Statelessness and ‘right to have rights’. Importance of citizenship in protecting human rights of stateless communities
Magisterarbeit 2014 42 Seiten
Part One: Why Statelessness?
Chapter 1: Introduction
I. Research question and design
II. Defining concepts
Chapter 2: Statelessness and ‘right to have rights’
I. Human rights with or without citizenship
II. Problematising Statelessness
III. Causes of statelessness
Chapter 3: Existing international legal framework
Part Two: Case study and analyses
Chapter 4: Case Studies
I. Rohingyas in Myanmar
II. Russian-speaking minority in Latvia and Estonia
Chapter 5: Against Statelessness: The Argument for Right to Have Rights
I. Answers to research questions
II. Policy and theoretical implications
III. Limitations and further questions
Part One: Why Statelessness?
Chapter 1: Introduction
A stateless person is an individual ‘who is not considered as a national by any State under the operation of its law’ (UNHCR, 2010a:6). In other words, a stateless individual is a person who does not legally belong anywhere. No government is responsible for his or her rights, survival or existence. United Nations High Commissioner for Refugees’ (UNHCR) publication What would life be like if you had no nationality? sums up their predicament: ‘if you are stateless, you may not be able to go to university; get a job; get medical care; own property; travel; register the birth of your children; marry and found a family; enjoy legal protection; have a sense of identity and belonging; [or] participate fully in developments in a world composed of states, in which nationality is key to membership’ (UNHCR: 1999). Thus, stateless people are forced to lead an illegal life and are highly vulnerable to increased ostracism, discrimination and insecurity (van Waas, 2008:12). Where citizenship is the norm, statelessness is an exceptional phenomenon. And yet, according to UNHCR’s estimates, there are around 12 million stateless individuals across the globe (2012:8; 2010b). A 2003 survey confirmed that there is no region in the world that is exempt from this problem (van Waas: 2008:10). Some people are stateless because of ethnic persecution; others lost their citizenship during reformation of the state; some simply fell between the cracks of citizenship laws; and others passed on their statelessness to their children.
National citizenship provides people with a sense of identity and is a key to full participation in society (UNHCR, 2012:2). Since only ‘citizens’ are allowed an unrestricted right to enter and reside in a country under international law, stateless people are often left without any residence permit and are subject to repeated or continuous detention (Blitz and Lynch, 2009:22-23, van Waas: 2008:241-2). Statelessness may also have severe knock-on effects for social cohesion and stability, as without any social or legal representation, stateless people are prone to feel insecure and dejected (UNHCR, 2012: 37). The individual insecurity can escalate to collective tension in a large stateless group at the communal, national or international level. There are instances where stateless groups, such as Bidoons from Kuwait and the Rohingyas from Myanmar, have resorted to mass displacement to escape their current condition (van Waas, 2008: 13). Formal nationality status conditions individuals’ abilities to realise their full potential. Without citizenship, stateless persons do not have right to vote and thus, no voice in the political process (UNHCR, 2006:6). Basically, statelessness means no ‘right to have rights’ (Arendt, 1967:296). Such individuals are not only being currently deprived of their basic human rights, but they do not have any hope to instil any change in the future as well. Preventing and reducing statelessness is an effective way to tackle one root cause of such problems.
I. Research question and design
The purpose of this project is to analyse and establish the importance of a ‘right to have rights’ or citizenship by examining and evaluating the plight of existing stateless people. The study shall seek to explore the human rights conditions created due to statelessness, adequacy of international organisations’ response to such situations and potency of current legal framework for the protection of stateless individuals. In essence, the overall research question posed in this work is the following:
Is formal citizenship the only mechanism to better include and protect stateless people?
To seek an answer to the question, it is important to answer to split this research question in two:
1. Can human rights be ensured without citizenship? And
2. What are the consequences of statelessness?
Through the study, it will be argued that each individual has right to legal nationality, and attached legal and social benefits. Citizenship is the only legal bond between the member and the state which can allow full protection of individual human rights and dignity of life. While the 1954 convention does ensure that stateless individuals are given a basic protection and freedom of movement, only full legal nationality can ensure that they and their future generations will not be subject to persecution and would lead a dignified life with a social identity.
