In the Universal Declaration of Human Rights, Article 15 states that “everyone has the right to a nationality and that nobody shall be deprived of this right” (Universal Declaration of Human Rights 1948). This is a human right, granted to everyone on the basis of them being human and because of this, statehood should not be a limit on the individual enjoying their basic human rights. Unfortunately, this right is often violated resulting in a large population of people deemed stateless. There are groups of stateless people worldwide, this is not a small issue and it has led to serious consequences such as genocide. This paper aims to address the reasons why an individual becomes stateless, conventions and treaties written and ratified focusing on this issue, an analysis of the different forms of statelessness and will conclude with case studies concentrating on the Rohingya people in Myanmar and the Bidoon people in Kuwait.
The Treaty of Westphalia created the idea that nation states will be the actors in the global arena. To be considered a nation state, the country must have a permanent population. The ultimate consequence of statelessness is not having a formal body to represent you and your interests. The issue of statehood is crucial, it is how individuals are granted the rights to exercise their civil, political, economic and social rights within their nations. It is also the access point to utilize the rights bestowed upon them by the Universal declaration of human rights. All things considered, a stateless person is “a person who is not considered as a national by any state under the operation of its law” (Convention Relating to the Status of Stateless Persons 1954). This is an exclusive legal definition, it does not place any value or specific characteristics to a particular nationality. Without statehood, an individual does not have access to essentially any rights, “with citizenship being the “right to have rights”, stateless persons’ have traditionally been seen as having no rights” (Weissbrodt and Collins 2006). Furthermore, statehood grants an individual protection under the state, both domestically and internationally. “This traditional concept of statelessness, which comes from an international law perspective, follows the logic that because one generally needs to be a citizen in order to receive diplomatic protection from a state, no international wrong is committed if another state’s citizen is wronged” (Weissbrodt and Collins 2006).
Being stateless can be considered the most vulnerable position an individual could be in under International Law. In reference to the states themselves, “regardless of the obligation involved, it is unwise for a government to fail to act to protect its own nationals as this may cause observers to question the ability of the government” (Doebbler 2002). While being stateless, an individual does not have access to any form of identification. This makes it almost impossible for someone to seek asylum elsewhere or to seek refuge in another country. “Being without identity documents also makes it difficult to obtain basic social services such as acquiring jobs, receiving medical care, marrying and starting a family, traveling, owning property, education and even the right to register the birth of their child” (Weissbrodt and Collins 2006).
After the Universal Declaration of Human Rights was drafted and ratified, the International Law Commission (ILC), looked into the matter of nationality which encompasses the issue of statehood. “At the same time, the Economic and Social Council formed the Ad Hoc committee on Statelessness and related problems” (Doebbler 2002). This committee led to the 1951 convention related to the status of refugees, which was then used by the 1954 stateless convention. The 1954 Convention relating to the status of Stateless Persons is dedicated to the protection of the stateless individual. “The notion that statelessness should not bar one from realizing her human rights is embodied in the 1954 convention… state parties should grant stateless persons rights on par with rights that the state gives to its own nationals or to foreign national legally residing in their country” (Weissbrodt and Collins 2006). In addition, the 1954 convention makes note that these rights are human based, not nationality based, reiterating a major misconception. As with any treaty, there were shortcomings of the 1954 Convention. Most notably, the treaty is inefficient in both providing protection and facilitating a means to gain statehood. It lacks an authoritative body to establish and monitor compliance. Because of this, not many states were willing to ratify such treaty. These limitations led to another convention, in 1961.
The 1961 Convention on the Reduction of Statelessness confronted the issue explicitly, “under the citizenship rules that states parties to the 1961 Convention must adopt, many persons who might otherwise be stateless are able to acquire citizenship. Additionally, state parties also must afford the means for persons born on their territory to obtain citizenship” (Weissbrodt and Collins 2006). The 1961 convention “tries to reduce the possibility that a person will become stateless by providing any loss of nationality because of a change in personal status shall be conditioned on the possession or acquisition of another nationality” (Convention of the Reduction of Statelessness 1961). This clause covers the loss of nationality under circumstances such as marriage, divorce, adoption. Exceptions to, this includes those living abroad and not going through proper channels to receive nationality. This convention received the same response as the 1954 convention, “only 49 states have ratified the 1961 convention and even among those who have ratified it, its application remains limited” (Doebbler 2002). Ultimately, “the 1954 convention provides for the protection of persons who are acknowledged as stateless and the 1961 convention is another attempt to mitigate the possibility that statelessness will occur” (Doebbler 2002). While this is acknowledged as a step forward, it did not have a large enough effect.
