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Ways forward and recommendations

7 min read

The objective of ensuring the right to nationality for all is a challenge that combines technical, political and social considerations, from legal and administrative reform of citizenship policies to a broader expansion of a country’s understanding of which individuals and communities ‘belong’. Laws establishing the right to nationality at birth or to acquire it later in life necessarily distinguish between individuals who have a strong connection to the state concerned, sufficient to be recognized as citizens, and those who do not.  Although international law continues to leave considerable discretion to states in this regard, the trend is clearly to limit the ability to deny nationality to individuals who have a strong connection to that state, especially (but not only) if they have no plausible claim to nationality elsewhere. So, while regulating nationality, citizenship and naturalization is a state’s sovereign right, under international law states must make sure that their nationality laws and procedure do not discriminate on the basis of ethnicity, religion, or caste and similar systems of inherited status.  States should repeal or amend all such discriminatory laws and review the application of legislation and procedures to ensure that such discrimination does not occur in practice, even when laws are neutral.

There is now a relatively well-developed set of recommendations to tackle statelessness effectively, including the 10-point action plan of UNHCR’s #IBelong campaign. These range from improved birth registration and the issuance of nationality documents to all those entitled to them, to improved data collection and formal commitment to the international statelessness conventions. Solutions to resolve statelessness should address the needs of two broad categories of those affected: members of stateless minorities who are living in the country where they were born and grew up and where they have the strongest connections, and those who are stateless migrants and refugees.

Statelessness can affect individuals in any part of society, including members of majority communities, particularly among the very poor. Many of the steps that could be taken to end statelessness, such as improved birth registration, administrative processes and child protection systems, will help to reduce statelessness generally, and not only among ethnic, linguistic or religious minorities. Legal reform to remove gender discrimination in transmission of nationality and ensure nationality for children of unknown parents will also benefit members of any group. The introduction of even the minimum legal and procedural protections required by international law for those whose parents are stateless or of undetermined nationality, or who cannot acquire the nationality of one of their parents, will, however, especially benefit members of minority communities. Moreover, statelessness should be situated within a continuum of multiple forms of discrimination against certain minorities. Where states are introducing legal and administrative reforms to strengthen civil registration and nationality administration, an approach that particularly targets outreach to and inclusion of those communities known to be most at risk of exclusion will be the most effective route to reducing statelessness generally.

There are a number of ways that statelessness among minorities can be more effectively addressed, including:

  • Disaggregated and inclusive data collection: The widespread absence of reliable information is an issue that affects all stateless populations. Yet for minorities, many of whom are already overlooked, the problem of legal invisibility is especially acute. A more detailed mapping of stateless populations in each country, taking into account cross-cutting areas of discrimination such as ethnicity, religion and gender, would help provide a clear evidence base for the prevalence of statelessness among certain populations, and guide efforts to reduce it.
  • Clear acknowledgement of discrimination: Statelessness is often justified or obscured through the use of a proxy concern such as security or immigration control. It thus arises not only from a lack of government capacity but as an intended outcome of official policy towards a particular minority. Those working to secure human rights, whether from national human rights institutions, civil society, or international agencies, should frankly label these policies as unjustified discrimination. Where there are large populations of stateless people, active efforts will be needed to provide access to nationality, particularly for those minorities who face discrimination for other reasons, whether based on language, religion, culture or simply remoteness from the state administrative systems. Even if the law is reformed to provide access to nationality in theory, these groups are unlikely to benefit without significant efforts to make procedures more accessible, and to overcome suspicion of state structures. This may require that underlying issues, such as conflict over land and resources, are resolved to address the root causes of discrimination.
  • Well designed programmes to reach vulnerable and isolated groups: Targeted outreach and assistance to minorities and other communities at risk of statelessness, through paralegal assistance, awareness raising, public advocacy, birth registration drives, and peaceful demonstrations can help highlight their situation to fellow citizens, policy makers and others. These efforts should address barriers created by minority languages, cultural sensitivities, geographic isolation and other issues that may otherwise discourage members of some communities to engage.
  • Reform of laws on citizenship and related areas, including management of immigration and protection of refugees and stateless persons: Bringing an end to statelessness requires legal reform to end gender discrimination in nationality law, to protect children born out of wedlock, and to provide nationality to children of unknown parents or who cannot acquire nationality from one of their parents. Statelessness is most effectively reduced, especially for members of minority communities facing other forms of discrimination, where states provide more generous rights based on birth in their territory even beyond these minimum protections. An end to statelessness will also, more generally, require that immigration and refugee systems are focused on protection and integration rather than exclusion and containment.
  • Identification of stateless individuals and groups in the context of migration: Among the reforms that governments should make to immigration law and administration is the creation of systems to identify stateless persons. For stateless migrants and refugees – whose statelessness is often discovered when the state to which they have moved seeks to deport them, but cannot find any state willing to accept them as nationals – the protection they most need is a statelessness determination procedure similar to the familiar process for determining if someone is a refugee. This means also that immigration officials should be made aware of the types of discrimination that lead particular minorities to be at risk of statelessness, and thus in need of protection even if they do not satisfy the criteria to be designated a refugee.

Even in contexts where statelessness has been endemic and politically difficult to address, progress has been made in recent years. UNHCR advocacy, in support of national actors, has helped to ensure that a number of states have undertaken significant efforts to reduce statelessness among particular minorities:

  • In Sri Lanka, a concerted nationality campaign following a 2003 law reform helped almost 200,000 members of the Hill Tamil community to acquire proof of their nationality.
  • In Bangladesh, government policy was changed to accommodate High Court rulings in 2003 and 2008 that ordered recognition of the nationality of the Urdu-speaking Bihari minority.
  • In Kyrgyzstan, implementation of a new citizenship law in 2007 led to rapid progress in resolving statelessness among former Soviet citizens and more recent arrivals.
  • In Turkmenistan, a registration campaign conducted from 2007-2010, relaunched and intensified in 2011, verified the nationality status of undocumented former Soviet citizens living in the country, paving the way for the naturalization of several thousand people who had been stateless.
  • In Vietnam, reform of the nationality law in 2009, coupled with an operational plan for action by national and local authorities, allowed for the naturalization of stateless former Cambodian refugees and restoration of nationality to women who had become stateless following marriage to a foreign national.

Those affected by statelessness have themselves often organized to demand more rights and greater inclusion. Legal or paralegal assistance to those seeking to establish their nationality is often critical to challenge such discrimination. In Kenya, for example, the Nubian Rights Forum (NRF) assists members of the Nubian minority who are descendants of soldiers with the British colonial army and who have struggled to make their right to Kenyan citizenship a reality. Paralegals raise community awareness, mobilize people to apply for legal identity documents, assist community members with application forms and processes, and support clients throughout their cases. The NRF has begun to collaborate with grassroots organizations helping other minorities with the same challenges.

Some of the factors creating statelessness can affect individuals from any part of society, but often those most impacted are disproportionately members of minority communities.   A greater focus on the reality of religious, ethnic and linguistic discrimination towards minorities can help improve understanding of how discrimination in other areas may ultimately extend to denial of citizenship and to statelessness. As the case of Myanmar’s Rohingya minority illustrates, this in turn can then expose them to further violations, up to and including violent expulsion from the country where they have the strongest connections, over many generations. A focus on ending discrimination may be as important as legal reform in resolving these cases. The first link in a chain of abuses is often the denial of the right to belong.

Photo: Aymara woman in Chile. Credit: Astro Now.