To answer the given questions, the study has been divided into two parts. The goal of the first part is to establish the extent to which statelessness affects human universe. Chapter 1 has attempted to provide an introduction to the problem and establish relevance of the topic in current geopolitical scenario. The second chapter is devoted to academic debate over the need of citizenship to ensure human rights, and establishes the causes and impact of statelessness. Chapter 2 provides a brief introduction to the current international framework that has provisions to address the problem. Part two is focused on analysing the plight of two stateless communities along with actions and recommendations of international organisations to improve their lives. Chapter 4 uncovers the historical and political causes of statelessness among these people and scrutinises the human rights conditions endured by them. It also offers an insight into legal obligations of respective countries towards such individuals and why they are not enough. Ultimately, Chapter 5 summarises the research into answers to specific research questions and presents an argument for the right to citizenship. It also discusses theoretical and policy implications of the research and briefly explains the limitations of the study and their possible remedies for future projects in this field.
II. Defining concepts
The first critical step before establishing the ramifications of statelessness and right to formal nationality is to define the two concepts. For the purpose of comprehending the true nature and scope of the topic, it is crucial to understand situations which are covered under ‘statelessness’ and which fall beyond its reach. Statelessness is not absence of a state; it is the absence of legal bond with the state, otherwise known as national citizenship. Article 1 of the 1954 UN Convention relating to the Status of Stateless Persons defines a stateless person as ‘a person who is not considered as a national by any State under the operation of its law’ (UNHCR, 2010a:6). During a judgement in the famous Nottebohm Case in 1955, the International Court of Justice (ICJ) defined legal nationality as (UNHCR, 2005:9):
‘According to the practice of States, to arbitral and judicial decisions and to the opinion of writers, nationality is a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interest and sentiments, together with the existence of reciprocal rights and duties’
The operative phrases in both definitions here are ‘under the operation of its law’ and ‘according to the practice of the state’. Both ICJ and UN Convention acknowledge that legal nationality and statelessness fall under the purview of domestic laws. As highlighted in ICJ definition, the relevant factual links either with territory (place of birth or residence) or with a citizen (marriage, adoption or descent) mostly create the basis of national citizenship (UNHCR, 2005: 8). Thus, the citizenship status of a person is conditioned upon the establishment of the relevant links, specified as criteria for citizenship under the domestic law of the country with which he or she enjoys this link (UNHCR, 2012:7). If the connection is not deemed as a legitimate reason to claim citizenship under the country’s domestic law then the person is termed ‘de jure’ (in law) stateless. However, this definition excludes people who have legal nationality, but cannot enjoy the protection of their country or cannot produce the proof of their bond with the state. Such people are commonly referred to as de facto (in fact) stateless. But, this term does not have a formal recognition and is used in a wide variety of forms in statelessness discourse. Thus, definition of statelessness accepted in international law includes only de jure statelessness (UNHCR, 2012:9; van Waas, 2008: 20). This study shall look at the right of legal nationality for the de jure stateless individuals only.
De jure statelessness can occur due to several reasons pertaining to the individual or state. The primary reasons include: formation, partition or termination of sovereignty; arbitrary deprivation of citizenship of either individuals or groups by a government; dissolution of legal nationality on marriage to a foreign national; renunciation of citizenship without acquiring another; failure to register child birth; birth to stateless person; conflicts of citizenship laws; and/or administrative or procedural problems such as excessive fees or unrealistic deadlines (UNHCR, 2012:19). Among these, ‘change of nature of state’ and ‘arbitrary deprivation of nationality of ethnic minorities’ are the two foremost causes of statelessness (See van Waas: 2008; Blitz and Lynch, 2009). Especially in these two cases, the majority of the statelessness population never crosses an international border, i.e., they are born and lived in the same country and yet throughout their lives they have been unable to make a legitimate claim to national citizenship. They are forced into a legal and political vacuum where these communities do not have access to rights ensured under the International Bills of Human Rights, because of lack of citizenship.
