Statelessness in 2012: one step forward, two steps back?

The year 2011 ended on an unmistakable high in terms of momentum to address statelessness worldwide, with the issue somewhat stealing the show at UNHCR’s December Inter-ministerial meeting, as one state after another affirmed the importance of tackling the problem and pledged to take action. Entering the new year, things were still looking promising with a number of countries in Africa, Europe and the Americas already making good on their promises and acceding to one or other - or both - of the statelessness conventions, or taking steps to introduce a statelessness determination procedure in their legal system. 

Meanwhile, in early 2012, the newly elected Council of Europe Commissioner for Human Rights, Nils Muižnieks, indicated his intention to continue his predecessor's work in highlighting problems of statelessness across the continent and expressed a particular interest in raising the issue of stateless children. Europe also saw the launch of the European Network on Statelessness at the start of June 2012: the first significant regional initiative by civil society to collaborate closely in order to 'strengthen the often unheard voice of stateless persons and to advocate for full respect of their human rights'. And Slovenia's "erased" have just won a landmark victory before the European Court of Human Rights' Grand Chamber, which ruled that the government's deletion of some 18,000 names from the civil registry books in 1992 - which left people both stateless and classed as illegal residents - was a violation of the right to family life (article 8 ECHR) and the principle of non-discrimination (article 14 ECHR). This case, Kuric v. Slovenia, provides crucial confirmation of the European court's competence to rule on matters relating to the enjoyment of nationality - given the right circumstances of the case - and its interest in acting on statelessness.

Each of the developments noted above - and more besides - constitutes an important step forwards in addressing statelessness and demonstrates that the issue is now, at last, receiving significant international attention. Yet, if we flip the coin over, the other side exposes some extremely disquieting statelessness-related developments. From Sudan/South Sudan, UAE, Syria, Dominican Republic, Libya and elsewhere comes news of emerging cases of statelessness and/or further stagnation or deterioration of the situation of stateless people. 

Most worrying of all - and distressing enough to take the shine off any global efforts towards the resolution of statelessness - is the news from Myanmar (Burma). For several weeks now, reports pouring out of the country have brought word of an ever-worsening situation for the stateless Muslim minority in Myanmar's Rakhine state, the Rohingya. What was initially described as a flare of ethnic tension has since deteriorated into shocking reports of killings, the destruction of tens of thousands of homes and the displacement of tens of thousands of people. Those attempting to flee the violence by sea are meeting perhaps even greater risks on their perilous journey, with reports of helicopters firing on boats full of these stateless refugees (including children). And those that do make it to shore in neighbouring Bangladesh being turned back out to sea in their overloaded boats with only a small supply of fresh of water and rice or bread as this news footage shows. 

While the recent moves towards a more democratic state have cast a positive light on the future of Myanmar and Aung San Suu Kyi's recent international tour - a highlight of which was her acceptance of the Nobel Peace Prize awarded to her in 1991 - has inspired hope in many, the situation of the stateless Rohingya does not look set to benefit from these developments any time soon. Indeed, Suu Kyi herself has declared that she "does not know" if the Rohingya should be regarded as Burmese and now a group of eight ethnic parties allied with Myanmar's opposition movement has rejected the idea that the Rohingya should be recognised as one of the country's ethnic minorities. There is no doubt that the current treatment of the Rohingya both inside Myanmar and as hundreds seek protection abroad is casting a deep and worrying shadow on international developments in the field of statelessness in 2012. 

Laura van Waas, Senior Researcher and Manager, Statelessness Programme

GUEST POST: The birth of the European Network on Statelessness

A year which ended with UN High Commissioner for Refugees, António Guterres, hailing a “quantum leap” in global efforts to tackle statelessness was also an opportune moment for civil society actors to examine how best to coordinate and strengthen their contribution in support of such efforts.

In July 2011, and with that aim already in mind, a small group of organisations - Asylum Aid, the Hungarian Helsinki Committee, the Open Society Justice Initiative, the Equal Rights Trust, Praxis and the Tilburg Statelessness Programme - started a conversation which resulted in the creation of the European Network on Statelessness (ENS).

A Steering Committee was formed to guide the development of the Network and to put in place solid foundations for its future expansion and sustainability. The Steering Committee met again in December 2011 and it was decided that Asylum Aid would initially host and coordinate the Network pending steps necessary to set it up as an independent organisation with its own legal identity based in the UK. A further meeting in Tilburg in April 2012 finalised an activity plan with particular focus on launching the ENS website along with other work to raise awareness and invite broader participation in the network.

