Fifth Annual Research & Orientation Workshop
in
Global Protection of Migrants and Refugees

Introduction

In a world of nation-states, it is ironical to see ‘stateless’ people. It is case of glaring ommissions or contradiction at international level where several millions are denied citizenship or nationality. South Asia is riddled with such tedious challenges of statelessness. Globally at present there are aound 80 million people displaced due to conflicts or due to situation of forced migration2. Statelessness is a profound violation of human rights of an individual and remains to be one of the most pressing humanitarian issues of the twenty-first century. Article 15 of the Universal Declaration of Human Rights clearly states that (1) “Everyone has the right to a nationality" and that (2) “No one shall be arbitrarily deprived of his nationality3." Despite this guarantee, people in all parts of the world face the prospect of living without the nationality/ citizenship and its foreseen rights hence, lacks the security and protection under the state that usually citizens takes for granted.

At the outset, it is very important to distinguish between ‘statelessness’ and ‘refugeehood’ in order to avoid its overlap and apparent confusion it may cause. Well stateless is the one without any nationality or citizenship by law4, where as the refugee is the one who is fleeing to another country due to ‘well founded fear of persecution’ 5 . South Asia is riddled with culture, history, colonial experience, migration, state succession, citizenship, birth registration, etc. with root causes of statelessness. As the Universal Declaration of Human Rights makes clear, everyone has a right to a nationality. Without nationality, individuals face an existence characterised by insecurity and marginalisation. Stateless people are amongst the most vulnerable in the world, often denied enjoyment of rights such as equality before the law, the right to work, education or healthcare6. To use the access to justice (A2J) framework, every one needs justice, but there are several barriers and impediments. Stateless and Refugees are the most marginalised and vulnerable groups. The following International laws and conventions are relevant here:

• Convention on Status of Refugees, 1951 & 1967 Protocol

• Convention on Statelessness, 1954 & Reduction 1961

• UDHR- Articles-14 & 15: Right to seek Asylum & Non deprivation of nationality, respectively

• ICCPR 7 - Articles 1 & 27: Right to self determination & treatment of minorities

• ICESCR8- Article 2 (3) economic rights to non-nationals

• SDG9- Goal 16 talks about Promoting Just, Peaceful and Inclusive Societies

Article 1 of the 1954 Convention relating to the Status of Stateless Persons (1954 Convention) defines a ‘stateless person’ as someone “not considered as a national by any state under the operation of its law.” Statelessness arises in a variety of contexts. It occurs in migratory situations, for example, among some expatriates who lose or are deprived of their nationality without having acquired the nationality of a country of habitual residence. Most stateless persons, however, have never crossed borders and find themselves in their “own country”. Their predicament exists in situ, that is in the country of their long-term residence, in many cases the country of their birth. For these individuals, statelessness is often the result of problems in the framing and implementation of nationality laws10. The Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly of the United Nations have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination. The 1954 Convention’s most significant contribution to international law is its definition of a “stateless person” as someone “who is not considered as a national by any State under operation of its law.” For those who qualify as stateless persons, the Convention provides important minimum standards of treatment. It requires that stateless persons have the same rights as citizens with respect to freedom of religion and education of their children. For a number of other rights, such as the right of association, the right to employment and to housing, it provides that stateless persons are to enjoy, at a minimum, the same treatment as other non-nationals.

To overcome the profound vulnerability that affects people who are stateless and to help resolve the practical problems they face in their everyday lives, the Convention upholds the right to freedom of movement for stateless persons lawfully on the territory, and requires States to provide them with identity papers and travel documents. The Convention also prohibits the expulsion of stateless persons who are lawfully on the territory of a State Party.

Because protection as a stateless person is not a substitute for possession of a nationality, the Convention requires that States facilitate the assimilation and naturalization of stateless persons. Like the 1951 Convention relating to the Status of Refugees, the 1954 Convention explicitly excludes individuals when there are serious reasons for considering that they have committed a crime against peace, a war crime, a crime against humanity, or a serious non- political crime.

Why is Nationality Important?

Recognition of nationality serves as a key to a host of other rights, such as education, health care, employment, and equality before the law, people without citizenship – those who are ‘stateless’ – are some of the most vulnerable in the world. That is why the inclusion of the right to nationality in Article 15 of the UDHR is pertinent component. UDHR as a whole, was motivated by the impulse to respond to the atrocities committed during the Second World War, among them mass denationalisations and huge population movements. Hundreds of thousands of Jews who survived the Nazi-perpetrated genocide fled their home countries, while millions of ethnic Germans were expelled from eastern European states, and millions of Poles, Ukrainians, Byelorussians and other minority populations of the Soviet Union either were forcibly expelled or fled for their safety during aftermath of Soviet disintegration.