This paper shall study the importance of formal nationality for two different groups of stateless individuals:
1. Rohingya community in Myanmar
2. Russian-speaking minorities in Latvia and Estonia
The first case study comprises of stateless individuals who lost citizenship after the Myanmar Government stripped/derecognised their legal nationality status on the basis of their ethnic identity. In the second case study, the community lost its citizenship because of the reformation of countries after the fall of Union of Soviet Socialist Republics (USSR) in 1991. The common underlining factor among these two examples is that these people were either born and/or have lived majority of their lives in the same country and lost their national citizenship while remaining within the borders of that territory. And the major difference is that while Rohingyas live in an absolute vacuum of rights due to arbitrary persecution by state, Russian-speaking minorities enjoy the social and cultural rights at par with the citizens but have been systematically denied the chance of to integration in local society or to gain citizenship without sacrificing their cultural identity to a certain extent.
The issue of statelessness has been under the international community’s scrutiny since the end of World War I. The significant reshuffle of international boundaries in the aftermath of war created substantial group of stateless individuals. The definitive division of the entire globe in countries and nationalities after the World War II further acted as a legal facilitator for conditions of statelessness. While the majority of these individuals were able to seek asylum under the provisions of the 1951 UN Convention for the Protection of Refugees, there were several others who failed to pass the criteria to seek refuge against persecution (Gill, 1994:382). These people either belonged to states which did not exist anymore or were unable to produce documented prove of their relation to the country of origin. According to Hannah Arendt, there were around one million known de jure stateless people during the time (1967: 279). Still, the UN conventions drafted in 1954 and 1961 for prevention and protection of stateless people did not gather international support until the disintegration of the Soviet Bloc in 1991. Division of both USSR and Yugoslavia has brought the issue of statelessness back on the international agenda (van Waas, 2008: 18). The second reason for a peaked interest in statelessness is the increase in the number of cases relating to ethnic persecution in various third world countries. Cases such as Rohingyas in Myanmar or the Kurds in Iraq are but a few examples of such cases in the contemporary era. In some emerging nations, national citizenship has also become a tool at the hands of manipulative administrations that do not shy away from stripping communities of their legal nationalities to achieve their political goals. The recent cases of such alleged activities include the case of people of Haitian descend losing citizenship in the Dominican Republic (Gamboa and Reddy, 2014:8) and the Nubian Community of Kenya (UNHCR, 2012: 45). According to van Waas (2008:18), the ‘third reason for statelessness being viewed with a renewed sense of urgency is the realisation that there is an intimate connection between statelessness and forced displacement’ (also see HSC, 2003). UNHCR realises that statelessness can cause instability in regions and can be the cause of armed conflicts (UNHCR, 2012: 37). The High Commissioner office has argued that these issues combined with the everlasting importance of protection of each individual’s human rights makes for a compelling case for a renewed urgency in addressing this issue.
Despite the magnitude and urgency of the issue, it remains grossly under studied. The majority of the population across the globe remains unaware of statelessness. The UNHCR has been unable to garner significant international support for the two conventions for prevention and reduction of statelessness and protection of stateless individuals. There is rapidly growing need to spread awareness about the issue. The plight of stateless individuals needs to be closely evaluated in order to find a logical solution. The countries need to be made aware of the consequences of denying citizenship to stateless individuals in terms of human rights abuse. This research shall attempt to argue a case for the universal right to national citizenship for all human beings on this earth. The study, if successful, will endeavour to contribute towards a better understanding of inhumane conditions stateless individuals have to experience on the daily basis and why it is necessary to ensure national citizenship rights for the protection of human rights more generally.
Chapter 2: Statelessness and ‘right to have rights’
According to Aristotle, man is essentially a political creature, you take away politics from a man and he is no better than an animal. A dignified human life requires freedom of speech, expression, movement, education, profession, etc., and in today’s modern society these rights are available to all human beings under the Universal Human Rights framework, but are not accessible to everyone equally. The human beings require a legal entity to oversee their access and protection of human rights, this entity is known as the state, and the contract of rights and duties between the two parties is citizenship. There is a debate among the human rights scholars over the legitimacy of attaching human rights with citizenship. This chapter aims to discuss the debate in first section and highlight the implication and causes of statelessness in the next two.