The issue was brought up yet again, an additional treaty was created to tackle the issue of statelessness, but on a regional level. The European Convention on Nationality which came into force in 2000, “reaffirms the right to a nationality and the right not to be arbitrarily deprived of one’s nationality” (Doebbler 2002). This treaty reaffirms the right for the country to decide under its law who their population is, acting as a foundation for what is apparent today. Most similar to the 1961 convention, “the European convention provides for a general duty to not allow statelessness, but then allows for numerous broad exceptions, such as person in question has voluntarily acquire another nationality, voluntarily served in a foreign military force, acted in a prejudicial manner to the interests of the state, habitually resided abroad with no genuine link with the state party or in the case of a minor child, the reasons for acquiring nationality are no longer fulfilled” (Doebbler 2002) . Another similarity is that it is not permitted to withdraw statehood if it would render the individual stateless unless they obtained statehood under fraud. Another regional agreement in 2006 brought the issue to the East, “the Asian- African legal consultative organization adopted a resolution on legal identity and statelessness in 2006” (Manly and Persaud 2009).
Additional noted provisions regarding statelessness are written in numerous United Nations treaties. Including the International Covenant on Civil and Political Rights, Convention on the Rights of the Child, the Conventions regarding Discrimination of Women and the Nationality of Married Women, all in combination to the two Conventions on Statelessness. These provisions serve either to prevent or reduce statelessness. In both the Covenant on Civil and Political Rights and in the Covenant on Economic, Social and cultural rights, contains a clause requiring states “to respect and ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present covenant, without distinction of any kind, such as race, color, sex, language, religion, political or other status” (Weissbrodt and Collins 2006). In the Convention of the Rights of the Child states that children “shall be registered immediately after birth and shall have the right from birth to a name and the right to acquire a nationality. States parties shall ensure the implementation of these rights, in particular where the child would otherwise be stateless” (Convention on the Rights of the Child 1989). The Convention on the Nationality of Married Women, has a clause, “protecting women from automatically losing their nationality upon marriage or divorce or from being rendered stateless by changes in a husband’s nationality” (Convention on the Nationality of Married Women 1957). The Covenant regarding discrimination has a similar condition, “neither marriage to an alien nor change of nationality by the husband during marriage shall render a woman stateless” (Convention on the Elimination of All forms of Discrimination Against Women 1979).
Under International Law there are two kinds of statelessness: de jure and de facto. Under de jure statelessness, a person is or is not a citizen according to the state’s law. A critique of this definition is that the scope of it is too narrow, “excludes those persons whose citizenship is practically useless or who cannot prove or verify their nationality” (Weissbrodt and Collins 2006). Under the classification of de jure stateless, is the distinction of how statehood is obtained, these are two principles that are used to determine who gets citizenship and who does not. “There is jus sanguinis, where citizenship is based on family heritage or descent, also referred to as “right of blood”. Then there is jus soli, citizenship is based on the place of birth, or “right of birthplace” (Weissbrodt and Collins 2006). Most countries allow a mixture of these principles, “for example, the United States recognizes the U.S. citizenship of individuals according to jus soli and jus sanguinis. Individuals born on U.S. soil are granted citizenship regardless of their parent’s citizenship and individuals born abroad to U.S. citizens are also given citizenship” (Weissbrodt and Collins 2006). De Facto statelessness is in reference to those individuals who might have a legal claim to the benefits and rights of a national, but for a particular reason is unable to enjoy such rights. “de facto statelessness can occur when governments withhold the usual benefits of citizenship, such as protection, and assistance or when persons relinquish the services, benefits and protection of their country” (Weissbrodt and Collins 2006). This form of statelessness is most applicable to those who are repressed and discriminated by their country or those who are victims of human trafficking. Victims of human trafficking, whether it be for labor or the sex trade, typically have their identification taken from them. Effectively rendering them stateless because they can no longer prove their identity once abroad. De facto statelessness was avoided in the 1954 draft to avoid overlap, “clear definition to prelude situations where a person might be considered de facto but not de jure or vice versa. Also, the drafters did not want the convention to be the impetus for persons to attempt to secure a second nationality, if they were de facto stateless” (Weissbrodt and Collins 2006)
De jure statelessness deals with the issue of dependent nationality. Dependent nationality, “refers to the practice of linking the nationality of a married woman to her spouse, thus making the wife’s nationality dependent upon her husband’s citizenship” (Weissbrodt and Collins 2006). A woman would lose her nationality if she marries a foreign national, both can be rendered stateless if the husband loses or changes his nationality. A woman can also become stateless by divorce or widowhood. In this case, “she may be unable to enter her home country because she no longer holds that nationality. If she has children, it is likely they also will become stateless if the mother’s home country uses jus sanguinis statehood dependent on the father” (Weissbrodt and Collins 2006).. Issue such as this is addressed in the Convention on the Nationality of Married Women, state parties agree “that neither the celebration nor the dissolution of a marriage between one of its nationals and an alien, nor the change of nationality by the husband during marriage, shall automatically affect the nationality of the wife… furthermore, neither the voluntary acquisition of the nationality of another state nor the renunciation of its nationality by one of its nationals shall prevent the retention of its nationality by the wife of such nation” (Convention on the Nationality of Married Women 1957).
