Self-Study Module on Statelessness

Part 1, Part 2, Part 3, and Part 4 of this piece..
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There is a Self-Study Module on Statelessness on UNHCR's website. Of course I read that all too, and had to make comments on it.

UNHCR: Once held, nationality – membership – brings with it both rights and responsibilities: For the State and for the individual. Among the key rights of nationals are the right to return and to reside within the territory of the State and the right to participate in political processes of the State. There are of course circumstances in which these rights cannot be exercised but these are nevertheless considered to be two of the main functions of nationality. The corresponding duties of nationals reflect their allegiance to the State and may, for example, include the obligation to pay taxes or to perform military or equivalent service. States, in turn, are obliged to guarantee various rights to their nationals and may demand (certain expressions of) loyalty in return. Under international law, States are allowed to exercise jurisdiction (i.e. the power to exercise authority over a certain geographic area, persons or subject matter) over their nationals, even when they are abroad.

G: Yeees! States are allowed to exercise jurisdiction over their nationals, the trouble is People are not really allowed to exercise jurisdiction over their states. If they wish to deny the state, they end up in jail, as the state has the stick.

UNHCR: It is true that the regulation of nationality is often a sensitive issue because the question of whom to accept as a full member of the political community, i.e. the state, – “who is one of us?” – touches upon the question of national identity. It may be a difficult subject to broach with States and governments may be unreceptive to outside influence. However, it has been clear for many decades that the regulation of nationality is not immune to international law. State sovereignty is subject to certain limits in relation to nationality matters, through international treaties and customary law.

G: See... I start off with trouble. “Who is one of us?” is not the right question. What if I don't feel I belong to the “state” of my birth? Why am I considered one of them just because I was born within some imaginary lines? Ah, yes, I forget, those imaginary lines define a holy ground!
    Why isn't the individual asking the question to himself “Who am I one of?” That would be the right question. It has to work the other way around. State sovereignty always beats personal soverignty. And that is wrong.

UNHCR: Statelessness is a global anomaly in today’s world, where enjoying membership of a State is the norm.

G: Yeah! Enjoying membership of a State! What about those suffering from the membership of a state? Only members of certain states enjoy privileges, others suffer for the membership they were “given” without their opinion and/or wish.

Jus Soli vs. Jus Sanguinis

UNHCR: State A confers nationality to all children born on its soil (jus soli). State B confers nationality to all children born to one of its nationals (jus sanguinis).
    A child born in state A, to parents who are nationals of state B will acquire two different nationalities at birth: he or she will be a dual national of countries A and B.
    A child born in state B, to parents who are nationals of state A will acquire no nationality at birth: he or she will be stateless.
    When a child is born in a country that grants nationality by descent only, but the laws of the State of which the parents are nationals grant citizenship by birth only on their territory, the child is stateless.

In countries which only apply jus sanguinis, “many stateless people are condemned to pass on their statelessness to their own children – as if it were some sort of genetic disease”.

G: Yes, just a quirk of our “respect deserving” laws.

UNHCR: Statelessness may result if the woman automatically loses her original nationality upon marriage to a non-national but does not receive the nationality of her husband, or if her husband has no nationality. Conversely, she may also lose an acquired nationality in the event of divorce or even upon the death of the husband.
    Vietnamese Chi, 33 and her daughter at their house in Ho Chi Minh city, Vietnam. Chi married a foreign man and renounced her Vietnamese nationality to apply for her husband’s nationality. Before she could acquire her husband’s nationality, the couple filed for a divorce and as a result, Chi remained stateless. In 2008, Vietnam adopted a new Citizenship Law which made it easier for citizens who had renounced their nationality without being granted a foreign one to reacquire Vietnamese nationality. This reform paves the way for resolving statelessness affecting thousands of women like Chi.

G: See, Turkey does not allow this. You cannot get out of citizenship without acquiring another one. Or rather, the way I see it, they do not let you free without making sure you are in the chain of another owner. So smart!

UNHCR: In some cases, States revoke naturalization when they find that the requirements for acquisition of nationality were not fulfilled at the time of acquisition, in particular in cases of misrepresentation or fraud. While it is not per se in violation of international standards to render a person stateless through withdrawal of nationality in these cases, States must consider the proportionality of their act. If the fraud was only minor and the individual has lived for a long time as a national in the State and is well integrated, it may not be justifiable to deprive him or her of the State’s nationality considering the detrimental effects of statelessness.