It was evident when forming the Network that the statelessness problem requires an effective and coordinated response by civil society actors. In today’s Europe statelessness occurs both among recent migrants and among people who have lived in the same place for generations. Most countries in the region frequently encounter stateless persons in their asylum systems. In the Balkans and elsewhere many Roma remain stateless as a result of ethnic discrimination. Statelessness is also a continuing reminder of the break-up of the Soviet Union.

Yet despite the scale of the problem, most European countries have no framework to effectively deal with statelessness and tackling this requires major law and policy reform.

Given that at present there is relatively limited understanding of the issue by both government and civil society actors there is an equally compelling need for more awareness-raising, training and provision of expert advice. ENS stands ready to provide this.

Another key challenge derives from the marginalisation of stateless persons - notably described as “legal ghosts” by former Council of Europe Commissioner for Human Rights, Thomas Hammarberg. While urging that the problem of statelessness be afforded greater priority he went on to emphasise that “Many victims have little possibility themselves to be heard and in many cases are silenced by their fear of further discrimination”. Acutely recognising this phenomenon, ENS is dedicated to strengthening the often unheard voice of stateless persons in Europe and to advocate for full respect of their human rights.

With the ENS website now launched, and briefing events planned in Brussels and at the UNHCR NGO Consultations in Geneva next month, we hope that many more organisations working on statelessness will get involved with the network. As the ENS membership grows, the pool of thematic and country expertise will grow with it – bringing new opportunities to achieve real impact.

We are obviously only at the start of a journey.  But by working together and pooling our resources hopefully we can make a real difference in tackling statelessness and helping to bring Europe’s “legal ghosts” out of the shadows.

Chris Nash, Asylum Aid & European Network on Statelessness

The European Network on Statelessness is open to NGOs, research centres, academics and other individuals who wish to apply for associate membership. For further information contact ENS Coordinator Chris Nash at info@statelessness.eu or visit our website at www.statelessness.eu

How gendered is citizenship? A teaching resource

A global survey published by UNHCR in March 2012 identified over 25 countries in which severe pockets of gender discrimination remain in the nationality law. The emergence of new cases of statelessness thanks to these laws is a real and pressing concern. To explore this problem in greater detail, the Statelessness Programme convened a roundtable debate on the question “how gendered is citizenship?” on 19 April 2012. The objective was to shed further light on the unequal nationality rights of men and women, with a particular focus on the link between such forms of discrimination and the problem of statelessness.

The invited experts were: Prof. Cees Flinterman (CEDAW / UN Human Rights Committee), Ms. Radha Govil (UNHCR) and Prof. René de Groot (comparative nationality law expert). Under the guidance of Sebastian Köhn of the Open Society Justice Initiative, they discussed the historic origins of the unequal nationality rights of men and women, before turning to look at the factors that have contributed to the wave of legal reform that has been achieved across the globe over the past few decades. They also provided a more detailed commentary on the link between gender discrimination and statelessness, the role of various UN bodies in helping states to address these issues and areas in which further research and action is needed.

A full video of this rich debate has been made available online and can be viewed here. Although the film is rather lengthy, we hope that it will be a helpful teaching resource. Some discussion questions to help guide the viewer or to address in class following a presentation of the video are provided below.

What are the different forms of gender discrimination that can be found in the context of citizenship policy?

How can gender discrimination in nationality law lead to new cases of statelessness?

What are the historic origins of gender inequality in nationality law?

Is it always women who are disadvantaged when it comes to nationality rights?

What does human rights law say about the nationality rights of men and women?

Which countries have recently granted women equal nationality rights with men and how has this taken shape?

What is the respective role of UNHCR and the UN human rights system in promoting gender equality in the enjoyment of nationality rights?

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GUEST POST: The Compatibility of Nationality Laws in Vietnam and Relevant International Standards

Strengths in Vietnam’s Nationality Laws

Due to a lack of ratification of international treaties relating to nationality laws, Vietnam has few obligations under international law. There are three situations in which Vietnam meets, or exceeds, such obligations.

1. Children born in Vietnam, if otherwise stateless

The Law on Vietnamese Nationality (LVN) regarding children born in Vietnam are certainly flawed. Nevertheless, they ultimately safeguard against statelessness. That is, the LVN does allow for a situation to arise where a child is rendered stateless: where a child is born in Vietnam and has one or two parents who are not stateless, but the child is for some reason unable to obtain their parent’s nationality, then the child will be stateless. However, LVN expresses as a general principle the right to a nationality for a child born in Vietnam if otherwise stateless (Article 8), and thus appears to provide protection against statelessness that is consistent with Vietnam’s obligations under CRC. It should be noted that the extra complexity in having to read these two sections together weakens the ultimate effectiveness of the safeguard and incorporating the words ‘unless otherwise stateless’ into the active provisions of LVN is recommended to provide stronger protection against statelessness.