In the case of jus sanguinis citizenship, “many countries with jus sanguinis nationality laws that only recognize paternal descent, if a woman marries a stateless person or has children out of wedlock with a man of her own nationality, then her children would be born stateless” (Weissbrodt and Collins 2006). This is in direct violation under article 25(2) of the Universal Declaration of Human Rights, which states “all children, whether born in or out of wedlock, shall enjoy the same social protection” (Universal Declaration of Human Rights 1948). The most prominent issue to come from this is the cycle of statelessness this creates. If both parents are stateless, then the cycle continues, perpetuating statelessness for generations. Because of this, Jus soli have become an international norm for statehood. Under the Convention on the Rights of the Child, it confronts the issue of parents being stateless, addressing the perpetuating cycle for future generations
There are numerous reasons why an Individual may become stateless, other than the issues previously presented. “The United Nations High commissioner for refugees lists 10 reasons why an individual may become stateless: conflicts of laws; transfer of territory; laws related to marriage; administrative practices; discrimination; laws related to the registration of births; jus sanguinis; denationalization; renunciation of citizenship; and automatic loss of citizenship by operation of law” (Weissbrodt and Collins 2006). Changes in citizenship laws pose new issues to the right to statehood, “changes of citizenship laws often create the risk that persons who were considered citizens, according to old laws might be rendered stateless by new ones” (Weissbrodt and Collins 2006). As mentioned before, if a person gives up their nationality before attaining another, they are deemed stateless.
Post War World II posed another problem, the dissolution of states. “The transfer of territory, resulting from state dissolution, succession or break up is one of the most well- known and common causes of statelessness” (Weissbrodt and Collins 2006). Due to the chaos such events cause, new states usually do not have enough time to ratify Human Rights treaties, including protections of stateless people. If the state dissolution was a result of an ethnic conflict, the new state may be less motivated to grant citizenship to those of an ethnic minority, especially if the states choose to enact strict jus sanguinis laws. It is also of occurrence that states stripe individuals of their statehood, “many countries denaturalize and deport their own nations if naturalization was gained through misrepresentation, or if the national’s actions critically threaten the state’s interest” (Weissbrodt and Collins 2006). Due to the nature of which statehood was gained, these individuals are not protected under the 1961 Convention. This practice can be seen as discriminatory, countries typically do not strip naturals, those born in the country, of their citizenship. Additionally, “The massive increase in statelessness due to the breakup of the USSR, Yugoslavia and Czechoslovakia and the emergence of successor states in the early 1990s underlined the need for a more effective international response to statelessness” (Manly and Persaud 2009).
A stateless person is seen as an outsider in their country, this inevitably leads to discrimination because of their status. “Stateless people in many ways the ultimate forgotten people and identification of statelessness remains a major challenge” (Manly and Persaud 2009). There is no way of accurately counting how many people are stateless, by definition, they are unaccounted for. “UNHCR has published country- level data for some 54 countries referring to a total of 3 million people, but estimates that there are possibly about 12 million stateless people worldwide” (Manly and Persaud 2009). The United Nations decided that this issue should take precedence therefore, “in 1974 the UN General Assembly designated UNHCR as the organization to which persons claiming the benefit of the 1961 convention may apply for examination of their claims and for assistance in presenting those claims to state authorities” (Manly and Persaud 2009). As a result, “the UNHCR, therefore, has a mandate with two distinct elements: to address situations of statelessness, which occur around the world and to assist in resolving cases which may arise under the 1961 Convention” (Manly and Persaud 2009). Sovereignty does place an extensive limit on what the UNHCR can do, its role is limited to dealing with “document gaps in legislative and administrative framework and provide assistance to address them” (Manly and Persaud 2009).
