Issue 32 April 2009
No legal identity. Few rights. Hidden from society. Forgotten. Stateless
Plus articles on: Europe-Africa cooperation, Colombia, Ecuador, disaster IDPs, migration policies in Europe, reproductive health care in emergencies, cash grants for refugees, a four-article mini-feature on refugee FOR FREE DISTRIBUTION ONLY status determination... and more.
Forced Migration Review FMR31 Forced Migration Review (FMR) provides a forum for the regular exchange of practical Elliott Steve from the editors of experience, information and ideas between researchers, refugees and internally displaced people, and those who work with them. It is published in English, Arabic, Spanish and French by the Refugee Studies Centre of the Oxford Department of International Development, University of Oxford. A ‘stateless person’ is someone who is not recognised as a national by any state. They therefore have no nationality or citizenship (terms used interchangeably in Staff this issue) and are unprotected by national legislation, leaving them vulnerable in ways that most of us never have to consider. The possible consequences of Marion Couldrey & Maurice Herson (Editors) statelessness are profound and touch on all aspects of life. It may not be possible Musab Hayatli (Assistant Editor, Arabic) to work legally, own property or open a bank account. Stateless people may be Heidi El-Megrisi (Coordinator) Sharon Ellis (Assistant) ¢ȱ¢ȱȱ¡ȱȱȱǯȱ¢ȱȱĞȱȱĴȱȱĴȱ ȱȱ¢ǰȱ¢ȱȱȱȱĴȱȱȱ¢ȱȱȱȱȱ Forced Migration Review register births and deaths. Stateless people can neither vote nor access the national justice system. Refugee Studies Centre Oxford Department of International As we are reminded by Mark Manly and Santhosh Persaud in their article in this Development, University of Oxford, ǰȱȱĞȱȱȱȱȱȱȱȱȱ¢ȱȱȱȱ 0DQVÀHOG5RDG2[IRUG2;7%8. Email: [email protected] possible. Lacking access to the rights, services and legal documentation available NEW Tel: +44 (0)1865 281700 to citizens, the world’s stateless populations face unique challenges and require NEW Fax: +44 (0)1865 281721 ȱȱȱȱȱȱȱȱ ȱȱęȱ Skype: fmreview instruments for their protection.
We are grateful to Brad Blitz, Julia Harrington, Indira Goris, Sebastian Köhn, Mark www.fmreview.org Manly and Santhosh Persaud for their advice and support. We would also like to Disclaimer thank those agencies who generously provided funding for this particular issue: the US Department of State, Bureau of Population, Refugees, and Migration (PRM); 2SLQLRQVLQ)05GRQRWQHFHVVDULO\UHÁHFW the Open Society Justice Initiative; the European Union; the Statelessness Unit of the views of the Editors, the Refugee UNHCR’s Division of International Protection Services; and UNHCR’s Studies Centre or the University of Oxford. ȱǯȱȱȱȱȱȱĴDZȦȦ ǯ ǯȦǯ 7KLVSXEOLFDWLRQZDVIXQGHGLQSDUWE\D grant from the US Department of State. Reader Survey: Our thanks to those of you who completed our Reader Survey 7KHRSLQLRQVÀQGLQJVDQGFRQFOXVLRQV and gave us your endorsement and your ideas. A summary report is on page stated herein are those of the authors and 74 and a fuller report is online at ĴDZȦȦ ǯ ǯȦŘŖŖŞ¢ǯm. GRQRWQHFHVVDULO\UHÁHFWWKRVHRIWKH86 Department of State. Our mailing list: We need to ensure that our mailing list is as up to date as Copyright possible. If your contact details have changed recently, or if you expect them to change in the near future, please would you email us ([email protected]) Any FMR print or online material may with the details. This will save possible wastage of FMR funds on postage. be freely reproduced, provided that acknowledgement is given to the source and, )05LVPRYLQJRIÀFHV In April, the Refugee Studies Centre, where where possible, the FMR URL and/or the we are based, is moving in with the rest of the Oxford Department of DUWLFOHVSHFLÀF85/:HZHOFRPHFRPPHQWV on the content and layout of FMR – please International Development. All our contact details will stay the same email, write or use the feedback form on our ¡ȱȱȱȱȱ¡ȱȱ ȱ ȱȱȱƸŚŚȱǻŖǼŗŞŜśȱ 281700 (tel) 281721 (fax). homepage. ȱȱƸŚŚȱǻŖǼŗŞŜśȱ If you plan to visit us, our Ĝȱȱȱ ȱȱȱȱȱȱȱǻȱǼǯ Designed by With best wishes. Art24 www.art-24.co.uk
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ISSN 1460-9819 Forthcoming issues Front cover photo: $IWHUFRQÀUPDWLRQRIWKHLUFLWL]HQVKLS%LKDULV N ȱřřȱǻȱȱȱ ¢ȱŘŖŖşǼȱ ȱȱȱȱȱǯȱ LQ%DQJODGHVKFDQQRZKDYHKRSHRIOHDGLQJ N ȱřŚȱǻȱŘŖŖşǼȱ ȱȱȱȱǯȱȱȱȱ a normal life after decades of exclusion. articles is at ĴDZȦȦ ǯ ǯȦȬȦ. Deadline 81+&5*0%$NDVK ȱȱȱȱȱŘŖȱ ¢ȱǻȱȱ¡ȱǼǯȱ N ȱřśȱǻȱŘŖŗŖǼȱ ȱȱȱ¢ȱȱǯ ȱĴDZȦȦ ǯ ǯȦǯȱȱǯȱ
ȱȱȱȱȱ ȱȱęȱȱȱ the European Union. The views expressed herein can in no way ȱȱȱĚȱȱĜȱȱȱȱȱǯ FMR 32 contents
From the editors 2 Remember the forgotten, protect the unprotected Gábor Gyulai 48
Statelessness Statelessness and the right to citizenship Matthew J Gibney 50 Statelessness: what it is and why it matters ,QGLUD*RULV-XOLD+DUULQJWRQDQG6HEDVWLDQ.|KQ 4 General articles UNHCR and responses to statelessness Mark Manly and Santhosh Persaud 7 Mini-feature: North Arakan: an open prison for the Rohingya in Burma Refugee status determination by Chris Lewa 11 UNHCR and individual refugee status determination Richard Stainsby 52 We have no soil under our feet .ULVW\&UDEWUHH 14 Refugee status determination: three challenges Martin Jones 53 Ethiopia-Eritrea: statelessness and state succession .DWKHULQH6RXWKZLFN 15 Refugee status determination in southern Africa Michael S Gallagher 55 Am I stateless because I am a nomad? Ekuru Aukot 18 Refugee protection in Turkey Rachel Levitan 56 Kenyan Nubians: standing up to statelessness Adam Hussein Adam 19 An institutional gap for disaster IDPs The Universal Birth Registration campaign Roberta Cohen 58 Simon Heap and Claire Cody 20 Unmet refugee needs: Colombian refugees in Ecuador Contesting discrimination and statelessness Marie-Hélène Verney 60 in the Dominican Republic %ULGJHW:RRGLQJ 23 Europe-Africa cooperation in Mali Louis Michel 62 Advocacy campaigns and policy development %UDG%OLW] 25 Towards an EU-wide regularisation scheme Alexandra Strang 63 Reducing de facto statelessness in Nepal 3DXO:KLWH 28 Return and re-admission in states’ migration policies Jean-Pierre Cassarino 65 The end of Bihari statelessness .KDOLG+XVVDLQ 30 ,UDQ PLJUDQWVPXJJOLQJDQGWUDIÀFNLQJLQSHUVRQV Nasim Sadat Hosseini-Divkolaye 66 Childhood statelessness 0DXUHHQ/\QFKDQG0HODQLH7HII 31 Regular contributors Stateless persons from Thailand in Japan &KLH.RPDLDQG)XPLH$]XNL]DZD 33 RAISE: Reproductive health-care provision in emergencies: preventing needless suffering Combatting statelessness: a government perspective Maaike van Min 68 1LFROH*UHHQDQG7RGG3LHUFH 34 UNHCR: On the money No place to go: statelessness in Israel 9LFN\7HQQDQWDQG)UDQ]LVND7URHJHU 70 Oded Feller 35 Brookings-Bern: Internal displacement and The lost tribes of Arabia peacebuilding in Colombia Abbas Shiblak 37 (OL]DEHWK)HUULV 71
Nowhere people NRC: One last chance for Colombia’s victims Greg Constantine 40 Jacob Rothing and Richard Skretteberg 72
The legal limbo of detention IDMC: Stateless former farm workers in Zimbabwe .DWKHULQH3HUNVDQG-DUODWK&OLIIRUG 42 .DWLQND5LGGHUERV 73
Displaced Kosovo Roma and property rights -RVH0DULD$UUDL]DDQG/LQGDgKPDQ 43 FMR Reader Survey 2008 results 74
Stateless Roma in Macedonia /HWWHUIURPWKHÀHOG 76 Joanne van Selm 46 4 STATELESSNESS FMR32 Statelessness: what it is and why it matters ,QGLUD*RULV-XOLD+DUULQJWRQDQG6HEDVWLDQ.|KQ
Since the Second World War, a right to nationality – though stateless. Typically, because they GLIÀFXOWWRGHÀQHDQGUDUHO\HQIRUFHG²KDVHPHUJHGXQGHU ȱȱȱęȱȱ international law. to prove their citizenship, they are ineligible to vote and participate in For many of us, citizenship only nationality or, despite documentation, political processes, unable to obtain ¢ȱĴȱ ȱ ȱȱ are denied access to many human travel documents and unable to abroad, when the Olympic Games rights that other citizens enjoy. These access a range of government services are on, or when we vote in national people may be de facto stateless – that and employment. In the European elections. We do not think about is, stateless in practice, if not in law – Union (EU), for example, stateless our citizenship on a daily basis. For or cannot rely on the state of which ǰȱȱȱȬ£ǰȱ ǰȱ£ȱȱȱȬȱ they are citizens for protection. typically are not able to vote and ǰȱȱĞȱȱǯȱȱ may be barred from certain public recognition of nationalityŗ serves as a Although individuals who have legal sector jobs. In some EU states, large key to a host of other rights, such as citizenship and its accompanying numbers of stateless people – such education, health care, employment, rights may take both for granted, as Slovenia’s ‘erased citizens’Ř – are and equality before the law, people what they enjoy is one extreme of systematically denied access to both without citizenship – those who ȱȱ ȱǰȱěȱ health care and education on a par are ‘stateless’ – are some of the citizenship and de jure statelessness, with citizens. In Malaysia, stateless most vulnerable in the world. in which individuals have neither children in Selangor and Sabah are ȱ£ȱȱ¢ȱĴȱ frequently denied access to basic The inclusion of the right to rights. In between these extremes education. In Niger, more than a ¢ȱȱȱŗśȱȱȱ are millions of de facto stateless hundred thousand Mahamid Arabs3 Universal Declaration of Human ȱȱěȱǯȱ have had the threat of mass expulsion Rights, like the UDHR as a whole, hanging over them for years. was motivated by the impulse to Statelessness may result from various ȱȱȱȱĴȱ circumstances. States may simply Most of us never think about our during the Second World War, cease to exist while individuals fail nationality because we acquire it among them mass denationalisations to get citizenship in their successor automatically when we are born. and huge population movements. states; political considerations may Indeed, the two most commonly Hundreds of thousands of Jews dictate changes in the way that employed principles for granting ȱȱȱ£Ȭȱ citizenship laws are applied; an citizenship operate at the moment ȱĚȱȱȱǰȱ ethnic minority may be persecuted of birth: in legal terminology jus soli while millions of ethnic Germans by being denied citizenship; or a and jus sanguinis, the ‘law of the soil’ were expelled from eastern group may live in frontier areas and and the ‘law of blood’, respectively. European states, and millions of frequently cross borders, causing Jus soli provides that those born in Poles, Ukrainians, Byelorussians and states on both sides of the border the territory of a country have the other minority populations of the to deny them citizenship. There are right to citizenship of that country, Soviet Union either were forcibly individuals who become stateless due except for a few common exceptions ¡ȱȱĚȱȱȱ¢ǯȱ to personal circumstances, rather than such as children of foreign diplomats. persecution of a group to which they Jus sanguinis confers citizenship on Estimates of the current number belong. Statelessness can arise from children whose parents are citizens of stateless persons in the world ȱěȱ ȱǰȱ of a given country. International ȱȱȱŗŗȱȱŗśȱǯȱ people renouncing one nationality law has not historically expressed There is not only a lack of systematic without having acquired another or a preference for one principle for Ĵȱȱȱȱȱ even, more simply, from failure to granting citizenship over the other, statistics but also a lack of consensus register the birth of a child. Added and the legal regime of many states on whom to include when counting to this is a potential new category: ȱě¢ȱȱ¢ȱȱȱ stateless people. There is general small islands which, condemned by two principles. For those who do agreement that people who are de jure a changing climate to be swallowed not receive citizenship at birth or (legally) stateless – those who are not by the sea, will see their entire who need to change citizenship, considered as nationals by any state populations become stateless. most countries permit, at least under its laws – should be counted. in principle, the acquisition of However, there are many millions of The state of being stateless citizenship by naturalisation. In people who have not been formally Stateless people face a range of some countries there is also a limited denied or deprived of nationality but ěȱǰȱȱȱ opportunity to acquire citizenship who lack the ability to prove their where they live and why they are FMR32 STATELESSNESS 5
by a simpler process known as father is a citizen. In Africa alone, explain why the right to nationality ‘registration’ or ‘declaration’. ȱŘŖȱȱȱ¢ȱ ȱ ȱĴȱĴȱȱ the right to pass on nationality to a Ĵȱȱȱȱ ¢ǯȱ One of the main reasons people are foreign spouse. There are positive But just as the discretion of states denied or deprived of nationality, developments. In Botswana in has been circumscribed by human and thus rendered stateless, is ȱ¢ȱŗşşŖȱȱȱȱȱ rights norms in other areas, laws racial or ethnic discrimination. constitutionality of the country’s and practices on citizenship must The denationalisation and expulsion Citizenship Act on the ground that it be consistent with the principles of of tens of thousands of black discriminated on the basis of gender international human rights law. ȱ£ȱȱŗşŞşȱ ȱ led to the Act being amended. Several racially motivated. In Estonia, North African countries have also Originally, norms to prevent ethnic Russians have struggled ȱęȱȱȱȱȱŗśȱ statelessness were to be included in with statelessness since independence ¢ȱȱȱȬȱ ȱȱȱȱŗşśŗȱȱ ȱŗşşŗǯ4 gender discrimination by amending relating to the Status of Refugees their citizenship laws to make but eagerness to deal with the Gender discrimination is also ȱȬǯȱǰȱ ȱȱȱȬ ȱȱ a crucial factor in creating and there is a long way to go in many at the time led to adoption of the perpetuating statelessness. Many countries around the globe. Convention without inclusion of the countries around the world still do Protocol. Action on statelessness was ȱȱȬȱ£ȱ Laws relating to statelessness thus delayed until the Convention laws; in the worst cases, women lose International law has traditionally relating to the Status of Stateless their citizenship upon marriage to recognised states’ broad discretion Personsśȱ ȱȱȱŗşśŚǯȱȱ foreigners, and are unable to pass on ȱęȱ¢ȱȱ¢ǯȱ Convention on the Reduction of their citizenship to their children. In ȱŗśȱȱȱ ȱȱȱ ȱ ȱȱȱŗşŜŗǯȱ Swaziland, the constitution adopted right to a nationality in general but ȱŘŖŖśȱȱȱȱȱȱ gives no clue as to how responsibility ȱŗşśŚȱȱĜȱȱ Ğȱȱȱȱȱ for granting citizenship should the fundamental rights of stateless force is a citizen only if his or her fall on a particular state. This may persons must be protected while the ŗşŜŗȱȱȱȱ ȱ for avoiding future statelessness, placing an obligation on states to eliminate and prevent statelessness in nationality laws and practices. ę¢ǰȱȱ¢ȱȱȱ persons of citizenship arbitrarily or in such a way as to cause statelessness.
81+&56XWKHS.ULWVDQDYDULQ While states retain broad control over access to citizenship, the legal power to withdraw citizenship once granted is more limited. Unlike the Refugee Convention, however, the two Statelessness Conventions ȱȱȱ ¢ȱęǯȱ
In addition to the two treaties dealing ę¢ȱ ȱǰȱ other international human rights instruments that have emerged since the adoption of the UDHR articulate principles that constrain states’ ȱȱ¢ȱĴǯŜ These treaties have progressively given meaning to the scope and content of the right to nationality and in particular the right to be free from arbitrary deprivation of nationality.
On the whole, international law provides for a robust right to nationality and for special protection ȱȱȱȬ¥Ȭȱ this right. Although the record of ęȱȱȱȱ 6RPHXQUHJLVWHUHG5RKLQJ\DUHIXJHHVIURP%XUPD0\DQPDUKDYHVHWXSDVTXDOLG instruments varies, the great majority XQRIÀFLDOFDPSRXWVLGHWKHRIÀFLDO.XWXSDORQJ5HIXJHH&DPSLQ%DQJODGHVK of states are parties to one or several 6 STATELESSNESS FMR32
treaties that guarantee the right to for granting citizenship, a principle Conclusion citizenship. As a group, children appears to be emerging whereby The world has a long way to go before ¢ȱȱȱęȱȱ ¢ȱȱęȱȱȱȁȱ the right to nationality is assured. The of their right to nationality, which ȱěȱȂȱ ȱȱ international community needs to: is logical given that birth is the key individual and the state. This focuses moment for obtaining citizenship primarily on ‘factual ties’ as a basis Nfacilitate wider understanding ȱȱěȱȱȱȱ consequences of statelessness
Nenforce existing human rights norms – such as those UNHCR/C Doan prohibiting discrimination and ensuring due process – against citizenship regimes that are prima facie discriminatory or otherwise arbitrary
Nenforce legal norms at the national and international levels to ę¢ȱȱȱ
Nexert greater political pressure on states to acknowledge their ȱȱȬ ¥Ȭȱȱȱ£ǯȱ
Wider acknowledgement of existing normative gaps relating to nationality should prompt the articulation of new and stronger norms that will require states both to grant citizenship and to refrain from arbitrarily Vietnamese and children are in particular need for nationality rights, determined depriving individuals of citizenship. 1JX\HQ7KL of state services and protection. by “…the habitual residence of States may well be reluctant to Phuong, right, at the house the individual concerned … the accept yet another principle that of her mother The link between state ȱȱȱǽȦǾȱǰȱȱ constrains their actions – but so it 0DL7KL/LHX and individual family ties, his participation in has been with every human right. Phuong married a There is still, however, a genuine ȱǰȱĴȱ ȱ 7DLZDQHVH normative gap in international law. by him for a given country and Indira Goris (igoris@justiceinitiative. man but was ę¢ǰȱȱȱȱȱ inculcated into his children…”7 orgǼȱȱȱĜȱȱ¢ȱ abandoned by her every person to citizenship under ȱ£ǰȱȱ æȱ husband international law, international Application of this principle ([email protected]) is because law is by and large silent on would solve most cases of de facto ȱȱȱ¢ȱȱ she gave birth to two the procedures and criteria for statelessness in the world – certainly £ǰȱȱ ȱ ȱ daughters establishing a bond of nationality those in which ethnic discrimination (jharrington@justiceinitiative. instead of between the state and the individual. has led to denial of nationality to orgǼȱȱȱȱĜȱȱ sons. At groups that have been resident in ¢ȱȱ£ȱȱȱ present she has neither Consideration of jus soli and jus the same country for generations, ȱ¢ȱ ȱ ȱ Vietnamese sanguinis regimes show that both are as well as those in which women’s ǻĴDZȦȦ ǯǯǼǯ nor ¢ȱ¡ȱȱȱȬ inability to pass citizenship to their 7DLZDQHVH ŗǯȱȱȱȱȱȱǰȱ£ȱȱ FLWL]HQVKLS sense criterion for citizenship: where children or husband leaves these nationality are used interchangeably. an individual is likely to live, and individuals stateless. The usefulness Řǯȱ ȱŗşşŜǰȱȱȱȱ¢ȱȱȱ ȱȱŗŞǰřŖśȱȱȱȱȱȱ£ǯȱ therefore have the need and desire ȱȁȱȱěȱȂȱȱȱ These names were placed on a register of foreigners for citizenship and the security criterion for citizenship is enhanced residing illegally in Slovenia who have since been denied ȱǯȱȱĴDZȦȦ ǯǯȦȦ and rights that go with it. In other ¢ȱȱȱȱȱĚȱȱȱ ŘǵȏƽŗŖřşŘŖ words, a person’s legal right to ęȱȱȱȂȱ ȱ 3. The problems facing the Mahamid Arabs are common citizenship should be operative in and desire to belong to a country. also among other pastoralist communities that live in ȱǯȱȱȱȱŗŞǯ the country in which that person is Śǯȱ ȱȱŘŖŖŞȱȱ ȱȱȱȱ most deeply embedded. In this way, ȱȱěȱȱ ȱŝǯşƖȱȱȱȱȱȱȁȂȱ citizenship enables the fullest possible principle in international human citizenship. exercising of all social, economic rights law could oblige states to śǯȱĴDZȦȦ ǯǯȦȦȦřŚŜŝŚǯ and political rights and duties. grant citizenship to individuals Ŝǯȱȱ¡ȱȱŗŖǯ 7. As articulated by the International Court of Justice in who have fallen through the cracks ȱŗşśśȱĴȱȱǻȱȱ Ǽǯ ȱȱȱȱȱ ¢ȱęȱ of jus soli and jus sanguinis regimes. ȱ¢ȱęȱcriteria FMR32 STATELESSNESS 7 UNHCR and responses to statelessness Mark Manly and Santhosh Persaud
UNHCR and other actors have stepped up efforts to address as Refugees International and the statelessness. However, the global impact of statelessness is Open Society Justice Initiative QRW\HWVXIÀFLHQWO\XQGHUVWRRGDQGIDUPRUHQHHGVWREHGRQH undertake considerable research and advocacy in the area.Ř There is In legal terms, being stateless by a number of developments a growing interest in statelessness means that no state considers you a at the international level. in academic circles as well. national under the operation of its law. The practical implications of The changing Related to this is the growing this are very serious. For instance, international context relevance of international legal stateless persons generally are not Behind the label ‘statelessness’ we standards. Global and regional treaty recognised as persons before the law ęȱȱȱȱȱǰȱ¢ȱȱ ȱȁĞȂȱ ȱȱȱ¢ȱ ȱȱĜȱȱǰȱ them quite complex, including birth comprehensive web of standards on marrying and accessing education registration, nationality legislation, issues of prevention and reduction and health care. In short, statelessness state succession, migration and of statelessness and protection of the Ğȱȱȱȱȱȱȱ international law. But while the human rights of stateless persons.3 others in society is not possible.ŗ sovereign discretion of states in the In large part due to a sustained ęȱȱ¢ȱȱȱ¢ȱ campaign by UNHCR, there has Since its creation, UNHCR has eroded since the adoption of the ȱȱęǰȱȱǰȱȱ worked to provide international Universal Declaration of Human in the number of States Parties protection and to seek durable Rights, in the end it is action by to the two UN treaties designed solutions for stateless refugees who states that is required to prevent and ę¢ȱȱȱǯȱ are covered by its Statute and by reduce statelessness. UNHCR cannot ȱȱȱȱȱȱŗşśŚȱ ȱŗşśŗȱǯȱ ȱȱ substitute for states. What UNHCR ȱȱ ȱȱȱŜřǯȱ ¢ȱȱȱȱĞȱ can do, however, is document gaps While the number of States Parties to of the two global statelessness in legislative and administrative ȱŗşŜŗȱȱȱ ǰȱȱ ȱȮȱȱŗşśŚȱȱ frameworks and provide assistance years have seen a steady progress; relating to the Status of Stateless to address them. Possession of ȱŘŖŖśȱȱȱȱȱȱ ȱȱȱŗşŜŗȱȱȱ nationality is closely linked to who by states as diverse as Romania, ȱȱȱǯȱ ȱŗşŝŚȱ ‘belongs’ in a society and as a result Rwanda, Senegal, New Zealand, the UN General Assembly designated acquisition of nationality by an Brazil and Finland, bringing the UNHCR as the organisation to ‘outsider’ will depend to a large ȱȱȱȱȱȱřśǯȱ ȱȱȱȱęȱ degree on political will. Where there ȱȱŗşŜŗȱȱ¢ȱ¢ȱ is the political will to act, seemingly There is also a range of other for examination of their claims intractable problems can be resolved. universal and regional treaties and for assistance in presenting which regulate issues relating those claims to state authorities. Fortunately, there is now a greater to nationality and statelessness, range of actors involved and their including prohibiting discrimination The massive increase in statelessness ȱěȱȱȱȱȱ on the grounds of race and sex and ȱȱȱȬȱȱȱǰȱ to build the political will of states. obliging states to grant nationality Yugoslavia and Czechoslovakia and The Council of Europe has not only ȱęȱǯ the emergence of successor states in adopted conventions on nationality ȱ¢ȱŗşşŖȱȱȱȱ and statelessness but also mandated ,GHQWLÀFDWLRQRIVWDWHOHVVQHVV ȱȱȱěȱȱ ȱĴȱȱ¡ȱȱȱ ȱ ȱȱȱȱȬ response to statelessness. As a recommendations on measures to lessness, its causes and consequences result, the UN General Assembly ȱěȱȱȂȱȱȱȱ will evidently be a necessary step entrusted UNHCR with a global ¢ǯȱȱȬȱȱ to addressing the problem. Stateless mandate to work to prevent and Consultative Organization adopted people are in many ways the ultimate reduce statelessness and to protect a resolution on Legal Identity and ȁĴȱȂȱȱęȱ stateless persons. UNHCR therefore ȱȱŘŖŖŜǯȱȱǰȱ of statelessness remains a major has a mandate with two distinct such as Indonesia, Nepal, Bangladesh challenge. Frequently, stateless elements: to address situations of and Ukraine, have sought to address persons live on the margins of statelessness which occur around statelessness in their own countries, ¢ȱȱǰȱȱ¢ȱęǰȱ the world and to assist in resolving leading by example. Others, such ‘uncounted’. States may be reluctant cases which may arise under the as the US, have increasingly placed to gather more detailed data due ŗşŜŗȱǯȱȱěȱȱ addressing statelessness on their to political sensitivities. As a result, UNHCR thus far have been facilitated foreign policy agenda. NGOs such statistics on statelessness worldwide 8 STATELESSNESS FMR32
An Indian origin plantation worker outside her house at Chrystler’s farm HVWDWH.RWDJDOD Sri Lanka. A law in 2003 enabled Indian origin 7DPLOSODQWDWLRQ workers to obtain FLWL]HQVKLSSURYLGHG their families had been in Sri Lanka since 1964. Many stateless plantation workers were automatically JUDQWHGFLWL]HQVKLS upon a special declaration but not all of them were reached in WKHFLWL]HQVKLS
campaigns. UNHCR/G Amarasinghe
are incomplete. UNHCR has In addition, it collaborated undertaken citizenship campaigns, ȱ¢Ȭȱȱȱȱ ȱȱ Ȭ¢ȱ including measures such as granting śŚȱȱȱȱȱȱȱ Union to publish Nationality nationality based on residence or birth 3 million people but estimates that and Statelessness: a Handbook for in the territory, registration of stateless ȱȱ¢ȱȱŗŘȱȱ Parliamentarians which has now persons and issuing documentation stateless people worldwide. ȱȱȱŗŜȱǯŜ proving nationality. For example, in ŘŖŖřȱ ȱȱȱȱ ȱȱęȱȱ Even states which are not party to operational support for a citizenship statelessness goes beyond statistical ȱŗşŜŗȱȱȱȱ ȱȱȱǯȱȱŗşŖǰŖŖŖȱ reporting, UNHCR has undertaken or safeguards in their national legislation formerly stateless Tamils who had ȱȱȱ¢Ȭȱ to prevent and reduce statelessness. been brought over to work on the ǰȱȱȱęȱȱ In providing technical advice, tea plantations (‘Estate Tamils’) ȱęȬȱǰȱȱȱȱ UNHCR draws on the safeguards acquired proof of their new Sri study on statelessness in Canada4 found in the text of the Convention ȱ£ǯȱ ȱŘŖŖŝȱȱ ȱȱȱȱȦȬȱ but also refers to other human rights ȱȱȱ¢ȱȱŘǯŜȱ speaking population in Bangladesh.ś treaties. It advocates, for example, million people. More recently, that states include a safeguard that Turkmenistan has conducted a Prevention and reduction nationality should be acquired by all registration drive with support States bear the primary responsibility children born in the territory who ȱ ȱȱ ȱȱŗŘǰŖŖŖȱ for preventing and reducing would otherwise be stateless. This people of undetermined nationality statelessness. One focus of UNHCR’s safeguard is explicitly contained in have applied for naturalisation work is therefore the promotion of several regional treaties and, as a and are now awaiting decisions. ȱȱȱŗşŜŗȱȱȱ ǰȱȱşŖȱȱ¢ȱȱ the Reduction of Statelessness. The an obligation to grant nationality to ¢ȱȱȱĞȱ Convention is particularly important children born in such circumstances. unknown to people who are stateless ȱȱĞȱȱ ȱȱĜ¢ȱ¡ȱȱ¢ȱ ȱěȱȱ¢ȱȱ Also in the area of prevention, people do not understand them. to nationality issues and a common lack of birth registration can be an Also, the costs of travel and obtaining set of rules is therefore essential. insurmountable obstacle to proving documents and photographs mean Nonetheless, all states should institute nationality acquired by descent ȱ¢ȱȱȱęȱ safeguards against statelessness, (as the person cannot prove who assistance to do such basic things as regardless of whether they are parties their parents are), or by birth on register the birth of a child or satisfy ȱȱŗşŜŗȱȱȱǯȱȱ the territory (as there is no proof documentation requirements for of where the person was born). In naturalisation. Public information The UN General Assembly has Serbia UNHCR has therefore worked about campaigns and procedures and ę¢ȱȱ ȱȱ with the government to modernise practical assistance are therefore vital. “provide relevant technical and birth registries to make it far easier advisory services pertaining to the for people to obtain proof of their In Ukraine, UNHCR has worked preparation and implementation identity, including nationality. with the NGO Assistance for many of nationality legislation.” UNHCR years to disseminate information on has therefore provided such advice Citizenship campaigns nationality procedures and provide to dozens of governments around ȱ ȱȬȱǻȱĞȱ legal aid to persons who are stateless the world on both prevention protracted) statelessness situations, or at risk of being stateless. Similar and reduction of statelessness. a number of governments have work is being done by the NGO FMR32 STATELESSNESS 9
Praxus and the Humanitarian Centre Although legally these people already status and enjoyment of their human for Integration and Tolerance in have Sri Lankan nationality, they ǯȱȱŗşśŚȱȱȱ Serbia. A project with the Norwegian ȱĜȱȱȱȱ out a minimum set of rights which Refugee Council has addressed Identity Card. In Ukraine, several is complemented by standards set numerous cases relating to late birth ¢ȱĞȱȱȱ out in UN and regional human registration and documentation initiatives, the NGO Assistance rights treaties. Protection, however, in Cote d’Ivoire. These legal aid continues to help a remaining can only be temporary while programmes have resolved tens of ȱȱȱřǰśŖŖȱȱ exploring avenues towards the thousands of cases. However, many ȱȱȱĞȱȱ acquisition of a nationality. people do not receive the advice and during the Soviet period. support they desperately need which UNHCR’s activities in the area is why such programmes need to be Acquiring a nationality and obtaining of protection focus mainly on implemented more systematically. ȱĞȱȱȱ¢ȱ the promotion of accession to remedy the discrimination which in ȱŗşśŚȱȱȱȱ Very practical measures of assistance many cases is both a cause and at advocacy and technical advice can go beyond advice and assistance the same time a major consequence based on that Convention and ȱęȱǯȱ ȱȱȱ of statelessness. Formerly stateless relevant human rights standards. Yugoslav Republic of Macedonia, ȱĞȱȱȱȱ It has provided advice to a range UNHCR’s partner, the Legal NGO ensure full integration into society of states on compatibility of Network, accompanied persons and the enjoyment of their rights on ȱȱ ȱȱŗşśŚȱ whose application for nationality an equal footing with other nationals, Convention and on establishment had been rejected and helped that is, to make their nationality of procedures to determine whether ȱȱęȱǰȱȱȱ ¢ȱěǯȱȱȱȱǰȱ individuals are stateless. cases up to the Supreme Court. this requires ‘mainstreaming’ formerly stateless persons in existing Interventions by UNHCR relating to Holding a citizenship campaign programmes. In Bangladesh, UNHCR protection of stateless persons have does not mean that all problems are has advocated for the full inclusion tended to focus on broad questions solved. Strict deadlines in citizenship ȱȱȬȱȱ of law and policy but it has also campaigns carry the risk that part of ǻĞȱȱȱȱǼǰȱ ȱ intervened in individual cases, the population, usually particularly were long treated as stateless, in mainly through legal aid programmes ȱǰȱ¢ȱȱĞȱȱ poverty reduction programmes.Ş run in conjunction with NGOs. ȱěȱȱȱ¢ǯȱ This occurred in Nepal, where Protection Conclusion UNHCR is now working with a range ȱěȱȱȱȱ UNHCR has undertaken a wide of partners to address the gaps.7 reduce statelessness, the reality is range of activities to address that statelessness continues to occur statelessness but clearly more needs In Sri Lanka, UNHCR and UNDP are and progress to resolve existing to be done. In acknowledgement of implementing an ‘Access to Justice’ ȱȱĞȱ¢ȱ ǯȱȱ this, addressing statelessness more project where mobile registration ¢ȱȱȱȱȱȱěȱ ě¢ȱȱ ȱȱȱ Ȃȱ clinics allow those Estate Tamils not nationality, stateless persons need Global Strategic Objectives. Notably, covered by the citizenship campaign the dignity, stability and protection statelessness is one of four ‘pillars’ to obtain identity documents. that come with recognition of their in the new budget structure which
