge and being cognisant of issues of patriarchy, power and difference. To develop a deeper understanding of women’s lived experiences and how they relate to their social structures I am conducting interviews with women in Thailand via Skype. So far all I can say is I’m unsure whether it is ‘bun khun’ or, as one interviewee described it, “the new culture” of modernisation that is more of a concern for stateless women in northern Thailand. Nonetheless this makes for an intriguing study in a topic I continue to be passionate about, and a true challenge to my struggle with contesting cultures.

Deirdre Brennan, Statelessness Programme Intern

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

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

and/or

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  

Reflections on Thailand (1): A protracted and neglected situation of statelessness

This is the first 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.

A large stateless population

For some time, Thailand topped the global statelessness charts: with a whopping estimate of 3.5 million stateless people, Thailand was believed to be home to the largest stateless community of any country in the world. More recently, this number has been revised down, based on a better understanding of the definition of a stateless person (following guidance on this question issued by UNHCR) and a more detailed study of the relevant populations in Thailand. As it turned out, and due in part to confusion surrounding the use of terminology in the Thai context, the high figure had been inflated by the inclusion of a large number of statusless people who are currently present on Thai soil without the requisite documents or permission under the country’s immigration law, but do largely hold a (foreign) nationality.

Today, Thailand reports a stateless population of just over half a million. In the global leagues, the country is therefore still very much a heavy hitter. Only Myanmar and Nepal have a higher figure in UNHCR’s statistical tables (at year-end 2010). Moreover, the number of stateless people in Thailand is five times the combined number of asylum seekers and refugees residing in the country.

An indigenous, ethnic minority, stateless community

Most of Thailand’s stateless people are members of the community known collectively as the ‘hill tribes’ (or sometimes ‘highlanders’), because they traditionally reside in the mountainous western and northern areas of the country, in particular along the borders with Myanmar and Lao PDR. They are an indigenous community within these regions, with ancestral ties to the territory. They are also an ethnic minority community – distinct from the Thai majority population – and comprise a multitude of different tribes, each with its own linguistic and cultural traits.

As mentioned, many hill tribe people and their ancestors have inhabited Thailand for hundreds of years. Others arrived in the country during various waves of migration in the 18^th, 19^th and early 20^th centuries – in particular during periods of upheaval in their countries of origin (which include China, Lao PDR, Myanmar, Nepal and Vietnam). Collectively, these groups make up the contemporary ethnic minority, hill tribe community in Thailand. Their total number in Thailand is not known, but some estimates put it in the region of 2 million people. Many hold Thai nationality, but some half a million are stateless.

It is of interest to note that a smaller indigenous population which is also grappling with statelessness can be found further south in Thailand, along the Andaman coast. Known as the Moken, Chao Lay or simply ‘Sea Gypsies’, they are a relatively small group (a few thousand people) who have lived semi-nomadic lives in this part of the country for hundreds, if not thousands, of years. Following the devastating 2004 tsunami, several projects were launched in the area to support the re-documentation of people and the re-building of livelihoods. It was then that this population’s lack of citizenship came to light and there has been some work since to try to resolve their statelessness. Our own research into the impact of statelessness on women in Thailand does not include the Moken – it is limited to the experiences of Thailand’s stateless hill tribe people.  

Protracted and neglected

Statelessness has been a phenomenon among Thailand’s hill tribe population ever since the country first began to really document its nationals, in the 1950s. For many, exclusion was a result of the poor enumeration of people or villages – some simply lived in such remote areas that they did not come into (regular) contact with the state authorities and were overlooked when civil registration and nationality documentation systems were implemented. Others may have had the opportunity to register as citizens, but did not see the importance of doing so, since the whole concept of nationality was alien to their lives. During various later attempts to fill in the gaps in census and civil registration records, the Thai authorities did not necessarily recognise those encountered – who were not previously registered – as Thai nationals. Instead, a system of different coloured cards was implemented to grant some form of temporary status to the ethnic minority groups, pending a more durable solution. For many, the difficulty in accessing Thai nationality was then compounded by a revision of the nationality policy to exclude from the country’s jus soli rules anyone whose parents were deemed to be illegally residing in Thailand. In other words, children born on Thai soil to illegally present parents – including many of the groups who held the aforementioned temporary statuses, which were not considered lawful residence – was excluded from nationality and would also be stateless. As such, statelessness became a protracted and hereditary phenomenon within these communities and there are many families which have been stateless for generations.

Despite the protracted nature of statelessness in Thailand and the sheer scale of the problem, the country’s stateless have drawn relatively little attention beyond its borders. Competing for the already marginal interest that different international actors have demonstrated in relation to statelessness to date, they have clearly lost out against other communities. Within the region, they are overshadowed by the larger stateless Rohingya Muslim population of Northern Rakhine state in neighbouring Myanmar, grabbing international headlines – both historically and again recently – thanks to the sheer level of destitution, marginalisation and persecution suffered, plus the challenges faced in relation to the international forced displacement of the group. Elsewhere, stateless communities in other parts of the world have also mobilised more interest or support, including the stateless Kurds in Syria, the Bidoon in the Arab Gulf, the Nubians in Kenya and the persons of Haitian descent in the Caribbean. In relative terms, at least where the interest of the international media and the involvement of international civil society and governmental actors is concerned, Thailand’s hill tribes appear today to be are among the most neglected of the world’s stateless people. As will be discussed in one of the later blogs in this series, this is especially unfortunate given the opportunities that the current legislative framework present in Thailand for the large-scale reduction of statelessness among the hill tribes and to which far more attention and resources should be directed to finally effect real change.

Laura van Waas, Senior Researcher and Manager, Statelessness Programme