G: This is interesting... It basically tells the State to “forgive” someone for fraud if it is minor as statelessness brings with it such a big problem.

UNHCR: It is not uncommon that a person who is eligible for nationality according to the letter of the law is unable to finish the naturalization or confirmation process because of troublesome administrative practices like excessive fees, deadlines or documentary requirements that are impossible to meet, deliberate withholding of information about the procedures or the lack of an opportunity to appeal against (arbitrary) decisions.

G: Yes, the fees are abhorrant, the paperwork cumbersome and tiring, it is common that the employees tell you something is not possible because they do not want to work, appealing, ie. dealing with courts is another dreadful procedure to go through to simply get a basic right.

UNHCR: Children born to refugees, especially those in protracted situations, make a good case in point: the parents are unable to approach the consular authorities of their country of nationality in order to register or claim documents for the child, but the host State may also be unwilling to provide for birth registration. Similarly, even where countries grant their nationality to children born on their territory who would otherwise be stateless or have a general jus soli rule, they often discriminate against refugee children and exclude them from the scope of such provisions, either in law or in practice.
    The lack of birth registration may make it difficult for these individuals to prove – for instance when they are eventually able to return to their country of origin – that they are nationals of the State.

Another major problem is that in the process of migration or forced displacement of an individual, his or her identity documents may be lost, forfeited or destroyed. This issue has also been flagged in the context of smuggling and trafficking: there are widespread reports of documents being stolen or destroyed either on arrival in a third country or prior to transfer. However, this problem could affect any category of migrant or displaced person. Once undocumented, problems can arise in relation to the establishment of both identity and nationality. This, in turn, may make it impossible for the individual to prove his or her status when they try to re-enter their country – of their own accord or where the host country attempts to return them – or obtain assistance while in the host State.

The longer the person remains undocumented in the host State, the more difficult it becomes to prove his or her connection to the country of nationality – for example through witness testimony or secondary documentary evidence (such as school records). Similarly, over time it becomes gradually harder to prove that any children (or grandchildren) born to such undocumented individuals have a link with either the host country or the country of nationality of their parents.

G: So what if one doesn't have a link? We all have a link to this Earth.

HUMAN PING-PONG

UNHCR: There is general agreement within the international community that statelessness is an undesirable anomaly. This is based on the understanding that the condition can have a dire impact on the human rights and well-being of the stateless individuals themselves

G: Yes, that's the problem. If statelessness did not have such a dire impact on one's human rights and well-being, I wonder how many people would have chosen or preffered to be stateless? Why don't they allow us to be stateless without causing such trouble to us?

UNHCR: Statelessness can have a very severe impact on the lives of the individuals concerned. 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. To be rejected by every State is to be enveloped by a debilitating “sense of worthlessness”.

Stefan Zweig, an author born in Austria and made stateless in 1938 described his experiences as follows:
    “Since the day when I had to depend upon identity papers or passports that were indeed alien, I ceased to feel as if I quite belonged myself. A part of the natural identity with my original and essential ego was destroyed forever”.

In consequence, statelessness is found to have a huge impact on mental health and can lead to depression, alcoholism, (domestic) violence and suicide. But the role that nationality plays in people’s lives goes far beyond this contribution to their sense of worth:
    “Because no country considers them citizens, stateless persons often do not have access to the rights that citizens take for granted. Statelessness frequently means living without identity documents conferring legal personality and the rights that go with them – access to health care, education, property rights, and the ability to move freely. Births and deaths may not be registered with the result that stateless persons legally can be invisible: their existence experienced, yet never legally recognized”.
    On the one hand, international law admits that nationality may still form a prerequisite for claiming the right to participate in the government of the State (to vote and to stand for election or work in public service). Thus almost by definition, stateless persons suffer from disempowerment and voicelessness.

Stateless people can experience great difficulty entering or staying in the country that is their home. And because, in the absence of nationality, there is often no State that is obliged to offer them lawful stay...

G: What what WHAT??!!! Oh how wonderful! Wouldn't you agree? You do not have a legal right to reside in any part of the world! They are not obliged, that is no State is obliged to offer you a lawful stay. Basically, what they're saying is, You don't have a right to any space on this Earth!

UNHCR: ...stateless persons are also prone to prolonged or indefinite detention as well as to becoming the object of a game of human ping-pong as they are shuttled back and forth between States.

G: Yes, Human ping-pong. That defines it well. And it is sad sad sad... Nothing more to say.