Fridtjof Nansen Fridtjof Nansen in In the entrance hall of the UNHCR passport as such, allowed the holder New York in 1929 headquarters in Geneva stands a to travel and have a legal identity. bust of Fridtjof Nansen. Nansen was 7KH1DQVHQ3DVVSRUWZDVKRQRXUHG a scientist and an explorer, as well by the governments of 52 countries as a diplomat, politician and great and helped millions of stateless humanitarian on behalf of refugees Russians and others to have rights. DQGVWDWHOHVVSHRSOH+HZDVWKHÀUVW After Nansen’s premature death in High Commissioner for Refugees, 1930, often attributed to his overwork appointed in 1921 by the League of on behalf of refugees and stateless Nations. His mandate initially covered people, the Nansen International SHRSOHLQÁLJKWIURPRUH[SHOOHGE\ 2IÀFHIRU5HIXJHHVWRRNRYHUWKH the new Soviet Union. A decree of work of the High Commission and 1921 had deprived most of them of UHFHLYHGWKH1REHO3HDFH3UL]H their nationality and they were thus in 1938. UNHCR was set up in stateless. Nansen’s solution was to 1951. It gives the Nansen Refugee invent what became known as ‘the Award every year for outstanding Nansen Passport’ which, while not a work on behalf of refugees. UNHCR 10 STATELESSNESS FMR32
becomes fully operational in 2010. growing number of actors involved 2. See article p25. ȱȱ¢ȱȱȱěȱ are all positive. However, given řǯȱȱ¡ȱ ǯ and partners are being stepped up. the magnitude of the problem, the ŚǯȱĴDZȦȦ ǯǯȦȦ ȦŚŖŜŘşěŝǯ śǯȱȱǰȱȁȱ£ȱȱȱȱȬȦ Ğȱ¡ȱȱ ȱȱ ȱȱȂǰȱRefugee Survey QuarterlyȱȱŘśǰȱ ȱ As UNHCR continues to move and perpetuate statelessness and the řǰȱȱŘŖŖŜǯ to implement its mandate more sometimes deeply rooted political Ŝǯȱǰȱǰȱǰȱȱȱ ȱȱȱ ȱ ȱȱȱĴDZȦȦ ǯǯȦ Ȧ systematically, it will seek to work opposition to solutions, a far greater ȦŚřŜŜŖŞŘŚǯǰȱ with a broader range of states, ȱěȱȱǯȱ ŝǯȱȱȱŘŞǯ national and international NGOs and ŞǯȱȱȱřŖǯ other international agencies. Other Mark Manly ([email protected]) organisations need to look at how is Head and Santhosh Persaud Statelessness: An Analytical statelessness intersects with their own ([email protected]) is Associate Framework for Prevention, work. NGOs working with women, ȱĜȱǻǼȱȱ Reduction and Protection for example, can consider how gender UNHCR’s Statelessness Unit (ĴDZȦȦ 7KLVQHZ SDJH81+&5SXEOLFDWLRQDLPV discrimination in nationality legislation ǯǯȦȦ). WRKHOSVWDWHV81+&5DQGSDUWQHUVWREHWWHU leads to statelessness, while those XQGHUVWDQGWKHFDXVHVRIVWDWHOHVVQHVVWKH Most of the documents referred to working with minority populations consequences and the protection needs of in this article and other documents can seek to address the impact of WKHDIIHFWHGSHUVRQV WRPLQLPLVHWKHULVNVLQ related to statelessness and to statelessness on minorities. Universities VSHFLÀFFRQWH[WV DQGWRGHYHORSVWUDWHJLHV UNHCR’s policies and activities can should look to include statelessness in to reduce the causes of statelessness and ȱȱȱȱĴDZȦȦ ǯǯȦ their courses and research priorities. meet the needs and protect the rights of the statelessnessȦȱȱĴDZȦȦ ǯǯ stateless. Online at http://www.unhcr.org/ Ȧ Ȧǯȱ The existing international legal SURWHFW3527(&7,21 DSGI)RUKDUG framework, lessons learned from 1. See the issue of Refugees magazine which highlights many of FRSLHVSOHDVHHPDLO+435#XQKFURUJ responses in recent years and the ȱ¡ȱĴDZȦȦ ǯǯȦȦȦŚŜŖŖŚŘǯ html Statelessness and nationality: legal instruments
The right to nationality is covered not only by those international 3DUWLHVWR´JUDQWZRPHQHTXDOULJKWVZLWKPHQWRDFTXLUH LQVWUXPHQWVVSHFLÀFWRVWDWHOHVVQHVV²WKH &RQYHQWLRQ FKDQJHRUUHWDLQWKHLUQDWLRQDOLW\µ&UXFLDOO\&('$:DOVR relating to the Status of Stateless Persons (http://www.unhchr. states that States Parties must ensure equality between FKKWPOPHQXERBFBVSKWP DQGWKH &RQYHQWLRQRQ men and women in terms of conveying nationality the Reduction of Statelessness (http://www.unhchr.ch/html/ WRRQH·VFKLOGUHQKWWS WLQ\FF&('$: PHQXERBUHGXFHKWP ²EXWDOVRE\DODUJHQXPEHURIRWKHU 'HFODUDWLRQRQWKH+XPDQ5LJKWVRI,QGLYLGXDOV:KRDUHQRW LQVWUXPHQWV7KHOLPLWHGQXPEHURI6WDWHV3DUWLHVWRWKH DQG 1DWLRQDOVRIWKH&RXQWU\,QZKLFK7KH\/LYH &RQYHQWLRQVXQGHUOLQHVWKHLPSRUWDQFHRIJHQHUDOKXPDQ KWWS ZZZXQRUJGRFXPHQWVJDUHVDUKWP rights obligations relating to the right to a nationality. These include: &RQYHQWLRQRQWKH5LJKWVRIWKH&KLOG ZKLFKJXDUDQWHHV +DJXH&RQYHQWLRQRQ1DWLRQDOLW\ children’s right to acquire a nationality and includes an KWWS WLQ\FF+DJXH1DWLRQDOLW\ obligation on states to utilise their laws in order to avoid 2$6&RQYHQWLRQRQWKH1DWLRQDOLW\RI:RPHQ VWDWHOHVVQHVVDPRQJFKLOGUHQKWWS WLQ\FF5LJKWVRI&KLOG KWWS WLQ\FF2$61DWLRQDOLW\:RPHQ ,QWHUQDWLRQDO&RQYHQWLRQRQWKH3URWHFWLRQRIWKH5LJKWVRI$OO &RQYHQWLRQRQWKH1DWLRQDOLW\RI0DUULHG:RPHQ 0LJUDQW:RUNHUVDQG0HPEHUVRI7KHLU)DPLOLHV ZKLFK KWWS WLQ\FF1DWLRQDOLW\0DUULHG:RPHQ VWDWHVWKDW´HDFKFKLOGRIDPLJUDQWZRUNHUVKDOOKDYHWKH ULJKWWR«DQDWLRQDOLW\µKWWS WLQ\FF0LJUDQW:RUNHUV 'HFODUDWLRQRIWKH5LJKWVRIWKH&KLOG KWWS WLQ\FF5LJKWVRI&KLOG &RQYHQWLRQRQWKH5LJKWVRI3HUVRQVZLWK'LVDELOLWLHV which emphasises the right of a person with disabilities to &RQYHQWLRQRQWKH5HGXFWLRQRI&DVHVRI0XOWLSOH1DWLRQDOLW\ DFTXLUHDQDWLRQDOLW\QRWWREHDUELWUDULO\GHSULYHGRIWKHLU DQG0LOLWDU\2EOLJDWLRQVLQ&DVHVRI0XOWLSOH1DWLRQDOLW\ QDWLRQDOLW\RQWKHEDVLVRIGLVDELOLW\DQGWRREWDLQSRVVHVV KWWS WLQ\FF0XOWLSOH1DWLRQDOLW\ and utilise documentation of their nationality; it also reiterates &RQYHQWLRQRQWKH(OLPLQDWLRQRI$OO)RUPVRI5DFLDO WKHVSHFLÀFULJKWRIFKLOGUHQZLWKGLVDELOLWLHVWRDFTXLUHD 'LVFULPLQDWLRQ &(5' ZKLFKGLUHFWV6WDWHV QDWLRQDOLW\DIWHUELUWKKWWS WLQ\FF'LVDELOLWLHV Parties to guarantee racial equality in the enjoyment of ,QDGGLWLRQUHJLRQDOLQVWUXPHQWVOLNHWKH(XURSHDQ&RQYHQWLRQ WKHULJKWWRQDWLRQDOLW\KWWS WLQ\FF&(5' RQ1DWLRQDOLW\ KWWS WLQ\FF(XURSHDQ1DWLRQDOLW\ also contribute to protecting the rights of stateless people. ,QWHUQDWLRQDO&RYHQDQWRQ(FRQRPLF6RFLDODQG&XOWXUDO ,Q$SULOWKH3HUPDQHQW&RXQFLORIWKH2UJDQLVDWLRQ 5LJKWV KWWS WLQ\FF(FRQRPLF6RFLDO&XOWXUDO of American States approved the Inter-American Program ,QWHUQDWLRQDO&RYHQDQWRQ&LYLODQG3ROLWLFDO5LJKWV IRUD8QLYHUVDO&LYLO5HJLVWU\DQG´WKH5LJKWRI,GHQWLW\µ ZKLFKUHFRJQLVHVWKHULJKWRI´HYHU\FKLOG«WR KWWS WLQ\FF,QWHU$PHULFDQ&LYLO5HJLVWU\ DFTXLUHDQDWLRQDOLW\µKWWS WLQ\FF&LYLO3ROLWLFDO $OWKRXJKWKHUHFRUGRIUDWLÀFDWLRQRIUHOHYDQWLQWHUQDWLRQDO &RQYHQWLRQRQWKH(OLPLQDWLRQRI$OO)RUPVRI'LVFULPLQDWLRQ LQVWUXPHQWVYDULHVWKHJUHDWPDMRULW\RIVWDWHVDUHSDUWLHVWR $JDLQVW:RPHQ &('$: ZKLFKUHTXLUHV6WDWHV one or several treaties that guarantee the right to citizenship. FMR32 STATELESSNESS 11 North Arakan: an open prison for the Rohingya in Burma by Chris Lewa
Many minorities, including the Rohingya of Burma, are the wide powers assigned to a persecuted by being rendered stateless. Ȭȱȁȱ¢Ȃȱ ȱȱȱĴȱȱȱ ȱȱȱȱĚȱ ęȱȱȱȱ£DZȱ citizenship mean that, in practice, ȱȱȱȱęȱ full, associate and naturalised. the Rohingyas’ entitlement to to escape oppression or in order to citizenship will not be recognised. survive. There were mass exoduses Full citizens are those belonging to ȱȱȱŗşŝŞȱȱȱȱ ȱȱŗřśȱȁȱȂŘȱĴȱ ȱŗşŞşǰȱȬȱ£ȱ ŗşşŗȬşŘǯȱȱǰȱȱ ȱȱȱŗŞŘřǰȱȱȱȱ Scrutiny Cards (CRCs) were pressure persuaded Burma to the British colonisation of Arakan. introduced: pink cards for full accept them back and repatriation The Rohingyas do not appear in citizens, blue for associate citizens ǰȱĞȱȱǯȱ this list and the government does and green for naturalised citizens. ȱȱĚ ȱǯȱ not recognise the term ‘Rohingya’. The Rohingya were not issued with Associate citizenship was only ¢ȱǯȱ ȱŗşşśǰȱȱȱȱ The Rohingya are an ethnic, linguistic granted to those whose application Ȃȱȱ¢ȱěȱ and religious minority group mainly ȱ£ȱȱȱŗşŚŞȱ to document the Rohingyas, the concentrated in North Arakan (or Act was pending on the date the Burmese authorities started issuing ‘Rakhine’) State in Burma, adjacent Act came into force. Naturalised them with a Temporary Registration to Bangladesh, where their number citizenship could only be granted to Card (TRC), a white card, pursuant ȱȱȱŝŘśǰŖŖŖǯȱȱȱ those who could furnish “conclusive ȱȱŗşŚşȱȱȱȱ Asian descent, they are related to evidence” of entry and residence Registration Act. The TRC does ȱĴȱȱȱȱ before Burma’s independence on not mention the bearer’s place of the border in Bangladesh, whose Śȱ ¢ȱŗşŚŞǰȱ ȱȱȱ birth and cannot be used to claim language is also related. They profess one of the national languages well citizenship. The family list, which Sunni Islam and are distinct from and whose children were born in every family residing in Burma the majority Burmese population Burma. Very few Rohingyas could possesses, only records family who are of East Asian stock and ęȱȱǯȱǰȱ members and their date of birth. It mostly Buddhists. 3HDFH:DON Since Burma’s for Rohingyas ȱȱŗşŚŞǰȱ the Rohingya have gradually been excluded from the process of Ȭǯȱ The 1982 Citizenship Law ȱŗşŞŘǰȱȂȱ¢ȱ rulers brought in a new Citizenship Lawŗ which deprived most people of Indian and Chinese descent of citizenship. However, the timing of its promulgation, ¢ȱĞȱȱȱ ȱȱŗşŝşǰȱ strongly suggests that ȱ ȱę¢ȱ designed to exclude the Rohingya. Unlike ȱȱŗşŚŞȱ Citizenship Act, the ŗşŞŘȱ ȱȱ¢ȱ based on the principle of jus sanguinis and HendryStephen 12 STATELESSNESS FMR32
does not indicate the place of birth are prevented from returning to their ȱȱȱȱĜȱ village as their names are deleted evidence of birth in Burma – and from their family list. They are then so perpetuates their statelessness. obliterated administratively and compelled to leave Burma. Some The Rohingya are recognised neither Rohingyas have been prosecuted Unregistered as citizens nor as foreigners. The under national security legislation Rohingyas in Burmese government also objects for travelling without permission. %DQJODGHVK to them being described as stateless must fend for themselves. persons but appears to have created Rohingyas are also forbidden to 7KLVPRWKHU a special category: ‘Myanmar travel to Bangladesh, although in gave birth residents’, which is not a legal practice obtaining a travel pass to 40 days previously status. However, on more than one a border village and then crossing and has ǰȱȱĜȱȱ clandestinely into Bangladesh has not been described them as ‘illegal immigrants ȱȱȱȱĴ ǯȱ able to feed her baby ȱȂǯȱ ȱŗşşŞǰȱȱȱĴȱ But, similarly, those caught doing so properly. to UNHCR, Burma’s then Prime could face a jail sentence there for Minister General Khin Nyunt wrote: illegal entry. Many people, including “These people are not originally patients seeking medical treatment from Myanmar but have illegally in Bangladesh, were unable to return migrated to Myanmar because of home when, during their absence, population pressures in their own their names were cancelled on their ¢ǯȄȱȱȱ¢ȱŘŖŖşȱȱ family list. Once outside Burma, ȱȱȬ ȱNew Light Rohingyas are systematically denied backstreet abortions, an illegal of Myanmar newspaper stated that the right to return to their country. practice in Burma, which has resulted “In Myanmar there is no national in many maternal deaths. Others race by the name of Rohinja.” Marriage authorisations register their newborn child with ȱȱȱŗşşŖǰȱȱȱȱ ȱ another legally married couple, Deprivation of citizenship has served issued in North Arakan, applying sometimes their own parents. as a key strategy to justify arbitrary exclusively to the Muslim population, Some deliver the baby secretly in treatment and discriminatory requiring couples planning to marry Bangladesh and abandon their policies against the Rohingya. Severe ȱȱĜȱȱȱ baby there. Many children are restrictions on their movements the local authorities – usually the reportedly unregistered. Many are increasingly applied. They are NaSaKa, Burma’s Border Security young couples, unable to obtain banned from employment in the civil Force. Marriage authorisations are ȱȱ¢ǰȱĚȱȱ service, including in the education granted on the payment of fees and Bangladesh in order to live together. ȱȱǯȱ ȱŗşşŚǰȱȱ bribes and can take up to several authorities stopped issuing Rohingya years to obtain. This is beyond the Education and health care ȱ ȱȱęǯȱ¢ȱ means of the poorest. This local ȱȬ£ǰȱȱ¢ȱ ȱȱŗşşŖǰȱĜȱȱ order also prohibits any cohabitation are excluded from government authorisations were made mandatory. or sexual contact outside wedlock. employment in health and education Infringement of these stringent rules It is not backed by any domestic and those public services are can result in long prison sentences. legislation but breaching it can appallingly neglected in North Other coercive measures such as lead to prosecution, punishable by Arakan. Schools and clinics are mostly forced labour, arbitrary taxation and ȱȱŗŖȱ¢Ȃȱǯȱ Ĵȱ¢ȱȱȱȱ ęȱȱǰȱȱȱ ěȱ ȱȱȱȱȱ elsewhere in Burma, are imposed ȱŘŖŖśǰȱȱȱ ȱ ȱĝȱ ȱȱȱȱȱ ȱĞȱ on the Rohingya population in following the ousting of General treat Rohingyas with contempt. a disproportionate manner. Khin Nyunt, marriage authorisations International humanitarian agencies were completely suspended for are not allowed to train Muslim Restrictions of movement several months. When they restarted health workers, not even auxiliary ȱ¢ȱȱ¢ȱęȱ ȱȱȱȱŘŖŖśǰȱȱ midwives. Some Rohingya teach to their village tracts. They need to ȱ ȱĴȱȱ in government schools, paid with apply for a travel pass even to visit the stipulation that couples have Ȭ¢ȱȱȱȬȬ ȱ a neighbouring village – and they to sign an undertaking not to programme as they cannot hold an have to pay for the pass. Travel is have more than two children. The ĜǰȱȱȂȱǯ strictly restricted to North Arakan. amount of bribes and time involved ȱĴ ǰȱȱȱǰȱ in securing a marriage permit Restrictions of movement have a ȱȱȱěȬȱȱ ȱȱ¢ȱĞȱ¢ǯȱ serious impact on access to health them. Their lack of mobility has and education. Even in emergencies, devastating consequences, limiting The consequences have been Rohingyas must apply for travel their access to markets, employment dramatic, particularly on women. permission to reach the poorly opportunities, health facilities and Rohingya women who become equipped local hospital. Access to higher education. Those who overstay ȱ ȱĜȱȱ ĴȱȱȱȱĴ ȱ the time allowed by their travel pass ȱĞȱȱȱ hospital is denied. Referral of FMR32 STATELESSNESS 13
irregular migrants and they have ǯȱĞȱĞȱȱȱȱ ȱ ȱȱȱĜȱǯȱ ǰȱȱȱ ȱę¢ȱ rescued in the Andaman and Nicobar The combination of their lack of status Islands of India and two boats in in Bangladesh and their statelessness Aceh province of Indonesia. More in Burma puts them at risk of ȱřŖŖȱȱȱȱ¢ȱ ęȱǯȱȱȱ missing, believed to have drowned. Rohingyas are currently languishing in Bangladeshi jails arrested for The issuing of a TRC to Rohingyas illegal entry. Most are still awaiting ȱȱȱȱȁȱęȱȱ trial, sometimes for years. Dozens ȱ£ȂǯȱȱŗŖȱ¢ȱŘŖŖŞǰȱ have completed their sentences the Rohingya were allowed to vote but remain in jail – called ‘released in the constitutional referendum but prisoners’ – as they cannot be ironically the new Constitution, which Ĝ¢ȱȱȱǰȱȱ was approved, does not contain any ȱȱȱȬȱǯ3 provisions granting them citizenship rights. There is no political will for the Tens of thousands of Rohingyas have Rohingya to be accepted as Burmese sought out opportunities overseas, citizens in the foreseeable future. in the Middle East and increasingly Recommendations
81+&56XWKHS.ULWVDQDYDULQ in Malaysia, using Bangladesh as a transit country. Stateless and ȱŘȱȱŘŖŖŝǰȱ¡ȱȱȱ undocumented, they have no other Rapporteurs put out a joint critically ill patients is practically option than relying on unsafe statement addressing the Rohingya impossible. Consequently, patients illegal migration channels, falling situation and called upon the ȱȱěȱȱȱȱ prey to unscrupulous smugglers Burmese government to: medical treatment in Bangladesh but ȱĜǰȱȱȱ are sometimes unable to return to risky journeys on boats.4 NȱȱȱȱŗşŞŘȱ their village. Likewise, there are few Citizenship Law to ensure secondary schools in North Arakan In Malaysia or Thailand, the compliance of its legislation with and pupils need travel permission Rohingyas have no access to the country’s international human to study outside their village. The protection. They are regularly caught rights obligations, including ¢ȱ¢ȱȱȱĴ ǯȱĞȱ in immigration crackdowns and end Article 7 of the Convention ŘŖŖŗǰȱȱȱȱȱȱ up in the revolving door of ‘informal’ of the Rights of the Child and Ĵȱȱȱȱȱ¢ȱȱ deportations. Since Burma would ȱşȱȱȱȱȱ distance learning, only being allowed not take them back, Thailand has the Elimination of All Forms of ȱȱȱĴ ȱȱȱ¡ǯȱ occasionally deported Rohingya boat Discrimination Against Women; ȱŘŖŖśǰȱ ǰȱȱȱȱ ȱĜ¢ȱȱȱȱ been prohibited. Not surprisingly, of Burma controlled by insurgent Ntake urgent measures to eliminate illiteracy among groups. discriminatory practices against the the Rohingyas is ´:H5RKLQJ\DVDUHOLNH Malaysia usually Muslim minority in North Rakhine high, estimated deports them ǽǾȱǰȱȱȱȱ ȱŞŖƖǯȱ birds in a cage. However, over the border that no further discrimination caged birds are fed while into Thailand is carried out against persons For the in the hands of belonging to this community. Rohingya, the we have to struggle alone brokers. Against compounded the payment of In addition, Bangladesh, Malaysia and ěȱȱȱ to feed ourselves.” a fee, they are ȱȱȱȱȱěȱ various forms A Rohingya villager from smuggled back mechanisms to allow Rohingyas of persecution Maungdaw, North Arakan into Thailand access to protection as refugees. has driven or Malaysia many into dire poverty and their and those unable to pay are ȱ ȱǻǯ ȓǯm) is degrading conditions have caused ȱȱ¢ȱȱęȱ ȱȱȱȱǰȱȱ ȱǰȱȱȱȱĚȱ boats or plantations. ȱ ȱ¢ȱȱȱȱ across the border to Bangladesh. ȱȱȱȱȱ ȱȱŘŖŖŞǰȱȱȱ ȱȱȱ¢ȱ¢ȱ In exile implementing a new policy of ȱǰȱȱȱ ȱǰȱȱŘŞǰŖŖŖȱ¢ȱ pushing back Rohingya boat people ǻȱęȬȱǼȱ still remaining in two camps to the high seas. In at least three ȱȬȱ¢ǯ are recognised as refugees and ȱǰȱŗǰŘŖŖȱȱȱ ŗǯȱȱĴDZȦȦ ǯǯȦȬȦ¡Ȧ¡Ȧ Ȧ ęȱȱȱȱ were handed over to the Thai military ǵƽǭDzƽřŜŚŝŗb and assistance by UNHCR but ȱȱȱȱěȱȱȱ ŘǯȱȱĴDZȦȦ ǯ¢ǯǯȦ¢ȦȦȦ ȱȱȱȱȱȱŘŖŖǰŖŖŖȱ ȱȱȬȱȱȱ race.htm more live outside the camps. towed out to sea on boats without řǯȱȱȱŚŘǯ Śǯȱȱȱ ȱȁȂȱ ȱȱȂǰȱȱřŖDZȱ Bangladesh considers them as ȱȱȱ ȱĴȱȱȱ ĴDZȦȦ ǯ ǯȦȦřŖȦŚŖȬŚŗǯ 14 STATELESSNESS FMR32
We have no soil under our feet .ULVW\&UDEWUHH
ȱȱ¢ȱĴȱȱȱ she cannot work and must lamented: “Here, in Bangladesh, overcrowded camp in Bangladesh, go out to beg for money. She we are just passing time. This Jhora Shama tells me her ȱȱęȱȱ¢ȱȱȱ ȱǵȱȱȱȱȱȱ story. Jhora is an unregistered her children as housekeepers our feet. Nothing is ours. It’s an refugee, a Rohingya, who because there is no food here. uncertain life. We can’t go back has been living illegally in Conditions in this unregistered ǽȱǾȱȱȱ Ȃȱȱ ȱȱŗŜȱ¢ǯȱ refugee camp are far below the living, not working, we have no ȱĚȱȱȱȱ minimal international standards resources, and not all our needs ȱǽǾȱȱȱ for protection, and those living are met. I am hoping for another ȱĞȱȱ¢Ȃȱȱ in the registered camps are future, for another country.” was ransacked, their livestock only recently starting to see ęȱȱȱȱ ȱĞȱȱȱ ¢ȱȱǻȓ tortured. He now works in ȱȱȱŗŝȱ¢ǯȱ ǯǼȱȱȱ Malaysia and sends money to They live in a state of uncertainty, ȱȱȱȱ her but it is never enough and without hope for any real solution ȱȱǻĴDZȦȦ ȱ¢ȱĞȱȱȱȱ to their displacement and without ǯǯȦǯǼǯȱ
ęȱȱǯȱȱ ȱȱȱȱȬǯȱ The names of refugees interviewed by the author she lives in Bangladesh illegally, Another refugee, Abu Khatul, have been changed to protect their identity.
Rohingya refugees LQ7HNQDI camp in %DQJODGHVK 81+&5*0%$NDVK FMR32 STATELESSNESS 15 Ethiopia-Eritrea: statelessness and state succession .DWKHULQH6RXWKZLFN
There is a need to strengthen international law on border disputes erupted into nationality rights and avoidance of statelessness in the ȱĚȱȱ¢ȱŗşşŞǯȱ¢ȱȱ FRQWH[WRIVWDWHVXFFHVVLRQDQGLQWHUQDWLRQDOFRQÁLFW ȱȱȱęȱȱȱ ŘŖŖŖǰȱȱȱȱȱȱȱ The experiences of people of Eritrean laws of both countries still thousands of soldiers and around origin in Ethiopia and of those unresolved, the two countries’ one million people were displaced. ȱȱȱȱȱŗşşŞȬ ȱȱȱěȱȱ ŘŖŖŖȱȱĚȱȱȱ that “until the issue of citizenship ȱŗşşŞǰȱȱȱŗŘŖǰŖŖŖȱȱȱ need for an initiative that would help ȱĴȱȱȱǰȱȱ śŖŖǰŖŖŖȱȱȱȱȱ prevent arbitrary loss of nationality traditional right of citizens of one were living in Ethiopia. During the and the resulting risks to other side to live in the other’s territory course of the war the Ethiopian human rights in the Horn of Africa shall be respected.” The Ethiopian government sought to justify or elsewhere. Border changes may government also continued to issue denationalising and deporting them ȱȱȮȱĚȱȱ ȱȱȱęȱ on the basis that they had acquired group identities – without necessarily documents to those who had Eritrean citizenship by voting in the being precursors to statelessness. voted in the referendum. Eritrean referendum. Individuals had not Ĝȱȱȱȱ been informed that participation While relations between Ethiopia people holding Eritrean IDs at in the referendum would amount and Eritrea are tense today, the two the time of the referendum were to renunciation of their Ethiopian countries’ heads of government not Eritrean citizens because the £ǯȱȱŝŖǰŖŖŖȱȱ used to be great allies. Both led rebel Eritrean state was ‘provisional’ and were expelled, initially individuals movements which joined forces to had not yet come into existence. deemed to be security threats overthrow the brutal dictatorship (including those prominent in ȱȱ ȱǯȱĞȱ ȱȱȱȱŗşşśȱ business, politics, international ȱ ȱȱȱŗşşŗǰȱȱ ȱȱȱȃǽǾȱȱ organisations – including the UN – two leaders established separate national shall be deprived of his or and community organisations with provisional governments in Addis her Ethiopian nationality against ȱȱǼǯȱ ȱ ¢ȱŗşşşǰȱȱ ȱȱǯȱ ȱŗşşřǰȱĞȱřŖȱ ȱȱȱ ǯȄȱ ȱŗşşŜǰȱȱ Ethiopian government declared that years of struggle, Eritrea peacefully governments agreed that “Eritreans all those who had been expelled to seceded from Ethiopia following who have so far been enjoying Eritrea were Eritrean citizens, having a referendum. But the citizenship Ethiopian citizenship should be acquired citizenship by voting in status of persons of Eritrean origin, made to choose and abide by their ȱŗşşřȱǯȱ ȱȱ particularly of those living in choice.” Implementation was ŗşşşǰȱȱȱ ȱȱȱȱ ǰȱ ȱǯȱȱŗŜȱ¢ȱ nonetheless postponed pending the referendum and remained in later, nationality rights of individuals resolution of trade and investment Ethiopia were ordered to register for in both countries remain fragile. issues. Perhaps because both alien residence permits, which had countries initially felt much mutual to be renewed every six months. Voting in the referendum was open ǰȱĜȱȱȱȱ to “any person having Eritrean citizenship and border demarcations Those who were to be expelled citizenship.” The Eritrean nationality ȱĞȱǯȱ¢ȱȱ were interrogated at police stations, law provides that anyone who ŘŖŖŚǰȱȱȬȱȱ ȱȱęȱȱ ęȱȱ£ȱ¢ȱȱ Commission (EECC), which was were destroyed. Their assets or through naturalisation and established to decide, through were frozen and business licences who wishes to be recognised as an binding arbitration, claims brought revoked, and most of them were Eritrean citizen must apply for a by the two governments and their unable to dispose of their property ęȱȱ¢ǯȱȱ nationals, determined that those before being deported. They were people of Eritrean origin – living ȱȱęȱȱȱ detained for days, weeks or months in Eritrea, Ethiopia or elsewhere in in the referendum had acquired before they were bussed up to the world – accordingly obtained dual nationality because both states the Eritrean border or forced to Eritrean ID cards and nearly all continued to treat them as nationals. Ěȱȱǯȱȱȱ voters chose independence. determined that loss of nationality Denationalisation and expulsion of individuals Ethiopian law does not permit and deportations ęȱȱȂȱ¢ȱ dual citizenship but at the time Despite the amicable start, review procedures were lawful of the referendum and Eritrean simmering tensions over port “even if harsh for the individuals independence, with the nationality access, currency exchange and ěǯȄȱ ǰȱȱȱ 16 STATELESSNESS FMR32
nationality and expulsion for any communication between the two other reasons were deemed illegal. ǯȱ ȱŘŖŖŞȱȱȱȱȱ for Refugees International, a colleague ȱȱȱȱŝŖǰŖŖŖȱ and I met one woman in Addis Ababa ȱȱȱĚǰȱ who recently visited her father in a 81+&56%RQHVV although the nationality status third country, having not seen him in of persons of Ethiopian origin in the ten years since his deportation. Eritrea was never in dispute. Most of An elderly Ethiopian widow cannot them were resident aliens working visit the grave of her husband in ȱȱǯȱ¢ȱȱěȱ Asmara. We also met Ethiopians who discrimination, violence and harsh had lost touch with Eritrean friends conditions during deportation.ŗ ȱȱȱĞȱȱǯȱ ȱŘŖŖŜȱ¢ȱȱȬȱ ȱ¢ȱĞȱȱ Ȃȱǰȱ refugee families in Cairo found that relations still remain very tense. “people who are of mixed parentage ȱȬȱ¢ȱ ȱĞȱȱȱȱȱ ȂȱŘŖŖŘȱȱ gain recognition of either nationality awarding disputed territory to on account of their parentage or Eritrea has not been enforced and administrative obstacles,” concluding the UN peacekeeping mission that such persons “are at least de departed from the region months facto if not de jure stateless.”4 ago. Both governments appear to be ęȱ¢ȱ¡¢ȱȱǰȱȱ Nationality rights their leaders’ entrenched personal ¢ȱȱěȱȱȱ ¢ȱĝȱȱȱ the rule of law, fortifying the right lives in the region. Eritrean society to nationality and avoidance of ȱŘŖŖŗǰȱȱȱ ȱ¢ȱ remains highly militarised and statelessness within the context adopted the International Law both sides have troops stationed of state succession are essential. Commission’s (ILC) Articles on the along the border. In this insecure Violations of the right to nationality Nationality of Natural Persons in environment, nationality rights – were (and continue to be) at the relation to the Succession of States. among others – remain vulnerable. root of other human rights issues in ȱȱȃ£ǽǾȱȱ the Horn of Africa. Other parts of ȱĴȱȱ¢ǰȱ ¢ǰȱȱ ȱĴȱ Africa and the world are vulnerable due account should be taken of the Red Cross estimates that to similar problems. Lack of clarity both of the legitimate interests of ŗŖǰŖŖŖȱȱŗśǰŖŖŖȱȱȱ on nationality status following States and those of individuals.” still reside in Eritrea, most of whom Eritrea’s creation, along with weak States concerned are to “take all have not been given permanent norms against statelessness, enabled appropriate measures to prevent status or citizenship in Eritrea.Ř Ethiopia to deprive thousands of persons who, on the date of persons of Eritrean origin and mixed succession of States, had the On the fate of people of Eritrean families of numerous human rights. nationality of the predecessor State origin in Ethiopia, reports are mixed. Weak norms have also apparently from becoming stateless … .” States ȱŘŖŖŖȱȱŘŖŖŚǰȱȱ emboldened Eritrea to obstruct should enact nationality legislation of Eritrean origin or from mixed £ȱȱȬȱ and “should take all appropriate families were allegedly arrested, families and certain deportees now measures to ensure that persons detained and sometimes beaten or living in Eritrea are denied access concerned will be apprised … raped by Ethiopian authorities on to employment and social services ȱȱěȱȱȱȱȱ suspicion of collaborating with or and are vulnerable to governmental their nationality, of any choices spying for Eritrea.3 To its credit, and social harassment and abuse. they may have thereunder, as the Ethiopian government quietly well as of the consequences that introduced a new nationality Constructing a framework the exercise of such choices will ȱȱŘŖŖřǰȱ ȱ Although neither Ethiopia nor Eritrea have on their status.” The Articles apparently enabled many Eritreans is party to the two Statelessness emphasise respect for the wishes ȱȱȱȱȬȱ Conventions, key principles on of the persons concerned and Ethiopian citizenship. With a national statelessness and state succession for family unity. They prohibit ID card, persons of Eritrean origin can be drawn from several sources discrimination and arbitrariness are presumably no longer restricted and recently statelessness in the in denying rights to retain, acquire from work, travel, education and context of state succession has or choose a nationality. When a other social services. However, gained further prominence. The state separates from another, a many individuals still conceal their breakup of the former Soviet Union predecessor state cannot withdraw Eritrean background for fear of and Yugoslavia and the split of its nationality from persons who discrimination and harassment. Czechoslovakia have highlighted qualify to acquire the nationality of the need for a clear framework. the successor state if such persons Families of mixed heritage continue Certain international instruments have habitually resided in or “have ȱěȱȱȱȱ provide guidance on how to handle an appropriate legal connection as the war ended all travel and nationality issues in state succession. with” the predecessor state.ś FMR32 STATELESSNESS 17
reasonable under Nprotect individuals and the circumstances, ethnically mixed families from those individuals statelessness, by internalising who lost standards set forth in the UN Ethiopian Statelessness Conventions and nationality by becoming party to themŞ must still be assured Eritrean Npromote full integration of citizenship. Ethiopians of Eritrean origin People of in their respective countries Eritrean origin While the deported African Charter Nȱȱ¢ȱȬ from Ethiopia, on Human and establishing interstate travel in Camp Shelab in People’s Rights and communications Eritrea. 2001 does not explicitly address avoidance Ndevise plans to compensate of statelessness, ȱȱȱŗşşŞȬŘŖŖŖȱ it does prohibit Ěǰȱȱ ȱ mass expulsion the EECC decisions. ȱȬȱ on discriminatory The international community should: grounds and ęȱȱ Ncollectively articulate clear state’s duty to standards for avoiding protect and statelessness in state succession, ȱŘŖŖŜȱȱȱȱ assist the family, as “the natural such as by creating an Convention on the Avoidance of unit and basis of society.”7 ȱȱȱȱŗşŜŗȱ Statelessness in relation to State Convention on the Reduction Succession is rooted in the notion Guided by these principles, we can of Statelessness using as a that “the avoidance of statelessness ȱȱěȱȱȱ basis the ILC Articles and the is one of the main concerns of the nationality rights in the course of Council of Europe Convention ȱ¢ȱȱȱęȱ Eritrea’s secession. Resolution of of nationality.” The Convention citizenship issues should have been Nȱ ȱěȱȱ obliges the successor state to grant a top priority when both countries advise countries on developing nationality to persons who would established provisional governments nationality laws which become stateless as a result of the ȱŗşşŗǯȱȱȱǰȱȱ incorporate nationality rights succession if they habitually resided ȱȱȱęȱȱ principles in state succession or had “an appropriate connection informed all who might qualify to with the successor state.” The vote about the consequences voter Npromote overdue accession to predecessor state also “shall not registration could have on their UN Statelessness Conventions. withdraw its nationality from its £ǯȱȱĚȱȱ nationals who have not acquired ǰȱȱȱȱęȱ ȱ ȱǻkatherine. the nationality of a successor state loss of nationality and expulsion ȓǯm) is an and who would otherwise become only to those individuals who had ȱ ¢ȱȱ ȱ stateless.” Like the ILC Articles, undergone a transparent security ¢ȱȱȱȱȱ the European treaty underscores review process. People, and their ȱȱȱ ȱ respect for the wishes of those families, should have received ǻ ǯǯǼǯ ěȱȱȱȱȱ fair notice of their expulsion ŗǯȱȱȱ¡ȱȬȱȱǰȱ must take all steps necessary to orders. Spouses and children of ȱ DZȱȱǰȱȂȱȱśȱǻǯȱ “ensure that persons concerned people being deported should ŗŝǰȱŘŖŖŚǼǰȱǯȱřŖȬřŗǰȱĴDZȦȦ ǯȬǯȦȦ ęȦȱȱ ȱȱŖŚǯȱǻȱ¢ȱȱ ȱĜȱȱȱ have had the option to stay in violations of international law against Ethiopians in ȱȱȱǽǾȱȱ Ethiopia or accompany their loved Eritrea). Ŝ Řǯȱ ȱȱǰȱThe Horn of Africa WarȱǻŘŖŖřǼǰȱ acquisition of their nationality.” one to Eritrea and, along with p47. other persons of Eritrean origin, 3. Louise Thomas, ‘The Son of a Snake is a Snake: In the case of Ethiopia and Eritrea, the should not have lost Ethiopian ȱȱ¢Ȭȱȱ¡ȱȬ Ethiopian Families in Cairo’, FMRS Working Paper No judgments of the EECC are binding citizenship without having ŝȱǻŘŖŖŜǼǰȱřŗȬřŘǯ regarding international law violations acquired Eritrean citizenship. ŚǯȱȱǰȱŘŘǯ in connection with the border war. Eritrean nationality laws should śǯȱĴDZȦȦ ǯǯȦ Ȧ¢ǰ ę¢ȱ¢ȱȱȱȱ have facilitated speedy acquisition ǰǰǰŚśŗŘŜŚǰŖǯ ŜǯȱĴDZȦȦǯǯȦ¢ȦȦȦ from the fundamental obligation of citizenship in such cases. ȦŘŖŖǯ to prevent statelessness and for ŝǯȱĴDZȦȦ ŗǯǯȦȦȦ£ŗǯȱ ȱȬȱȱ To strengthen nationality rights and Şǯȱȱȱȱ ȱȱȱȱ ȱ ǰȱȁȬDZȱȱ to be reasonable and to avoid avoidance of statelessness in state Takes Toll on Eritreans and Ethiopians of Eritrean arbitrariness. Even in cases where succession, concrete steps should be ȂǰȱřŖȱ¢ȱŘŖŖŞǰȱȱȱĴDZȦȦ ǯ loss of nationality was considered taken. Ethiopia and Eritrea should: ǯȦȦȦȦŗŖŜŜŞȦ. 18 STATELESSNESS FMR32 Am I stateless because I am a nomad? Ekuru Aukot
As a pastoralist from Turkana, who am I and where is my my nationality is with the Turkana, nationality, my citizenship? Toposa, Karamojong and Nyangatom.