2.      Renunciation of nationality

Under LVN, Vietnamese nationality can be renounced upon proof that the citizen is applying for foreign nationality. There is no requirement that the application for a foreign nationality is successful. Consequently, if a citizen renounces Vietnamese citizenship but fails to obtain foreign nationality, then they will become stateless.  Nevertheless, in this situation, Vietnamese citizenship will then be restored. Therefore, the LVN ultimately provides a sufficient safeguarded against continuing statelessness, despite the unusual situation where a person momentarily slips into a state of statelessness. However, it is likely this is the only possible solution; if the LVN provided that effective renunciation would depend on the application for foreign citizenship being successful, then the application may never be allowed, as the second nationality might only be awarded once the original nationality is fully renounced. Therefore, Vietnam cannot be too heavily criticised for its protection against statelessness where citizens seek to renounce nationality. Regardless, Vietnam has not breached international obligations, as they are not a party to the 1961 Convention on the Reduction of Statelessness (CRS).

3.      Racial Discrimination

LVN does not contain any racial discrimination and Vietnam is in compliance with international norms and obligations under CERD, CRS, CRC and UDHR.

Weaknesses in Vietnam’s Nationality Laws

1.      Acquisition of Nationality by a Child Born Abroad, to a Parent who is a Vietnamese National, if otherwise Stateless

Under Article 16, a child born outside Vietnamese territory will receive Vietnamese nationality if one parent is a Vietnamese citizens and the other is stateless at the time of his/her birth. Alternatively, if the child’s mother is a Vietnamese national and the father is unknown, then a child born abroad will receive Vietnamese nationality. However, the LVN fails to account for a situation where one parent is Vietnamese, and the other parent has a nationality, but the child is for some reason unable to obtain the second nationality. In this situation, the child could not get Vietnamese nationality and would be rendered stateless. Therefore, the LVN does not appear to be in line with Vietnam’s obligations under the CRC, or the CRS.

2.      Acquisition of Nationality by Foundlings

The LVN regarding foundlings is in breach of Vietnam’s obligations under CRC. Whilst newborns and children found in Vietnamese territory whose parents are unknown are given Vietnamese nationality, a child could lose their Vietnamese nationality because their parent is discovered, even though they might not be eligible for their parent’s nationality. Thus, the child would be left stateless.

3.      Loss and Deprivation of Nationality

The LVN for loss and deprivation of nationality meets obligations under the Universal Declaration of Human Rights (UDHR); loss/deprivation of nationality should not be arbitrary under the law as the grounds for loss and deprivation are clearly and systematically set out (Article 26 and 31 of LVN). However, the laws are not inline with international norms under the CRS. LVN states grounds for loss and deprivation (Article 23(1)(f), LVN), but fails to make loss/deprivation dependent on possession/acquisition of another nationality, thus LVN does not safeguard against statelessness. LVN only protects against statelessness arising from loss of nationality due to renunciation, as outlined above, and therefore allows for a number of ways for alternative methods of loss/deprivation to result in statelessness.

4.      Gender Discrimination

LVN is largely inline with Vietnam’s international obligations under CEDAW: men and women have equal rights to nationality, the nationality of the woman shall not be altered according to marriage, and both men and women equal rights with regards to the nationality of their children. However, gender discrimination is present. Article 16(1) does not allow for a child to receive Vietnamese nationality in situation where the mother is unknown and the father is a Vietnamese national. Thus, the father does not have equal rights with respect to the nationality of their children, and it could be argued Vietnam is not complying with its international obligation.

5.      Facilitated Naturalisation of Stateless Persons

Prima facie, LVN is consistent with Vietnam’s obligations under UDHR to facilitate naturalisation of stateless persons: stateless persons can naturalise, and stateless persons can naturalise without personal identification papers when they have resided in the Vietnamese territory for 20 years or more. However, on closer inspection, this “facilitation” is flawed for two reasons. Firstly, it could be argued that 20 years is too long a time to have to reside in Vietnam to be eligible for facilitated naturalization,although it is unclear whether a specific international norm governs this time period. Secondly, the prescribed 20-year residency time period must have been met at the time the law entered into force. Therefore, naturalization under the LVN will only ever be beneficial for a particular group and not for cases of statelessness arising after the law’s entry into force.