UNHCR: Statelessness has a particularly severe impact on children. Not only does it negatively affect their opportunity to access education and to enjoy the benefits of child health programmes (including, for example, important childhood vaccinations), but it often places them in a situation of great physical and psychological hardship:
    “Lack of citizenship subjects children to significant threats to their safety and well-being. Children without official papers are vulnerable to abduction, sale and trafficking, illegal adoption, and sexual exploitation. Many more are living in slave-like conditions after being trafficked for labour or sexual purposes in other countries. Unable to prove their true ages without legal documentation, stateless children cannot legally prove that they are too young to work or serve in the military”.

The enjoyment of an effective nationality is now seen as a crucial component of human security and statelessness as creating the conditions for human insecurity.

G: What about having the right to a dignified life without having a nationality??? What about that?

UNHCR: The 1951 Convention relating to the Status of Refugees and the 1954 Convention relating to the Status of Stateless Persons. These sister conventions call into being the legal status of a “refugee” and “stateless person” respectively and offer a largely comparable catalogue of rights – a minimum standard of treatment – to individuals that qualify under each respective definition.

Following the war, there was therefore not only a renewed interest in the problem of the protection of stateless persons (and refugees), but also in the underlying question of the regulation of nationality. The Universal Declaration of Human Rights set the scene by including “the right to a nationality” among its provisions. Article 15 states:
    “Everyone shall have the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”

G: Ah... This “Nor denied the right to change his nationality” is interesting... Because we are, in fact, denied that right. Only if we satisfy certain conditions, conditions set by the state, do we get a right to change it.

UNHCR: It is, with very few exceptions, State action or inaction that creates statelessness, allows it to subsist and perpetuate and raises protection concerns. Recall that the power to grant, withdraw or confirm nationality lies with States and States alone, meaning that their involvement in all statelessness issues is decisive for success. In other words, statelessness is first and foremost a problem for States to resolve. Moreover, States also bear the ultimate responsibility for the protection of the rights of the people within their jurisdiction – nationals, stateless persons and other non-citizens.

G: “The power to grant...” Oh how I hate this domination over me! How I detest that some entity has power to grant something to me or not... I mean if it was something I wanted, if I had agreed to be a part of this game, I could have understood it. But the way things are, I am the powerless.

By the way... Why don't states claim any stateless person to belong to them? Okay, they do not like some ethnicities etc. But what about the ordinary ones? You just register them, that's it. Easy. No? Ah, they get the ones that are born within their territory de facto; if they are to get more, they want to choose their members as if they're picking apples from the greengrocer. Seriously... Why isn't it the other way around, why aren't we the ones, as the People, to pick the states we want to belong to?

Erased...

UNHCR: Slovenia / "The erased" is the name for a group of people in Slovenia that remained without a legal status after the declaration of the country's independence in 1991.

G: That's a good name to give. “The Erased...” As if you can just erase people... But you know what? They do. States erase your name from the records and you cease to exist. That's the world we live in.
    “The idea that stateless people are rightless people...” Yes, rightless...

Certificate of your being born!

UNHCR: While the act of birth registration is itself important, it is also crucial that the registered child receives a birth certificate, since it provides “permanent, official and visible evidence of a State’s legal recognition of his or her existence as a member of society”. It will establish both where the person is born and who the child’s parents are.
    As a key element, registration must be free of charge or subject to minimal fees only. A UNICEF study of the causes of non-registration of births established that “the most common reason cited in the greatest number of countries was that birth registration costs too much”. Moreover it found that while the late fees, fines or judicial procedures for late registration imposed by some countries “may encourage most parents to register in a timely manner, they also pose a barrier to those who find it difficult to register on time, such as families who live in remote areas poorly served by registration services or who cannot afford the cost of registration” and that “these penalties result in double discrimination against the family”.

G: Yes, as if it's not enough that they've set up this system of registry, they require you to register, they also require you to pay. They are the ones dictating and you have no say over these matters.

Puzzle: Ah yes... I am here. But you know what? I wasn't born!
    Solve the puzzle.

