GUEST POST: Myanmar - State of Statelessness

Nationality is a legal bond between a state, while statelessness refers to the condition of an individual who is not considered as a national by any state.

Myanmar (Burma) has one of the world’s largest populations of stateless people and this is a massive problem because statelessness has a terrible impact on individuals by depriving them of enjoyment of the full range human rights, i.e. individuals are generally blocked from obtaining employment, education, health care services and so forth. This problem of statelessness in Myanmar (Burma) and in the rest part of the world emerges due discriminatory and inadequate nationality laws. The leading approach in the fight against statelessness is ratification and implementation of various international norms related with nationality and statelessness provided by United Nations and other international organizations, e.g. Convention on the Reduction of Statelessness and Convention Relating to the Status of Stateless Persons, as well as others such as European Convention on Nationality or Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws.

The legal analysis of Myanmar’s (Burma) domestic nationality law enables to conclude that this county is very distant from the international standards in nationality field, because it has not ratified either of aforementioned statelessness Conventions which are vital to the battle against statelessness and which regulate many severely vulnerable areas.

Myanmar (Burma) has only acceded to the Convention on the Rights of the Child and Convention on the Elimination of All Forms of Discrimination against Women. However, norms of these Conventions are very laconic and regulate just very specific aspects of statelessness problem, thus, providing far less benefit than the ratification of, for instance, Convention on the Reduction of Statelessness would. What is more, Myanmar (Burma) even fails to implement those several international obligations which it has undertaken: Article 7 of Convention on the Rights of the Child prescribes that a child has the right to acquire a nationality and States Parties are obliged to ensure the implementation of this right under the relevant international instruments, in particular where the child would otherwise be stateless. However, Myanmar (Burma) has not adopted any measures or mechanisms for this.

So, if Myanmar (Burma) fails to implement its own obligations, it is meaningless to expect that this country could take into account other international principles and standards which are not applicable within its territory. The legal analysis confirms that. For instance, Burma’s Citizenship Law does not ensure nationality under Article 1 and 4 of Convention on the Reduction of Statelessness to a child born outside or inside the country, if otherwise stateless, and does not at all regulate the question of abandoned children under Article 2 of Convention on the Reduction of Statelessness or Article 14 of Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws. Sadly, Burma’s Citizenship Law does not provide facilitated naturalization for stateless persons as it is required by Article 32 of Convention Relating to the Status of Stateless Persons, as well. The possibility to naturalize as a citizen of Myanmar (Burma) is not even vested for foreigners.

The worst part of the Myanmar’s (Burma) nationality laws is racial discrimination. According to Burma’s Citizenship Law provisions, the citizenship of Myanmar (Burma) is granted only to certain ethnic groups that have settled within the State in a certain period. Moreover, the Council of State may decide independently whether to grant citizenship to any ethnic group or not. These provisions apparently contradict international norms which forbid  to deprive any person or group of persons of nationality on racial, ethnic, religious or political grounds.

Notwithstanding, there are aspects in which Myanmar (Burma) does better. For instance, its nationality laws provide some safeguards against statelessness in the context of loss of nationality. One of the most significant norms is Article 15(a) which ensures that citizen would not automatically lose his citizenship merely by marriage to a foreigner. This norm accords with international standard that any change in personal status (like marriage) should not affect a person’s nationality and if it nonetheless does, such change should be conditional upon not rendering the person stateless. A noticeable achievement of Myanmar’s (Burma) nationality law is non gender-sensitive norms, as well.

Taking everything into consideration, it is obvious that Myanmar’s (Burma) nationality law lacks attention to international principles and standards related with nationality and statelessness and is more incompatible with them than consistent. Therefore, United Nations and other international organizations have to work with Myanmar’s (Burma) government and persuade it to ratify more international Conventions on nationality and statelessness. 

Simante Tomkeviciute, Student of the course 'Nationality, Statelessness and Human Rights' offered by the Statelessness Programme at Tilburg University

Tilburg University students on Statelessness

This semester, the Statelessness Programme is piloting a course entitled 'Nationality, Statelessness and Human Rights'. During 14 weeks of interactive classes, students explore the phenomenon of statelessness and the role that nationality plays in the contemporary human rights environment. Some of the themes that are looked at in detail include: the prevention of childhood statelessness; discrimination in states' nationality policy; the links between statelessness, displacement and detention; and national and international stakeholders in the field of statelessness. The participating students - over 40 in all - come from a diverse range of backgrounds, both in terms of the main studies (law, liberal arts, psychology - bachelor and masters levels) and countries of origin. This makes for a lively and inspiring learning environment.


Inspired by the Statelessness Programme's own involvement in a brand new project to establish a Global Nationality Law Database, we set our students a special challenge for their mid-term course assignment... Conduct a legal analysis of the nationality law of one of eight pre-selected countries, based on a number of core standards of international law. Having filled in an assessment template, the students were asked to put together all of their findings and present them in a comment piece aimed at a wider, non-technical audience. The students who wrote the best three analyses were invited to review their comment piece in order to prepare it for publication online. The result: three guest posts that we are proud to offer here on our Statelessness Programme Blog. We hope that you enjoy reading them!

The Bidoon: A solution in sight?

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

The tumult

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

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

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

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

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

Where to now?