Conclusion

There are a number of gaps in the Law on Vietnamese Nationality that fail to provide sufficient protection against statelessness. Particularly concerning are the provisions in clear breach of Vietnam’s obligations under CRC. Laws relating to loss and deprivation are also troubling; as Vietnam is not bound by CRS, it is recommended that they ratify the convention and implement greater protection against statelessness. Furthermore, renewed consideration should be given to the period of 20 years for facilitated naturalization of stateless persons. 

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

GUEST POST: Statelessness Prevention in Indonesia - Strengthening the Nationality Legislation

Statelessness remains a global problem which is in need of a global solution. One way in which countries can contribute to this challenge is by developing their nationality legislation in such a way that it contains safeguards against statelessness. In this respect, Indonesia is an interesting example, as in 2006 new legislation on nationality was passed, which includes certain of such safeguards. As explained in the law itself, the previous legislation needed replacement, since it “was philosophically, juridically, and sociologically no longer compatible to the development of the people and the civic administration of the Republic of Indonesia”. The question which immediately comes to mind is whether Indonesia’s nationality legislation is completely attuned to the current demands in regards to statelessness prevention or that it is in need of further amendment. Therefore, it is insightful to consider the main positive and negative aspects of Indonesian nationality legislation in regards to the prevention of statelessness.

The main positive aspects of Indonesian nationality legislation can primarily be found in the inclusion of three principles, namely, ius sanguinis, ius soli, and non-discrimination. When considering the first two principles, it must be understood that persons born from Indonesian parents and those born on Indonesian territory are considered to be Indonesian citizens. However, it must be understood that the principle of ius soli does not apply in all cases; it applies to foundlings, children born from parents with undetermined citizenship, children born from parents with undetermined whereabouts and children from stateless parents. Nevertheless, by recognising both principles instead of one, Indonesian legislation prevents the previously mentioned groups from ending up without having a nationality and thus provides a safeguard against statelessness in these cases – although some gaps remain. Furthermore, the legislation acts against discrimination. Remarkable is however, that the legislation does not include specific provisions which state that discrimination must be excluded from the processes of acquiring, changing, renouncing, or passing on nationality. Rather, the general explanatory part of the legislation acknowledges the principle of non-discrimination and one can find provisions which result in persons not being discriminated against on for instance the basis of gender. Such provisions include for example the right of women to pass their nationality on to their children. As a result, statelessness caused by gender discrimination is prevented. Important to consider is that Indonesia hereby acts in accordance with its international obligations under the 1966 International Covenant on Civil and Political Rights (“ICCPR”) and the 1979 Convention on the Elimination of All Forms of Discrimination against Women (“CEDAW”). But perhaps even more significant is that Indonesia hereby acts in accordance with international norms which are not ratified, such as the 1961 Convention on the Reduction of Statelessness (“CRS”) and Article 7 of the 1989 Convention on the Rights of the Child (“CRC”). In this respect, Indonesia may be understood to go beyond its international obligations and its legislation may appear to be in line with the international standards regarding statelessness prevention.

However, Indonesia’s nationality legislation has negative aspects as well. Especially the fact that Indonesia has not yet ratified the CRS must be understood as a negative aspect; it suggests that the country does not intend to act in accordance with all the Convention’s provisions, and this raises serious questions about Indonesia’s willingness to prevent statelessness. When taking a closer look at the legislation, one indeed finds aspects which are not in line with this Convention and Indonesia’s other international obligations, such as the 2006 Convention on the Rights of Persons with Disabilities, the ICCPR, and the CRC. Especially, but not exclusively, in respect to the naturalization procedure amendments are wished for; the current legal requirements for naturalization might make it problematic for some persons who are already stateless to acquire a nationality, thereby prolonging cases of statelessness. The requirements for naturalization for instance result in discrimination on the basis of religion due to the fact that one must recognise Pancasila, the belief in One God, and in discrimination of persons with disabilities, as applicants must be “sound in health and mind”. Moreover, the procedure requires persons to relinquish any other nationality, as Indonesia does not recognize double nationality. This requirement must be understood to have the possibility to exclude stateless persons and refugees from gaining Indonesian nationality, as they are often unable to provide proof of renunciation of nationality or to give up their nationality.

           

Thus, while Indonesia’s current nationality legislation can definitely be understood to be a step in the right direction, since it contains certain safeguards against statelessness, it is evident that the legislation is in need of amendment in order to better align the nationality laws with Indonesia’s international obligations and the current expectations regarding the prevention of statelessness. And perhaps the first next step should be one of the biggest ones a nation can take: acceding to the 1961 CRS. 

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