To allow or not to allow... That is the question

UNHCR: As a result of migration, people increasingly seek to acquire a new nationality, generally that of the State where they have taken up residence. Yet, many States do not allow their citizens to hold more than one nationality. The most straight-forward way of preventing statelessness in the context of a change of nationality is permitting the loss or renunciation of nationality only once an alternative nationality has been acquired. A number of States are keen to avoid dual nationality and therefore require an individual to renounce his or her original nationality prior to applying for the new nationality. This will always result in statelessness, at least temporarily. If the person fails to complete the procedure for the acquisition of the new nationality, they may be left stateless for a protracted period. However, dual nationality can also be avoided without creating a risk of statelessness. One way is to allow an individual to register his or her intent to renounce nationality or to accept proof that renunciation procedures have been initiated. Another way is to provisionally grant nationality, giving the individual sufficient time to renounce the previous nationality. On the other hand, States should not withdraw the nationality of citizens who apply for another nationality before they have at least obtained a guarantee that they will acquire the new nationality. Generally, States should not allow persons to renounce their nationality without acquiring a new one.

G: Would you look at the insolence! “Oh states should not allow” ! They have all the rights!
People should NOT ALLOW states to control every little detail about their life!!!

Stories:
* A stateless ethnic Korean man moved from Uzbekistan to Ukraine in 1993. He has been living with a Ukrainian woman for a decade, but has not been able to register their union without valid documents. He has applied for citizenship, as without Uzbek citizenship and unrec¬ognized as a stateless person in Ukraine, he is at risk of deportation. “I’ve lost all hope to get my passport. My only problem is that I cannot move because I cannot go beyond this town. Even in this region I can be arrested. That’s why I almost never leave my house.

* Undocumented and stateless, welder Jabulani Sibanda sits with pride in the car he has worked hard to buy, adamant that his status will not deter him from living as productively as possible. Jabulani arrived in South Africa at the age of seven, when he and his mother crossed the border illegally from Zimbabwe, where he was born. Of Malawian descent, he has had no luck obtaining a birth certificate from Zimbabwe or proof that he is a Zimbabwean citizen since he came to South Africa.

UNHCR: the 1954 Convention relating to the Status of Stateless Persons provides for the issuance of identity and travel documents to recognized stateless persons. According to its article 27, identity documents must be issued by State parties to “any stateless person in their territory who does not possess a valid travel document”. Such papers should establish both basic facts relating to the person concerned and vouch for his or her legal status as a “stateless person”.
    Article 28 provides that contracting States shall also issue travel documents to any stateless person who is lawfully staying on their territory. For such individuals, travel documents can only be refused on the basis of “compelling reasons of national security or public order”. As the word “compelling” indicates, only reasons of a very serious character related to national security or public order may justify a refusal of a travel document.

The 1954 Convention relating to the Status of Stateless Persons does not provide stateless persons with a right to enter or reside in any particular State.

G: Let me repeat this: “The 1954 Convention relating to the Status of Stateless Persons does not provide stateless persons with a right to enter or reside in any particular State.”
    So it is quite possible that a person can have no right to any place on this Earth!

Then they say “Nevertheless, in the absence of any feasible alternative, States may find that admitting the stateless person is the only feasible option.” What a horrifying sentence! “States may find that admitting the stateless person is the only feasible option.” So they will admit you only because and if it is the only feasible option. This, being at the mercy of a state's acceptance just makes me want to throw up.

UNHCR: While the 1954 Convention does not explicitly prescribe a right of residence to be accorded upon a person’s recognition as stateless, granting such a right is reflected in current State practice to enable stateless individuals to live with dignity and in security. Participants agreed that this approach is the best means of ensuring protection of stateless persons and upholding the 1954 Convention. Without such status, many stateless persons may be deprived of the protection of the Convention. Nonetheless, it was also discussed whether in a limited set of circumstances it may not be necessary to provide for residence upon recognition.1

Closely linked to the international standards on freedom of movement, expulsion and (re)admission of non-nationals are the norms that address detention. Detention is one of the most serious protection problems faced by stateless persons and is exacerbated by the problem of securing lawful (re)admission to a State. While many cases go identified, the problem is widespread. It often occurs that the authorities of a country detain a stateless person with a view to preventing entry into or realizing expulsion from the State’s territory, yet there may be no other country willing to accept the stateless person. As a result, detention may become prolonged or even indefinite.

G: Yes, what is this absurdity? Because nobody -that is no state- wants him, a person is held behind bars. Is this anything acceptable, is this anything a normal human mind can comprehend???
    It is still and always the same thing... If states are not willing to accept People... It really should be the other way around. People should choose their states. And if enough People do not sign up for a state, that state goes. Ceases to exist. So easy. Simple as that.


PS: State is written with a capital letter all throughout the study of UNHCR. What about People? Why don't we write that in capitals?

To Be Continued...