I hail from the Ateker nation, an ȱȱȬȱȱȱ ¢ȱȬ¢ȱȱȱȱȱ ȂȬȱǰȱȱ over the years. The process of with the plight of nomadic pastoralist ¢ȱȬȱȱȱ denationalising other peoples, communities. It has taken Kenya practising nomadic pastoralism as such as pastoralists, emerges when ȱȱŚśȱ¢ȱȱȱȱȱȱ our main livelihood activity. The one tribe dominates politics and still not come up with a policy on Ateker inhabit the borderland area relegates others to the periphery. nomadism or pastoralism. But even straddling four countries – Sudan, ȱȱ¡ȱȱȬȱ if the government were to write such Ethiopia, Kenya and Uganda. nation creation, pastoralists are ȱ¢ǰȱ ȱ ȱȱȱȱǵȱ forced into a nation, citizenship and Would it change me into being more ¢ȱ¢ȱȱȱȬȱ nationality they do not subscribe to. ¢ȱȱǵȱȱȱȱ and arid borders of their respective simple solution to these dilemmas. Ȭȱȱȱ¢ȱȱ ȱȱȱŗşŘŖǰȱ ȱȱ most marginalised peoples there. This the Turkana (an Ateker group), a In nomadic and pastoralist regions the ȱȱȱȱȱȱĚȬȱ colonial administrator put it this government is largely symbolic. Were zones in the Horn and East Africa way: “There is nothing good that can any one of the governments to have a ǰȱ ȱȱȬȱȱȬ come out of controlling the Turkana; stronger presence in the Ateker region ȱĚȱ ȱȱȱ the Turkana were but a problem that is and assist its development, it would ȱȱȬȱȱ best transferred elsewhere...” Arguably ȱȱěǯȱ ȱǰȱȱ ǯȱȱ£ȱȱěȱ he was right and this set in train the of the elite among the Ateker have from weak or absent state institutions. denationalisation of ethnic groups already been thinking about how and in particular of the pastoralist they can make themselves and their I am primarily known as a Kenyan communities of northern Kenya. community accepted as equal citizens because I hold a Kenyan passport. and nationals in all four countries. Yet I am a member of a group that is If I cannot therefore narrow down my The case of nomadic peoples who spread across at least four countries. nationality and even my citizenship not only exist across borders but So where is my real nationality, my to any of the four countries above, move across them suggests that a £ǰȱ¢ȱǵȱȱǰȱ ȱ ȱȱǵȱȱȱ single nationality would restrict ȱȱ¢ȱ¢¢ǵȱȱȱ at least allows the integrity of our them and that therefore it might be complex questions in the light of way of life as a group. It seems to Ĵȱȱȱȱǯȱ the discourse around nationality me that we nomadic and pastoralist and citizenship as well as their ȱȱȱęȱȱ ȱȱǻaukot@kituochasheria. ȬȱȱDzȱȱȱ ȱĴȱ¢ȱȱȱȱ or.keǼȱȱ¡ȱȱȱ context of a nomadic pastoralist, invisible boundaries that divide ȱȱȱǻȱȱ ȱęȱȱȱȱȱ Ȭȱȱȱȱȱ ȱĴDZȦȦ ǯǯ having a nationality since I move way or another determine a person’s ǯǼȱȱ ¢ȱ ȱȱȱ ȱȱǰȱȬȱ nationality. I am happy as a member ȱȱȱȱ ȱȱ¢ǵȱȱ of the Ateker nation and happy that Intervention Programme. I come across government agents such as the police, they are more Ğȱȱȱȱȱ of persecution. As a nomadic ǰȱ ȱ ȱ¢ȱęȱȱ to the Ateker nation in all its manifestations across four countries. A nomadic 7XUNDQD When my people visit the modern pastoralist herding urban centres in Kenya, they say his goats they are visiting Kenya; and when LQ.HQ\D ȱȱȱ¢ȱȱȱȬ ȱ ¢ǰȱ¢ȱȱȱȃ ȱȱ ¢ǵȄȱ or “how is the land of emoit (the ǼǵȄȱȱȱȱȱ explanation for this in the context of Andrew Aitchison www.andrewaitchison.com FMR32 STATELESSNESS 19 Kenyan Nubians: standing up to statelessness Adam Hussein Adam
7KHUHLVQRRIÀFLDOUHFRJQLWLRQRIWKH1XELDQFRPPXQLW\LQ Ȭǰȱthe British colonial authority Kenya and they face considerable discrimination as a result. consolidated ethnic groups and designated them to native reserves. ¢ȱȱȱȱęȱ Before I encountered these challenges ¢ȱ¢ȱĞȱȱȱ as stateless people because their in my own life and found out that Nubians who were considered a identity is questioned. They are many of my Nubian colleagues detribalised community rather than without doubt one of the country’s gave up hope of productive careers a Kenyan tribe. The British also ȱȱȱȬȱ because of delayed or denied identity ensured that Nubians only owned communities – economically, socially, cards, I had accused most of them temporary structures on the land politically and culturally. This of being lazy. Today I understand they occupied. These events and is because they have been silent that Kenyan Nubians, whether decisions are the origins of the victims of discrimination, exclusion citizens or not, do not belong. Nubians’ temporary existence. As and violations of human rights a consequence of this history and and fundamental freedoms for as Nubians and statelessness despite more than a century on long as they have been in Kenya.ŗ ȱȱęȱȱȱ ¢ȱ Kenyan territory, Nubians do not ȱȱ¢ȱŗşŖŖȱȱ ȱȱ ȱȱȱȱȬȱȱ ¢ǯȱ Recent writing on issues of identity, ȱŗŖŖǰŖŖŖǯȱȱȱȱȱȱ £ǰȱǰȱȬ are not a single ethnic group but a The Kenyan government uses both isation, and integration of minorities constellation of people belonging ethnicity and territory to establish in Kenya has featured the Nubian ȱěȱǯȱȱȱȱȱ belonging. Since both Nubian community in one form or another. history, their religion (Islam) and ethnicity and their territory of As a Nubian in East Africa and their origins in the military, they occupancy are contested by the an activist, I experience these have acquired a shared identity. government, most Nubians live as issues directly and forcefully. de facto stateless persons without The vast majority of the Nubians adequate protection under national ¢ȱȬȱ ȱȱ in East Africa are descendants of and international law, irrespective the service of the British in Somalia ȱ¡Ȭȱȱȱȱ of the fact that they should be around the First World War and later ¢ǯȱ ȱȱ¢ȱȱŗŞşŝȱ considered Kenyan citizens under Ĵȱȱǰȱȱȱ ȱȱȱ the British rescinded its decision to the Constitution. In Kenya nothing slopes of Mt Kenya. His father before repatriate them and instead dispersed ęȱ¢ȱ£ȱȱ ȱ ȱȱȱȬ¢ȱ the community into Kenyan territory. than your ethnicity. Nubians face army in the Sudan. I, like my parents, The Nubians, who by then retained institutionalised discrimination in was born in western Kenya. no ties with Sudan and had no claim issuance of documents. They are to land in that country, could not ȱȱȱĴȱȱȱ Although I am well educated, I have return independently to Sudan and ethnic determination in order to ¡ȱȱĜȱȱ ȱȱĞȱ ȱȱȱȱ acquire an identity card or passports. ȱ ȱȱĜǯȱ to remain in Kenya. Nubian villages ȱŗşşŘȱȱŘŖŖŖǰȱ ȱȱ became breeding grounds for soldiers ¢ȱ¢ȱȱȱȱĜȱ ¢ȱȱȱȱęȱ for the British army. Although these ęȱȱȱȱȱȱ times, losing jobs in the process. people were forced conscripts into the include them in census reports. One manager once asked me why I Ȭ¢ȱȱȱȱ ȱȱȱĜȱȱȱȱ did not have a recognisable ethnic ȱȱ ȱȱȬ community; the Kenyan government identity and that this was why I Egyptian rule, they also contributed ȱęȱȱ¢ȱȱ could not be promoted. Apart from ȱȱȱ¢ȱěȱȱ ‘other Kenyans’ or just ‘others’ studying to university level, which the First and Second World Wars. and has only recently started a is an exception rather than the rule, process of recording Nubians as mine may as well be the story of most They were demobilised without a named clan of other Kenyans. Nubians. It is a story characterised proper compensation, pension or by the need to survive through ĞȬȱęǯȱȱȱ Above all, Nubians live in temporary challenges that are never explained Indians who had also been relocated structures throughout Kenya and to you. It is a story characterised by into the region by the British to Ğȱȱȱǯȱȱ ȱȱ ȱȱĜȱ render similar services, the Nubians ȂȱĴȱȱȱȱ who always remind you it is your were not accorded the privilege title deeds and are only occupied on privilege to be served by them. It is of British citizenship despite their a Temporary Occupational Licence a story characterised by assuming loyal service to the British Crown. (TOL), leaving the present generation false identities in order to belong. When constructing Kenya’s social ȱȱȱȱĴǯ 20 STATELESSNESS FMR32
Stateless individuals and power, however badly they have been ęȱȱȂȱ¡Dzȱ communities like the Nubians are treated by the institutions of that most of the legal terms are not assumed to be hopeless and helpless government. However, their lack of expressive enough for local realities. victims, dependent upon the goodwill acceptance in society has emboldened For Kenyan Nubians the lack of a link of others. Under the assumption the Nubian community’s resolve to to the state, lack of integration and that citizenship is the only vehicle use other institutions of government lack of social acceptance have been for having a civic and political voice to address their problems. part of our existence. We are neither and that therefore stateless people Sudanese nor accepted as Kenyans. lack any political identity, stateless ȱŘŖŖřȱȱȱȱȱ people become less than fully human the Kenyan Nubians’ Council, As a statelessness advocate, I believe and are reduced to mere targets of the late Yunis Ali, encouraged a that legal links are important for humanitarian assistance. All energies procession of Nubians marching anyone belonging in contemporary are thus focused on how to acquire to Kenya’s High Court thus: society; however, without addressing citizenship for stateless people as the social acceptability of any fast and as easily as possible. “My people! For a century, we have community of a people, groups sought a compassionate hearing like the Nubians will continue to What are the Nubians’ issues? from all authorities in Kenya but we live from one crisis to another. Obstacles to citizenship are also faced got none. Today, we march to the by other minority groups in Kenya Kenyan High Court for justice – if ȱ ȱȱǻadamhusse@ such as Kenyan Somalis and Coastal not to get it, then as testimony that ǯmǼȱȱȱȱ¢ȱ Arabs although the Nubians have we stood up for our rights.” ȱȱȱȱǻ Ǽȱ experienced some progress. The real ȱȱ¢ȱ ȱ progress in Nubian experience is in In the end, the challenge of standing ȱǻ ȱĴDZȦȦ ǯ their adaptation and mastery of living up to statelessness – or any human justiceinitiative.org) Project in Kenya without belonging. Lack of rights abuse – is that as a victim you Coordinator on the Citizenship and direct representations in any form of see it through the emotional lenses ȱȱȱǯȱ government has meant that Nubians of feelings and experience; others ŗǯȱǰȱȱǻŘŖŖśǼǯȱKenya: Minorities, Indigenous speak through a third party. Where will then judge you as subjective. People and Ethnic Diversity. London: Minority Rights they have had the vote, Nubians When you stand apart and subject Group International. have voted for any government in the issue to objective criteria, legal The Universal Birth Registration campaign Simon Heap and Claire Cody
%LUWKUHJLVWUDWLRQLVDFULWLFDOÀUVWVWHSLQHQVXULQJDFKLOG·V Haitian descent through the refusal rights throughout life. of birth registration was creating new cases of statelessness.3 This was Registration means proof of legal to irregular migrants. In practice, ęȱȱȱȱ identity. It is vital for securing however, there are many problems ȂȱȱȱȱĴȱ recognition before the law, protecting in the implementation of this rule, of the CRC, which elicited a harsh rights such as inheritance and leaving many children stateless. ȱȱȱĴȱȱ making children less vulnerable to ŘŖŖŞǯ4 In Thailand, migrants from abuse and exploitation, especially ȱ ¢ȱȱśŗȱȱȱȱ Burma who have their nationality if separated from their parents. ¢ȱȱȱȱǵȱȱ withdrawn by the Burmese reasons why parents do not register authorities once they emigrate are ȱŝȱȱŞȱȱȱȱȱ their children include a lack of among the stateless members of on the Rights of the Child (CRC) awareness of the importance of Thailand’s ethnic minorities. These declare that national governments registration; the costs in both time must register children immediately and money of registering a new Ğȱȱȱȱȱ¢ȱ birth; the distance to a registry “…it’s a small paper but it the right from birth to acquire a ĜDzȱ¢ȱȱȱȱ ȱ actually establishes who you are nationality.ŗ The CRC says that states survive; political turmoil; legal, social and gives access to the rights must grant citizenship to children or cultural barriers; and the fear of and the privileges, and the born in their country if they are persecution by the authorities. REOLJDWLRQVRIFLWL]HQVKLSµ not recognised by another country. $UFKELVKRS'HVPRQG7XWXODXQFKLQJ Under international law then, every Research by Plan InternationalŘ in the 3ODQ·V8QLYHUVDO%LUWK5HJLVWUDWLRQ child is entitled to registration of Dominican Republic concluded that campaign, February 20055 their birth, including children born the denial of citizenship to children of FMR32 STATELESSNESS 21
stateless people are bearing stateless children, perpetuating the problem. Birth registration has become politicised in both Thailand and the Dominican Republic, leading to generations of children being denied their right to a nationality.
Creating incentives for birth registration is one of the big challenges. Birth registration seems to ȱĴȱȱȱ countries such as Zambia, beset by poverty, HIV and AIDS, and Nepal, where high child mortality ȱȱȱĴȱ incentive to bear the expense of registering children. Registering the most marginalised children is also a major challenge. This group includes nomadic and indigenous groups, migrant and refugee children, UNHCR/F Novak street children, orphans, and abandoned and separated children. This is a problem new legal frameworks for civil In Cambodia, young volunteers 14-year-old 'RULV.RURGL not only in countries with low registration, review and amend have educated friends and elders by was born registration rates but also in those existing legislation, ensure that birth displaying posters highlighting the to parents with higher rates where these groups registration is a reporting requirement importance of birth registration and ZKRÁHG the Papua ȱ¢ȱȱȱȬȱ and adapt the design and operation holding children’s fairs on the subject. Province of among the unregistered children. of birth registration systems. ȱ¢ǰȱȂȱĴȱ Indonesia in on birth registration are being 1984. She Lessons and good practice Partnering at all levels is crucial. At ȱ ȱȱ¢Ȭ is showing off her The global campaign on Universal the grassroots level, for example, based organisations, with children new birth Birth Registration – which by an Indian NGO network on birth themselves spreading the message of FHUWLÀFDWH ŘŖŖŜȱȱȱȱęȱȱ ȱ ȱȱŗśȱȱȱ why birth registration is important. in a refugee settlement registrations – aims to reduce the ȱȱŘŖŖŘȱȱȱȱ LQ.LXQJD obstacles to the registration of every ȱȱȱȱřǯŘȱ Birth registration systems need child at birth and to build capacity million children and has secured an WREHÁH[LEOH in recognition of the in countries to ensure that children overall increase in birth registration ĜȱȱěȱȱȂȱ are registered.Ŝ As part of this, Plan ȱȱřřƖȱȱŞřƖǯȱȱ lives. In remote rural communities, International and its partners have ȱȱȱȱęȱ decentralised birth registration organised regional conferences to technical support, especially from systems and mobile registration bring civil registrars and others UN agencies such as UNICEF. In can help improve accessibility. together to share experiences, Colombia, UNHCR works closely In remote rural areas with the exchange ideas and provide examples with the government and Plan lowest rates of birth registration in for countries to consider when they International on birth registration, Honduras, the National People’s are developing their national action and Xi’an University in China and Registry introduced systematic plans. Among these are the following: ȱ ȬȱȂȱ mobile registration. In Thailand, Institute in Central America have Plan International is working Governments may need to make been valuable academic partners. with its partners to coordinate substantial changes in policy and ȱęȱȱȬȱȱ legislation to make birth registration It is important to involve children minority populations, refugees and universal, compulsory and and communities in the design and migrant worker families, which permanent. National governments implementation of legislation, policies has resulted in a network of local ȱȱȱĚȱȮȱȱȱ and programmes. Such involvement authorities, NGOs and community political will generated – to change ensures these are realistic and helps representatives in provinces with current policy and practice, create build trust in the registration systems. large ethnic minority populations. 22 STATELESSNESS FMR32
Monitoring is essential to ensure birth registration systems continue to be responsive to their environment. This involves making any changes necessary to overcome administrative and bureaucratic obstacles. National governments need information systems for birth registration that will ȱĴȱ Ȭȱȱ monitoring. In Pakistan, an online birth registration information management system allows all levels of government to view and track birth registration data. Another monitoring technique is free telephone helplines – such as in Bolivia and El Salvador – for providing information about birth registration procedures and registering any complaints.
81+&5*0%$NDVK Sustainability is best ensured by government ownership of birth registration. In some Free registration and birth Integration of birth registration into However, community involvement countries, in the absence FHUWLÀFDWLRQPDNHELUWKUHJLVWUDWLRQ the broader child rights agenda is is equally important to ensure the of legal possible for poorer people. The of fundamental importance to the continuity of birth registration safeguards, cost of registration is mentioned ȱȱȱǯȱȱěȱȱ systems in times of disaster or the plight of statelessness time and time again as a barrier to variety of advocacy opportunities. Ěǰȱ ȱȱȱ is passed registering children. Removing A good example is Belgium, may become inaccessible or may be down through the cost also demonstrates a state’s where birth registration has been hampered by political instability. generations - successfully linked to the issues of as had been commitment to ensuring the rights the case of every child. In Africa, campaign ȱȱȱȱĜǯȱ ȱ ȱǻǯȓȬ with this successes include free registration ǯǼȱȱ ȱ %LKDULEDE\ ȱȱȱȱȱŗŘȱȱȱ Integration of birth registration into ȱȱȬȱ ,ODQ.HOPDQ Ghana; free birth registration for six existing public services such as ȱȱ¢ȱǻǯ¢ȓȬ months in Guinea; reduction of birth primary health care, immunisation ǯǼȱȱȱ registration fees in Burkina Faso and ȱȱȱȱȱȬ ȱȱ ȱǻĴDZȦȦ in the cost of late registration in Togo; ěǰȱĜȱȱȱ ǯȬǯǼǯ and a government commitment to way of ensuring birth registration. free registration in Guinea Bissau. Birth registration rates rise where the ȱȱȱȱȱǰȱ process is integrated with vaccination ȁǰȱȱȱȱ Retrospective registration may be and medical assistance at birth. DZȱȂȱ¡ȱȱ necessary where there is a backlog In Ghana and Benin, for example, ȱȱȂǰȱ ȱ of children whose births have community health volunteers have ȱȱȱȱ ȱ gone unregistered. In Senegal, been trained to record the information ȱDZȱȱ ȱȱȱ the government is facilitating required for birth registration. ȱȱ ȱ¢ǰȱ retrospective registration through ǰȱǰȱśȱ¢ȱŘŖŖŞǯ free local court hearings and the Training and capacity building of birth ŗǯȱȱǻŘŖŖŜǼȱCount me in! The Global Campaign for number of unregistered children UHJLVWUDWLRQRIÀFLDOV helps improve Universal Birth Registration. Woking: Plan International. has fallen considerably as a result. their motivation and competence, ŘǯȱĴDZȦȦ¢ǯǯȦȦ¢ŘŖŖŗȦ In Sierra Leone, the government and reduces the possibility of ȦŖřǯǯȱ ȱȱȱĜȱȱȱ mistakes, fraud and corruption in the řǯȱĴDZȦȦ ǯȬǯ ŚǯȱȱȱŘřǯ and Deaths special permission to registration system. In Cameroon, śǯȱȱĴȱȱȱȱȱȱȱȱȱ ȱȱęȱȱȱ civil registrars have received training ȱǻŘŖŖŞǼȱȱȱȱȱĴȱ over seven. In Bolivia, there was and been supplied with the basic on the Rights of the Child on the Dominican Republic; ŘǯǯȦȦȦȦȦȦȬȬ ȱȱȬ¢ȱ¢ȱ Ĝȱȱ¢ȱȱȱ¢ȱȱ ȬȬŘǯf for the free registration of young ȱȱě¢ǯȱ ȱȱǰȱȱ ŜǯȱȱǻŘŖŖśǼȱȱȱȱȮȱȱȱ ¢DzȱȱǻŘŖŖśǼȱȱȱDZȱ ȱȱ ȱŗŘȱȱŗŞǯȱ toolkit has been developed to help Permanent Proof of Identity. Ĝȱ¢ȱȱȱǯȱ FMR32 STATELESSNESS 23 Contesting discrimination and statelessness in the Dominican Republic %ULGJHW:RRGLQJ
Many decades of unregulated migration of Haitians who ȱȱŗşŞŖȱȱȱȱȱ have come to live and work in the Dominican Republic have ȱȱȱȱȱĴǯȱ ȱ UHVXOWHGLQDVLJQLÀFDQWSRSXODWLRQZKRVHVWDWXVLVXQFHUWDLQ continues today but has broadened the focus to encompass Haitian and who are vulnerable to widespread discrimination and migrants and their descendents abuses of human rights. in the country as a whole. One notable change in the movement In the Dominican Republic, the Leonidas Trujillo ordered the in recent years is that Dominican questions of birth registration and military to carry out a massacre of NGOs now play the lead role, with nationality are closely entwined. ȱȱȱȬ international partners providing As is common in Latin America, Haitians in the border provinces; support, rather than vice versa.ŗ the rule of jus soli here means that ȱŜǰŖŖŖȱȱ ȱǯȱ ȱȱȱęȱȱ According to the Dominican become the evidence of nationality for ȱęĞ¢ȱ¢ȱĞȱȱ ȱ ȂȱŘŖŖŚȱȱ ǰȱȱ children who are born in the country. of the Trujillo regime, xenophobia and ȱȱȱȬȱ The birth must be registered for the racism are much less prevalent and irregular immigrants should have individual to be able to apply for a virulent but there is still widespread taken place – giving citizenship or cédula (identity card) or a passport. ignorance and prejudice. Political legal residence to ‘non residents’ who ȱȱęȱȱȱ leaders are reluctant to take a lead meet certain requirements – before access to a host of other rights and on the issue of Haitian migration for the law was implemented but the special protections for the child, such fear of being accused of betraying Dominican government has not ȱȱȱĜǰȱ national interests. Successive produced any regularisation plan child labour or early marriage. governments have virtually failed in the Children of Haitian ȱ¢ȱĜȱȱȱ task of introducing descent with determining whether the child a legal framework – with the who has been brought before them compatible with Dominican Republic ȱȱȦȱȱȱȱ international norms. ÁDJSDLQWHG eligible for Dominican nationality. Most political party on their ȱȱĜȱȱȱȱȱ leaders are reluctant faces – in a rally outside does not qualify for Dominican to address the the Palace nationality – such as in the case of question and this is of Justice, unauthorised migrants from Haiti – compounded by the Santo they will refuse to register the birth Ĵȱȱ ȱ Domingo, March 2003. and there is no clear appeal system groups in the private against such a decision. The right to sector who have birth registration is thus equated to a vested interest the right to Dominican nationality in maintaining an and denial of birth registration ȱĚ ȱ has become the mechanism for of cheap and docile denial of nationality to children migrant labour of irregular Haitian migrants. in agriculture, construction and Xenophobia tourism. These ȱȱȬȱ factors have placed prejudices against Haitians. They a particular burden perceive Dominican identity on civil society as European, and above all practitioners in Hispanic, in spite of the fact that the human rights Dominicans have African roots movement, both too. Dominican xenophobia had internationally and ȱȱȱ¡ȱȱŗşřŝȱ in the country. This
when the dictatorship of Rafael movement originated /RUHQD(VSLQR]D3HxD 24 STATELESSNESS FMR32