I. Human rights with or without citizenship
Citizenship is man’s right for it is nothing less than the right to have rights. Remove this priceless possession and there remains a stateless person, disgraced and degraded in the eyes of his countrymen. His very existence is at the sufferance of the state within whose borders he happens to be… [H]e will presumably enjoy, at most, only the limited rights and privileges of aliens, and like the alien he might even be… deprived of the right to assert any rights. (Earl Warren, Chief Justice, US Supreme Court, 1958)
Widely quoted author and a stateless person herself, Arendt argued that the only fundamental right is ‘right to have rights’ (1967:297). In her book ‘Origin of Totalitarianism’, she contends that loss of human rights entails loss of relevance of speech and the loss of all human relationship. Arendt concludes that the loss of these rights takes away the humanity from the being – stateless people lose a right to be human. Authors, who agree that citizenship is the only way to ensure protection of human rights, maintain that a legal bond helps people escape the want and fear and achieve stability in life essential for further social and personal development (Sokoloff, 2005:19; Sen, 2001:17). Furthermore, Sokoloff in his article Denial of Citizenship: A Challenge to Human Security establishes a correlation between lack of citizenship and human insecurity owing to economic, social and political marginalisation of non-citizens. On the other hand, Sen argues that although human rights are attached to citizenship they should be viewed as ethical and moral obligations of society rather than a legal task of international and domestic leaders (Sen, 2001:230). The opponent camp in this debate claims that conflation of human rights and citizenship may actually obstruct the empowerment and active participation of individual citizens because legal definition of individuals in terms of human rights gives them universal identity and citizenship essentially guarantees membership of a community (Kiwan, 2005:47). Their central argument here is that rights and freedoms should be granted to each individual irrespective of legal nationality (Sen, 2001:230). But unfortunately none of these authors have successfully suggested a method to offer rights without legal protection apart from having faith in the moral compass of the world society. Thus, it is optimal to conclude that unless an alternative method of practical implementation of human rights surfaces, the international community has only one tool to help stateless people realise their worth in society – citizenship.
Moreover, Hayden suggests that the main dilemma of ‘inalienable’ human rights is that while international law ties the protection of human rights and citizenship to state sovereignty, states are allowed to deprive citizens of these rights through denial of citizenship. Hayden observes that in the contemporary era, the notion of ‘rightlesssness’ has become normalised within the international order. According to him, the international system exists in a dichotomy, which allows nation-states to conform to universal standards of human rights while the millions of people continue to be live in an ‘unknown’ ‘unclaimed’ state (Hayden, 2008:253). Thus, it is incumbent upon the international community to make necessary legal amends to ensure the elimination of statelessness from all international and domestic laws for not only future but also for current generations. The problem of statelessness might be created because of several circumstances, but it is sustained by the ‘absence of the rule of law and by weak and undemocratic systems of governance’ (Blitz and Lynch 2009:95).
II. Problematising Statelessness
Several human rights scholars argue that citizenship or a legal bond with a particular state is not a necessity for a dignified life (See Donnelly, 2003; Amartya Sen, 2001; Kiwan, 2005). But there is overwhelming evidence that suggests the contrary. Contemporaneously, lack of national citizenship translates to a lack of existence and a hence lack of right to live (Arendt, 1967:296). Statelessness not only affects the private and family lives of the individual, but has a larger impact on society, state and international community as well. This section briefly explains why statelessness is a problem?
1. Impact of statelessness on the individual and the family
“When I tell people I am stateless, what I see in their face is shock, ignorance and mistrust. It’s like when the AIDS virus was first discovered, and suddenly people were suspicious of anyone who was HIV-positive. The blank expression on people’s face totally kills you. You always have to explain. It’s as if you had to prove your right to exist!”- Railya Abulkhanova, Kazakhstan (UNHCR, 2014a). Railya is a Ph.D., a published author and yet jobless. She has lived most of her life in Kazakhstan, but since she could not fulfil citizenship criteria at the time of USSR division, she has no claim to a normal life.