While there are many groups of stateless people in the world, the current crisis in the Rakhine State in Myanmar, the prevalent case of ethnic cleansing of the Rohingya people warrants attention. The Rohingya are an ethnic minority group with a population estimated to be around 1 million people. These are roughly estimated due to the fact they are not accounted for by any national data system. “The Rohingya are considered by their home country, Myanmar, to be illegal immigrants from Bangladesh, despite having lived in Myanmar for generations” (Chickera and Whiteman 2014). The Rohingya “would have been considered citizens of Burma under the 1948 constitution and civilian administration until the military coup d’état of 1962. Their status was subsequently downgraded under the 1974 constitution, which does not officially recognize them, and the Citizenship Act of 1982, which states that citizens must belong to one of the ‘135 national’ races as recognized under the constitution, or whose ancestors settled in the country before 1823” (M. R. International 2018). Given that it would be hard to prove the latter point and that the Rohingya consider themselves to be indigenous to the region, but the Myanmar government, and the Buddhist nationalist consider them to be descendants of the people who arrived during the colonial administration of Great Britain. “in 2014, the government reneged on a promise to allow minorities the right to self-identity in the country’s first census in over 30 years. Instead, some 1 million Rohingya were told to register as ‘Bengalis’, indicating that they are illegal immigrants from Bangladesh or be excluded” (International 2017). In the following year, “some half a million Rohingya Muslims were stripped of their temporary identification cards and reminding voting rights” (M. R. International 2018). The Rohingya are a Muslim minority group in a prominent Buddhist country, their freedom of religion is heavily restricted if not prohibited completely, “many mosques and religious schools have been demolished since 1980s, and repairs to them are often prohibited” (M. R. International 2018). Since they are not citizens of any country, there is nothing to be done for their consistent infringement on their human rights.
Because of this disagreement, “more than 730,000 Rohingya has fled to Bangladesh over the past year to escape the Myanmar military’s campaign of ethnic cleansing and crimes against humanity” (Watch 2018). This act was caused by a “toxic mix of general racism and an illiberal ex-military government seeking domestic support and democratic legitimacy had proved lethal to the rights of the stateless Rohingya” (Brinham 2012). Large scale violence originated in 2012, estimated thousands were killed and “the forced displacement of 100,000 people…those who were not displaced have faced difficulty accessing food and basic services” (Brinham 2012). At that time, President Thein Sein made a remark “the only solution to the troubles in the Rakhine State was either to send stateless Rohingya to third countries or to contain them in UNHCR- administered camps” (Brinham 2012). Overall, this was not well received by the international community. The basis of the discrimination was fulfilled by the “1982 Citizenship Law of Myanmar, ignoring the Rohingya’s claim to citizenship and thus rendering them stateless” (Brinham 2012). In a similar manner, “the Myanmar government has led a systematic campaign to erase the Rohingya name and ethnic identity from the countries history” (M. R. International 2018).
One of the main obstacles facing a stateless individual is that of unwarranted imprisonment, this often occurs when some stateless individual tries to flee their home country. Without the proper identification required, another state cannot permit them into their country. As previously mentioned, it is impossible to obtain documentation without financial means, therefore, the “Rohingya must rely upon ‘daily work’- poorly paid, short term manual labor” (Weissbrodt and Collins 2006). “The Rohingya live in isolated ghettos and unsanitary displacement camps, which they can only leave if they have an official permit” (M. R. International 2018). Without proper identification the options are limited to deportation back to the home country or waiting for the proper methods, since they will not allow illegal residency. Essentially, they are in limbo under this form of imprisonment. In the case of the Rohingya, Bangladesh does not want them to inhabit their country and Myanmar does not want these people returned to them, exacerbating the issue, “culminating in Southeast Asia’s worst refugee crisis in decades” (M. R. International 2018).
An additional case of interest is that of the Bidoon living in Kuwait. They are categorized as illegal resident, even though they do not possess any connections to another country. “The Bidoon of Kuwait are nomadic Arabs who inhabited the Arabian Peninsula for centuries before many of them settled in the territory of Kuwait in the latter part of the 20th century” (Doebbler 2002). They were in the country when Kuwait received independence in 1961 from Iraq, but “the nomads did not register with the Kuwaiti authorities when the 1959 Nationality Law was passed, due to a combination of not understanding the importance of citizenship and the desire to hold on to their traditional patterns of migration” (Yousef 2006). Other possible hindrances to registration is that of literacy and financial means. There is a good chance that the Bidoon at this time did not understand what was being asked of them or did not have the money to obtain photos or other forms of identification. In addition, “the concept of territorially-defined citizenship would also have been a foreign concept to many, as it diverged from traditional tribal understandings of belonging which were defined by allegiance to a leader” (International 2017). For those who foresaw the importance of citizenship there is a distinction between classes. “First class citizens have a greater social status. There are complexities with second class citizenship. The legal definition of class citizenship is based partially on the date of family origin in the country. those who immigrated before 1920 are first class citizens and those who immigrated between 1920-1948 are second class… in regards to second class citizenship, those born after their fathers were nationalized can both vote and run for office. Those born prior to paternal naturalization can only vote” (Yousef 2006). This is an interesting stipulation stemming from jus sanguius citizenship, it is not surprising that it is based solely off of paternal descent.