Sonia Pierre, change rather than tackle Nȱȱěȱȱ director of the the issue piecemeal. for reviewing refusal of Movement for Dominican ȱęȱ :RPHQ ȱȱŗşşŞǰȱȱȱ of Haitian of regional human rights Nguarantee access to primary Descent organisations supported the education for all children, (MUDHA), received Ȭ ȱȂȱ regardless of their descent the Robert Movement (MUDHAŘ) in or origin. ).HQQHG\ Ĵȱȱȱȱ Human Rights Award in ȱ Ȭȱ ȱ ȱŗŚȱȱŘŖŖśǰȱȱȱ 2006 for her Rights Commission on Court of the Dominican Republic ÀJKWDJDLQVW Human Rights about the ȱȱĚ¢ȱȱȱȱȱȱ discrimination and efforts way in which the Dominican landmark regional ruling, stating to secure authorities had denied birth that the Haitian Constitution should nationality ęȱȱ ȱ¢ȱȱ be applied in precedence to the for persons of Haitian of Haitian descent, Dilcia Dominican Constitution, ignoring descent in the Yean and Violeta Bosico. the territoriality of the application Dominican The Dominican NGOs on of laws. This court decision says Republic. the ground had detailed that denying Dominican nationality local information on human to the children of undocumented to date. Until recently there was rights abuses endured by Haitians Haitian migrants does not leave no alternative civil register or birth and their descendants in the country them stateless since the Haitian ęȱȱȱȱ ȱ and, having exhausted all domestic Constitution establishes jus birthright claim to legally exist is remedies, decided to take the case sanguinis – the rule that nationality ǯȱ ǰȱȱ¢ȱŘŖŖŝǰȱȱ ȮȱȱȱȱȱȮȱȱȱ Ȭ ȱȱ¢ȱȱȬǯȱ Central Electoral Board established American human rights system. a Foreign Register for children born The combined result of the to undocumented foreign mothers. ȱ¢ȱǰȱȱȱŘŖŖśǰȱ Dominican policy of denying an important legal ruling from the birth registration to anyone with ȱȱȱȱȬȱ Ȭȱ ȱȱȱ suspected Haitian parents and activists have paid increasing (IACHR) made it binding for the ȱĜ¢ȱȱȱ ȱ Ĵȱȱȱȱȱ Dominican Republic to comply with documents is that in many cases a variety of ways the denial of ȱŗŗȱȱȱȱ ȱ children are rendered stateless. In the guarantees the right to Dominican eyes of the Dominican authorities, nationality to all those born on children inherit their parents’ “San papye – nou se kochon Dominican soil (jus soli) unless ‘irregular’ status. In the absence QDQODERXµ´:LWKRXWSDSHUV² ¢ȱȱȱȱěȱ of regularisation programmes or a of diplomats or born to persons in change in policy, permanent illegality we are like pigs in mud.” transit. The IACHR ruled that by is a very real possibility for many. Luisa, an elderly agricultural ¢ȱȱȱȱęȱ 4 worker born and brought up in the Dominican government had ȱ ȂȱŘŖŖŜȱ¡ȱǰ it violated their rights to nationality, was stressed that the Yean and Bosico the Dominican Republic to equality before the law, to a name case had yielded the single most and to recognition of their judicial important legal ruling in the world on Dominican nationality to children personality – rights set out in the ¢ȱȱȱȱŘŖŖśǯȱ of Haitian origins (or suspected American Convention on Human ȱȱȱȱȱĜ¢ȱ of being of Haitian origins) born ȱ ȱȱȱęȱ recognised in the Dominican Republic in the Dominican Republic. For by the Dominican Republic.3 itself and comprehensive enforcement example, the Dominican government of the sentence seems a distant continually repeats the fallacy that all The court also ordered that the dream. To their credit, the authorities descendants of Haitians who live in Dominican government must: ȱȱ ȱęȱ the Dominican Republic have access reparations but, unfortunately, to Haitian nationality. The reality is Ncreate a simple, accessible and show signs of deepening the that under the Haitian Constitution reasonable system of late birth ȱ ȱȱ Ȭ ȱ ȂȱŗşŞŚȱ ȱȱ¢ǰȱ registrations American human rights system there are several groups of people had ruled should not be repeated. of Haitian origin born outside Ntake into account the particularly Haiti who do not have automatic vulnerable situation of Dominican Nationality stripping access to Haitian nationality. children of Haitian origin Two recent bombshells have stoked the debate, presenting fresh Justice through the Courts Nensure that the requirements for challenges for civil society activists. Early on, a strategic decision was nationality are clearly determined, ȱȱŘŖŖŞǰȱȱȱȱȱ taken by human rights activists uniform and not applied in a Civil Registry prepared a document to focus on trying to establish discretionary manner by state ȱȱȱŗŘŜȱȱ jurisprudence to achieve lasting Ĝ of Haitian descent be stripped of their FMR32 STATELESSNESS 25
nationality on the grounds that their version of jus soli be approved (and However, perhaps the biggest parents had neither a Dominican there is no obvious reason why it obstacle to confronting the identity document nor a positive should not be, given that Ireland, for Ĵȱ ȱȱȱȱȱ ȱ migration status at the time of the example, introduced exactly such is not necessarily legal but cultural. birth registration. According to the a restriction on the acquisition on While the regional jurisprudence document in question, they were nationality), the legal debates will is important and necessary, what is therefore “in transit”. As a Dominican ȱȱȱęȱǯȱ vital is reinforced civic education to journalist observed with heavy irony, ensure the state is called to account as the only possible place they could Beyond protesting vigorously against a guarantor of fundamental rights. ȱȱȱȱ ȱȱȃȱĞȬ the possible illegal retroactive life” because the vast majority has application of any constitutional ȱȱǻ ȓĚǯ ¢ȱȱĴȱȱȱȱ change, civil society activists will org.do) is an associate researcher of immigrants and emigrants. continue to prioritise highlighting ȱȱȱȱ¢ȱ ȱȱȱȱȱ¢Ȭęǯȱ ȱȱȱȱȱ ȱ¢ȱȬȱȱ Unlike the US or most Latin America ȱǰȱȱȱ Fernández put before the Congress countries, which have received migration, gender and human rights. ȱȱŘŖŖŞȱȱȱȱ ęȱȱȱǰȱ ŗǯȱȱȱǭȱ¢ȬǰȱNeeded But Unwanted: of the Constitution which includes the Dominican Republic has never Haitian immigrants and their descendants in the Dominican a new clause stating that Dominican had a regularisation programme for Republic,ȱ ǰȱǯȱŘŖŖŚǯȱ nationality cannot be acquired by ȱȬȱȱȮ ŘǯȱĴDZȦȦ ǯ¢ȬǯȦȦ (in Spanish) 3. See ĴDZȦȦ ǯǯǯȦȦȏŗřŖȏǯ children born to those parents who yet is a strong advocate for the pdf are residing illegally on Dominican rights of Dominican émigrés and 4. Annual meeting in Geneva of UNHCR’s Executive ǯȱȱȱ Ȭ ȱ their descendants abroad. Ĵ Advocacy campaigns and policy development %UDG%OLW]
Although statelessness has never attracted the same level minorities, foreigners and others of interest as other areas that are central to international may have legitimate claims on states KXPDQULJKWVMXULVSUXGHQFHLWLVQRZSDUWRIRIÀFLDOSROLF\ where they reside, irrespective of whether they are citizens or not. discourse at the UN. Mass protests For more than twenty years activists rising sea levels may spell the end to This argument has found practical have produced declarations that ȱ¡ȱȱȱ Ȭ¢ȱǯȱ support from grassroots campaigners implicitly link statelessness to the who have sought to regularise challenges of providing human There are several forces driving the the status of irregular workers, security and promoting dignity, new agenda on statelessness. One unsuccessful asylum seekers and thus bringing it inside the human emanates from the transformation ȁȬ¢Ȃǯȱȱȱde jure rights regime; for example, in of the Westphalian stateŘ to more stateless, many of those who are the ŗşŞŜȱȱȱȱȱȱ inclusive models of political focus of these campaigns lack an to Development recognised the organisation. Another is the ěȱ¢ȱȱȱ¢ȱ universal freedom to “participate ȱȬȱȱ vulnerable. Some protests have been in and contribute to, and enjoy ȱȱȱȱȬȱ organised through local NGOs, economic, social, cultural and political ȱȬȱǯȱ ȱ such as the Joint Council for the development, in which all human many parts of the world statelessness Welfare of Immigrants (JWCI3) in the rights can be fully realised.”ŗ has become closely linked to the UK; others have been coordinated treatment of minorities and the right ¢ȱȬȱǰȱ More recently, however, the concept ȱȬǯȱȱ¡ǰȱ migrant community organisations of statelessness has been explicitly in the European context the spirit ȱǯȱ ȱ¢ȱŘŖŖŜȱȱ tied to campaigns to regularise ȱȬǰȱ¢ȱȱ than one million people withdrew migration, nationality and identity, the grounds of race and religion, their labour and took to the streets ȱ ȱȱȱȱȱȬ has been extended to include a across US cities as part of a protest discrimination. The challenge of host of other social categories. This about the situation of the estimated preventing statelessness has also ȱȱȱȱĜȱȱ ȱ ŗŘȱȱȱȱ appeared on the back of the climate bias on the basis of national origin who, with the passage of a new change agenda, in the recognition that and nationality status; there is bill, faced being criminalised yet increasingly an accepted belief that lacked any route to citizenship. 26 STATELESSNESS FMR32
The protests in the US resonated factors for development, safety statelessness but it was not until ȱǰȱȱȬǰȱ and security. One consequence of ŘŖŖśȱȱȱȱ ȱȱǯȱ ȱ¢ȱŘŖŖŝǰȱ ȱ¢ȱ ȱȱŘŖŖřȱȱȱ bodies became directly involved in there was a public rally in the UK ȱȱȱȬ£ȱĞȱ the coordinated cause of preventing entitled ‘From Strangers into Citizens’ by the UN Special Rapporteur ǯȱ ȱȱȱ Ȭ which called for the creation of a ȱȱȱȱȬ£ǯ4 ¢ȱȱȬȱ ȬěȱȱȮȱȱȁ ¢ȱ a handbook on statelessness aimed into citizenship’ – for migrants who This report concluded there was at all parliamentarians.ŗŖ In the same have been in the UK for four years a “large gap between the rights year, the US House of Representatives or more. They should be granted that international human rights organised hearings on statelessness ȱ Ȭ¢ȱ ȱȱȱȱ ȱȱȱȬ£ȱȱ ȱȱȱȱĞȱȱȱȱ the end of that period, subject to the realities they must face” and ȱȱȱŘŖŖŜȱ ǰȱ employer and character references, noted that in many countries there while it would not bring the US be granted leave to remain. Such an were institutional and endemic ȱȱȱȱŗşśŚȱȱŗşŜŗȱ approach, the organisers claimed, ȱȱȬ£ǯȱ Statelessness Conventions, aimed ȱȱȱęȱȱ The report served to set an agenda to ensure that the US could at least the UK economy and society. for reform that was quickly comply with key elements to prevent ȱȱ¢ȱȬȱȱ statelessness within its borders. Other targeted campaigns occurred and human rights monitoring in major European cities. In France, organisations working closely Conclusion the debate over the ‘sans papiers’ – with UNHCR, such as Refugees While it is still too early to pronounce the undocumented former migrants International and the Open Society a truly global approach to combat from North Africa – was revived nine Institute’s (OSI) Justice Initiative. statelessness, there has been ¢ȱĞȱȱęȱȱȱ important coordination between of a public building over the same Although all these organisations key policy actors and the issue has ǯȱ ȱȱŘŖŖŝǰȱȱȱşŖȱ worked closely with UNHCR’s ĴȱȱĴȱȱ individuals occupied a church just Statelessness Unit, they engaged the human rights community. south of Paris demanding that their ȱěȱ¢ȱȱȱȱ These developments have taken contribution to the French economy advocacy. Refugees International ȱȱȱȱěȱȱ be recognised and insisting on mapped out the problem of denial by local activists in the developing regularisation of their rights to work, of citizenship in a global study world, for example the Bihari to social security and to education. entitled Lives on Hold: the Human spokespeople in Bangladesh and ǰȱ¢ȱȬǰȱȱȱ Cost of Statelessness.Ŝ The OSI Justice the Madhesi organisers in Nepal. ŘŖŖŝȱȱȱȱȁȱȱȱ ȱȱȱěȱ Although dispersed across the erased’ where a convoy of activists on Africa, though not exclusively, ǰȱȱȱǰȱĞȱ travelled from Ljubljana in Slovenia and spearheaded legislation before ęĞ¢ȱ¢ǰȱĜȱȱȱ to Brussels via several other European international courts, most famously of statelessness on the human cities to protest about the cancellation against the Dominican Republic.7 rights agenda and have devised of residency rights and mistreatment ȱȬȱȱ ȱȱȱŗŞǰŖŖŖȱȱ ȱ UNICEF and Plan International for reform and greater inclusion. ȱȱěȱȱȱȱ ȱȱȱȬ¢Ȭ and lost their social, economic and long campaign on universal birth ȱ£ȱǻ£ȓǯ ȱȱ¢ȱĞȱȱ registration which aimed to curtail ac.uk) is Jean Monnet Chair ȱȱȱŗşşŗǯ some of the consequences which ȱȱ ¢ȱȱ ¢ȱěȱȱde jure and ¡ȱȱ¢ȱȱ International campaigns de facto stateless persons.Ş These ȱȱȱ ȱ Ěȱȱ ȱȱ include the challenge of proving ¢ȱȱȱ monitoring bodies have actively one’s nationality for the purpose of ǻ ǯ¢ǯǼǯȱ
ȱȱȱȱęȱȱ accessing basic services, travelling, ŗǯȱĴDZȦȦ ǯǯȦȦřȦȦŝŚǯ both de jure and de facto stateless marrying, having a child and ŘǯȱȱȱȱȬe sovereignty based on two populations. To this end, they have protecting one’s children from the principles: territoriality and the exclusion of external actors from domestic authority structures. ȱȱ¢ȱȱĴǰȱ dangers of legal anonymity or being řǯȱĴDZȦȦ ǯ ǯǯ ȱȱĴȱȱȱ Ĝǯȱȱȱȱȱ 4. ĴDZȦȦ ŗǯǯȦȦȦ Elimination of Racial Discrimination, ȱȱŘŖŖśȱȱ ȱȱ £ȬŘŖŖřǯl and UN agencies, including UNHCR assistance of UNICEF lobbied to śǯȱȱȱȱȱȱȱȱ£ȱȱȱ Advisory Board on Human Security and European ȱ ǯȱȱ ęȱȂȱ ensure that birth registration, as a ¢ȱȱĴDZȦȦ ǯǯȦȦȦŝŘŚřŗŞŘşŜȏ ęȱȱȱȱ¢Ȭ ǰȱ means of preventing statelessness, ƖŘŖ ƖŘŖƖŘŖŘŞƖŘŖƖŘŖƖŘŖ Citizenship.pdf there was considerable activity to was included as a recommendation ŜǯȱĴDZȦȦ ǯǯȦ¢ȦȬȬ ¡ȱȱȱȱȱĴȱ ȱȱŘŖŖŜȱȱ¢Ȭ Ȃȱ ȦȬȬȬȬ on the Elimination of Racial Study on Violence Against Children.ş ŝǯȱȱȱȱŚȱȱŘřǯ Discrimination and explore ways ŞǯȱȱȱȱŘŖǯȱ in which the protection of human The reports issued by the human şǯȱĴDZȦȦ ǯ¢ǯ ŗŖǯȱĴDZȦȦ ǯǯȦȦȦ¢ȏ rights could be achieved through rights monitors and the legal en.pdf Ȭȱȱȱȱ cases brought before international relevance of social and economic ȱȱȱęȱȱ FMR32 Statelessness around the world 27
Latvia :KHQWKH6RYLHW8QLRQVSOLWXSPDQ\SHRSOHIRXQGWKHPVHOYHVZLWKRXWFLWL]HQVKLSLQWKHQHZVWDWHVZKHUHWKH\KDGOLYHGDQGZRUNHG IRUPDQ\\HDUV,Q/DWYLDWKH/DZRQ&LWL]HQVKLSZKLFKZDVDGRSWHGDIWHULQGHSHQGHQFHVWDWHGWKDWRQO\SHUVRQVZKRZHUHFLWL]HQVRI WKHFRXQWU\LQ DQGWKHLUGHVFHQGDQWVZHUHWREHFRQVLGHUHGDVFLWL]HQVDWLQGHSHQGHQFH$ODUJH5XVVLDQVSHDNLQJSRSXODWLRQ ZDVGHÀQHGDV¶QRQFLWL]HQV·HYHQWKRXJKWKH\GLGQRWDFTXLUH5XVVLDQFLWL]HQVKLSDQGKDGUHVLGHGSHUPDQHQWO\LQ/DWYLD7KH\KDGWR DSSO\IRUFLWL]HQVKLSWKHUHTXLUHPHQWVIRUZKLFKLQFOXGHGFRQGLWLRQVUHJDUGLQJUHVLGHQF\DQGSDVVLQJKLVWRU\DQGODQJXDJHWHVWV
In February 2009 the Grand Chamber of the European Court of Human Rights found that one such person, Natalija Andrejeva, should not be discriminated against in terms of her state pension “in the only State with which she has any stable legal ties and thus the only 6WDWHZKLFKREMHFWLYHO\FDQDVVXPHUHVSRQVLELOLW\IRUKHULQWHUPVRIVRFLDOVHFXULW\µ7KHFDVHKLJKOLJKWVWKHIDFWWKDWHYHQLQFRXQWULHV like Latvia, which in fact offers most of the same rights to this group of stateless persons as for nationals, there may still be areas ZKHUHVWDWHOHVVSHUVRQVIDFHGLVFULPLQDWLRQ7RWKHEHQHÀWRIPDQ\/DWYLDKDVQDWXUDOLVHGPRUHWKDQVWDWHOHVVSHUVRQVVLQFH the nationality law was adopted in 1994, while another 365,417 persons remain stateless.
Iraq 7KHIRUPHUJRYHUQPHQWRI Iraq decided in 1980 to
81+&597DQ VWULSDVLJQLÀFDQWSURSRUWLRQ RIWKH)DLOL.XUGVRIWKHLU nationality; it is estimated that up to 220,000 of them were rendered stateless in the process. Although the decree was repealed LQVRPH)DLOL.XUGV KDYHKDGGLIÀFXOW\REWDLQLQJ FRQÀUPDWLRQRIWKHLU nationality, for reasons such as lack of documentation. Although a directive from the Ministry of Interior in March 2007 accelerated the UHVWRUDWLRQRIFLWL]HQVKLSLW is estimated that 100,000 )DLOL.XUGVKDYHQRW\HW REWDLQHGFRQÀUPDWLRQRI WKHLU,UDTLFLWL]HQVKLS $JURXSRI)DLOL.XUGVGLVFXVVWKHLUFRQFHUQVDWDPHHWLQJZLWK81+&5VWDII
Ivory Coast In the years of increasing political turmoil that led up to the outbreak of civil war in Ivory Coast/Côte d’Ivoire in 2002, the concept of ¶,YRLULWp· EHORQJLQJWR&{WHG·,YRLUH WRRNKROG7KLVGHÀQHG,YRLULDQQDWLRQDOVDFFRUGLQJWRWKHLUHWKQLFLW\FDVWLQJPLOOLRQVRIVHFRQG DQGWKLUGJHQHUDWLRQ:HVW$IULFDQLPPLJUDQWVLQWROLPEREHFDXVH they were not considered Ivoirian but often had no links or proof of People register nationality with the countries of ancestral descent. Many Ivoirians to appear lack proof of identity and this meant that Muslims from the north, before a who share ethnicity with immigrants from neighbouring Mali and mobile court
%XUNLQD)DVRZHUHRIWHQXQDEOHWRSURYHWKHLU,YRLULDQQDWLRQDOLW\ ,5,13DXOLQH%D[ LQ%RXDNH Ivory Coast, DQGZHUHPDGHIRUHLJQHUVLQWKHLURZQODQG:KHQWKHÀJKWLQJ August VWDUWHGLQHDUQHVWPDQ\RIWKHVHSHRSOHZHUHIRUFHGWRÁHHWR 2006, countries where they had no real roots, nor a right to nationality. hoping to receive As part of the reconciliation process after the 2002-03 civil war, documents proving the National Unity government organised audiences foraines Ivoirian – mobile courts which can conduct late birth registrations and FLWL]HQVKLS LVVXHELUWKFHUWLÀFDWHVZKLFKFDQEHXVHGWRHVWDEOLVKQDWLRQDOLW\ ahead of elections. and enable people found to be Ivoirian to vote in future elections. 7KHSURFHVVZDVRIÀFLDOO\FRPSOHWHGLQEXWWKHUHDUH indications that many persons still lack identity documents. 28 STATELESSNESS FMR32 Reducing de facto statelessness in Nepal 3DXO:KLWH
Despite a recent large-scale government campaign to Nlack of knowledge or motivation HQFRXUDJHDSSOLFDWLRQVIRUFLWL]HQVKLSFHUWLÀFDWHVLQ1HSDO many factors still impede take-up, in particular among certain Ncost of obtaining photographs, photocopies and supporting sections of Nepalese society such as women, IDPs and ȱǻȱĜȱȱ indigenous communities. are nominal, these additional costs may be prohibitive) ȱŗşśŗǰȱȱȱ£ȱ ŗŜȱȱǯȱȱȱȱ on the basis of a person’s birthplace ȱȱȱŝśȱȱȱǰȱ Nnomadic lifestyles which make and descent. Naturalisation was ¢ȱȱŚǰŖŖŖȱěǰȱ ȱĜȱȱȱ possible for those who had been ȱ ¢ȱȱȱŘŖŖŜǯȱ may not be connected to a ȱȱȱ¢ȱȱȱȱęȱ particular ward or village years. A decade later, however, the 7KHFLWL]HQVKLSFHUWLÀFDWH provisions relating to naturalisation Ȃȱ£ȱęȱ Ndiscriminatory and patriarchal became more restrictive, placing ęȱȱȱ¢ȱȱ practices in some communities emphasis on ‘Nepalese origin’ Nepali nationals and proves access which discourage women and the ability to speak and write (or improved access) to rights, and girls from applying Nepali. A new constitution in opportunities and services that ŗşşŖȱȱȱȱ ȱ would not normally be available to Ndestruction or damage (during restricted the granting of citizenship Ȭ£ȱDZȱȱȱ ȱŗşşŜȬŘŖŖŜȱȱ¢Ǽȱ by descent to Nepali men, repealed employment; banking facilities or ȱȱȱĜǰȱ ȱ the granting of citizenship by ȬȱDzȱȱ provide supporting documentation birth and required foreigners to be of businesses; civil registration ȱȱȱ¢ȱȱŗśȱ¢ȱ of births, marriages and deaths; Nremoteness of District before qualifying for naturalisation. registration of property transactions; ȱĜȱȮȱȱ ȱȱŗşşśȱȱȱȱȱ higher education; passports; and only place where citizenship those without full citizenship (and ȱęȱȱ ȱ ęȱȱȱȱ ȱĞȱde facto stateless) (for the aged, widowed, disabled, made – and cost of travel; even ȱȱřǯŚȱȱȱśȱǯȱ internally displaced and victims if the application forms are in ȱȱȱĚǼǯȱȱȱ order, repeated trips or several ȱĞȱȱȱŘŖŖŜȱ¢ȱ ȱȱ£ȱęȱĞȱ days’ stay in the district town movement saw massive changes, results in dire consequences that are commonly required. including promises of amendments amount to de facto statelessness. to the citizenship laws. Arguably the Nmore recently due to the violence primary and political objective of In order to obtain their citizenship in the Terai region, many VDC the change was to issue citizenship ęǰȱ£ȱȱȱ Secretaries have themselves been ęȱȱȱ¢ȱȱȱ documentation, such as the displaced and so are not available possible in order to facilitate their £ȱęȱȱȱ to sign supporting documentation. participation in the Constituent registration of immediate family, and Assembly election. New laws obtain supporting documentation UNHCR estimates that there are ȱ¢ȱĞȱȱǰȱ from their Village Development ȱȱŞŖŖǰŖŖŖȱȱ£ȱ though with limited consultation. Ĵȱ¢ȱȱȱ who are de facto stateless today. A They revived the provision for £ȱ ȱ£ȱęǯȱȱȱ number of national and international citizenship by birth in Nepal NGOs working in Nepal are but included a clause making ȱȱ ȱęȱ challenging the practices, laws applications for citizenship by birth missions suggest that most citizens and policies which give rise to de ȱȱ¢ȱ ȱ¢ȱĞȱȱ ȱȱ£ȱęȱ facto statelessness. Some, as shown enactment of the Citizenship Act of but that there are many factors by the following examples, have ŘŖŖŜȱȮȱȱŘŜȱȱŘŖŖŞǯȱ impeding them from obtaining one: ȱȱęȱȱȱǯȱ
There followed a massive and Nlack of documents such as land Women generally successful government ȱęȱ¢ȱ Given the blatant discrimination campaign that resulted in the to prove length of residence against women in Nepal’s citizenship ȱȱ£ȱęȱ regulations, which prevent married ȱ¢ȱŘǯŜȱȱȱ£ȱ NȱĜȱȱ¢ȱ women from obtaining a citizenship – that is, all Nepali nationals aged ęȱ ȱȱȱ FMR32 STATELESSNESS 29
ȱȱȱȱȬȬ ȱ ęȱȱȱȱ¢ȱ ȱȱ£ȱęȱ and prevent women married to of his or her home village – who applications. UN agencies, the foreigners from passing citizenship may themselves have been displaced Nepali government, NGOs, CBOs to their children other than through and not been replaced. IDPs are and donors need to keep citizenship naturalisation, the Forum for Women ȱĞȱȱȱȱȱ on their respective agendas in Law and Development (FWLDŗ) with the authorities. The Norwegian Nepal. There is scope – and need has recently put citizenship issues Refugee Council3 worked through its – for initiatives that may include: at the forefront of their activities. Information Counselling and Legal FWLD has carried out research, Assistance project to help IDPs secure Nlinking birth registration issued requests in the media for important replacement documents with provision of the ęȱȱ¢ȱ – but replacing the citizenship £ȱęȱ practices, provided legal services ęȱȱǰȱ¢ȱȱ related to citizenship, organised an expensive and sometimes perilous N Ȭȱȱ Ȭȱ Ȭȱ journey to the district headquarters to ensure all Nepali women conferences, produced advocacy of origin. Married women face ȱȱ£ȱę materials and developed networks to ȱĜȱȱ¢ȱ make citizenship a national concern. Ğȱȱȱȱȱ Nprotecting IDPs by ensuring ȱȱȬȬ ȱȱȱ that the Procedural Directives £ȱęȱȱȱ and administrative procedures. ȱȱěȱȱȱȱ ¢ȱȱȱȬęȱ policy on IDPs and include schemes as they are needed to Academics and lawyers have Ĵȱȱȱȱ open bank accounts, to obtain VAT added their voices to oppose ȱȱȱěȱ registration and to be a member of a the discriminatory nature of the cooperative. Women in Makwanpur ¢ȱ ȱȱę¢ȱ NȱȂȱ¡ȱȱȱŘŖŗŗȱ District have been encouraged to ȱȱȱĚȱ ȱ to count the number of Nepalis ȱȱ£ȱęȱ Nepal’s nationality laws and its ȱ£ȱęȱ ȱȱȱȱȬęȱȱ international obligations to ensure and establish the reasons for this supported by Plan Nepal.Ř More ȱȱȱǯȱ ȱŘŖŖŜȱȱȱ than ten thousand women are now supported by the Finnish Embassy Nproviding additional support involved in cooperatives and many recommended that the citizenship and mobile teams to indigenous of them are now also receiving ęȱȱȱȱȱȱ communities especially those training in managing cooperatives Nepalis upon the recommendation of residing in very remote locations and mobilising rural women. their ethnic organisation – appearing to favour a form of the principle of jus Nensuring legislation is ȱ¢ȱȱŘŖŖŜȱ¢ȱȱAlliance connexionisȱǻȱȱȱĴǼȱ not discriminatory ȱĜȱȱȱȱ over jus soli and jus sanguinis. Children (AATWIN, a coalition of NȱȱĜȱ ȱȱŘŖȱ ȱȱ¢Ȭ ȱȱȱȱȱŘŖŖśǰȱȱ women to have access their Based Organisations) focused on by Nepali NGO Propublic,4 the £ȱęǯȱ the citizenship issues of survivors Supreme Court declared that in ȱĜǰȱȱ ȱǻȱ the absence of the father a child’s ȱȱǻ ǯȓǯ Dalit minority group), women in birth must be registered based on comǼȱȱȱȱȱĜȱ polygamous relationships and the mother’s citizenship. The court ¢ȱȱȱȱȱ ȱȱȱĴȱǯȱ ruled that the Registrar must register ȱȱǻĴDZȦȦǯǯ The research concluded that there the birth of a child of indeterminate ȦȦǼǯȱȱȱȱ was a pressing need to combat paternity, including those born to Ĵȱȱȱȱ¢ȱȱ constitutional discrimination and sex workers. However, the judgment ȱȱ¢ȱĚȱȱ ȱ ȱȱ ȱȱȱĴȱ was not widely circulated and some ȱ ȱȱ¢ȱȱ¢ǯȱ ȱ£ȱęȱȱȱ local authorities are reluctant to ŗǯȱĴDZȦȦ ǯ ǯǯ ȱȃȱȱ ȱȱęȱ implement this law citing a lack ŘǯȱĴDZȦȦ ǯȬǯȦ Ȧ against poverty and promotion of of procedural directives, and so ȦȦ social inclusion, gender equity and problems with birth registration and řǯȱĴDZȦȦ ǯǯ women’s empowerment.” AATWIN ¢ȱ£ȱęȱ 4. ĴDZȦȦ ǯǯg proposes a mass legal literacy continue for children of unmarried campaign for women, including mothers, unknown fathers, those advocacy on citizenship rights linked abandoned by their father and those 7RDFFHVVPRUHDUWLFOHVDERXW1HSDO to other basic and economic rights. whose father denies the relationship. visit the following websites and use the search facility provided: IDPs Ȃȱę ȱȱȱ Many people displaced within widely held view that the warmth http://www.fmreview.org Nepal during the violent years of of the welcome extended to citizens http://www.forcedmigration.org the Maoist insurgency face almost – in the form of legislation, personal and click on the Nepal country page at: ȱĜȱȱ treatment and local political http://www.internal-displacement.org ȱȱ£ȱęǯȱȱ ȱȮȱȱȱęȱǰȱ ȱȱȱęȱȱȱȱ especially amongst the marginalised, 30 STATELESSNESS FMR32 The end of Bihari statelessness .KDOLG+XVVDLQ
Approximately 160,000 stateless Biharis live in 116 for Bangladeshi citizens – giving makeshift settlements in Bangladesh. Despite recent ȱȱŘŘȱȱǯȱȱ developments in voter and ID registration, they continue to ȱȬȱȱȱȱ live in slum-like conditions, facing regular discrimination. camps, including a member of the Association of Young Generation The people known in Bangladesh ȱȱȬȱȱ ȱȬȱ¢ǰȱ as ‘Biharis’ or ‘stranded Pakistanis’ hampers community development.ŗ Geneva Camp, met the Chief Election ȱȱȬȱȱ Commissioner of Bangladesh in July ȱȱ ȱȱȱěȱ Some of the camp residents, ŘŖŖŝȱȱĴȱȱȱȱȱ Indian provinces but mostly in Bihar particularly the younger ones, have inclusion of camp residents in the ȱ ǰȱȱ ȂȱȱȱŗşŚŝǰȱ been struggling for years to be ȱȱȱǯȱȱŜȱȱ ŘŖŖŝǰȱȱȱȱȱ ȱ£ȱȱȱȬ ȱȱȱĞȱŗşŝŗȱ ȱ ȱ ȱȱŗŞȱ¢ȱȱȱ date of the creation of Bangladesh. ȱȱŘŖŖŝǰȱ ¢Ȭȱ eminent academics, journalists, lawyers and human rights activists, in a joint statement, urged the ȱȱěȱ£ȱ rights, in line with the country’s ǰȱȱȱȬȱ people in camps in Bangladesh.