Lack of citizenship not only robs a person of his/her right to earn a comfortable life; it also leaves them with a ‘sense of worthlessness’ (Leclerc, 2007:6). ‘This is due in part to the role that nationality, as membership, plays in the formation of a person’s identity and the connection that they feel to the place where they live and the people around them’ (UNHCR, 2012:31). By definition, legal nationality is the membership that allows individuals to access rights to voice concern or influence change, thus stateless individuals are fundamentally captured in a vicious circle of formalised discrimination, social exclusion, insecurity and voicelessness (Sokoloff, 2005:20). Deprivation of citizenship also entails extremely limited opportunities of economic welfare. In most countries right to property, trade or employment are specifically linked with citizenship status, which systematically forces stateless people towards poverty. In Myanmar, Rohingya people are not only disqualified from any gainful position within the government machinery but are also allowed limited geographical movement, i.e., within two village radius, which is also conditioned on a special three-weeks permit. Dire financial situations, lack of clean water and sanitation often creates serious mental and physical health hazards for such individuals. Lack of food security has resulted in chronic malnutrition among Rohingya children (Hefferman, 2002:16-17). Confined to camps for being stateless Lhotshampas men living in the refugee camps of South East Nepal have registered a startling rise in alcoholism, domestic violence and suicides (Ruiz, 2004:102). In most cases denial of citizenship also translates into a lack of education opportunities for stateless children and young adults, which practically threatens their any chance at future emancipation.
2. The impact on society and the state
Several countries, like Dominican Republic, Congo, Kenya and Myanmar, have selectively denied citizenship to certain ethnic communities with a view to limit their natural and financial resources to homogenous communities. While such an arrangement may seem profitable for surrounding communities in a short-term, in the long run the exclusion of a certain population creates an imbalance skewing general profit. The states might have to increase internal security expenditure to limit human securities of ‘unidentified’ individuals to neutralise their actions against the state. Furthermore, denationalisation of an entire community also disqualifies equal amount of human capital which would have otherwise contributed towards national development (Walker, 1981:107-8). Additionally, Sokoloff argues that the social exclusion elevates desperation, violence and crime. ‘Trafficking in women, sexual exploitation, and addiction to drugs or alcohol are frequent occurrences around camps and settlements and equally erode the social and cultural fabric of both communities’ (2005:25). Lack of peaceful measures to mitigate inequalities and settle demands expose the population to risk of violent actions. The ongoing civil war in Ivory Coast or the 2012 riots in Myanmar illustrate that marginalisation of large population groups for nationalistic agenda subjects the entire country to continuous conflict and insecurity (Sokoloff, 2005:25).
3. The impact on the international community
Citizenship essentially is a sovereign matter, but the Inter-American Court of Human Rights acknowledges that state’s treatment of legal nationality cannot be solely treated as a sovereign issue because it affects the international community. UNHCR’s module of Statelessness recognises three major reasons for this influence 1) forced displacement; 2) regional instability; and 3) national and international armed conflict (UNHCR, 2012:37). Economic, social and political persecution of statelessness communities lead them into voluntary migration, but since they have minimum resources the movement is generally towards next best option, neighbouring nations. These movements often result in even more difficult circumstances for these individuals and host countries alike. In most of these international scenarios, host countries consist of poor nations like Bangladesh, Haiti or Nepal and are unable to provide any considerable humanitarian relief to migrants. Secondly, statelessness is not the norm. Thus, any community rendered stateless due to actions of any one country threatens the stability of its politics and that of surrounding countries. Unless granted citizenship by a state, these marginalised communities may seek to find mechanisms to demand their rights within a country or elsewhere (Batchelor, 2006:10). Finally, inclusion disputes have known to fuel international armed conflicts in the past. The Great Lakes Region of Africa has been in conflict for 40 years and these conflicts were directly related to the stateless community of 1.5 million Banyarwanda living in the North and South Kivu provinces of the Democratic Republic of Congo (Sokoloff, 2005:27; Fominyen, 2011).
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