Types of Statelessness

There are two types of statelessness: (i) De jure Stateless and (ii) De facto Stateless. The 1954 Convention establishes the universal definition of a “stateless person” in its Article 1(1). Persons who fall within the scope of Article 1(1) are sometimes referred to as “de jure” stateless persons even though that term is not used in the Convention itself. By contrast, reference is made in the Final Act of the 1961 Convention to “de facto” stateless persons and there is an implicit reference in the Final Act of the 1954 Convention. Unlike the term “stateless person” as defined in Article 1(1), the term de facto statelessness is not defined in any international instrument and there is no treaty regime specific to this category of persons (the reference in the Final Act of the 1961 Convention being limited and non-binding in nature). Care must be taken that those who qualify as “stateless persons” under Article 1(1) of the 1954 Convention are recognised as such and not mistakenly referred to as de facto stateless persons as otherwise they may fail to receive the protection guaranteed under the 1954 Convention11. There is not only a lack of systematic attention given to collecting reliable statistics but also a lack of consensus on whom to include when counting stateless people. There is general agreement that people who are de jure (legally) stateless – those who are not considered as nationals by any state under its laws – should be counted. However, there are many millions of people who have not been formally denied or deprived of nationality but who lack the ability to prove their nationality or, despite documentation, are denied access to many human rights that other citizens enjoy. These people may be de facto stateless – that is, stateless in practice, if not in law – or cannot rely on the state of which they are citizens for protection12.

Causes for Statelessness

It may result from various circumstances/ reasons. States may simply cease to exist while individuals fail to get citizenship in their successor states (as in the case of USSR and Yugoslavia). Political considerations may dictate changes in the way that citizenship laws are applied. An ethnic minority may be persecuted or being denied citizenship; or a group may live in frontier areas and frequently cross borders, causing states on both sides of the border to deny them citizenship as in the case of Bhils. There are individuals who become stateless due to personal circumstances, rather than persecution of a group to which they belong. Statelessness can arise from legal differences between countries, people renouncing one nationality without having acquired another or even, more simply, from failure to register the birth of a child. Added to this is a potential new category: small islands which, condemned by a changing climate to be swallowed by the sea, will see their entire populations become stateless. India’s neighbor, Maldives faces this challenge vis-à-vis climate change.

Two Types of Citizenship

Indeed, the two most commonly employed principles for granting citizenship operate at the moment of birth: in legal terminology jus soli and jus sanguinis, the ‘law of the soil’ and the ‘law of blood’ principles, respectively. One of the main reasons people are denied or deprived of nationality, and thus rendered stateless, is racial or ethnic discrimination.

Types of Statelessness in South Asia/ India

Despite advances in international law regarding the protection of stateless persons, India has been reluctant to incorporate them into national legislation. Thus, it is not surprising that there is a gap in the literature and data regarding statelessness in India13.

(i) Decolonisation led to partition of British India and creation of two sovereign States: India and Pakistan. This caused a large scale mass migration of approximately 12 to 14 million people who became displaced on either sides.

(ii) One such specific category as part of partition refugees are still called as ‘West Pakistan Refugees’ in Jammu and Kashmir, they are unable to get domicile status due to special laws followed in J &K vis-à-vis article 35A of Indian Constitution.

(iii) Decolonisation also affected the legal status of many Indian origin people in Sri Lanka during colonial times as plantation workers, and were rendered stateless upon Independence in 1948.

(iv) Amongst them a section of them are in India named as Uphill Country Tamils among the Sri Lankan Refugees in India since 1983.

(v) Currently in the State of Assam, several lakhs of people are beig rendered as stateless or ‘D’ voters (euphemism for doubtful voters) through the new census registration scrutiny. In addition the recent National Register Census has announced nearly 40 lakh people do not qualify to be citizens, in other words they are stateless people.

(vi) The Bhils are category of nomadic migratory tribal people trapped between borders of India and Pakistan

(vii) Chakmas and Hejongs also face discrimination and are being in the state of statelessness

(viii) People living in Indo- Bangladesh borders prior to Land Boundary Agreement (LBA) signed in 2015, lived in statelessness conditions and continue to face difficulties even after getting citizenship on papers.

(ix) Added to this is a potential new category of NRC and CAA related victims

While India has a long-standing history of hosting a large number of refugees and stateless persons, it does not legally recognise them through legal framework, which creates problems of integration.
Gender Discrimination

Gender discrimination is also a crucial factor in creating and perpetuating statelessness. Many countries around the world still do not have gender-neutral citizenship laws; in the worst cases, women lose their citizenship upon marriage to foreigners, and are unable to pass on their citizenship to their children. In Swaziland, the constitution adopted in 2005 stipulates that a child born after the constitution came into force is a citizen only if his or her father is a citizen. In Africa alone, over 20 countries still deny women the right to pass on nationality to a foreign spouse. In Nepal the women cannot transfer the citizenship to her children directly. There are some positive developments too, for example, in Botswana in the early 1990s a challenge to the constitutionality of the country’s Citizenship Act on the ground that it discriminated on the basis of gender led to the Act being amended. “Women and men should enjoy equal rights to transmit nationality to their children”, according to CEDAW, Article 9 and CRC, Articles 2 & 7

COVID Context

Now the ongoing COVID-19 has caused tremendous challenge to the migrant labour, loss of livelihoods and pressure on the existing stateless population. The covid pandemic has posed more questions on statelessness issue, which we can address and discuss as follows: (i) how new borders are formed due to pandemic; (ii) are the migrant labours are treated as stateless population?; (iii) How do we govern the stateless people in present covid context; and (iv) Are they kept in perpetual statelessness by the authorities to exploit their labour which is a disenfranchised labour (v) How does the inter-sectionality of gender, caste and religious fault lines operate/ function; (vi) How do we look at international movements like #IBelong campaign by UNHCR and finally (vii) How to map the stateless people and bring them under advocacy and solutions.