ȱȱŘŖŖŞǰȱȱȱ Commission began a drive to register ȱȬȱȱȱ ȱĴȱȱǯȱ ȱ ȱȱȱęȱȱ towards integrating these minority communities into Bangladeshi society. Over several days, the 81+&5*0%$NDVK Commission employed enumerators to take forms from door to door, 7KHODFN moved to what became East Pakistan. recognised as Bangladeshi citizens. registering hundreds of people of basic Following the war between West Over the last eight years they have each day. Now all camp residents services, such as Pakistan and East Pakistan, when ęȱ ȱȱ ȱȱ ȱ are Bangladeshi citizens and all toilets, East Pakistan became Bangladesh in Court demanding voting rights. Ten of them have National ID cards. washing ŗşŝŗȱȱȱ ȱĞȱǯȱȱ young residents of Geneva Camp facilities Unmet needs and garbage many of them were thought to have ęȱȱęȱȱȱŘŖŖŗǯȱȱ disposal and supported West Pakistan in the war, High Court declared them to be Despite recent progress in voter drainage they were unwelcome in Bangladesh, Bangladeshi citizens and directed and ID registration, however, 37 systems, contribute to were treated as stateless and have the national Election Commission ¢ȱȱȬȱȱĞȱ the appalling faced discrimination ever since. to include their names in the list of the Biharis living in abject poverty conditions voters. Subsequently, the Election and vulnerable to discrimination. faced by The Bihari camps are mainly in Commission included not only the They are still denied access to a %LKDULVOLYLQJ in the Dhaka urban areas and are beset by severe names of the original ten on the list Bangladeshi passport. Mustakin, settlements. overcrowding, poor sanitation and but also the names of residents of a resident of Geneva Camp, ȱȱȱǯȱȱȬ ȱǯȱĞȱŗȱ ¢ȱŘŖŖŝǰȱ explained: “Last September, I paid ȱȱȱȱĴȱ when a new caretaker government ŘŖŖŖȱȱǽǞŘşǾȱȱȱȱ have worsened over the years as was formed in Bangladesh, ȱ ȱ ȂȱȱǰȱȱĞȱ the population has grown. With that list was declared null and showing my national ID card.”Ř In inadequate provision for clean water, void and a newly reconstituted response, Abdur Rab Hawlader, waste disposal and sewage systems, Election Commission was given director general of the Department there are chronic hygiene problems. responsibility for preparing a fresh of Immigration and Passports, Camp residents face discrimination list of those eligible to vote and for said that his department “did not in the job market and a severe lack of issuing national identity cards – receive any instruction from the FMR32 STATELESSNESS 31
authorities on issuing passport to No NGOs or UN agencies have international Islamic organisations, Biharis.” Living conditions remain taken the initiative to collect bilateral donors and other national ǰȱ ȱęȱȱŗśȱȱ comprehensive baseline data from and international donor agencies sharing one or two rooms. The ȱȱȱȱȬȱȱ in order to ensure a safe and secure threat of eviction and the need Ȭȱȱȱȱ future for future generations of for education, skills training and social and economic rehabilitation Ȭȱȱǯ employment are our chief concerns. of this community. Some argue that ȱŗŜŖǰŖŖŖȱȱ ȱ ȱ ȱǻ ǯ¢ȓ The government has initiated would require a huge amount of ǯmǼȱȱȱȱȱ various development programmes ȱȱȱȱȱ Ȭȱ ȱȱȱ ȱ for poverty reduction in accordance strategies that Bangladesh, a poor ȱȬȱ¢ȱ with its Poverty Reduction Strategy ¢ǰȱȱȬȱȱȱ ǻ Ǽȱȱȱȱ Paper (PRSP) but these do not without support from the UN and ȱȱ ǰȱȬȱǯȱ ȱȱȱȱȱȬ other international donor agencies. ŗǯȱȱȱ¢ȱȱ¢ȱȱȱȱ¢ȱ speaking community. How and Movement Research Unit (RMMR) ĴDZȦȦǯȦ ȱ ȱȱ¢Ȭȱ We propose that the government of ¢ȏȦ¢ȏȏ ȏŘǯf ŘǯȱȱThe Daily Star,ȱŘŜȱ ¢ȱŘŖŖşDZȱĴDZȦȦ ǯ challenges of this community be Bangladesh establish a rehabilitation ¢ǯȦ Ȧ ȬǯǵƽŝŘşŜŖ ȱȱȱǵȱ trust fund to mobilise funding from Childhood statelessness 0DXUHHQ/\QFKDQG0HODQLH7HII
Statelessness – the non-acquisition of citizenship – can blight removed. The Burmese government DFKLOG·VSURVSHFWVWKURXJKRXWOLIH also disavows responsibility. Not recognised by either Burma or Stateless infants, children and youth, their children, the nationality of a Thailand, this child is stateless. through no fault of their own, ȱȱȱȱȱěȱ inherit circumstances that limit their countries is still a concern when laws Children of Mauritanian refugees potential and provide, at best, an ȱȱȱ ȱě¢ǯȱ born in Senegal have the right to uncertain future. They are born, live Where citizenship is determined be registered as Senegalese citizens and, unless they can resolve their exclusively by the father’s nationality, but some parents are unwilling for situation, die as almost invisible stateless fathers, single women, this to happen. They prefer to wait people. Statelessness can also lead or women living apart from their until they can return to Mauritania to poor home environments and to husbands face numerous barriers to and register their children there. family separation, two important registering their children. If a woman ȱěȱȱǯȱ is unable to extend citizenship to Children of a Kuwaiti mother her spouse, statelessness may be and a Bidoon – stateless – father Apart from the ways in which any imposed on her and the children. are also Bidoon. Since a child of person can become stateless, a child Whether parents are married or a divorced Kuwaiti woman or in particular can become stateless not may also determine a child’s widow can theoretically acquire when a family migrates away from a nationality. For example, one legacy citizenship, there is an incentive to country where citizenship is conveyed of UN peacekeeping is fatherless divorce for the sake of the child. by jus sanguinis; a child has the right children – and the citizenship rights to citizenship of the parents’ country of children born to UN troops and ȱȱęȱȱȱȱ of origin but cannot always access female nationals are not always clear. the US Congress was told about it and may instead become de facto the case of a stateless family whose stateless in the country where they In the end, perhaps the most obvious asylum appeal was denied was grow up. Lack of birth registration reason why children become stateless ǯȱȱęȬ¢Ȭȱȱ can cause statelessness. Children may is that they cannot act for themselves. was placed in a cell with her mother. not be registered because parents fear ȱȬȱȱŗŚȬ¢Ȭȱȱ ȱĴȱȱȱ ȱǯȱ Protection and rights were detained together elsewhere. A child can also become stateless ȱȱȱȱĜȱȱ ȱŗśȬ¢Ȭȱȱ ȱȱ when a birth record is destroyed or of a child’s birth by the state and a alone. The father was separated lost and there is no other means to Ȃȱęȱ ȱ from his family by hundreds of link them with a particular country. of a child’s existence. It is crucial ǯȱȱȬ¢Ȭȱ ȱȱ to ensuring a culture of protection. held because she is a US citizen. Inequitable laws also create childhood Consider the following examples. statelessness. Although in the last Being stateless also means not Řśȱ¢ǰȱȱȱŘŖȱȱȱ On the day that the child of a being able to access many other changed their laws to give women Burmese asylum seeker is born in rights available to citizens. For the right to pass their nationality to a Thai hospital, the birth record is stateless children, medical care 32 STATELESSNESS FMR32 Refugees International Refugees
Stateless near the .\UJ\]VWDQ 8]EHNLVWDQ frontier.
may be less readily available uniform proudly and learn the Ĝǯȱȱȱȱ or more costly than for others. materials in a proper classroom.” cannot be returned home without ȱ ȱȱęȱ proof of nationality. If a stateless cannot be legally vaccinated in at Syria recognises the right of Kurdish young person gets into trouble with ȱŘŖȱǯȱ ȱ children to primary education but the law and lacks proof of age, they ȱȱěȱ not in their native language. To may be prosecuted as an adult. ȱĴȱȱȱ Ĵȱ¢ȱǰȱ¢ȱȱ ǰȱȱȱ Ȧ ǰȱ also obtain permission from state Recommendations may not serve stateless children. security. Those who are maktoumeen Every child should be able to develop (unregistered) do not receive their as a full and productive citizen. “We Education is usually limited or diploma from secondary school. want to be children. We want to unavailable for stateless children. One stateless young man with the enjoy our childhood,” explained one Some families are told their children highest marks in his high school stateless boy. To allow these children ȱĴȱȱ¢ȱȱȱȱ class now sells tea in front of the to enjoy their childhood, the following ȱĞȱȱȱ£Ȃȱ University of Damascus, which steps should be taken: starting with children have registered; some ȱȱȱȱĴǯȱ ȱȱȱȱŗşŜŗȱDZ ȱȱȱěȱ education to stateless children is too Passports, essential for international NAll states should respect the costly; in other cases, parents are travel, are generally not issued to right of children to have a forced to pay high tuition fees so stateless children. Not having travel nationality and include provisions ȱȱĴȱȱǯȱ documents means no possibility ȱȬȱȱ of education abroad, travelling to national citizenship laws. In Sabah, for example, children of visit family and relatives, or even migrants of Filipino and Indonesian seeking specialised medical care. NEvery child, whether born to descent with orang asing (foreigner) married parents or not, should be ȱȱȱęȱȱȱ While every child is entitled to state registered at birth and in cases of ȱȱęȱȱȱȱ protection against exploitation and disputed nationality states should government school. In Thailand, the abuse, stateless children have no grant citizenship if the child Ministry of Education is supposed to such guarantee. Lack of documents would otherwise be stateless. issue the Regulation on Evidence of a proving age leaves them unprotected Child’s Birth for School Admission to ¢ȱȱȱ ǯȱȱŗřȬ¢Ȭȱ NStates should make primary ȱȱŘşȱȱȱȱ stateless girl who escaped her Thai education free and compulsory of the Rights of the Child but not owner said, “I was sold for less for all children as well as provide all children receive this document ȱŞŖŖȱȱǻȱǞŘŖǼȱȱ ȱȱȱ access to health care, including ȱȱ¢ȱȱǰȱȱĴȱ housemaid…I ran away because they immunisations, for all infants. class. One stateless child said, “I were going to sell me to work in the don’t want to pick chillies and sex trade.” Law enforcement agencies NThe practice of detaining onions in the plantation. I want to ȱȱĜȱ ȱ children should be abolished. go to school. I want to wear a school 7RQ\$:H\LRXDQQD6UDUHVLGHQWRI6KLVKPDUHI proof of the age and identity of those FMR32 STATELESSNESS 33
NStates should enforce laws relating NThe UN should pay special ȱ¢ȱǻmaureen@ to the minimum employment Ĵȱȱȱȱ ǯg) is ȱȱȱěȱȱȱ to stateless children and take ȱȱȱȱ ȱǰȱȬȱ¢ȱ steps to utilise all mechanisms ȱȱȱěȱ ȱȱĜǯȱ of UN human rights bodies. (ȓǯ orgǼȱȱȱȱȱ ȱǻ ǯęǯg) Stateless persons from Thailand in Japan &KLH.RPDLDQG)XPLH$]XNL]DZD 7KHGLIÀFXOWLHVIDFHGE\VWDWHOHVVSHUVRQVIURP7KDLODQG in Japan show only too clearly that the international legal While the Immigration Bureau framework for their protection is inadequate. slowly came to realise that there was nowhere to deport them to, many ȱȱŗşşŖȱȱȱȱ refugees’ (most of whom are anyway have wasted months or years in people illegally entering Japan from not ‘convention refugees’) and their ǯȱĞȱȱ¢ȱ¢ȱȱ Thailand. Though born and brought children have very restricted freedom detained for months or years before up in Thailand, they have no Thai of movement, have limited access to there is any possibility of them being nationality as their parents were education, cannot get permanent jobs temporarily released. And even ‘Indochinese refugees’ escaping at fair wages without Thai nationality then they are still prohibited from ȱęȱ ȱȱǻŗşŚŜȬśŚǼǯȱ and lack access to many of their working, which means they have basic rights. This is why some decide to keep breaking Japanese law in As their parents were born in to enter Japan illegally in order to order to work illegally to survive. Vietnam or Laos – where nationality ęȱ ǯȱȱȱȱȱ laws work on the principle of jus will not provide the documentation Thailand changed its nationality sanguinis – they should have the right which would permit them to travel ȱȱŗşşŘȱȱȱȱȱ to nationality there. But many of abroad, they bought the assistance Thai nationality to the children ȱ ȱĚȱȱȱȱȱ of illegal brokers who provided of Indochinese refugees if they the confusion of wartime have now passports with false Thai names. apply for it in Thailand. However, passed away in Thailand, having With no legal residence status, they the refugees’ children who had ȱĴȱȱȱȱ ȱ live in continual fear of arrest by the come illegally to Japan are not birthplaces with their children. It is Japanese police or the Immigration able to return to Thailand in order ȱ¢ȱĜȱȱ Bureau. They work illegally for low to apply for Thai nationality. the refugees’ children to retrace their wages with no access to welfare or Many were not even aware of the Ȃȱȱȱęȱȱ even health services. Many of them possibility of doing so – and so lost Ĝȱǯȱ ȱǰȱ¢ȱ mistakenly believed that, if arrested the best chance they might have Ĝȱȱ ȱȱȱȱ and deported from Japan, they ȱȱȱěȱ¢ǯ ȱȱȱȬ ȱǰȱȱ would be able to return to Thailand naturally neither Vietnam nor Laos despite not having Thai nationality. Recommendations ȱȱĜȱȱĜȱ Japan should issue all such de facto records of the birth and existence of The Immigration Bureau did indeed stateless persons with a Special refugees’ children born in Thailand. arrest and detain a number of them Permission for Residence (SPR); in preparation for deportation. they would then be free to work In these circumstances it is However, they cannot be deported legitimately for proper wages, access almost impossible to expect that to Thailand or any other country health services and bring up their Vietnam or Laos should grant as they have no state to which they children as they would hope to do. citizenship to them. They are belong. Without access to public de facto stateless persons whose records in Vietnam or Laos as UNHCR should work with the situation is not dissimilar to that evidence of their nationality there, Japanese and Thai governments of de jure stateless persons. That the children have no way to prove to help secure SPR for them is, for most of the Vietnamese and that they are Vietnamese or Lao. in the short term and Thai ȱȂȱǰȱȱȱĞȱ And even if Vietnam or Laos did nationality in the long term. ȱĜȱȱȱȱȱȱ accept them, life would be very ȱȱȱȱȱśŖȱ ĜDzȱȱȱȱȱ ȱ ȱǻȬȓǯǯ ¢ȱĞȱȱȂȱĚǯȱ brought up in Thailand, almost ǯǼȱȱȱ££ ȱ all of their family members now ǻȬ£ȓ śǯȬǯǯǼȱȱ In Thailand, which has not signed live in Thai society and they have Ĵ¢ȱȱȱȱ ȱŗşśŗȱǰȱȁ ȱ few, if any, links elsewhere. ȱȱȱ ǯ 34 STATELESSNESS FMR32 Combatting statelessness: a government perspective 1LFROH*UHHQDQG7RGG3LHUFH
The US government believes that the prevention of ȱȱĴȱȱȱȱ¢ȱȱ statelessness and the protection of those who are stateless statelessness or related population should be priorities for all governments. trends. Issues of citizenship and nationality (and related issues of Statelessness lurks behind many to see some of the most grievous immigration) may be politically ǯȱȱȱĞǰȱȱȱ consequences of statelessness. sensitive. In the worst cases, children access to education. It governments have taken nationality prevents their parents from working A citizen is a person owing allegiance away from their citizens for political legally, and makes persons vulnerable to and entitled to the protection of reasons; in some cases, governments to labour exploitation, sexual a sovereign state. Citizenship helps ¢ȱȱȱ¢ȱȱĜ¢ȱ ¡ǰȱĜȱȱǰȱ establish identity and instil human recognise and document their citizens; arbitrary arrest and detention, dignity. By contrast, statelessness, and in other cases statelessness results from systematic discrimination or 7KH8UGX other gaps in citizenship laws and speaking procedures. The citizenship laws of community the Burmese regime explicitly exclude in Mirpur in Dhaka, ȱ¢ǰȱȱ¡ǯȱĞȱȱ %DQJODGHVK death of several hundred Rohingya lives in poor ȱȱȱȱ¢ȱŘŖŖşǰȱ housing conditions the regime reiterated its position with families that the Rohingya are not among the of 6-8 people ĜȱȃȱȱȱȄǯȱ living and working in a single The US government cares about room. Men statelessness as an issue that carries and women repercussions for regional stability work long hours – the and economic development. US men weaving diplomats advocate directly with saris at a governments to prevent and resolve factory and the women situations of statelessness within their embroidering territory. In Vietnam, for example, at home. US diplomats are encouraging the government to naturalise nearly ŗŖǰŖŖŖȱȱȱ ȱĚȱ Cambodia’s Khmer Rouge in the late ŗşŝŖǯȱ ȱŘŖŖŝǰȱȱȱȱ ȱȱȱȱȬȱ devoted to statelessness in the Country Reports on Human Rights Practices it submits annually to the ǯȱȱ ȱȬȱ is included again in the recently ȱŘŖŖŞȱǯȱ ȱȱ
US Department of State is intended to help create public awareness about the existence of stateless populations, the challenges discrimination and other abuses. It or the absence of citizenship, they encounter and progress made in denies families access to health care, typically denies individuals the resolving situations of statelessness. and prevents them from marrying, ability to exercise their human owning property, opening a bank rights, poses obstacles to meeting Through diplomacy and account or travelling. When stateless their basic needs and prevents humanitarian assistance, the US people become displaced, the their full participation in society. Department of State has sought to question of which state they belong elevate statelessness as an important to becomes critical. We have only to The problem of statelessness is not human rights and humanitarian look at the situations of Rohingya new but has been ‘in the shadows’, issue in the US foreign policy Burmese or Palestinian refugees like stateless people themselves. ǯȱȱȱȱĴȱȱ FMR32 STATELESSNESS 35
continued support for stateless their nationality, even if doing so “legal ghosts”.3 The US government populations. The US government is would lead to statelessness. Thus, is pleased to support this issue the single largest donor to UNHCR, while we have not joined these two of Forced Migration Review as an the international agency with the particular conventions, we are fully ȱěȱȱȱ mandate to protect stateless people.ŗ ĴȱȱȱDzȱȱ stateless people, give voice to their being a party does not in any respect stories, create awareness about US law is generally consistent with undermine our commitment. the causes and consequences of the objectives and principles of the their situation, and encourage two main conventionsŘ that address Indeed, the US promotes the policy the international community to the problem of statelessness; that goals of these conventions and ęȱȱȱȱǯ is, the US does not contribute to the encourages other governments problem of statelessness, and US law to join bilateral and multilateral ȱȱ ȱǻ ȓǯ does not treat stateless individuals ěȱȱȱȱȱ govǼȱȱȱĜȱȱȱ ě¢ȱȱȱǯȱȱȱ becoming stateless, identify Pierce ( ȓǯv) has not, however, become a party to those who are stateless, protect ȱȱěȱȱȱȱ these international legal instruments stateless people from exploitation, ȱȱǰȱǰȱȱ ȱ¢ȱȱȱęȱ discrimination and other abuses, ȱǻĴDZȦȦ ǯǯȦȦ obligations that are inconsistent and promote solutions, including ȦǼȱȱȱȱȱȱǯȱ with US law. For example, the naturalisation, birth registration, ŗǯȱ ȱŘŖŖŞǰȱȱȱȱȱǞśŖŖȱȱȱ ǰȱ ŗşŜŗȱȱȱȱ Ĵȱȱȱȱ including contributions to the agency’s core budget renunciation of nationality where to increase access to citizenship. that supported protection and assistance activities for stateless populations. such renunciation would result in Řǯȱȱȱȱȱȱȱȱȱ statelessness. This legal prohibition Whether they are deliberately ǻŗşśŚǼDzȱȱȱȱȱȱȱ ȱȱȱĚȱ ȱ excluded or simply fall through legal ǻŗşŜŗǼ 3. The World’s Stateless People: Questions & Answers, US law, which has long recognised or administrative cracks, stateless ǰȱŘŖŖŜǰȱśǯ the right of Americans to renounce persons have been described as No place to go: statelessness in Israel Oded Feller
Only in the past few years has Israel acknowledged that there a few thousand stateless persons exists a problem of stateless persons living in Israel; however, currently residing in Israel. this has not prompted the state to recognise the distress of Immigrants who lost their stateless people or to develop appropriate solutions. former citizenship Three individuals who were citizens Israeli law grants Jews preferred and most particularly the right of the former Soviet Union but did and almost exclusive status with not to be discriminated against on not acquire citizenship in any of the regard to entry into the country. the basis of race. This rigid policy ȱȱĞȱȱȬȱ The Interior Minister has extremely also underlies Israel’s approach were arrested as illegal residents limited authority when it comes ȱȬ ȱȱǯŗ ȱĞȱȱȱǯȱ to restricting an individual who They were subsequently released complies with the criteria of the According to Israeli law, stateless a few months later when it became law from immigrating to Israel. On persons reside in Israel illegally. apparent that there was nowhere the other hand, the law allows the They are at risk of being arrested and to deport them to. They remained Interior Minister almost unlimited held in detention as illegal residents. in Israel without any legal status. discretion in granting entry visas to As a result of their lack of formal In its response to a petition to grant Ȭ ǰȱȱȱȱ¢ȱ ȱ status, they are not entitled to work. them permanent residency status criteria for issuing or refusing to issue They do not have access to national in Israel, the Interior Ministry these visas. In practice, most foreign health insurance nor are they entitled claimed that the condition of nationals cannot acquire permanent to receive social services. They do statelessness is not a humanitarian Israeli residency status without the ȱȱęȱǰȱ consideration obliging the state to authorisation of the Interior Ministry, and are therefore not allowed to grant legal status to a person. which only grants residency permits drive, cannot open a bank account in a very limited number of cases. ȱȱĜȱȱ Later the Court of Administrative marriages. If they leave Israel, they ěȱȱȱȱ ȱ¢ȱ The result is an immigration policy will not be allowed to return. There must encourage stateless persons to that violates human rights in general, are between a few hundred and appeal to the Ministry to formalise 36 STATELESSNESS FMR32
their status prior to being detained, British Mandate and the early years formalised, the Interior Ministry since – if it is impossible to deport of the State of Israel, and also due demands that the father undergo a them from Israel in any case – it is ȱȱȱȂȱĜȱȱ ȱ¢ȱȱȱęȱȱȱ pointless to detain them. The Court accessing the relevant authorities, is the biological father of the child. instructed the Interior Ministry to some of the Bedouin residents of the The parents must bear the costs establish a procedure for dealing Negev region of southern Israel were of the legal proceedings and DNA with cases of statelessness, in the not registered and never received testing themselves and until the framework of which stateless people legal status in Israel. There exists no conclusion of this process the child would be granted temporary stay Ĝȱȱȱȱȱȱ remains stateless and is not entitled ǰȱȱȱęȱȱȱȱ of stateless people from the Azazma to health services or social rights. cooperation expected from stateless tribe but human rights organisations persons in order to determine estimate that a few hundred Children of permanent residents of whether they could be repatriated currently live in the Negev region. Israel who are not citizens – primarily to their countries of origin. children of Palestinians who live in The Interior Ministry refuses to East Jerusalem – do not automatically In response, the Interior Ministry has provide services to the stateless receive legal status at birth. The child introduced a procedure for examining members of the tribe or to resolve will acquire legal status in Israel if stateless people’s applications for their problem of statelessness in he or she is born in Israel to a parent ȱȮȱȱ¢ȱĞȱȱȱ a systematic manner. Over the who is a permanent resident and person has been arrested. In other years, the Interior Ministry has whose ‘centre of life’ is in Israel. It words, in order to secure a temporary agreed to examine a number of is the responsibility of the parents stay permit, the stateless person must individual requests for status to submit a request for their child ęȱȱȱȱȱ ȱȱȬ¢Ȭȱǯȱȱ to be recognised as a resident, and and subsequently endure lengthy individual process is complicated to prove where the child was born bureaucratic processes. These and entails many bureaucratic and where the child’s and parents’ include being asked to produce burdens and expensive service centre of life is. It can take months documents from their country of fees. In addition, stateless persons or even years for the application origin, some or all of which they will Ȯȱ ȱȱȱȱęȱ to be processed due, among other not possess and will not be able to documents – are required to prove reasons, to the multiple and obtain. Furthermore, the procedure their identity through a judicial exhaustive bureaucratic procedures.Ř explicitly applies to people who process, an expensive process which previously held citizenship in other necessitates hiring the services of If the child is born outside Israel – countries, and therefore does not a lawyer, gathering testimonies, usually in the occupied Palestinian provide a solution for stateless people paying fees and managing a Territories – the parents must submit who were born in Israel, such as complicated legal process. ȱȱȱ¢ȱęȱ the stateless Bedouin residents. in order to obtain legal status in Statelessness from birth Israel for their child. This request Stateless Bedouin When a child is born to an Israeli is subject to the provisions of the As a result of the disorder in the ȱȱȱȬ ȱȱ ȱ law which bars Palestinians from registration process during the legal status in Israel has not yet been acquiring permanent status in Israel. As a result, in many cases %HGRXLQ the child is not entitled to receive protesting against health and social services; the most house the child can hope for is a permit to demolitions
Shabtai Gold reside in Israel with their family. in the Negev. Israel’s rigid immigration policy Ȭ¥ȬȱȬ ȱȱȱȱ any exceptions for stateless persons. Israel must recognise the distress of stateless persons and take action to develop appropriate solutions with transparent and public guidelines, while simplifying the cumbersome bureaucracy that currently prevails.
ȱȱǻȓǯǯǼȱȱȱ Ĵ¢ȱȱȱȱȱȱ ȱȱ ȱǻ ǯǯǯǼǯ
ŗǯȱ¢ȱȱȱȱȱȱȱȱ persons in Israel must extend to stateless persons in the Occupied Territories. However this article will only focus on stateless people living within Israel. Řǯȱȱȱ ȱȁȃȱȄȱȱȱ ȱ ȱȂȱȱĴDZȦȦ ǯ ǯȦȦ ŘŜȦŘŜŗŘǯȱȱȱŘŜȱȱȁȱ DZȱȱȱǵȂ FMR32 STATELESSNESS 37
The lost tribes of Arabia Abbas Shiblak
,WLVGLIÀFXOWWRJLYHSUHFLVHÀJXUHVRIWKHQXPEHURIVWDWHOHVV Thus, there is no way to grant persons in the Arab region. Most countries in the region do citizenship to immigrants or refugees QRWSXEOLVKÀJXUHVRQWKHQXPEHURIVWDWHOHVVFRPPXQLWLHVLQ in these countries. Naturalisation of foreigners and citizens of other their midst. However, it is widely recognised that the number Arab states is either prohibited by of stateless people in the Arab region is one of the highest in ȱȱ¢ȱȱȱĞȱȱ the world. the discretion of the rulers without clear criteria. Even where they Exclusion and inclusion had been and statelessness, though on a smaller have adopted some of the relevant part of the process of state formation scale than that of the Palestinians. international conventions or even in the Arab region that took place inserted provisions into domestic ȱĴȱȱȱȱȱ ȱȱȱȬȱǰȱ laws, there is always a large gap European colonial powers divided the political turbulence that has between what the law says and ȱȱĴȱȱ¢ȱ swept the region in the last few its application. The most striking Ğȱȱȱȱǯȱȱ decades and ethnic and religious example perhaps is the persistence ȱ ȱȬȱȱ tensions have led to further exclusion in ignoring the right of children to of Arabia cut through nomadic or and marginalisation of minorities have citizenship among most of these Ȭȱǯȱȱ¡ȱ and deprivation of citizenship, states, which are all party to the Bedouin tribes had for centuries as in the cases of the Kurds of Convention on the Rights of the Child. moved with their animals without the Levant and the Shiites in Iraq check points or border crossings. and parts of eastern Arabia. A large but unknown number of de facto stateless individuals have Passports and identity documents Control of nationality been denied passports or the ability were not only unknown but also ȱȱȱȬȬȱ ȱȱȱ to travel by the authorities in their undesirable devices brought by men regulate various aspects of citizenship country because of their political with blue eyes, who wore trousers such as immigration, the status of or human rights activities. There and funny hats. Many were suspicious refugees, the status of women and is evidence to suggest that this of the new ways and chose not to the rights of children are to a large is a widespread phenomenon in have their names registered, or simply extent responsible for generating most Arab states. It is common did not bother to do so as their way and maintaining the phenomenon practice that political opponents of life maintained the same rhythm it of statelessness in the region. In who live abroad are denied ȱ ¢ȱǯȱȱ¢ȱĞȱȱ ȱěȱȱȱȱ¢ǰȱ renewal of their passports (as are, newly born states where established, most of the emerging states seem to usually, their family members). the Bedouin were still able to function have adopted a narrow concept of as free and full citizens of these states. citizenship and restrictive nationality Unlike in liberal democracies where Papers did not have the meaning laws. Citizenship is largely conceived social and economic rights derive they have now and consequently of as granted by the head of state and from residency rather than nationality, thousands of people fell through the not as a fundamental right. There in most developing countries net and remained undocumented. is, in most cases, no jurisdictional and certainly in the Arab region, The indigenous stateless communities mechanism therefore to challenge the nationality is the key for other rights. in the Gulf region, today called the executive order to deprive someone or ȱȱȱȱȱěȱ ‘Bidoon’, an Arabic word which a group of people of their citizenship. on all aspects of one’s life, including ȱȁ ȱǽ¢ǾȂǰȱȱ the right to freedom of movement, largely the victims of this process. Most of the countries in this region to work, to access public services, adopted rigid criteria to grant to own property, to have a driving ȱȱȱȱĚȱ their nationality based only on the licence, to register a marriage, birth ȱȱ Ȭȱȱ principle of jus sanguinis through or death, or sometimes to have any and consequently to large numbers the male line, the husband or identity document at all. Deprived of stateless communities. The father. Children therefore inherit communities can be a destabilising Ȭ ȱĚȱȱȱ statelessness from their stateless factor in any society, which can one of the largest refugee stateless fathers. Women have no rights in ȱȱȱĚȱȱ communities in the world today as most of these countries to pass on states, as the case of the Palestinians a result of the mass movement of their nationality, if they have one, and the Sahrawi or the Shi’ites ȱȱȱȱĞȱȱ to their stateless children. Most deported from Iraq have proved. ŗşŚŞȱȱŗşŜŝȱ ǯȱȱȱ of these countries are not party Ěȱȱǰȱ ǰȱȱ ȱ ȱȱŗşśŗȱȱȱ Palestinians, Kurds, region, the Horn of Africa and and almost none is party to the Bidoon and Sahrawi Western Sahara have generated a ŗşśŚȱȱŗşŜŗȱȱȱ Broadly speaking, the four main substantial amount of displacement the Status of Stateless Persons. stateless communities in the region – 38 STATELESSNESS FMR32
the Palestinians, the Bidoon of behind inclusion and exclusion into its laws to allow naturalisation Arabia, the Kurds of Syria and in most of these countries. of foreign professionals who have the Sahrawi still living in exile in served the country. However, very Algeria – are de jure stateless. Rising nationalism under the ȱȱȱ ȱęȱȱ Ba’athists led to thousands of Kurds these new laws that are aimed at the ȱȱȱȱ¡¢ȱŗŖȱ in Syria – estimated at between rich and powerful. Other countries million Palestinians today are stateless ŘŖŖǰŖŖŖȱȱŘśŖǰŖŖŖȱȮȱȱȱ in the Gulf have moved to reduce the holders of travel documents who live ȱȱ¢ȱȱȱŗşŜŖǯȱȱ ȱȱȱȱȮȱĜ¢ȱ mainly in the Palestinian Authority majority of these are still without a described as the ‘undocumented’ – (PA) controlled areas of the West Bank nationality despite recent signals from but many would not be able to meet and Gaza Strip and in other countries ¢ȱĜȱȱȱȱ ȱȱ the restrictive criteria required. Both of the Arab East. As long as there is no resolved. Ethnic and religious tension Egypt and Morocco are trying to catch ¢ȬĚȱȱȱȱ ȱȱȱȱȱ Ȭ ȱ ȱȱ up with Tunisia in granting a mother’s communities will remain stateless ȱŗşŞŖȱȱȱȱǰȱ nationality to her stateless children. under international law. This large deportations and deprivation of But it is a slow process and one that stateless community stops short of ending has been taken care the plight of the of by the specially present generations constituted of stateless international relief communities. agency UNRWA. It has thus long IRIN/Hugh Macleod Bureaucratic been considered inertia and the fact as outside the that the power to mandate of UNHCR ȱĴȱȱ and dropped citizenship lies therefore from with the executive the list of stateless rather than the communities courts still hamper worldwide the implementation and from the of many changes international in law. This is 0XVWDID2VVRFDPSDLJQVIRUWKHUHVWRUDWLRQRIFLWL]HQVKLSWRD.XUGLVK protection regime IDPLO\LQ6\ULD$FFRUGLQJWRRIÀFLDOVDQHVWLPDWHG.XUGVLQ6\ULD especially so in for refugees and KDYHORVWRUQHYHUKDGFLWL]HQVKLSLQWKHFRXQWU\LQZKLFKWKH\OLYH Egypt where stateless persons. stateless children of Egyptian However, there is growing ¢ȱȱȱ¢ȱȱŜŖŖǰŖŖŖȱ mothers are estimated to number international awareness of the need Iraqi Kurds and Shi’ites. The majority ȱȱŘśŖǰŖŖŖǯȱȱȱȱ to recognise the statelessness of ȱȱ ȱ ȱȱĞȱȱ Emirates took some steps recently Palestinian refugees and of the need ȱȱȱȱȱȱŘŖŖřȱȱ ȱȱȱȬȱȱ to include them in the international it is not clear in the present highly of its ‘undocumented’ residents protection regime. During the charged sectarian situation how many but it is not clear how many last few years, UNHCR has taken have regained their nationality. ȱęȱȱȱȱȱȱ a step towards this by including transparency and any possibility of within its protection Palestinian Thousands of refugees who lack judicial review of the authorities’ holders of travel documents outside documentation have spilled out across decision. There no indication yet UNRWA’s areas of operation.ŗ the borders to the neighbouring that Kuwait is willing to change ȱȱĚȱȱȱ ȱ its ways and follow suit despite ȱȱ¢ȱȱȱśŖŖǰŖŖŖȱ of Africa and Sudan over the last its promises to do so in the past. stateless Bidoon in the Gulf States three decades. And it is not clear how including Saudi Arabia. The largest many Sahrawi out of an estimated It is also widely recognised that group is in Kuwait, despite the ŗŜŖǰŖŖŖȱȱȱȱȱȬ ȱȱ¢ȱĚȱȱ ĚȱȱȱȱŗŖŖǰŖŖŖȱȱȱ Algerian border have no nationality. state and without peace and stability during the Iraqi invasion of Kuwait ȱȱȱȱĚȱȱȱǰȱ ȱŗşşŗȱȱȱȱȱĞ ȱ The future displacement and statelessness will the Kuwaiti authorities blocked their Some of the Arab states have started keep spreading, bringing more misery return. Security (which largely means to realise that they need to open up and destabilisation to this region the security of the ruling families), their restrictive nationality laws; and undermining world peace. the desire to keep national wealth the current situation is not only ȱȱǻŚŚȓǯ ȱȱ ȱȱȱȬȱ unrealistic in a rapidly changing co.ukǼȱȱȱȱȱ countries and in some cases the desire world of pluralism but it is also ȱȱȱȱȱ to keep the demographic balance essentially undemocratic and largely ǻĴDZȦȦ ǯǯ¡ǯǯǼǯ in favour of the ruling families and in breach of basic human rights. against other religious or national Saudi Arabia, among others in the ŗǯȱȱȱȱȱȱȱ £ȱǰȱ the West Bank, Jordan, Lebanon and the Syrian Arab groups remain the unspoken factors Gulf, has inserted special provisions Republic. FMR32 Statelessness around the world 39
Madagascar ,Q0DGDJDVFDUVRPHPHPEHUVRIWKH.DUDQDFRPPXQLW\RI,QGR3DNLVWDQLRULJLQDQGRWKHUPLQRULWLHVDUHVWDWHOHVVEHFDXVHWKH QDWLRQDOLW\ODZZKLFKZDVDGRSWHGDWWKHWLPHRILQGHSHQGHQFHLQ GHÀQHGFLWL]HQVDVWKRVHZKRZHUHERUQRID0DODJDV\IDWKHU WKHUHE\H[FOXGLQJSHUVRQVRIRWKHURULJLQVIURPFLWL]HQVKLS&KLOGUHQERUQRIDIRUHLJQIDWKHUEXWRID0DODJDV\PRWKHURQO\EHFRPH FLWL]HQVLIWKH\DSSO\IRUQDWLRQDOLW\EHIRUHUHDFKLQJWKHDJHRIPDMRULW\
In 2005, a small number of people who were descendants of 19th-century immigrants to Madagascar requested French nationality from the former colonial power after giving up on obtaining the Malagasy nationality. Madagascar was a French colony until 1960, and French regulations state that a person originating from a former French colony under certain circumstances can acquire the French nationality. Some were successful in their plea; however, many people missed the window of opportunity that was granted in which to make their naturalisation request. At present these people still have no nationality.
Western Sahara :KHQ6SDLQDEUXSWO\ZLWKGUHZIURPLWVFRORQ\RI:HVWHUQ6DKDUDLQ many of the Sahrawi became stateless as the new state was not yet properly FRQVWLWXWHG%RWKWKRVHZKRUHPDLQHGLQ:HVWHUQ6DKDUDDQGWKRVHZKR later became refugees in Algeria – currently some 90,000 – are in this sense the victims of a failed process of decolonisation, with no claim on WKHULJKWVRIFLWL]HQVKLSLQDQ\FRXQWU\HYHQWKHLURZQVLQFHWKLVLVVWLOORQ (&(&+26HEDVWLHQ&DUOLH] WKH81·V/LVWRI1RQ6HOI*RYHUQLQJ7HUULWRULHV KWWS ZZZXQRUJ'HSWV GSLGHFRORQL]DWLRQWUXVWKWP 'HVSLWHVRPHFDVHVZKHUHVWDWHOHVV Sahrawis have been granted Spanish residency, the Sahrawis’ status vis- à-vis Spain is by no means clear in international law. And some Sahrawis may have a right to Spanish nationality. Many are considered by Morocco DVLWVQDWLRQDOVDOWKRXJK0RURFFR·VUROHLQ:HVWHUQ6DKDUDLVFRQWHVWHG Sahrawi refugee camp, Algeria.