For a few decades after Kuwait’s independence, they were an accepted group in the Kuwaiti system, “the Bidoon had many rights, including the rights to work, subsidized housing, education and health care, the only political right denied was the right to vote” (Doebbler 2002). After this “through the means of discrimination based on their identity, the government of Kuwait chipped away the Human Rights and forcibly made many of them stateless and effectively removed many from the country” (Doebbler 2002). The internal turmoil caused by the 1979 Iranian Revolution and the Iran- Iraq war from 1980-1988, “the Kuwaiti government began to view the Bidoon as a security threat, particularly as it became known that some of the incoming refugees and individuals from Iraq wishing to avoid military service and persecution were disposing of their identity papers and were posing as Bidoon” (International 2017). Ultimately, “the government has asserted that Bidoon enjoy human rights on an equal basis with nationals of Kuwait, but it continues to refer to Bidoon as illegal residents, and paints them as opportunities foreign nationals who have destroyed their original documents in order to stay in Kuwait and take advantage of the provisions of the welfare state” (International 2017).
In recent years, the Bidoon “face serious obstacles when seeking to register births, divorce and deaths, because they lacked the required identification and were typically required to go through lengthy security checks before the ministry of the interior would issue a letter of no objection” (Weissbrodt and Collins 2006). In a similar situation, “Bidoon face difficulty registering marriages between Bidoon couples or between a Bidoon and a Kuwaiti citizen” (Weissbrodt and Collins 2006), this is caused by the lack of identification problem. Not much has been done in recent years to confront this issue since there is little the Bidoon can do to confront their statehood issue because “national law prohibits legal challenges to the government’s immigration policy” (Doebbler 2002). The national law also provides no method for a child born to a stateless set of parents to obtain citizenship, “only limited opportunities exist for children born to a Kuwaiti mother and a stateless father, and these options all involve petitioning the minister of the interior” (Weissbrodt and Collins 2006). Under the 1961 convention, “the UNHCR has assisted just over 1300 Bidoon with legal representation, counseling and by intervening with the government of Kuwait” (Doebbler 2002). In addition, “Human rights watch documented violations of numerous rights, including their right to leave and return to their country; the right to a nationality; the rights of children to special protection and the right to marry and form a family” (Doebbler 2002).
The biggest obstacle that would prevent further discourse on the topic is state sovereignty, it is them who makes the ultimate decision on whether or not someone can become a citizen. Nation states need to take into account the needs of these people, “ensuring full liberty and security, education, healthcare and access to employment as necessary” (Chickera and Whiteman 2014). No institution or organization can force a country to ratify a treaty or to accept people within their borders. As is illustrated by the current refugee crisis. “one way to ensure that stateless persons realize their right to a nationality, is through the doctrine of the genuine and effective link. According to this doctrine, a person should be eligible to receive citizenship from states with which they have a substantial connection or a genuine and effective link” (Weissbrodt and Collins 2006). Essentially, if someone is married to a national, or if their child is a citizen of a country, they should be granted citizenship. In regards to the Rohingya people of Myanmar, the establishment of a Muslim region, in which they’ve claimed as their home for years should be considered a substantial connection. The case is similar for the Bidoon people, who trace their lineage back centuries to the territory now occupied by the state of Kuwait. This may be the most viable or most realistic way for stateless people to gain citizenship.
Due to the nature that an individual is not able to access any of their rights, whether it be from the state or granted to them from the United Nation’s treaties without statehood reinforces this as a major issue in the world today. The inaccessibility to one’s rights should be a key matter for the international institutions. Steps need to be taken to adequately focus on this issue, steps such as collecting data on the exact population of stateless people worldwide. While there have been regional treaties written more recently, the United Nations needs to revisit this issue as it has gone through changes in the 21st century. Without an enforcer or repercussions for countries, this issue will continue to go unsolved.