Over the past year, the Bidoon have seen protests, a storming of parliament, detention, threats of deportation and promises of citizenship, while very few have actually been naturalized.  What needs to be looked at now, besides all these events, is what concrete initiatives may come from all this and whether there is any real scope for positive next-steps.

 

The month of March has witnessed the issue slowly but seriously moving into parliamentary debate sessions.  One session was dedicated purely to addressing the issue with a Prime Minister ‘grilling’ opportunity.  A Kuwaiti MP stated that this discussion on the Bidoon was needed in order to ‘grant them their basic human rights and preserve their dignity,’ statements unheard of before the recent protests.  The same MP, Mubarak Al-Waalan, also asserted that ‘we need to pass a law that give Bidoon their civil rights to better their living conditions and to improve the image of Kuwait’s people, leadership, and parliament.’  On March 20^th the parliamentary debate focused on the claim that some Bidoons are citizens of other countries but are hiding their documents to enjoy the privileges come with being Kuwaiti.  Although the approach seems negative, as Bidoons have been excluded from benefits of Kuwaiti citizenship for decades and the burden of proof of distinguishing hidden citizenships lies with the authorities, at a minimum the fact that such a discussion taking place is a step in the right direction for the government. 

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

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

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

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

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

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

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

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

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

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

Laura van Waas, Senior Researcher and Manager, Statelessness Programme

GUEST BLOG: Mapping Statelessness in the United Kingdom

For too long, the situation facing stateless people in the UK has been little understood.  In light of this in November 2011, and on the 50^th anniversary of the 1961 Convention on the Reduction of Statelessness, Asylum Aid and the UN Refugee Agency (UNHCR) published a joint research report Mapping Statelessness in the United Kingdom.

This year-long research was motivated by a desire to shed light on this hidden issue – basically to better understand the situation and to see what government could do to improve the way it treats stateless persons in the UK.  There were three main goals. Firstly to evaluate available data sources in order to map the number and profile of stateless persons in the UK. Secondly to gain an in-depth understanding of the situation faced by stateless persons by carrying out 37 semi-structured interviews in 10 cities across the UK. Thirdly to analyse national law, policy and practice in light of the UK’s international obligations.

It is to the UK’s credit that it is one of only 37 states that have ratified both the 1961 Convention on the Reduction of Statelessness and the 1954 Convention on the Status of Stateless Persons. Yet at the same time the report findings bring home the reality that ratification without proper implementation is not enough to adequately protect the rights of stateless persons. While British nationality law is generally effective at preventing statelessness among children born in the UK, there remains significant scope for improvement in the way the UK treats stateless migrants. Many of the key findings from the research relate to problems flowing from the fact that at present the UK does not have a dedicated or accessible statelessness determination procedure. This limits the ability of the UK authorities to identify which individuals are stateless in order to confer the rights owing to them under the 1954 Statelessness Convention and international human rights law.

We identified several key recommendations. Firstly the UK needs to reform its data management systems in order to more accurately record the size of the stateless population. Secondly improved guidance and training is required to enable decision-makers to better identify stateless persons who come into contact with immigration control. Thirdly the UK should follow the example of other European states by introducing a dedicated statelessness determination procedure. Fourthly this should be combined with a grant of lawful immigration status for those individuals recognised as stateless and who lack a right of residence in any other country.

Otherwise, and without any means to regularise their immigration status, stateless persons will continue to be left in limbo and at risk of destitution, arbitrary detention and other human rights infringements. Of the 37 persons interviewed for the research 12 had been detained and 28 had experienced destitution (11 of whom had spent periods sleeping rough on the streets). The vast majority had been compelled to claim asylum because that was the only route open to them but if refused found themselves left in a nightmarish legal limbo with no solution in sight. A robust statelessness determination procedure would not only reduce the risk of human rights infringements but would also help relieve pressure on an already over-stretched asylum system. Asylum Aid will be advocating that any new determination procedure should be based on forthcoming UNHCR Guidelines on the proper identification of statelessness.

As well as seeking to continue a constructive dialogue with the UK authorities about how to implement the report’s key recommendations, Asylum Aid will continue its awareness-raising and capacity-building work to help equip civil society organisations to better identify and respond to the needs of stateless persons. We will also continue to engage at the pan-European level, including through involvement with the European Network on Statelessness (ENS) bringing together non-governmental organisations, academic initiatives, and individual experts committed to address statelessness in Europe by conducting and supporting legal and policy, awareness-raising and capacity-building activities. The setting up of this network is testament to an increased understanding of the need for European governments and civil society to be better able to pick out stateless persons from their caseloads or populations of concern. The UK statelessness research, along with the recently published UNHCR mapping study in the Netherlands, also point to the critical importance of and provide a possible model for similar research in other European countries in order to raise awareness about this important but hidden issue.

Mapping Statelessness is, hopefully, the start if a much-needed conversation about statelessness in the UK and beyond – and one that concludes in a lasting and fair solution for those devastated by its effects.

Chris Nash, Asylum Aid

The full UNHCR/Asylum Aid report Mapping Statelessness in the United Kingdom is available at http://www.asylumaid.org.uk/data/files/publications/mapping_statelessness.pdf

For further information about the report or Asylum Aid’s work on statelessness contact Chris Nash at chrisn@asylumaid.org.uk