UK :KLOHPRVWDV\OXPVHHNHUVLQWKH8.DUHUHJLVWHUHGDQGKHQFHHQWLWOHGWRFHUWDLQEHQHÀWVIRUUHMHFWHGDV\OXPVHHNHUVWKHVLWXDWLRQLV different; some are in many ways de facto stateless: because they have no documents, they are unable effectively to use their nationality DQGZLWKQRSURWHFWLRQIURPWKHLUVWDWHRIRULJLQ²EXWFDQQRWOHDYHWKH8.7KRVHZKRKDYHKDGWKHLUDV\OXPFODLPUHMHFWHGGRQRW have the right to any welfare-state provision and are unable to access rights and services that are essential for personal and social GHYHORSPHQWLQDSRVWLQGXVWULDOFRXQWU\OLNHWKH8.:KLOHVRPHLQGLUHFWO\KDYHDFFHVVWRKRXVLQJDQGKHDOWKFDUH²IRUH[DPSOHLQWKH cases of those who have their children or under-age siblings living with them – others are reliant on charity and goodwill from friends, GRFWRUVDQGWHDFKHUV7KH\DUHOLYLQJLQDOHJDOOLPERWKDWFDQVHULRXVO\DIIHFWWKHLUPHQWDOKHDOWKDQGGDPDJHWKHLUSHUVRQDOLGHQWLW\ “I feel isolated sometimes. I think to myself ‘even animals are better than us’.” (Interview with woman in her early twenties, 2007)
Information provided by Miguel Otero-Iglesias, based on a project funded by the Rothschild Foundation Europe and Ford Foundation’s Grant Programme on the Study and Prevention of Antisemitism, Racism and Xenophobia in Europe.
Ukraine After the break-up of the USSR, some of the survivors and descendants of 250,000 &ULPHDQ7DWDUVZKRZHUHURXQGHGXSE\6WDOLQLQ DQGGHSRUWHGWR&HQWUDO$VLD found themselves in a range of situations where they were stateless (or at risk) if they headed home to the Crimean Peninsula in Ukraine. Statelessness occurred, for H[DPSOHIRUWKRVH7DWDUVZKROHIW&HQWUDO$VLDZLWKRXWDFTXLULQJQDWLRQDOLW\RIRQHRI UNHCR/D Zhuravliov the newly independent states but also missed the 1991 deadline for acquisition of 8NUDLQHQDWLRQDOLW\RQWKHEDVLVRIUHVLGHQFHDQGWKHQKDGGLIÀFXOWLHVWRQDWXUDOLVH
:LWKWKHWHFKQLFDODGYLFHRI81+&5WKHJRYHUQPHQWRIWKHQHZO\LQGHSHQGHQW8NUDLQH brought in a succession of new laws that have helped reintegrate them and that have JUDGXDOO\XQWDQJOHGWKHEXUHDXFUDWLFFRPSOH[LW\ZKLFKZDVQRWMXVWFRQÀQHGWR8NUDLQH LWVHOIEXWDOVRRIWHQLQYROYHGWKHOHJLVODWLRQRIVWDWHVZKHUHWKH&ULPHDQ7DWDUVKDG been residing before returning to Ukraine. A 1999 agreement between Ukraine and 8]EHNLVWDQ ZKHUHWKHPDMRULW\RI&ULPHDQ7DUWDUVKDGEHHQGHSRUWHG IDFLOLWDWHGFKDQJH of nationality and, as a result, helped avoid statelessness, so that the returnees could EHJLQWKHSURFHVVRIUHLQVWDWLQJWKHPVHOYHVOHJDOO\LQ8NUDLQH%\DOPRVWDOORIWKRVH $&ULPHDQ7DWDUVKRZLQJKLV8NUDLQLDQSDVVSRUW &ULPHDQ7DWDUVZKRKDGUHWXUQHGKHOG8NUDLQLDQFLWL]HQVKLSEXWWKHUHWXUQVFRQWLQXH DWWKH1*2$VVLVWDQFH·VRIÀFHLQ&ULPHD 40 STATELESSNESS FMR32FMR31
1 2
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8 9 FMR32FMR31 STATELESSNESS 41
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Nowhere People :KHWKHUDUHVXOWRIFRQÁLFWVKLIWLQJERUGHUVRUWKHPDQLSXODWLRQRIWKHODZVDQGWRROVXVHGWRDGPLQLVWHU PRGHUQGD\VRFLHW\VWDWHOHVVSHRSOHDUHXQZDQWHGDQGXQZHOFRPHDQGÀQGWKHPVHOYHVH[FOXGHGIURPVRFLHW\ by forces beyond their control. Not only are they some of the most vulnerable and marginalised people in the world but they are also some of the most invisible as well. Exposing the faces and the real-life stories and struggles of the stateless provides invaluable documentary evidence of the human consequences of their complex and often misunderstood situations. More importantly, it adds a visual and human dimension to the legal, human rights and humanitarian communities in their efforts to combat statelessness and give a voice to people who in most cases have none. Photographs by Greg Constantine. Part of the ongoing project: Nowhere People. Greg Constantine ([email protected]) is an award-winning photojournalist based in Southeast Asia. Since early 2006, he has been working on an ongoing, long-term project called Nowhere People, which documents the struggles of stateless people around the world. www.gregconstantine.com 1XELDQHOGHUVLQ.HQ\D ´3ROLWLFVDQGDFFHVVWRUHVRXUFHVLQFOXGLQJHPSOR\PHQWDUHDOOEDVHGRQ ethnic computations and even the allocation of resources for development for communities: schools and HGXFDWLRQIRUH[DPSOH$OORIWKDWLVEDVHGRQEHLQJFOHDUO\LGHQWLÀHGDVSDUWRIWKH.HQ\DQFRPPXQLW\7R feel always discriminated against or to be reminded that you came from Sudan is not a very good thing for young people growing up who want to feel that they actually belong to this country.” %RKMHD'DOLWPDQLQVRXWKHUQ1HSDOFDUULHVÀUHZRRGLQ'KRGKDQDWRVHOOLQWKHPDUNHWVRI/DKDQ 7 ´:LWKRXWFLWL]HQVKLS,FDQQRWKDYHDSDVVSRUW:LWKRXWDSDVVSRUW,FDQQRWWUDYHORXWVLGHRI1HSDODQG work in Qatar, UAE or Malaysia, like many other people from Nepal. I cannot send money home to help my family.” Of the broad range of human rights violations suffered by ȱ¢ȱĴȱĴǰȱ stateless people, that of the right to be free from arbitrary as compared to the detention of detention has received little attention. The extent and scale of refugees and asylum seekers. the problem are not fully known. When a stateless person is a refugee, he or she cannot be penalised for Physical restriction, including ȱȬ£ȱȱȱ illegal entry or presence.4 Stateless ȱȱęȱǰȱ detention, whilst their status is being persons who are not refugees do not ȱȱ ȱȱȱěȱ determined, or ‘pending removal’ ¢ȱȱȱȱȱŗşśŚȱ nationality is increasingly common under immigration regulations. Convention Relating to the Status of around the world.ŗ Preliminary Stateless Persons and are therefore analysis of available research suggests Arbitrary detention potentially at greater risk of detention that practically all types of stateless While the administrative detention for breach of immigration regulations. persons may be at risk of arbitrary of asylum seekers and irregular detention. Without the full set of migrants is not expressly prohibited Most legally stateless persons in rights available to citizens, stateless under international law, it can need of international protection are persons face a greater likelihood of amount to arbitrary detention if it not refugees and have no claim to discrimination in the administration is not absolutely necessary given ¢ǯȱ ȱ¢ȱǰȱȬ of justice, harassment and arbitrary the circumstances. UNHCR and refugee stateless persons who cannot detention. One common problem others have developed guidelines acquire a legal status are subject faced by stateless persons – as also on alternatives to detention.3 Even to removal from the country, and by IDPs – is a lack of documentation where detention is not initially may be detained pending removal. which can leave them more prohibited, it may become arbitrary A legally stateless person who is vulnerable to rights violations. over the course of time owing refused asylum or otherwise deemed to the length of detention. ȱęȱȱȱ ¢ǰȱ ¢ȱĴȱȱȱȱ and who is detained or restricted on the plight of stateless persons in Furthermore, discussions concerning ȁȱȂǰȱĞȱȱ detention in their country of habitual the legality of detention of stateless be removed because a) they have residence; research suggests that persons, whether de jure or de facto, no state of nationality to which this is not only because by their must be guided by the fundamental they can be ‘removed’ and b) their ȱȱȱȱĞȱ principle of equality. This does not country of habitual residence will ‘hidden’ but also because relatively necessarily require identical treatment not take them back. Thus, because ĴȱȱĴȱȱ ȱȱěȱȱ ȱȱĞȱǰȱ ȱ been paid to stateless populations. according to the needs and particular ȱȱȬȱȱ It seems that human rights research circumstances of the individual. In in preparation for removal may ¢ȱęȱȱȱȱ ȱȱęȱȱǰȱȱęȱ ȱȬȱȱȱęǰȱ factor when reporting on individual step must be an appropriate status ȱĜȱ¢ȱȱȱȱ detainees in their country of determination procedure capable country to accept a stateless person. origin or habitual residence. of identifying stateless persons as In countries where there is no limit to a category of persons with unique detention, stateless persons can face A growing body of information protection needs. Although the issue ȱȱȱȱęȱǯȱ suggests that stateless people who ȱȱȱęȱȱ are migrants, refugees or asylum of de jure and de facto stateless One vivid illustration of this risk is seekers are extremely vulnerable to persons has reached the courts in ȱȱȱȱȱȬ ǰȱȱ arbitrary detention and other forms a number of countries, the issue of stateless Palestinian man who was of restriction, including immigration discrimination is rarely addressed. taken into administrative detention as detention and restriction in closed ȱ ȱȬ£ȱȱȱ refugee and displaced persons camps. The situation of a stateless person ȱȱŘŖŖŖǯȱȱȱȱ The UN Working Group on Arbitrary ěȱ¢ȱȱȱȱ to asylum rejected, no grounds to Detention has found that “a straight ȱȬ£ǯȱȱ¡ǰȱ remain in Australia and no other analysis of the statistics indicates that legally stateless persons can be subject country willing to receive him, he ȱȱȱȱȱȱȬ to lengthy detention while their remained in detention until April citizens in administrative detention status is being determined, owing ŘŖŖřȱ ȱȱ ȱ¢ȱ exceeds the number of sentenced ȱȱ¢ȱȱȱĴȱ released by the Federal Court. In prisoners or detainees, who have or to prove that they are not a national ŘŖŖŚȱȱ ȱȱȱȱȱ ȱȱȱȱĴȱ of any state. Of particular concern that it would not in fact have been a crime.”Ř An unknown number are the protection gaps faced by ȱȱȱȱę¢ǯȱ of stateless persons are caught up Ȭȱȱȱȱ Following considerable pressure from in such practices and held with detention – an issue which has to date ¢ȱǰȱȱ¢ȱŘŖŖśȱȱ FMR32 STATELESSNESS 43 Australian government introduced One refused asylum seeker from Katherine Perks (katherine.perks@ a ‘Removal Pending Bridging Visa’ Algeria was held in immigration ǯǼȱȱȱ which applies to all detainees whom ȱȱȱ ȱȱŗŜȱǯȱ ȱȱ ȱěȱ it is not reasonably practicable to ȱȱȱȱȱęȱęȱȱȱ ǻǯěȓǯ remove for the time being and who detention, the Algerian authorities ǼȱȱȱĜȱȱȱ ȱȱ¢ȱ ȱěȱ ęȱȱ ȱȱȱ ȱȱȱǻĴDZȦȦ ǯ to remove them from Australia. Ĵȱȱȱȱ¢ȱȱ ǯȦǼǯ failed. Despite this, and although ŗǯȱ ȱȁȱȱȱȱȱ Ȃǰȱ De facto statelessness ȱȱȱ ȱěȱ ŘŝȱȱŗşşŝȱĴDZȦȦ ǯǯȦ Ȧ Individuals who are de facto stateless to facilitate his return to Algeria, he ȦŚŚŗŖŜřŞǯ Řǯȱȱȱȱȱ ȱȱ¢ȱǰȱ ȱȱěȱ¢ȱȱ remained in detention for a further ȱȱŘŖŖŝǰȱĴDZȦȦ ŘǯǯȦȦ are without the protection of either ŗŗȱȱȱ ȱȱ¢ȱ ȦȦ¡ǯȱȱȱ the country where they are present when the High Court ruled that his 3. UNHCR ‘Alternatives to Detention of Asylum Seekers ȱȂǰȱȱŘŖŖŜǯȱĴDZȦȦ ǯǯȦ or their country of legal nationality. detention was unlawful because of its ȦȦŚŚŝŘŞŞŚǯ De facto stateless persons can also length and the “complete uncertainty Śǯȱŗşśŗȱȱǯȱ ęȱȱȱȱȱ about when it might be brought in the same kind of legal limbo. to an end by deporting him.” This situation may arise as a 7KH(TXDO5LJKWV7UXVWLVGRFXPHQWLQJ result of a number of practical, While there is a clear legal the detention and physical restriction humanitarian or legal circumstances, distinction between de jure and de of stateless persons around the world, such as where deportation would facto statelessness, in practice both and is developing a legal advocacy violate the principle of non- groups may be detained or restricted. strategy based on the universality refoulement; where the country UNHCR and others have expressed RIKXPDQULJKWVSULQFLSOHV7KH of origin refuses to issue identity the view that stateless persons should project will identify cases where ȱȱȱȱȱȬ not be detained only because they stateless persons are detained or Ĵȱȱǰȱȱ are stateless. If there is no alternative otherwise restricted, due at least the completion of deportation to detention, its maximum length LQSDUWWRWKHLUEHLQJVWDWHOHVV7KH proceedings; where, as in the case ȱȱęǰȱȱȱȱ authors would welcome information of Somalia, there is no functioning ȱ ¢ȱęȱǯȱȱ concerning individual cases of state of origin; or where there is principle should now be translated stateless persons in detention. no safe means of transportation into clear international and national to the country of origin. legal standards and put into practice. Displaced Kosovo Roma and property rights -RVH0DULD$UUDL]DDQG/LQGDgKPDQ The lack of secure property rights heightens the risk of Right to be protected statelessness for displaced Kosovo Roma in Montenegro. An individual displaced from an ȱĴȱȱȱȱ Kosovo’s declaration of independence Roma living around the Montenegrin from a newly created state has certain ȱŗŝȱ¢ȱŘŖŖŞȱȱȱ capital, Podgorica, can neither rights under international law to question of statelessness for displaced prove legal residence in Kosovo nor protect their citizenship. As well persons originating from Kosovo. A meet the necessary requirements as the right to a nationality and the large number of Roma, Ashkali and to obtain Montenegrin citizenship prohibition against the deprivation of Egyptians displaced from Kosovo and thus may be stateless. nationality of individuals, particularly are presumed not to be registered as a result of discriminatory practices, as residents in Montenegro.ŗ Lack ȱȱ ȂȱȱĚǰȱ the Council of Europe Convention on of personal documents, property many Roma families lived in mahalas Nationality3ȱȱŗşşŝȱȱȱ records and registered land titles (neighbourhoods) in housing that the problematic issue of state exacerbates the problem and had been handed down to them for succession. In cases where a new increases the probability that they generations. The legal entitlements state is created, the decision on the will remain stateless. According to to these dwellings were never clear, granting or retention of nationality ¢ȱ ǰȱŚǰřŖŖȱȱ for a number of reasons including should, according to the Convention, living in Montenegro in a “legal unregistered inheritance, illegal take into account a) a ‘genuine limbo”.Řȱ ȱȱŘŖŖŞǰȱ ȱ construction (which Yugoslav ȱěȂȱȱ ȱȱǰȱ published a statement suggesting municipal authorities ignored) or, b) their habitual residence, c) their ȱȱŚŜƖȱȱȱ ȱ quite simply, lack of a formal address. wishes and d) their place of origin. 44 STATELESSNESS FMR32 ȱȦȱ¢ȱȱ before they can apply for citizenship. subsequently the Kosovo Property ȱȱǰȱęȱ As in Kosovo, many displaced Agency (the mechanisms entrusted contracts, registered inheritance Kosovo Roma have neither personal with resolving claims over property ęȱȱȱ¢Ȭ civil registration documents nor ȱȱȱĚǼȱ ȱ related documents, plus the proof of habitual residence. designed to evict illegal occupants fundamental problem of missing ȱȱȱȱęȱȱ personal civil registry documents, Both problems could be addressed title of occupied land. They were not increase the likelihood that through appropriate action by the ǰȱ ǰȱȱȱĴȱ displaced people will be stateless. public authorities of both Kosovo solutions, such as compensation or and Montenegro to a) regularise housing reconstruction, for those The Constitution of Kosovo and the housing and its Law on Citizenship sets out the property situation of requirements to become a citizen; the displaced Roma all persons who were citizens of and b) ensure and the Federal Republic of Yugoslavia promote their access ȱŗȱ ¢ȱŗşşŞȱȱ ȱȱȱ to civil registration. 81+&5']'HPLF time habitually resident in Kosovo can be registered as citizens. Housing and property rights However, Roma displaced across It would be easier borders will in some cases have a to prove habitual hard time proving this. Moreover, residence if adequate ȱ ȱĞȱ ȱȱȱ property rights will have to seek naturalisation, protection were ȱȱęȱ¢Ȃȱȱ actually in place. ȱ ǯȱȱ¡ȱȱȱęȬ Decades of informal year rule is possible if the individual Ĵȱȱ is able to demonstrate that he or she and the impact of is a part or direct descendent of the ȱĚȱȱ ȁ ȱȂǰȱ¢ȱęȱ created a nightmarish as the group that has maintained property situation, ‘close family and economic links which drives human in Kosovo’. Without land titles rights organisations, and civil registration documents ȱȱĜȱȱ ȱ ȱȱȱĜǯȱ Ȭȱ international agencies Montenegro’s Citizenship Law also to despair. In Kosovo, ȱęȱ¢ȱȱȱȱ the now defunct people from one of the constituent Housing and Property Republics of the former Yugoslavia Directorate and 81+&5&&D]XUUR cases in which unregistered ȱĴȱ were destroyed and their inhabitants displaced. So while all displaced persons have, in accordance with international principles,4 the right to return home and to recover their possessions or to be compensated for them, the displaced Roma have not been Displaced able to exercise these rights Roma from .RVRYRLQ without proper documentation .RQLF or registered property title. The camp, in the displaced are at the mercy of suburbs of Podgorica, the political expediency of local Montenegro. governments. In the majority FMR32 STATELESSNESS 45 of cases, this means no return at all, ȱĴȱ ȱȱ Ȭȱȱȱ even less compensation and another communities which considers them ensure that displaced Roma know turn of the screw of segregation. ȱȱȬȱ£ǯȱȱȱ how to register their property. of displaced Serbs or Albanians to An example of victimisation return to their place of origin is not NLegal counselling centres must be The mahalaȱȱȦñǰȱȱ Ğȱǯȱȱȱ ȱȱ accessible to the displaced Roma ȱȁȱĴȂȱ weakness of international principles communities. Procedures must be ȱȱȱȱ Ȧ ǰȱ when confronted with the stark ęȱȱȱȱ ȱ¢ȱȱŗşşşȱȱȱȱ ȱȱȬȱȱȱȱ in navigating bureaucratic and inhabitants displaced to neighbouring tendency to segregate the Roma. lengthy administrative processes. In the meantime, the victims of arbitrary NThe international community displacement remain must continue to work with in their camps with the national judiciary to ensure neither secure property greater transparency and rights nor clear future accountability, especially in cases opportunities in either involving vulnerable Roma. Kosovo or Montenegro. NRoma leaders must be engaged Recommendations in reaching out to the displaced. ‘Riverside’ ěȱȱȱȱ If made aware of the implications settlement Kosovo Roma’s lack of statelessness they are likely LQ%HUDQH of secure property to be more proactive in seeking Montenegro, one of many rights have to date to resolve their situation. formal and shown limited results, informal compounding an NNational laws and practices settlements set up around already pressing cause should be revised to avoid Montenegro to for concern: a stateless direct or indirect discrimination house ethnic population, unable to against displaced Roma Serbs and members of the return and unable to ȱȱĴȱȱ Roma, Ashkalia access basic economic, to obtaining citizenship. and Egyptian social and cultural minorities NNational and international ZKRÁHGWKHLU rights. Lack of property homes in documentation not institutions should protect the neighbouring only blocks their right rights to return home and to .RVRYRLQ to return and prevents housing and property restitution and 2000. them from enjoying of Roma individuals, free of their own possessions adverse discrimination. but can also make it ȱĜȱȱȱ Ȭȱ£ȱǻcarraiza@ habitual residence and ¢ǯsǼȱ ȱȱȱȱȱ thus further stops them ȱ¢ȱȱȱȱȱ from exercising their ǻ ǯǯǼǯȱȱ[ȱ right of citizenship ǻȓǯǼȱ ȱ in one of the Balkan’s in Kosovo on human rights and newly created states. ȱ ȱ ȱȱȦ ǯȱ Montenegro.śȱĴȱ¢ȱȱ Ĵȱȱȱȱȱ ȱ ȱȱȱȱȱ municipal authorities to regularise the ȱȱ Ğȱ ȱȱȱȱȱȱ land situation in the village in order intervention on the part of the Ĝȱȱȱȱǯ to allow return and reconstruction to governmental authorities but ŗǯȱȱȱȱȱǰȱȱȱ¢ȱ take place were blocked, ironically international organisations and civil communities under the single title of Roma. by actions of the UN administration society leaders must also play a role. ŘǯȱĴDZȦȦ ǯ¢ǯȦȦ¢ȦȦ ŜŜȦŖŖŗȦŘŖŖŞȦȦŘşşşşřŜȬŜŗȬŗŗȬŞśȬ which was concerned about the ŚřŞśŗśŜşȦŜŜŖŖŗŘŖŖŞǯl. reaction of a nearby Serb Orthodox NStrategies and action plans must 3. ĴDZȦȦǯǯȦ¢ȦȦȦ ȦŗŜŜǯ monastery to the return of its former heed the particular situation of the htm. Roma neighbours. Part of the former displaced Roma who cannot prove Śǯȱȱ¡ȱȱȱǰȱȱĴDZȦȦ ǯ ǯȦȦŘśȦŘśřŖǯ land entitlement and implement village was used in the interim as a śǯȱ ȱĴȱǰȱȱȱ¢ȱȱŘŖŖŚȱ¢ȱ muslim cemetery by the Municipality Ȭ¢ȱȱȱ ȱȱȱȱ ȱĴǰȱ ȃȱĴǰȱ ȱȱȱ¢ȱȱȱȱ ȱȱěȱȱȱ or regularisation, spatial planning not meet requirements for legal recognition (and have ȱȱ¢ȱȱĴȱȱ and housing schemes preferably been constructed without respecting formal procedures of legal ownership, transfer of ownership, as well as an isolated area nearby, where no in their place of origin. construction and urban planning regulations) …”. neighbours would complain about Ŝǯȱ¢ȱ¡ȱȱȱȱȱŝŖȱȱȱȱ having Roma families living in close NCivil registration programmes have agreed to their relocation to an isolated farming ȱȱȦºȱǻ Ȧ Ǽǯ proximity.ŜȱȱȱĚȱȱ¢ȱ need to be accompanied by 46 STATELESSNESS FMR32 Stateless Roma in Macedonia Joanne van Selm Many Roma have faced discrimination and prejudice from foul of the requirements to prove both private groups and national governments. ȬĜ¢ȱȱȱȱ documentation to demonstrate The Roma are a minority population ȱĚȱ ȱȱȱȱŗşşşȱ registration and residence even if they living primarily in Central and and have been unable to return. had been in Macedonia for the period Eastern Europe, the Balkans and stipulated (which many had not). Western Anatoliaȱ ȱȱĞȱȱ There are four particular issues well integrated into local society. regarding access for stateless Roma ȱŘŖŖŘȱ¢ȱ ȱȱȱ For Roma, registering as citizens to Macedonian citizenship: their ȱȱȱȱŗşşŘȱ ǰȱȱ and obtaining documentation eligibility under law; wider political greater access to citizenship for ȱȱ¢ȱĜǯ concerns of the government; access many members of ethnic minorities, to documents; and donor projects particularly those who were stateless Macedonia,ŗ like other states which to reduce statelessness. Access to ȱ ȱȬȱȱȱ became independent following the ȱȱȱȬ ǯȱȱŘŖŖŚȱȱȱȱ Ȭȱȱǰȱȱȱ ȱȱȬȱȱȱ law reduced the period of residence Union and Czechoslovakia, had ŘŖŖśȮŘŖŗśȱȱȱȱ Ř, required to eight years, and set it to decide who would be granted and promoted by organisations active at six years for refugees and people citizenship and has adapted in the region such as the OSCE. recognised as being stateless. legislation over time. The number of stateless Roma in Macedonia is Eligibility and political Negotiations with the European Ĝȱȱǯȱ ȱȱȱ concerns Commission on visa facilitation and ȱȱȬȱȱȱ The initial rules on eligibility set in Ȭȱǻȁȱȱȱ ȮȱśřǰŞŝşȱȱ ȱȱȱȱ ŗşşŗȱȱȱȱȱȱ without authorisation’)3 have forced ŘŖŖŘȱȱȱȱȱȱ Macedonia one year to apply for Macedonia to address the problem ȱȱȱ ȱŗŞŖǰŖŖŖȱ citizenship. They had to meet certain ȱȱȬȱǯȱ ȱŘŖŖǰŖŖŖȱȮȱȱȱśǰŖŖŖȱȱ criteria including their ability to In confronting the issue, however, ȱę¢ȱȬ Macedonia is also forced to face Felt-making supporting and the complexities of its geopolitical workshop in Skopje ȱȱŗśȱ¢ȱ position, with its neighbours for Roma of uninterrupted including Kosovo and Serbia, and refugees legal residence all the undocumented population IURP.RVRYR UNHCR/A Galic organised in Macedonia. ‘events’ – including migrations, births, by UNHCR Regardless of ȱȱȱȮȱȱŗşşŗǯȱ and the ethnicity or which There are fears that some measures Macedonian $UWLVDQ7UDGH former Yugoslav taken with the aim of resolving Association, republic they statelessness could encourage part of a originated from, population movements and make long-term UNHCR people could ȱĴȱȱȱ programme choose to become who might use fraudulent means to to give Macedonian in ȱȬȱȱȱȱ female ŗşşŗȱȱȱȱ actually true. This could potentially refugees in FYR Ȭȱȱ Ğȱȱȱȱȱȱ Macedonia in the Republic. the country, as well as lead to rises the skills in tensions and organised crime. to support themselves People living in and reduce Macedonia who Documentation their did not apply for The absence of documentation dependence on aid citizenship within a ȱȬȱȱ hand-outs. year were viewed as is a major problem for the Roma. foreigners and then Even in those cases where births had to go through the and marriages have been registered, lengthy procedure individuals may never have obtained, ȱȱȱȱŗşşŘȱ or may have lost, the documents law on naturalisation. proving that registration. The In practice this was ȱȱȬȱȱ especially obstructive the absence of personal documents to members of ethnic include lack of understanding about minorities. Roma ȱȱȱęȱȱ in particular fell registration and the cost involved. UNHCR/E Denholm FMR32 STATELESSNESS 47 There is also a reluctance to (in order to continue to receive ęǯȱ ȱȱȱ ȱ engage with local and national funds for each individual assisted) found that individual documentation authorities who are usually prone to ȱȁȬȂȱȱǻ¢ȱ problems were resolved by personal discriminate against Roma people. receiving per capita funding from intervention with the authorities donors to cover the same individuals rather than through regular A residence permit, for example, costs twice). Some donors are apparently channels, not least due to variations ȱǧŘŖǰȱ ȱȱȱ concerned that such things are between municipalities in the ȱǧŘǯŝśȱǻǧśǯŘśȱȱȱ ȱȱ happening. If this is indeed the requirements and procedures for ȱȱĞȱȱǼǯȱȱȱ case, the donors themselves are obtaining personal documents. amounts may not sound excessive, surely also not blameless as there for unemployed individuals – and ǰȱȱǰȱȱĴȱȱȱ ARKA is an example of a Macedonian ȱŝśƖȱȱȱȱȱȱ ȱȱȱĴȱȱȱ NGO conducting similar projects be unemployed – in a country where accountability. Whatever problems for several donors, not only the ȱȱ ȱȱȱǧŘŝŖȱ there may be, many individuals have ȱ ȱĴȱȱ per month, this can be prohibitive. ¢ȱęȱȱȱǰȱ also USAID’s Institute for Sustainable For all that, local NGOs and donors gaining documentation and access ȱȱȱ¢ȱŘŖŖŞȱ have noted that once people receive to rights including citizenship. ARKA was also part of a Legal ȱȱȱęȱȱ Network funded by UNHCR to assist registration, and especially if they ȱȱ ȱŘŖŖŚȱȱ asylum seekers, refugees and mostly need or want to give birth in a ŘŖŖŜȱȱȱȱ ȱ Roma people seeking naturalisation. hospital for example, they want to the submission of citizenship be registered and to acquire Donors in many sectors suggest the appropriate documents. that civil society in Macedonia ȱęȱȱ¢ȱȱ NGO programmes practical projects, such as these While the problem of searches for documentation, but ȱȱȬ ęȱȱěȱ¢ȱ registration persists, a number skills to encourage changes in of donors, including USAID, the government policies and laws, American Bar Association, the particularly at the national ȱ ȱĴȱ level. There needs to be greater and UNHCR, are sponsoring, domestic lobbying, as well or have sponsored, a variety as international pressure, in of programmes and projects order to achieve success. run by Macedonian NGOs. ȱȱĚȱ ȱȱȱǻȓ ȱȱȱŘŖŖŚȬŖŜǰȱ ǯm) is an independent ȱȱŗŚȱȱȱŘŖŖŚȱ ǯȱȱȱ ȱ amendment to the Citizenship ȱȱȱȱ ȱ ȱȱȱ Ȭ¢ȱ ȱ ȱ ȱȱȱ of opportunity to some people 81+&55.XQGHYVNL ȱȱȱȱȱ ȱȱǯȱśǰśŝŗȱ :RUOG5HIXJHH'D\HYHQWVLQ-XQH¶3URWHFWLRQ·VLJQ ¢ȱȱǯȱ individuals had applied for made by Roma refugee youth currently accommodated in Suto ȱȱȱȱȱ naturalisation under this 2UL]DULPXQLFLSDOLW\IRUPHU In addition to the efforts to prevent and reduce statelessness, seekers, there are no reliable VWDWHVVKRXOGDOVRHVWDEOLVKDQLGHQWLÀFDWLRQDQGSURWHFWLRQ statistics about their number. The mechanism for stateless persons. vast majority of EU member states do not have in place any specialised Stateless persons are victims of a The obligation of states to protect procedure to identify and protect serious human rights violation: they stateless persons is unambiguously stateless persons. Rather, potential are deprived of the protective link anchored in international law. ȱȱȱȱȱȬ between a state and its citizens. Yet However, in practice these issue, within the framework of ȱȱȱĴȱȱȱ ȱȱĞȱěǰȱȱ asylum and immigration procedures, Europe, as in the rest of the world. ȱ ȱ¢ȱĜȱ ȱ which are usually inadequate for job it should be to this purpose. Two EU member implement them. states (Spain and Hungary) have Training is therefore ęȱȱȱȱ a key preliminary explicitly regulate statelessness condition for determination procedures and improving provide for a separate stateless status. protection standards. 