The possibilities of bringing stateless persons back into the protections of citizenship.

I reflected this week on the ironies that arise in relation to article 15 of the UDHR that states: “Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality, nor denied the right to change his nationality . The reality, however, is that legislative codes and constitutional provisions of a State may be crafted in such a way as to restrict the  circumstances under which citizenship is realised or conferred upon an individual who may have been born and living in a State all her life, and may ‘never have set foot on the territory of another State.’ ( Batchelor 2006, p.8) .

For instance, the largest stateless community in the world comprises of about 1.8 million or more of the Palestinians living in Gaza today, many of whom are descendants of those individuals whose territories had been seized by Israel in 1948; stateless children born within the Gaza strip have never set foot outside their enclaves besieged by the belligerent Israeli occupiers, in violation of International Humanitarian law. 

As Batchelor notes, ‘International law stipulates that it is for each State to determine, through the operation of national law, who are its citizens.'(Batchelor 1998, p.156). Could such national laws of a State be restrictive to such an extent that they effectively extinguish an Art.15 right of a person or render it ineffective as ‘access to this right will ultimately be dependent upon the decisions taken by politicians, policy-makers, and technicians within each state?’ (Batchelor 2006, p.9).

It is argued, however, that a  State’s laws that determine its nationals ‘shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality’  (The 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, Art.1). From this perspective, the laws on State citizenship and their substantive content are subject to constrains by the application of International law and Conventions such as the 1961 Convention on the Reduction of Statelessness. Although a State is not legally obligated to confer citizenship unconditionally on an individual, it does however have ‘to balance factors of birth and descent in an effort to avoid the creation of statelessness by reflecting on an individual’s genuine and effective existing connection with the State.’ (Batchelor 1998, p.162).

Thus the right to nationality under the 1961 Convention is grounded on the basis of ties with the State in which a person was born (jus soli) or in which a parent was a citizen at the time of  that person’s birth (jus sanguinis). The fact remains however, that statelessness continues to exist as an empirical fact despite the existence of such genuine and effective links with a State such as birth, descent and habitual residency of individuals as recognized by the 1997 European Convention on Nationality, which  provides for the right to apply for nationality after 10 years of lawful and habitual residence.

The genuine and effective link principles may be considered imperfect in that it ‘fails to take account of the increasing mobility of people.’ Consider the population movement of thousands of Rohingya people across the Myanmar border into Bangladesh due to decades of persecution by the Burmese authorities. The fact that children of these displaced people group were born within the territory of Bangladesh does not in any way allow the Rohingya to claim the rights afforded to Bangladeshi citizens;

Further, the Rohingyas’ historical ties to the former Arakan Kingdom dating back 15th century, which today comprises the Northern Rakhine state of Myanmar, have not prevented them from being being perceived as illegal immigrants by the Myanmar government. Adjami and Harrington argue that a ‘ genuine and effective link suggests that citizenship should correlate with where individuals need citizenship in order to exercise the qualities of citizens and enjoy the state protection provided by citizenship.’ (Adjami and Harrington 2008, p.106). It is submitted that  vulnerable people groups, such as the Rohingya and the Gazans, who are susceptible to human insecurities and privations are in most need of the protection afforded by citizenship.

Further obstacles to realizing the protections afforded by citizenship arise where States with a dualist system have failed to incorporate international law on nationality rights into their domestic laws, and may not be inclined to do so if, for instance, they subscribe to far right or racist ideologies. Adjami and Harrington argue in support of the implementation of international human rights law and legal norms to deal with the normative gaps in nationality laws of States in way that constrain State sovereignty over nationality laws.

For instance, the prohibition against arbitrary deprivation of nationality in Art 15(2) of the UDHR should be read in the context of Art. 2 of the UDHR which is recognised to be part of International customary law; it  states: Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political  or other opinion, national or social origin, property, birth or other status.

Thus a State’s exercise of discretion in depriving nationality is essentially limited by the prohibitions in Art 2; In essence, restricting nationality based on racial or ethnic discrimination would be deemed arbitrary,  since Art.15(2) can only be given its full legal effect if read in way that is compliant with Art 2.

Further, the nexus between nationality and racial or ethnic origins is apparent in the decisions of the of UN treaty bodies, including the Human Rights Committee, the Committee on the Elimination of Racial Discrimination, and the Committee on the Rights of the Child that discrimination on the grounds of national origins is a form of racial discrimination prohibited by international law. (Adjami, 2008, p.102).

The problem however is bridging the gap between the recognition and articulation of such International human rights norms by, for instance, the UN Human Rights Council and the acceptance of such norms by sovereign States.