81+&5%6]DQGHOVN\ Experience shows that representing In the EU context statelessness separately in statistics (where six member ȱȱȱęȱȱ statesŗ are not even separate protection status help ¢ȱȱȱŗşśŚȱ ę¢ȱȱȱ ȱ Convention), it about the magnitude of this might be possible phenomenon and to improve to achieve a protection mechanisms by ȱěȱ ȱȱȱęȱǯȱȱȱ implementation of relevant ,GHQWLÀFDWLRQ international In most EU member states, instruments by statelessness is only dealt with bringing stateless as a secondary issue in asylum protection under the ǰȱ ȱ¢ȱęȱ scope of the common procedural guidance, and in some European asylum countries it is not considered policy. Although at all. Spanish and Hungarian currently there is practices show that the creation of Ĵȱȱ ȱ a separate, designated statelessness to move in this determination procedure, regulated direction, at least one by detailed legislative provisions, Some Protection regimes are scarce and fail member state (Hungary) is promoting not only spectacularly raises 4,000 to provide appropriate and durable this rather pioneering proposalŘ protection standards but also people in Slovenia do ǯȱȱȱȱȱęȬ in its response to the European facilitates the task of assessing not have step model for European states to Commission’s Green Paper on the who is stateless and who is not. RIÀFLDO ȱȱȬȱȱ Future Common European Asylum status. Alija 3 %HULVKD mechanism for stateless persons. System. Should this initiative be De factoȱȱȱĞȱęȱ seen successful, a Statelessness Directive themselves in a situation where holding 1. Awareness raising ȱȱĞȱȱ ȱȱ their removal from the country is his child, has been The legal obligation of states to the principles and create a legally unenforceable, yet they do not qualify ÀJKWLQJLQ protect stateless persons derives binding obligation on member states for any protection status. It is also the courts from direct sources (international to establish a protection regime for in the interest of states to include de to win legal residence. instruments dealing explicitly with ǻȬǼȱȱǰȱȱ facto statelessness in their relevant statelessness), indirect sources on already existing good practices. ęȱǰȱȱȱ (international instruments that to avoid a state of legal limbo and articulate the right to a nationality) 2. Visibility the social risks this may entail. The ȱĞȱ ȱǻȬȱ ȱȱȱĞȱȱ ęȱȱȱȱȱ recommendations on statelessness). and, unlike in the case of asylum be easier than the process of refugee FMR32 STATELESSNESS 49 status determination. Nevertheless, ȱěȱȱǯȱ such as a notably shorter time of it requires special knowledge, and it ¢ȱȱȱȱĚȱ required residence before application. is therefore important to establish a the great similarities between the ȱȱę¢ȱȱ two relevant Conventions, there The way forward? unit within asylum authorities to is no reason for the legal and ȱȱȱȱȱěȱ conduct statelessness determinations. social status of stateless persons European protection regime for ȱěȱȱȱȱǯȱ ȱǰȱęȱěȱ It is evident that, in such a procedure, will have to be made to raise authorities cannot realistically NȱȱȱȬȱ awareness and improve knowledge verify whether a certain applicant is phenomenon: once a nationality is about legal obligations and current unable to claim nationality from any lost it is unlikely to be recovered ¡ȱȱȱǯȱĞȱęȱ country in the world. Consequently, within a reasonable timescale. decades of neglect of this issue, it statelessness legislation should ȱȱĞȱȱȱ is time for all EU member states to determine the range of countries reasonable hope of eventually support the Hungarian government’s in relation to which the applicant’s returning to their country of proposal to integrate statelessness citizenship should be tested (such as origin, stateless forced migrants into the mainstream of international country of birth, of former residence rarely have a chance to obtain the protection in the European Union, and where family members live). citizenship of their former country ȱȱęȱ A lower standard of proof should of residence. The legal and social improvements and harmonisation be applied when determining characteristics of the stateless on the issue of statelessness are statelessness, for example by using status should consequently indispensable complementary the term ‘substantiating’ one’s ȱȬȱ¢ȱȱ ȱȱȱȱȬȱ statelessness instead of ‘proving’ the host country. Integration Common European Asylum System. it (similarly to refugee status should be encouraged through, determination). In addition, the for example, facilitated access ¤ȱ ¢ȱǻǯ¢ȓǯ burden of proof should be shared to the labour market, social huǼȱ ȱȱȱȱ between the applicant and state ęǰȱȱȱȱ ȱȱȱȱ ȱ ȱ authorities. The applicant’s main ȱǯȱěȱ ĴȱǻĴDZȦȦ ǯǯu). procedural obligation should be to ȱȬȱȱȱ ŗǯȱǰȱ¢ǰȱǰȱǰȱȱȱǯ cooperate with the authority, not to (based solely on humanitarian or ŘǯȱĴDZȦȦǯǯȦȏȦ Ȧȏ provide all necessary evidence. Ȭ¢ȱǼȱ¢ȱ Ȧȏ¢ȏ¢ȦȦȏȦ easily lead to social exclusion ¢ȏǯfǰȱŗŗǯ 4. Protection status 3. ĴDZȦȦǯǯȦȏȦ ȦȦȦ as well as to undesirable ȏŘŖŖŝȏřŖŗȏǯfȱǻȱȱŘŖȱȱŘŖŖŞǼǯ One of the key objectives of the future secondary movements between Śǯȱŗşşŝȱȱȱȱȱȱ¢ǰȱ Common European Asylum System ěȱȱǯȱ Article 4 (4) (g) is the achievement of a uniform legal and social status for refugees and 5. A durable solution ȱDZȱ ǯȱ ¢ǰȱȂĴȱ ęȱȱ¢ȱǯȱ In the case of stateless persons ȱDZȱȱȱ ȱ ȱȱȱȱęȱ only one durable solution exists: Ȭȱȱȱ provision in law for the category of acquiring a new nationality. ȱȱȂǰȱ ȱ stateless person but even in these Criteria for naturalisation vary ȱĴǰȱŘŖŖŝȱĴDZȦȦ ȱȱȱĴȱȱȱ across European countries. While ǯǯȦ Ȧ status are lesser than those granted EU member states have generally ǰ ǰǰǰŚşŝŚŝśŞŖŘǰŖǯ to refugees (notwithstanding that the ȱęȱȱȱ two relevant Conventions contain a to avoid statelessness at birth or to practically identical list of minimum prevent it later in life, they appear obligations and recommendations ȱȱȱȱȱę¢ȱ for higher standards). However, in preferential naturalisation rules for some member states, stateless persons stateless persons, even though the may have access to complementary ŗşşŝȱȱȱȱȱ forms of protection, such as ‘tolerated on Nationality clearly requires stay’ or a humanitarian residence states to facilitate the access to ǯȱȬ¢ȱ ȱ citizenship for stateless persons be the ground for protection and who are lawfully and habitually not statelessness per se – which residing on their territory.4 falls far short of the benchmarks ȱ¢ȱȱŗşśŚȱǯȱ The reduction of statelessness has repeatedly been recognised as in the When formulating a protection common interest of the international status for stateless persons, the community. In light of both this and following should be kept in mind: the persistent nature of statelessness, states should adopt a more open NRefugees and stateless persons ȱ ȱȱęȱ have similar protection needs, rules concerning the acquisition of as both categories lack valid their citizenship by stateless persons, 50 STATELESSNESS FMR32 Statelessness and the right to citizenship Matthew J Gibney The key claim that animates most discussions of that no state recognises them as statelessness is the principle that everyone should have the a citizen. Strict jus sanguinis laws, right to citizenship somewhere. moreover, may pass on statelessness to the children of stateless people. In a world where all human beings to what might be called ‘precarious must live on the territory of one residents’, the many millions of Second, assigning citizenship by nation state or another, this is a Ȭ£ǰȱȱȱȱ birth also leads to huge inequalities fundamental principle of justice. migrants, who live in states in which ȱȂȱȬȱȱȱȱ Having a nationality is a gateway they have no right to stay. While not of luck. If one is born a citizen of to other rights; it is not without lacking in nationality altogether, the ǰȱȱȱ ȱęȱ£ȱȱȱ ęȱȱ ȱȱ ¢ȬȬ¢ȱȱȱȱǰȱ ȱ Ĵ¢ȱȱDZȱȱȱ¡¢ȱȱŝŞȱ viewed the stateless as lacking the ȱȱȱĞȱȱ ȱȬȬȱȱȱȱȱ very “right to have rights”. Without by an inability to draw upon state and prosperous state. If, by contrast, citizenship or nationality somewhere protection to guarantee even their one is born in Liberia, one is unlikely a person lacks many fundamental basic rights. The possibility of ȱȱ¢ȱŚŞȱ¢ȱȱǰȱȱ rights, including perhaps most deportation and lack of formal status to the hazards of a society that has fundamentally the right to a place in ȱȱȱěȱȱ ȱ ȱ¢ȱȱȱĚǯȱ the world where one’s opinions are and social standing in the societies Given the restrictive immigration ęȱȱȂȱȱěǯȱŗ in which they work and live. controls operated by wealthy countries and limited avenues for For any individual to possess a Moral problems with citizenship through naturalisation, it genuine right to citizenship there current practice is hard to disagree with Joseph Carens must be a state with a corresponding ȱşŞƖȱȱȱ Ȃȱȱ that “citizenship in the modern duty to provide it. The stateless acquired the citizenship they world is a lot like feudal status in ¢¢ȱȱȱȬĚǰȱ currently hold either by taking on the medieval world. It is assigned deracinated individuals, moving the citizenship of one or both of at birth; for the most part it is not aimlessly around the globe. They their parents or by acquiring the subject to change by the individual’s ȱ¢ȱȱĴȱȱ citizenship of the state in which they ȱȱěDzȱȱȱȱȱȱ particular societies, albeit lacking were born. While almost all states also ȱȱȱȂȱȬǯȄŘ legal recognition of and appropriate have procedures – that vary widely protection for their status as residents. between states – for the acquisition Third, the principles of jus soli and The primary injustice the stateless of citizenship through naturalisation, jus sanguinis ignore other important experience, then, is not that they considered globally it is where moral claims to citizenship. Consider ȱęȱȱȱȱȱȱ and to whom one is born that are the case of Robert Jovicic, whom citizenship but that the state which overwhelmingly the Australian should grant them citizenship will, the determinants government for various reasons, not do so. of the citizenship the plight of the stateless deported to one will hold provides powerful ȱȱŘŖŖŚǯȱ On what basis should an individual for the duration ȱ ȱȱȬ have the right to claim citizenship of one’s life. practical and moral citizen permanent ȱȱęȱǵȱǰȱȱȱ reasons for asking resident of issue around, to whom are states The way states Australia who had ȱȱȱ£ǵȱ ȱ currently searching questions over many years ȱȱȱȱȱȱĴȱ distribute DERXWFLWL]HQVKLS been repeatedly of morality rather than as an issue citizenship convicted of of international or municipal law. is morally crimes related to The value of a moral account is that problematic from a number of drug use. In many respects, he was it aspires to shed light on how the ěȱǯȱȱȱ¢ǰȱ an exemplar for the government’s ȱȱȱȱȱĴȱ variations amongst states in their policy of deporting foreign citizens ĚȱȱǻȱǼȱ use and interpretation of principles ȱȱȱěǯȱ conceptions of what is just. for acquiring citizenship, as well as But his deportation caused a huge provisions on the loss of citizenship, public outcry, ultimately forcing the If the question of who should be can lead to statelessness. Problems in government to facilitate his return. entitled to citizenship has obvious demonstrating parentage or place of ȱ ȱȱȱȱȱ¢ǵȱ implications for both de facto and de ȱȱĚȱȱ ȱ ȱ Jovicic had lived in Australia for some jure stateless people, it is also germane states can put people in the situation řŜȱ¢ȱȱȱȱǯȱ FMR32 STATELESSNESS 51 He had arrived in Australia with ĴȱȬ£Ǽȱ¢ȱȱ principle demands an alignment his parents when he was two years freely around the country and yet between the reality of people’s social old; he did not speak or understand ȱ¢ȂȱśŖȱȱȱ¢ȱ existence and their legal status. Serbian or have any social network in requirements that must be met before Serbia. In the words of the opposition an individual can access certain local Each of these accounts of membership immigration spokesperson, “Even ęǯȱ ȱȱȱȱȱȱ takes us beyond the principles of ȱdzȱǽ Ǿȱȱȱȱȱ similar arrangement at the global nationality based on birthright and good member of our community, he is level. Free movement internationally discretionary naturalisation. But in undeniably Australia’s responsibility.” could exist alongside a requirement of some respects, these principles also residency in a particular state in order ěȱȱ ǯȱȱȱȱ This suggests that our conceptions to claim the full rights of citizenship, subjection, for example, seems more of who is morally a ‘member’ including the right to vote. inclusive than societal membership, of a state may not be exhausted as its basis for inclusion seems to by birthright and discretionary A second principle is that of ¢ȱȱȱȱȬ£ȱȱ naturalisation principles. The view subjection. In this account, common foot in the territory of the state. that Jovicic was morally Australian to both traditional liberal and radical seemed to derive from his years of democratic approaches, all people Outstanding questions continuous residence in Australia living under – or subject to – the Other issues remain outstanding. and therefore, notwithstanding his laws of a particular state should be ȱȬ£ȱȱȱȱ Ĝȱ¢ǰȱȱȱȱ members of that state. The key idea to citizenship, what are their really be considered his state. These here is that any state that rules over ǵȱȱȱȱȱ years of residence even overrode a group of people is legitimate only unlawful entry to a state make any ȱȱȱĴ¢ȱ¢ȱȱȱ if the people consent to its rule, and ěȱȱȱȂȱ¢ȱȱȱ the Australian community. Jovicic, decisions are only legitimate if those £ǵȱ¢ǰȱȱ£ȱȱ one might say, was an Australian ěȱ¢ȱȱȱȱȱ determined by societal membership citizen by jus domicili, by virtue ȱȱȱȬȱ or subjection, should lack of of the reality of residence. process. This idea has long been a residence in the state, for example feature of liberal and democratic an extended period spent in another The case of Jovicic is far from an ǯȱȱȱȱȱȱěȱ ǰȱȱȱȱȱȱ£ǵȱ isolated one. Many states accept rights of political participation to ȱěȱȱȱȱ all those under its rule is thus not a In practice, the responses of states to ȱȱȱ ȱȱȬȱ democracy but a tyranny. Everyone citizenship questions will be shaped ȱȬ£ǯȱȱȱȱȱ living in the territorial boundaries as much (if not more) by the dynamics European Union, for example, have of the state should be able to access of politics, understandings of national recently agreed a Directive outlining citizenship and its corresponding interest and concerns about migration a special status for such people. rights. In a legitimate democratic control as by conceptions of justice. regime, membership should follow But by demonstrating the problems State obligations to the contours of power rather than with current arrangements, the plight grant citizenship the happenstance of birth. of the stateless provides powerful How can we make sense of this practical and moral reasons for asking principle of jus domicili? Recent ȱȱȱęȱȱȱȱ searching questions about citizenship. ȱȱěȱȱ of societal membership. State These questions are likely to grow ěȱ ¢ȱȱȱ membership should, in this view, held in importance in the years ahead. its moral basis. by some communitarians, include ¢ȱ ȱȱęȱȱ Ĵ ȱ ¢ȱǻĴ ǯ¢ȓ In a view which emphasises the in the development and direction ǯ¡ǯǯkǼȱȱ¢ȱȱ idea of choice, like cosmopolitan of a particular state. The societal ȱȱȱȱȱȱ liberalism, membership should be membership principle tends to ȱȱȱȱǻĴDZȦȦ available to anyone who chooses highlight men and women’s roles ǯǯ¡ǯǯǼȱȱȱ¡ȱ to live in a particular state. This as social and economic agents. The ȱȱ ȱ approach would recognise the moral test of membership is the depth of ǰȱ¢ȱȱ¡ǯ right of people to reside wherever one’s social and economic roots into ŗǯȱ ȱǰȱThe Origins of Totalitarianism,ȱŘşŜȬŘşŝ a particular political community, they wish. On the face of it, the Řǯȱ ȱ ȱȱȁȱȱ¢Ȃȱȱȱ principle of choice seems destructive ¢ȱȱȂȱ Ȭȱ Barry and R Goodin (eds.), Free Movement (Harvester of the very idea of citizenship: open to the common good.3 The idea of ǰȱŗşşŘǼǰȱŘŜǯ řǯȱãǰȱȱǻŘŖŖśǼȱȁȱȱȱ borders globally would appear to societal membership is implicit in Practices of Citizenship’, PS: Political Science and Politics, take away from citizenship its legal most practical calls to regularise ȱŘŞǰȱǯȱŚǰȱǯȱŜŜŝȬŜŜş ȱȱȱȱȱěȱ unlawfully resident immigrants or between the rights of people. But this Ȭȱ¢ȱDZȱ¢ȱ is deceptive. The principle of choice is amnesty programmes are informed consistent with forms of cosmopolitan by the idea that the state should ȱȱĴȱȱȱ ȱȱȱĴȱȱȱ ěȱȱȱ£ȱȱȬ state over a period of years deserve citizens. In the US, for example, as formal status, particularly if they a federal state, citizens (and legally ȱȱĴȱǯȱȱ 52 FEATURE: REFUGEE STATUS DETERMINATION FMR32 UNHCR and individual refugee status determination Richard Stainsby Determination of refugee status is a critical makes consistency – and provision of training – ÀUVWVWHSLQPHHWLQJWKHSURWHFWLRQQHHGV a challenge. There are also issues of ensuring that of those requiring international protection decisions are made in a timely manner plus concerns ȱěȱ¢ǰȱ¢ȱȱȱ¢ȱȱǯȱ DQGLVRQHRI81+&5·VFRUHIXQFWLRQV ¢ǰȱ ȱȱȱȱȱĴȱ ȱ asylum seekers and refugees are very positive, in others Refugees may be recognised as such either on a group the protection environment can be quite negative, basis (‘prima facie’) or individually. The vast majority of rendering UNHCR’s RSD work even more challenging. the world’s refugees are recognised by way of a prima facie group determination, based on an evaluation In view of these obstacles and limited resources, UNHCR of the situation in the country of origin which gave ȱȱȱȱȱȱěȱȱȱȱ rise to their leaving. This article, however, focuses on improve RSD under its mandate, and to strive for high individual refugee status determination (RSD). ¢ȱȁęȬȂȱŗ – ie to ensure the early ęȱȱȱȱȱȱȱǰȱ Individual RSD is used primarily in situations of mixed as well as of those who do not need or deserve it. Ě ǰȱ ȱȱȱ¢ȱȱȱȱ from other migrants. It may be carried out by states Improving UNHCR’s RSD operations Ȧȱ ǯȱ ȱȱǰȱ ǰȱȱȱ A number of initiatives have been taken to ensure quality, be conducted by states as it is governments which Ĝ¢ȱȱ¢ȱȱ Ȃȱȱǯȱ are responsible for ensuring that refugees on their ȱȱȱȱȱŘŖŖřȱȱȱ territory are treated in accordance with international Standards for Refugee Status Determination under standards, subject to supervision by UNHCR as UNHCR’s MandateŘ (designed to harmonise procedures ȱ¢ȱȱȱǯȱŗŖŘȱȱȱŗŚŜȱ globally) and a comprehensive training programme for ȱȱȱȱŗşśŗȱȱȱŗşŜŝȱ ȱěȱȱȱȱȱȱDzȱȱ Protocol have established national procedures. ŘŖŖŞǰȱȱȱ ȱȱȱ¡ȱȱȱȱ ǯ Where states have not yet acceded to the international ěȱȱȱȱǰȱȱȱ ȱȱȱ refugee instruments or have not yet established made in the Agenda for Protection,3 to ensure adequate ěȱȱǰȱ ȱ¢ȱȱ Ĝȱȱȱǯȱȱȱȱȱ to step in and undertake individual RSD. Through ȱ ȱȱȱȱęȱȱȱȱ conducting RSD, UNHCR can determine whether ¢ȱ ȱȱȱěȱȁȂȱ asylum seekers qualify for international protection. of asylum seekers.4 These guidelines, along with legal, ¢ȱȱ¢ȬȬȱǻ Ǽȱȱȱ ȱŘŖŖŝǰȱ ȱ ȱȱȱȱȱ relevant and reliable sources, are disseminated globally ȱȱŜŞȱǯȱȱşŖƖȱȱȱȱ through UNHCR’s Refworld.ś UNHCR recently launched work in terms of applications received and decisions ȱ¢ȱȱȱȱȱȱȱĜȱ ȱ ȱȱȱȱŗśȱDzȱȱȱ to consolidate legal advice and to provide a forum for operations were in Kenya, Malaysia, Turkey, Somalia, ȬȬȱȱȱ¡ȱȱȱǯȱ ¢ȱȱǯȱ ȱŘŖŖřȱȱŘŖŖŜǰȱȱ ȱȱĜȱȱȱȱȱęȱȱ ȱ ȱȱ¢ȱŚŞƖǯȱ ȱŘŖŖŝǰȱ ȱ of the world to help improve quality, consistency and ȱŝśǰŜşŖȱȱǻŗŘƖȱȱȱ¢ȱ productivity, as well as to work on capacity building with ǼȱȱȱśŗǰŘŖŖȱǯȱ governments. Finally, regional meetings have been held to deal with inconsistent approaches to similar cases. The growth in UNHCR’s role in conducting RSD has brought with it a number of challenges, some faced by Like states, UNHCR occasionally faces sudden increases ȱȱȱȱȱ ǯȱȱęȱȱȱȱ ȱȱȱȱ¢ȱȱȱęȱĜǯȱ ȱȱȱĜǯȱ ȱȱŗŚŖȱěȱ ȱȱȱ ȱȱȱȱȬ ȱȬȱȱǰȱȱȱŗśŖȱȬǯȱ management techniques which are shared as best practices ȱȱȱěȱȱȱȱȱ¢ȱȱ ȱĜǯȱǰȱ ȱȱȱȱ received by UNHCR is far less than in most national RSD Deployment Scheme under which experienced RSD systems in Europe or North America, for example. In ȱȱȱȱȱȱ¢ȱȱĜȱ ǰȱȱȱȱŗŚŖȱȬȱěȱȱȱȬȱ facing a dramatic and sudden upsurge in applications. In contracts which, in view of the resulting high turnover, ŘŖŖŞǰȱŗśȱȱ ȱȱȱȱǯ ȱȱȱȱȱĜ¢ȱȱȱȱ demands. Expert RSD supervision is also required in all UNHCR has also developed strategic partnerships ȱȱǯȱ ȱěȱȱȱȱȱ with governments with many years of experience in FMR32 FEATURE: REFUGEE STATUS DETERMINATION 53 RSD. Experts from the Immigration and Refugee Board ȱ¢ȱǻ ȓǯgǼȱȱǰȱ ȱȱȱȱȱȱěȱȱȱ ȱȱȱȱ ȱ ȱĜǰȱȱěȱȱȱĜȱ³ȱȱ ǰȱȱȱ ȱȱǰȱ ȱȱ··ȱȱȱǻȱĜȱ ȱǻĴDZȦȦ ǯǯǼǰȱ ǯȱȱ ȱ for the Protection of Refugees and Stateless People, ¡ȱȱȱȱȱȱȱȱȱȱȱ OFPRA)Ŝ have been deployed to assist in processing ȱ¢ȱȱȱȱȱȱȱ ǯ cases. In partnership with the International Association ŗǯȱȱȱȁęȱȂȱȱȱęȱǰȱȱȱȱȱȱȱ 7 of Refugee Law Judges, UNHCR has been able to ǯȱ ȱȱȱęȱȱȱȱȱǯ involve judges in countries with developing asylum ŘǯȱȱȱĴDZȦȦ ǯǯȦȦȦŚřŗŜŖŖŘǯl systems in helping to further build capacity. 3. UNHCR, Agenda for Protection,ȱȱŘŖŖřǯȱřȱǯȱȱDZȱĴDZȦȦ ǯǯ Ȧ ȦȦŚŝŗŚŗŘǯl 4. See for example those issued for Iraqi asylum seekers, online at ĴDZȦȦ ǯǯȦ This brings us full circle. While UNHCR strives to conduct ȬȦ¡Ȧ¡Ȧ Ȧ ǵƽŚŜŖśśś7 ȱȱȱȱǰȱȱȱȱȱěȱȱ śǯȱĴDZȦȦ ǯ ǯg encourage states to take up this quintessential government ŜǯȱĴDZȦȦ ǯǯǯr function, with appropriate UNHCR participation. 7. ĴDZȦȦ ǯǯg Refugee status determination: three challenges Martin Jones Refugee status determination (RSD), which these issues of vital concern to asylum seekers and is vital to the protection of so many asylum to the international community. Although there seekers worldwide, is at best an imperfect, are many issues to debate relating to RSD, there ȱȱǰȱȬȱȱȱȱȱ haphazard and challenging process. It merits national jurisdictions. These are: access to counsel, greater attention and appropriate reform. the increasing transnationality of RSD and current governance of the international refugee regime. Asylum seekers are subject to a variety of procedures examining their individual reasons for being outside Access to counsel their country of origin, and thus determining their ȱĴȱȱȱ ȱȱǰȱȱ¡ȱ status as refugees. Even within states, procedures Ĵȱȱ ȱȱȱȱȃȱ can vary based upon location, country of origin and applicant should be given the necessary facilities, ȱ¢ǯȱȱȱěȱȱȱ including the services of a competent interpreter” and RSD procedures, notably in the European Union, there be allowed “to contact a representative of UNHCR.” is still no single model for RSD and there remains a Both of these recommendations help to ensure an troubling variation in outcomes in similar cases. For outcome that is based on a full understanding of the example, the acceptance rates for Iraqi refugees in facts of the case and on international law. However, the European states governed by the EU’s RSD standards ¡ȱĴȂȱȱȱȱ ȱ ȱŖƖȱȱ ȱȱŞŗƖȱȱ ǯȱ protection are conspicuously silent on one issue: the access of asylum seekers to legal advice. Studies of outcomes in RSD processes have linked recognition rates to a variety of seemingly extraneous Access to a representative of UNHCR cannot factors, including government ideology, country of be a substitute for the provision of or access to asylum demographics and the number of refugees independent legal counsel. This is especially true in already in the country of asylum.ŗ Recent studies ȱ¡¢ȱŞŖȱȱȱ ȱ ȱ in Canada and the US have shown that the identity serves as a decision maker. Statistics on RSD indicate ȱȱȱȱȱȱȱĞȱȱȱ ȱȬȱ¢ǰȱȱǰȱȱȱ ęȱĚȱȱȱǯŘ Recognition interests of the individual.4 Fortunately, the provision rates have also been linked to refugee movements, of independent legal advice to asylum seekers has with higher recognition rates prompting future recently spread beyond the ‘global north’ where such population movements. At best, RSD is an imperfect, services are well established (though subject to budget haphazard and challenging process. Even factoring in cutbacks). The Southern Refugee Legal Aid Network successes upon appeals and grants of ‘complementary (SRLAN)śȱ ȱȱȱŘŖŖŝȱȱȱȱȱ protection’3ǰȱȱŘŖŖŝȱȱ¢ȱȱǻśśƖǼȱȱ¢ȱ representation of asylum seekers in the ‘global south’. seekers worldwide were refused protection. A growing number of legal aid organisations now exist ȱȱǰȱȱȱȱȱęȱ The high rejection rates and consequent threat of number of asylum seekers, though the overwhelming forced removal from the country of asylum make majority remain without access to counsel. 54 FEATURE: REFUGEE STATUS DETERMINATION FMR32 In the South, refugee legal aid has typically grown out Martin Jones (ȓǯm) is a of refugee advocacy organisations (unlike in the North ȱȱȱȱȱ ȱȱȱȱ where refugee legal aid is more commonly an outgrowth ¢ȱȱȱȱȱȱȱȱȱ ȱ Ȭȱȱȱȱȱȱ ȱȱȱȱȱȱȱ ǯ ȱǼǯȱȱěȱȱȱȱȱȱ ŗǯȱ¢Ȭȱ ȱȁȱȱȱȱȱ¢Ȭȱȱȱ the South present a series of unique challenges, including Ȃǰȱ ȱ ȱȱȱȱȱȱȱŗŗŚǯȱ ȱ ǯȱ ȱ¢ȱ¡ȱȱȱěȱȱȱȱȱ ¢ȱŘŖŖśǯȱȱĴDZȦȦ ǯǯȦȦ ȦŚŘŞŚŜŝŘǯf ŘǯȱȱȱȁȱĴȱȱȱȱȂǰȱĴ ȱ ȱ ȱȱęȱȱȱȱǯȱ ReviewȱȱřşǰȱŘŖŖŞDzȱ ȱ ȱ£ǰȱȱ ȱȱǭȱ ¢ȱȬȱ ȱȂȱęȱȱ ȱȱȱȱȱ ȁȱĴDZȱȱȱ¢ȱȂǰȱStanford Law ReviewȱȱŜŗǰȱŘşśȬ professional conduct (the Nairobi Code of February ŚŗŘǰȱŘŖŖŝǰȱȱȱĴDZȦȦǯǯȦřȦǯǵȏƽşŞřşŚŜ. řǯȱȁ¢ȱȂȱȱȱȱȱȱȱȱ ȱȱȱęȱȱ ŘŖŖŝǼDzȱȱȱȱȱȱȱȱȱȱ strict criteria for the grant of refugee status, including individuals whose refoulement is training materials for refugee legal aid organisations. barred due to a risk of torture or other severe human rights violations. 4. One study found that refugees who were represented during UNHCR RSD had twice ȱȱȱȱȬȱǯȱȱ ȱȁȱ DZȱȱ Transnationality of RSD Aid and UNHCR Refugee Status Determination in Egypt’, Journal of Refugee StudiesȱŗşDZŗǰȱ Refugee law is inherently transnational in subject ȱŘŖŖŜǯ śǯȱȱĴDZȦȦ ǯǯȦȦ and ĴDZȦȦ ǯ ǯȦ¡ȏęȦ Ĵȱȱȱȱȱȱȱ¢ȱȱ Řŗŝŗǯm in one country is on events in and laws of another Ŝǯȱȱȱȱȱȱȱȱ¢ȱȱȱ¡ȱȱ ȱȱȱȱ country – the country of origin.Ŝ However, refugee law ȱ¢ȱȱȱȱȱȱ ȱȱěȱȱȱȱDzȱȱ ȱ of the country of origin may provide insight into the availability of protection. ȱĚȱȱȱ¢ȱȱȱǰȱ whereby norms developed and elaborated in one jurisdiction are transferred to another jurisdiction so that courts in one country seek guidance from the jurisprudences of other countries. This means that advocates must now keep up to date on developments in not just a single jurisdiction but many. This problem is not an abstraction but presents itself every day when a client from County A applies to counsel in Country B (who received legal training in /RUHQ/DQGDXKWWS PLJUDWLRQRUJ]D ¢ȱǼȱȱȱĴȱȱ¢ȱǯȱ¢ǰȱ ȱȱ¢ȱȱȱĴȱȱȱ refugee law let alone with respect to its transnationality. Governance ȱęȱȱȱȱȱȱȱȱȱȱ entire refugee regime. The governance of refugee law ¢ȱȱ ȱ ȱȱȱřśȱȱȱ ȱȱǰȱȱǰȱě¢ȱ ȱȱŝŜȱ ȱ ȱȱȱȱȱ¡ȱĴȱǻȱ which provide almost all of the voluntary contributions which fund UNHCR’s operations). At present UNHCR ȱȱȱȱ ǰȱĴȱȱȱ its application by states and apply it in its own RSD operations. In such a situation, the independence of its interpretations of the Refugee Convention in its RSD decisions cannot be guaranteed. This is exacerbated by the fact that UNHCR generally does not provide Ĵȱȱȱȱȱȱȱȱȱȱ always disclose all of the evidence upon which it bases ȱDzȱǰȱȱ ȱ¢Ȭȱ ȱȱȱȱĞȱǯȱȱ ȱȱ ȱ ȱȱȱęȱǻȱȱȱ do exist, such as that described by Rachel Levitan in this issue of FMR), the fact that such practices can persist at all is indicative of the problem of having an international agency with legal immunity making such decisions. The international refugee regime requires reform. That in turn requires dialogue – and dialogue requires partners. Trained refugee counsel, aware of and educated ȱȱȱȱȱȱĴǰȱ can be one important partner. However, what is vital to the process is the inclusion of the voice of refugees themselves. They are the most important partner – and 5RVHWWHQYLOOH5HIXJHH5HFHSWLRQ2IÀFH-RKDQQHVEXUJ the most important party in all RSD proceedings. FMR32 FEATURE: REFUGEE STATUS DETERMINATION 55 Refugee status determination in southern Africa Michael S Gallagher Lack of access to legal counsel and asylum seeker’s receipt. The receipts are renewable, and lengthy delays in procedures continue to generally it takes more than a year between the time of undermine refugee status determination the initial interview and the completion of the report. procedures in southern Africa. The report and the application are examined by COREDA, ȱȱȱĴǰȱȱȱ ȱŘŖŖŘȱȱŘŖŖŝȱȱȱȱǰȱ¢ȱ from several Angolan ministries. A delegate from UNHCR seekers and other persons of concern in the ten Ĵȱȱȱȱǰȱ ȱ countries which constitute the geographical south of observer status. If the application is denied the asylum Africa has steadily declined. Voluntary repatriation to seeker has twenty days in which to lodge an appeal. The Angola, the Grand Lac countries and the Democratic appeal, however, is heard by COREDA again and not Republic of Congo accounted for most of this decline. by an independent appeals tribunal. Recently UNHCR Moreover, as conditions of stability returned to former has begun a pilot project which provides legal assistance refugee producing countries in the region, there was a to appellants as well as assistance in preparation of the concomitant drop in the number of new asylum seekers. initial application. If the appeal is denied, the unsuccessful asylum seeker is given six months to leave Angola. Similar In many of the countries in the region this has resulted status determination procedures are found in Zambia, in a sharp decline in the need for refugee status Malawi and Zimbabwe. As in Angola, representation determination (RSD) procedures. However, two countries by counsel is almost unheard of in these procedures. in the region – Angola and South Africa – continue to ¡ȱęȱȱȱ ȱ¢ȱȱ The process for refugee status determination in South ȱ¢ǯȱȱȱŗǰŚŝŗȱ ȱȱȱ ȱȱȱěǯȱȱ ȱȱȱȱȱ ŘŖŖŝȱ ȱȱȱȱŚśǰŜřŝǰȱȱ ȱ¢ȱȱȱȱȱȱ ȱěǯȱ ȱŞŖƖȱȱȱ¢ȱȱȱȱǯȱȱ ȱȂȱȱȱȱŗşşŞȱȱȱȱ ȱȱȱęȱȱȱȱ¢ȱ ȂȱȱȱĜȱȃ¢ȱȱ applications. Unlike regions in eastern and northern with and invite a UNHCR representative to furnish Africa where RSD is conducted by UNHCR, each of ȱȱęȱĴȄȱȱȱȱȱȱ the countries in the region – with the exception of for UNHCR observer status in the procedure apart Swaziland where refugee status is determined jointly by from that which can be inferred from UNHCR’s general the government and UNHCR – conducts its own RSD. supervisory role with respect to the Convention. There is no provision for legal representation of the asylum Legal limbo seeker at this stage of the procedure. If an application is ȱȱȱȱȱěȱȱȱ rejected as ‘manifestly unfounded’, it must be reviewed refugee status determination but share two common traits. ¢ȱȱȱĴǰȱȱȱ¢ȱȱȱ ȱęȱȱȱȱȱȱȱȱȱȱ by the Refugees Act. An application that is rejected as phases of the application process is severely limited, if ‘unfounded’ rather than ‘manifestly unfounded’ may ȱȬ¡ǯȱȱǰȱ ȱ¢ȱȱ¢ȱȱ be appealed to the Appeal Board. Asylum seekers ȱȱȱęǰȱȱȱ¢ȱȱȱȱ have a right to have legal assistance for their hearing country need to wait years before receiving a decision on before the appeals board but at their own expense. ȱǯȱ ȱȱ¢ȱ¢ȱ¡ȱȱȱȬȱ limbo which leaves them prey to exploitation by nationals In theory, the process of recognition of refugee status in ȱ ȱȱ¢ȱȱȱȱȱĜǯ South Africa should occur rapidly. In practice, asylum seekers may wait for months before being able even to In Angola the asylum seeker completes an application start the process of status determination by completing for asylum and is subsequently interviewed by ȱ¢ȱȱ ȱȱȱȱĜǯȱ ȱȱĜǰȱȱȱȱȱȱ It may be years before the application is actually heard application which permits them to remain in Angola ¢ȱȱȱȱĜǯȱȱȱȱȱŘŖŖŝǰȱ pending adjudication. Immigration then conducts ȱȱȱȱȱȱȱ¡ȱŗŝŖǰŖŖŖǯȱ some inquiry into the application and eventually issues a report. Crucially, asylum applicants are not In southern Africa some legal aid assistance is now being represented at the initial determination; although some provided by independent bodies, including the Legal ¢ȱȱȱȱęȱȱȱǰȱ Resource Foundation in Zambiaŗ and the University they are not represented by counsel at the interview. of Capetown’s legal clinicŘ in South Africa, both of which are founding members of the Southern Refugee In theory the immigration report should be completed Legal Aid Network (SRLAN).3 Far more is needed. The ȱŗŞŖȱ¢ȱȮȱȱȱȱȱ¢ȱȱȱ provision of independent legal aid to asylum seekers 56 FEATURE: REFUGEE STATUS DETERMINATION FMR32 in southern Africa needs to be addressed across the whole region if asylum seekers are to get a fair hearing Asylum seeker statistics ȱȱȱȱȱěȱǯȱ 7KHQXPEHURIDV\OXPVHHNHUVLQLQGXVWULDOLVHGFRXQWULHVLQFUHDVHGLQ 2008 for the second year running, according to provisional statistics ȱȱ ȱ ȱǻȓǯ FRPSLOHGE\81+&57KHLQFUHDVHFDQSDUWO\EHDWWULEXWHGWRKLJKHU comǼȱȱ ȱȱȱȱ ȱ QXPEHUVRIDV\OXPDSSOLFDWLRQVE\FLWL]HQVRI$IJKDQLVWDQ6RPDOLDDQG ȱȱǻĴDZȦȦ ǯǯtǼǯȱȱ¢ȱ RWKHUFRXQWULHVH[SHULHQFLQJWXUPRLORUFRQÁLFW$OWKRXJKWKHQXPEHU ȱ ȱȱ¢ȱĜȱȱȱ ȱ of Iraqi asylum seekers declined by 10% in 2008, Iraqis continued to ȱȱȱȱǯ be the largest nationality seeking asylum in the industrialised world. ŗǯȱĴDZȦȦ ǯǯǯ£ 7KHUHSRUWAsylum Levels and Trends in Industrialized Countries, 2008, ŘǯȱĴDZȦȦ ǯǯǯ£ȦȦ ȦȦ Ȧ compiled by UNHCR’s Field Information and Coordination Support 3. See ĴDZȦȦ ǯǯȦȦ and ĴDZȦȦ ǯ ǯȦ¡ȏęȦ Řŗŝŗǯm Section, can be found on UNHCR’s website at: www.unhcr.org/statistics Refugee protection in Turkey Rachel Levitan The provision of independent legal held in detention ever get access to any kind of legal representation for asylum seekers in Turkey ǯȱȱȱĴǰȱ ȱȱ¢ȱ is proving a vital component in improving barred from entering detention facilities altogether. Even ȱȱĞȱ ȱ ȱȱȱȱȱ refugee status determination procedures. detention facilities to interview asylum seekers. Neither ¢ȱ¢ǰȱȱȱȱȱȱŚŖȱȱ UNHCR nor local NGOs are given access to asylum come to Turkey seeking asylum. However, since Turkey seekers held in ‘transit zones’ in Turkey’s airports. ȱȱȁȱȂȱȱȱŗşśŗȱȱ Convention, refugees from countries outside Europe Despite a government commitment to bring domestic are not eligible to receive international protection asylum policy into compliance with European standards, from the Turkish government. Instead, they must turn Turkish legislators and policymakers have so far shown to UNHCR for protection. Refugees must also apply Ĵȱ ȱȱȱȱȱ¢ȱ for ‘temporary asylum’ from the Turkish authorities law that would be consistent with international standards. for permission to remain in Turkey while UNHCR While plans move forward for the establishment of evaluates their claims. During that period, they are seven ‘reception centres’ for asylum seekers (a project ȱȱȱȱȱȱřŖȱȁȱȂȱȱ funded by the European Commission and supported Turkey, and need police permission to travel outside by Dutch and British government partners), progress the city. When their cases are decided, either they has been very slow. In the meantime, instances of ȱȱȱȱȱĴȱȱȱ refoulement continue at an alarming rate and periodic country (such as the US, Canada or Australia) or their riots erupt in the ‘foreigners’ guesthouses’ in protest application is denied and they must leave Turkey. ȱęȱȱȱȱǯȱ The parallel UNHCR and government asylum procedures Legal aid are complex, and many applicants wait for months or ȱŘŖŖŚǰȱ ȱ£Ȃȱ¢ȱȬȱ¢ȱǻ Ǽȱ years for their applications to be processed. While they established its Refugee Legal Aid Program to provide ǰȱȱĜȱȱȱȱȱ free legal assistance to refugees. Two years later the ¢ȱȱȱȱȱȱȱĴȱȱȱȱ programme expanded and was renamed the Refugee illegally. Those who are detained while trying to leave Advocacy and Support Program (RASP). RASP continues the country are particularly vulnerable to refoulement1 to provide legal assistance to refugees (including ȱȱęȱȱȱȱǯȱ those in detention) on both UNHCR and government asylum procedures. It also provides mental health While lawyers should in theory have access to the counselling, conducts public legal education and training migrant detention facilities where refugees are held for local NGOs and lawyers, monitors government (known as ‘foreigners’ guesthouses’), not enough of them practice and engages in legal advocacy.Řȱ ȱŘŖŖşǰȱȱ have training in refugee law or experience advocating ȱȱȱȬ¢ȱȱ ȱȱȱ for refugees. Moreover, the very limited state legal aid mentoring programme for lawyers across the country. system does not cover legal assistance to refugees. Thus, ȱȱȱęȱȱ ¢ȱȱȱȱ HCA’s legal services for UNHCR procedures include: ȱȱȱȱȱȱěȱȱ¢ȱȱ preparing refugees for and representing them during to work for free – which inevitably limits the time and Dzȱȱ¢ȱȱȱDzȱĞȱ ěȱ¢ȱȱǯȱǰȱ ȱȱ ¢ȱ legal submissions and testimonies; communicating ȱĚȱȱȱȱ¢ȱȱȱȱȱȱ with UNHCR regarding clients’ immediate protection dearth of available interpreters. As a result, few refugees concerns; and advocating for vulnerable clients. FMR32 FEATURE: REFUGEE STATUS DETERMINATION 57 ȱȱȱŘŖŖŝȱȱȱ ȱ¢Ȃȱ ȱȱȱęȱǻȱ ȱǼȱȱ ȱ ȱ ȂȱŘŖŖśȱȱȱ ȱȱǰȱȱǰȱȱȬȱ ǯȱ Standards3ǰȱȱęȱȱ ȱ ȱ ȱ in full compliance with the Standards, including access HCA and UNHCR Turkey cooperate to protect the to legal counsel and the right to be interviewed and to rights of refugees throughout the Turkish ‘temporary ǯȱ ǰȱȱȱȱęǰȱȱ asylum’ procedure. Most critically, the two organisations ȱęȱȱ ȱ ȱ ȱȱȱȱ work closely to prevent instances of refoulement by ȱȱ¢ȱȱȱęȱȱ ǰȱȱȱ ȱ¢ȱ seeking urgent interim measures from the European ȱȱȱȱęȱȱȱȱǰȱȱ ȱȱ ȱȱȱȱřşȱȱȱȱ ȱ¢ȱȱȱȱȱȱȱȱȬ of Court. Through instances of cooperation such as ȱǯȱȱȱȱęȱȱ this, together they hope to bring the government’s intimidating questioning techniqes by some interviewers, practices in line with Turkey’s international obligations the failure to identify victims of torture consistently, and to uphold refugees’ basic human rights. the lack of regularly available, trained interpreters. ȱȱǻȓ¢ǯǯrǼȱ ȱȱȱ ȱȱȱęȱȱȱȱȱȱ ȱ¢ȱȱȱȱȱ ȱ ȱ ¢ǯȱĞȱȱ ȱȱȱǰȱȱ £Ȃȱ¢Ȭ¢ȱǻĴDZȦȦ ǯ¢ǯǯ ȱĞȱȱȱȱȱ¡ȱȱ ȱ trǼǯȱ ȱȱȱȱȱȱȱȱ interviewers more coherently. During the UNHCR ȱȱȱȱ ȱǻǼǯ interview, legal representatives can help identify and ŗǯȱȱȱȱȱȱȱȱȱ¢ȱ ȱȱȱȱȱ clarify misunderstandings between the interviewer or Řǯȱȱ ȱŘŖŖŞȱȱȱȱȱȱĴDZȦȦ ǯ¢ǯǯȦǵƽŜŗŖ. In the interpreter and the refugee. They can also identify ŘŖŖşȱ ȱ ȱȱȱȱȱȱȱȱȱ¢ȱȱ and even prevent intimidating questioning by the and on LGBT (lesbian, gay, bisexual and transgender) asylum seekers in Turkey. interviewer. By identifying miscommunications during 3. ĴDZȦȦ ǯ¢ǯǯȦǵƽśś4 Śǯȱ Ȃȱ¢ȱȱȱęȱȱȱȱȱǰȱ ȱěȱȱȱȱ ȱęȱȱ ǰȱȱȱȱȱ determination procedure as a whole is online at ĴDZȦȦ ǯ¢ǯǯȦǵƽŝŗŗ eliminate the need for appeals. Legal representatives can also help Asylum identify vulnerable refugees early seekers LQ7XUNH\ on and can refer traumatised asylum seekers for psychiatric and medical evaluation, as well as provide medical reports in support of claims %HK]DG HCA also plays a role in the appeal of rejected refugee claims. Generally, UNHCR sends rejected refugees a ȱĴȱ ȱȱȱȱ next to the reason why refugee status was not granted. These Ĵȱ¢¢ȱȱȱȱȱ ȱĜȱȱȱ understand why his or her case was rejected or to prepare a meaningful appeal. Acknowledging this, in ȱŘŖŖŜȱ ȱ¢ȱ agreed to share with HCA copies of the more detailed internal UNHCR Assessment Forms for HCA’s clients. Knowing detailed reasons for rejection gives refugees a critical tool in assessing whether an appeal would be appropriate and, if so, what issues must be addressed. However, while this information gives them some of the understanding they ǰȱȱȱȱ ¢ȱĜǰȱ especially in more complex cases, and HCA, together with its SLRAN partners, is encouraging UNHCR to 58 AN INSTITUTIONAL GAP FOR DISASTER IDPS FMR32 An institutional gap for disaster IDPs Roberta Cohen Climate change is expected to sharply increase the number types of vulnerability regardless of and severity of natural disasters, displacing millions on the reasons for their displacement all continents. The international community needs to and that “it is no less important in the context of natural disasters UHFRJQLVH¶GLVDVWHU,'3V·²DQGHVWDEOLVKQHZLQVWLWXWLRQDO than it is in cases of displacement arrangements to protect their human rights. ¢ȱĚȱȱ¡ȱȱ address situations of displacement When the Guiding Principles on elsewhere. Nor does the Internal through a ‘protection lens.’” ȱȱ ȱĞȱȱ Displacement Monitoring Centre ȱŗşşŖǰȱȱ ȱĴȱȱ (IDMC) include people uprooted by §ȱȱȱ over whether they should include the disasters in its statistics, although Guidelines for Human Rights and rights of people uprooted by natural it clearly acknowledges that such ȱȱ ȱȱ Ȭ disasters. Those opposed argued people are IDPs. Not dissimilarly, ¢ȱȱĴȱȱ ȱ¢ȱȱĚȱȱ ȱȱȱȱŘŖŖśȱȱ ȱ ȱŘŖŖŜǯȱȱȱȱȱȱ and violence should be considered it would serve as the lead agency displacement situation lasts, the IDPs – in other words, persons who ȱȱȱȱȃĚȱ Ȅȱ greater the risk of violations, they would qualify as refugees if they in the UN’s new cluster approach, ȱȱȬȱȱȱ crossed a border. But the majority its role would not extend to those to aid and respect for the full range favoured including those uprooted uprooted by disaster except “in ȱȱȱȱȱěȱ by natural disasters because in extraordinary circumstances.”3 and they identify measures such as responding to disasters, governments evacuations, relocations, steps to curb Ğȱȱȱȱ ȱȱǰȱȱȱ¢ȱěȱ Ȭȱȱȱȱ neglect certain groups on political ȱ ȱȱ¢ȱĚȱ against landmines to increase the or ethnic grounds or overlook their and by disaster but one of the ¢ȱȱěȱǯȱ human rights in other ways. consequences of separating out ȱ ȱȱȱ¢ȱȱĞȱ ȱŘŖŖŝȱȱ ȱ¢ȱ Nonetheless, not all experts, perceived as not having human rights resolution reinforced this approach governments, international and protection problems. Experience, by recognising that those displaced organisations and NGOs endorsed however, shows that persons by natural disasters are IDPs with this broad formulation and even uprooted by natural disasters require human rights and protection needs. today many try to sidestep it. A report not only humanitarian assistance of experts to the UK government but protection of their human rights. Institutional arrangements ȱŘŖŖśȱȱȱȱ ȱŘŖŖŚȱȱȱȱȱ At the national level, institutional IDP concept be limited to persons into focus the protection concerns arrangements for protecting the displaced by violence because the of those displaced, including: human rights of disaster IDPs are ȱȱȱȱĚȬ weak. While primary responsibility ȱȱȬȱ N¡ȱȱȬȱ to assist and protect disaster IDPs lies ȱ ȱěǰȱȱ with the state, many governments do it “confusing” to include both in the Ndiscrimination in access to not have the capacity or willingness ȱęǯŗ Some governments assistance on ethnic, caste to carry out these responsibilities. have also shied away from calling and religious grounds ȱǰȱȱ¡ǰȱĞȱȱ persons uprooted by natural disasters ŘŖŖśȱǰȱȱȱ IDPs. In Aceh, Indonesia, the Nrecruitment of children argued against applying international government preferred labelling those ȱęȱ principles of protection to IDPs since uprooted by the tsunami “homeless”, they were not formally refugees presumably to distinguish them Nlack of safety in areas of and put pressure on them to leave ȱȱȱȱȃĚȱ displacement and return areas camps without making adequate IDPs” to whom the government had preparations for their returns. In barred access.Ř In the US, government Ninequities in dealing with the US, rescue, evacuation and ĜȱĴȱȱ¢ȱȱ property and compensation. reconstruction plans in the Gulf description of those uprooted by Coast were found to disadvantage Hurricane Katrina except IDPs. Ğȱȱȱǰȱȱ §ǰȱ ȱǰȱȱȱȬ They described them as “refugees”, ȱȱȱȱ¢Ȭ Americans. The UN Human Rights ȃȄȱǰȱę¢ǰȱȃȱ General on the Human Rights of IDPs, Ĵǰȱ ȱȱȱ victims”, because IDPs in their view ȱȱȱȱȱĚȱ compliance with the International ȱȱȱ¢ȱĚȱ their homes share many common Covenant on Civil and Political FMR32 AN INSTITUTIONAL GAP FOR DISASTER IDPS 59 Rights, had to call upon the US to the world to examine how best “to active role, especially when natural ensure that the rights of the poor promote the protection of human ȱȱȱȱĚȱ ȱ ȱȱȱȬȱ rights of IDPs in the context of natural UNHCR is already on the ground are “fully taken into consideration” disasters.” However, he is but a single and engaged with IDPs. UNHCR was in reconstruction plans.4 individual with limited resources ȱȱĞȱȱȱ ȱěǰȱ ȱȱȱȱ and the Pakistan earthquake but Laws and policies are needed to ȱŘŜȱȱȱȱ¢ȱ more usually stands on the sidelines protect against human rights abuse Ěǯȱ ȱȱȱȱȱ¢ȱěǰȱ as the international community in disaster response. National the UN must come up with the human mobilises to deal with disasters. human rights commissions can and material resources to enable Similarly, OHCHR needs to explore ȱȱȱĞȱȱ him to undertake this new role. how it could become more relevant documents and can monitor the extent to disaster protection through the to which the rights of disaster victims Most importantly, the UN’s deployment of human rights monitors, ȱǯȱĞȱȱ ȱȱ operational agencies need to the undertaking of advocacy and tsunami, the Sri Lankan National become more actively involved. At ȱĴȱȱ¢ȱȱ Human Rights Commission took up present there is no agency assigned programmes for national and local hundreds if not thousands of cases of to the protection of disaster IDPs. authorities on integrating human persons with human rights problems The Resident or Humanitarian rights in disaster management. while India’s Commission sent out ȱȱȱęȱȱȱ Finally, the UN Emergency Relief special rapporteurs to look into the to consult with UNICEF, the Coordinator should ensure that human rights concerns of those Ĝȱȱȱ ȱȱ ęȱȱȱȱ ěȱ¢ȱȱȱȱȱ for Human Rights (OHCHR) and an automatic part of emergency Gujarat. The commissions, however, ȱ ȱȱȱȱȬ response and, when need be, assign ȱȱǰȱěȱȱ made disaster occurs in order to protection responsibilities in disasters. training. With greater capacity, they determine which body will take the could serve as models for commissions lead responsibility for protection. The UN needs to ensure that the new in Africa and the Americas, which ęȱȱȱ ȱȱȱ have not yet engaged in monitoring In most cases UNICEF has assumed human rights in disastersŜ is widely and advocating for disaster victims. the lead but its protection role is disseminated so that the human limited. It has received high marks rights of IDPs become an integral Local NGOs can help mobilise in child protection, tracing families, part of the programmes of all UN national awareness of IDP rights helping separated children and agencies, NGOs and governments. in disasters. In the US, NGOs have preventing their exploitation in Recognition that people displaced called upon the government to disasters. But other vulnerable groups, by disasters need protection of their recognise disaster victims as IDPs such as the elderly, the disabled, human rights is long overdue. So are and protect them in line with the ethnic or religious minorities, or those ěȱȱǯȱ Guiding Principles. In Sri Lanka, ȱ Ȧ ǰȱȱȱȱȱ NGOs brought to light the disparity strong a focus. In the Mozambique ȱȱǻ ȓ in treatment between those uprooted Ěǰȱȱȱȱȱ brookings.edu) is Senior Adviser, by the tsunami and those uprooted by plight of the elderly without families Ȭȱȱȱ ȱ civil strife – leading to remedial action. ȱĞȱȱȱ ȱ ǰȱ ǻĴDZȦȦ ǯ although there were many initiatives brookings.edu) and Senior Associate, At the regional level, the Association centred on children.ś UNICEF itself ȱ¢ȱ ȱȱ of Southeast Asian Nations has acknowledged the narrowness ȱ¢ȱȱ ȱ (ASEAN), in response to Cyclone ȱȱȱȱȱȱȱȬ Nargis in Burma, became actively house study to determine the kind ȱȱȱȱȱȱ involved in diplomatic initiatives of resources, personnel and training ȱȱȱȱȱ to open up access to survivors. it would need to take on a broader ȱȱȱ ȱȱ But it did not engage in advocacy ȱǯȱěȱ ȱȱ ȱǯ ěȱȱȱȱȱȱȱ agency, however, fear that its child ŗǯȱȱǰȱȱǭȱȱ ǰȱȱȱŘŖŖśǰȱȁȱ Ȃȱ forcibly evicted from temporary protection role could become diluted Policy Approach to Refugees and Internally Displaced shelters or pushed back into ruined in a broader protection perspective. ȂǰȱȱȱǰȱŗŘǯȱĴDZȦȦ¢ǯȦ DFIDPolicy. villages without supplies. A more Yet if UNICEF is to successfully serve Řǯȱ¢ǰȱȱǭȱǰȱǰȱȁȬȱȱ ȱȬȱȱ as a protection lead for UN agencies concerns in Aceh’, Forced Migration Review,ȱ ¢ȱŘŖŖśȱ will have to be developed by this and NGOs in disasters, it will need ĴDZȦȦ ǯ ǯȦȦȦŗŘǯ 3. UNHCR, Internally Displaced People: Questions and and other regional organisations. to cover the entire IDP population. Answers,ȱȱŘŖŖŝȱĴDZȦȦ ǯǯȦȦ ȦŚŖśŞŜŚǯǯ At the international level, the Other agencies should also consider ŚǯȱȱȱȦȦȦȦřȦǯŗǰȱǯȱŘŜȱ ĴDZȦȦ¢ǯȦǯ ȱȱȱȱ¢Ȭ becoming involved. UNHCR made śǯȱǰȱȱ¡ǰȱ ȱ¢ȱȱĴǰȱ General on the Human Rights of IDPs ȱȱŘŖŖśȱȱȱ ȱȱ Ȭ¢ȱȬȱȱȱȱȱȱȱ ¢ȱŘŖŖŝȱĚȱȱ¢ȱȱ£ǰȱ¢ȱ has added IDPs uprooted by disasters involve itself with ‘disaster IDPs’ ŘŖŖŝȱĴDZȦȦ¢ǯȦ£ǯ to the concerns of his mandate. The except in extraordinary circumstances ŜǯȱHuman Rights and Natural Disasters: Operational ȱ ȱȱȱęȱ but, given its experience and skills Guidelines and Field Manual on Human Rights Protection in Situations of Natural Disaster,ȱȬȱȱ ȱ ȱȱȱŘŖŖŝȱȱ §ȱ ȱǰȱȱȱȬ¡ȱ ȱ ȱǰȱȱŘŖŖŞȱĴDZȦȦ¢ǯȦ ȱȱȱěȱȱȱ its own capacity for playing a more NaturalDisasters. 60 UNMET REFUGEE NEEDS: COLOMBIAN REFUGEES IN ECUADOR FMR32 Unmet refugee needs: Colombian refugees in Ecuador Marie-Hélène Verney A recent needs assessment has allowed UNHCR to identify Ĝȱȱǯȱȱęȱȱȱ DQGVWDUWWRPHHWVLJQLÀFDQWSURWHFWLRQDQGDVVLVWDQFHQHHGV ęȱȱȂȱȱ ȱȱ among Colombian refugees in Ecuador. get the systematic input of refugees and local communities through a ȱȱ Ȭȱȱȱ countries, and in many ways the series of participatory assessments. Ěȱȱȱȱȱ region is a model for local integration. While the concept of participation is millions of people over the years. There are no camps; the refugees ¢ȱȱǰȱȱȱĞȱȱȱȱ The crisis is largely one of internal all live among the Ecuadorian into practice. Many of the refugees displacement, with about three population and are allowed access in Ecuador live in remote jungle million IDPs in Colombia – out of to health care, education and ȱȱȱ¢ȱĜȱȱ ȱȱȱȱŚŘȱǯȱ ȱ employment. Yet lack of development, ǯȱȱȱȱ ȱĜȱ ŘŖŖŞȱǰȱȱȱȱȱȱ Ĝȱ¢ȱȱȱ in Lago Agrio – a small town just a Colombians were internally displaced. increasing numbers represent few kilometres from the border – it serious challenges to Ecuador’s can take two days of travelling by ȱ¢ȱȱȱĚȱȱ capacity to adequately protect small boat along the Amazon to reach changed in the past few years, and meet the needs of refugees. some of these communities. Many of Ğȱȱ¢ȱ ȱȱ the participatory assessments were borders of the country. Partly as a Assessing needs ȱȱȱȱĴǰȱ result of this, more Colombians have With its excellent refugee legal talking to the whole community and been seeking refuge in neighbouring framework and national commitment, listening to smaller groups to map countries, notably Venezuela and yet unmet needs, Ecuador was a ȱȱęȱȱȱ ǰȱ ǯȱȱȱęȱǰȱ natural candidate to become one of young people or the elderly. the department of Nariño – where eight pilot countries in UNHCR’s all the major armed groups are Global Needs Assessment project Lack of documentation came out present and active – has the worst (GNA). This initiative, piloted in as the top refugee concern, limiting access to material assistance, education, the workforce and even ǯȱȬȱȱ partly due to people not coming forward to register, some because they are not aware of their right to ask for 81+&5;&UHDFK asylum, others because they are too scared to come forward. Some people know their rights but have no means of reaching the nearest registration Ĝȱȱȱȱ ȱȱ to be able to make asylum claims. ȂȱŘŖŖŞȱ¢ȱ ȱȱ ȱȱŗřŖǰŖŖŖȱȱȱ ȱȱȱȁȬȱȂȱ in Ecuador, more than six times the number of recognised refugees. ȱȱȱȬ Colombians are the most likely to lack documentation, while single women rate of displacement, armed ŘŖŖŞȱȱȱȱ¢ȱŘŖŖşǰȱ and girls are especially at risk and UNHCR ęȱȱȱȱȱ aims to map out the real needs prone to exploitation and abuse. Lack mission the country. Further to the east, in of refugees, locate the gaps and of registration means no state services on the Putumayo the Amazonian region, Putumayo identify a common way forward and extreme vulnerability. Irregular River to ȱȱěȱȱ for refugees, states and other armed groups are very suspicious reach levels of instability and violence. ȱǽȱ¡ȱȱŜŗǾǯ of anyone without documentation, isolated communities. ȱȱȱȱȱȱĴȱȱ Ecuador has maintained a consistent ȱȱȱȱȱȬȱ disguise one’s identity (because of policy of open borders, even at times and their location uncertain, making belonging to ‘the other side’). There of extreme tension between the two assistance programmes extremely have been many cases of people being FMR32 UNMET REFUGEE NEEDS: COLOMBIAN REFUGEES IN ECUADOR 61 killed for not being able to produce communities; the creation of a culture ID cards. Other practices include of peace; and regional initiatives tying people without ID card to a tree to enhance refugee protection. ȱȱȱȱęȱȱ their identity. Furthermore, both the The Consultation ended with the UNHCR/MH Verney army and the police also tend to be participants’ commitment to a suspicious of undocumented people. Ȭ¢ȱȱȱȱȱȱ announcement by the government “I am sick and unable to work for of Ecuador of a new Policy on QRZ7KHUHIXJHH,'FDUGKDVEHHQ Refugee Protection. This includes a blessing for us; we can show practical measures for quicker and it to the police and they see that ȱǰȱ ȱȱȬȱ we are legal in this country.” enhanced registration exercise to start in the next few months. This Colombian refugee in Ecuador ȱęȱ ȱśŖǰŖŖŖȱ equipped with basic equipment and 7KLV4XHFKXD ȱŜŖǰŖŖŖȱȱȱ ȱȱ medicines, has been going back and indigenous woman ȱŘŖŖŘǰȱ ȱȱ ȱ along the northern border with ȱ ȱŘŞȱȱĴȱ crossed the with Colombia’s National Registry mobile registration brigades made along the Putumayo and San Miguel border to Ĝȱȱȱȱȱ up of government employees and rivers, where malaria and other take refuge in Ecuador ȬȱȱȮȱĚȱ£ȱ accompanied by UNHCR. The tropical diseases are endemic. The where with communities at high risk of brigades will visit communities clinic brings urgent medical care to UNHCR ǯȱȱȱśŖŖǰŖŖŖȱ all over the region to receive and people who have no other access got her documented Colombians have received ID process asylum claims. The exercise, to health care. Through this and and gave ǰȱȱȱȱȱęǰȱ a huge challenge in capacity building other projects, UNHCR continues her a kit to ȱȱǯȱ ȱŘŖŖŝǰȱȱ and logistics, is designed to help ȱ ȱ ȱȱȱȱęȱ build a small campaign focused on indigenous refugees to access basic rights and practical solutions focused on local house. communities. In some regions, services and improve the planning integration, the most realistic option ȱȱřŖƖȱȱȱȱ of assistance programmes. for the majority of Colombian refuges ȱ¢ȱȱȱęǯȱ who fear returning to Colombia Meanwhile, UNHCR’s strategy while violence continues there. The region’s low levels of is to help both refugees and local ǰȱȱ ȱȱĜȱ communities meet their urgent basic Ȭ ·¸ȱ¢ȱǻȓ of access, impede the delivery of needs, with projects like the River unhcr.orgǼȱȱȱȱ basic services for refugees and Health Boat in the Amazon region. ȱĜȱȱ local population alike. Security ȱȱŘŖŖŞǰȱȱĚȱǰȱ ǯ is another concern, especially in border areas where conditions are tense due to extensive criminality ȱĜǯȱȱȱȱȱ Global Needs Assessment tendency to associate Colombians (LJKWFRXQWULHVZHUHSDUWRIWKHÀUVWSKDVHRI81+&5·V*OREDO1HHGV with some of this instability and $VVHVVPHQW &DPHURRQ(FXDGRU*HRUJLD5ZDQGD7DQ]DQLD7KDLODQG ȱȱěǯȱ ȱȱȱ Europe-Africa cooperation in Mali Louis Michel The EU is working with the Malian government to improve 4 million Malians are migrants. information provision about migration to Europe. řǯśȱȱȱȱȱȱȱ ȱȱ¢ȱŘŖŖǰŖŖŖȱȱǯȱȱ ȱŘŖŖŞǰȱȱ ȱȱ with the countries of origin or ęȱȱȱȱȱ transit, exploring enhanced legal The aim of the centre in Mali is of migrants and refugees arriving ȱȱěȱĴȱ to provide potential migrants ȱȱȱǰȱȱȬ development assistance. As part of an with a wide range of information around from previously declining increased focus on the links between and assistance. For example, it ǯȱȱřŖǰŖŖŖȱȱ ȱ external relations, development provides information on the dangers reported to have reached Italy by and migration, the EU opened involved of using illegal migration ȱȱȱȱŘŖŖŞǰȱȱ a pilot ‘centre for information routes controlled by unscrupulous ȱŗşǰşŖŖȱȱȱ ȱȱŘŖŖŝǯȱ and management of migration’ – ęDzȱȱȱȱ ȱȱȱȱęȱȱ ȱȮȱȱȱȱȱŘŖŖŞǯȱ legal migration opportunities ǰȱ ȱŘǰŜŖŖȱȱȱȱ to Europe and elsewhere; and ȱȱȱęȱȱȱȱŘŖŖŞȱ Mali is the ideal location to launch information on opportunities in Mali ȱ ȱŗǰŞŖŖȱȱ ȱȱȱǯȱȱȬȱ itself for vocational training and ŘŖŖŝǯȱȱ ȱȱ¢ȱǯȱ region is becoming increasingly employment. The centre also helps Countless men, women and children ȱȱȱȱęȱȱ the Malian authorities negotiate have lost their lives on this journey. migration for development such as labour migration agreements with ȱęȱȱĚ ȱȱȱ individual EU member states The reasons why people leave countries from the diaspora. Mali is and other third countries. their home countries and embark the second largest country in West on a long and dangerous journey Africa. Its central position and vast, ȱȱęȱǰȱȱȱ towards the north are varied. permeable borders make it a country ȱřŖŘȱǰȱȱ ȱŘŜŗȱ Forced displacement due to armed of origin, transit and destination of ǻ¡¢ȱŞŜƖǼȱ ȱęȱ Ěȱȱȱ¢ǰȱ ¢ȱĚ ǯȱȱȱȱȱ ȱȱǰȱŘŘȱǻŝƖǼȱȱ ȱȱȱĴȱȱ ȱŗŘȱȱǰȱȱȱ ¢ȱȱȱŗşȱǻŜƖǼȱȱ ȱȱ ȱȱȬȱ environmental change and natural disasters are the main causes of migratory movements. Increasingly ȱęȱȱȱȱȱȁȱ¡Ȃǯȱ Refugees, migrant workers and asylum seekers, to each of whom ěȱȱȱ¢ǰȱ IRIN/Modeste Messavussu IRIN/Modeste travel alongside each other using the same illegal routes to enter Europe. ¢ȱȱȱĚ ȱ ȱȱȱȱȬȱ Africa and lead through North Africa to the European Union. On their way to Europe many migrants may be stranded in transit countries, with no realistic prospect of return. While the Ĝȱȱȱȱȱ beings is a visible element of illegal ǰȱȱĚȱȱȱȱ (‘brain drain’) caused by recruitment policies of developed countries is an ¢ȱȱȱȱȱĚ ǯȱȱȱ Information centre in Mali The EU decided to respond to Mali’s government adopted the UN Millennium Development Goal, set in 2000, to increase primary this complex phenomenon by school enrolment for all and basic education for young adults by 2015 but there are not enough classrooms or secondary school teachers to accommodate the swelling enrolment. ȱȱ Ȭ ¢ȱȱ FMR32 TOWARDS AN EU-WIDE REGULARISATION SCHEME 63 ¢ȱǯȱŗśŖȱȱ ȱȱȱȱȱ¢ȱęȱ life. Migration is not a criminal ǻŚşƖǼȱȱȱȱȱȱ ĞȱȱȬȱȱ phenomenon. It has been with ¢ȱ¢ȱȱǰȱŜśȱ in dealing with this phenomenon us since the dawn of time. Great ǻŘŗƖǼȱȱ¢ȱȱȱ in a positive way. It breaks the civilisations have always been those ȱǰȱ ȱȱȱŞŝȱ traditional mould of focusing that have embraced migration ǻŘŞƖǼȱĴȱ¢ȱȱ exclusively on border control and ȱ¢ȱęȱȱȱ without having obtained a diploma. ȱȱěȱȱȱȱ exchange of information and talent. The majority of visitors expressed ȱȱȱȱǰȱ¢Ȭ ȱ ȱȱȱȱȱęȱĴȱ led measures to tackle migration. ȱȱȱȱ job opportunities and economic ȱȱȱ stability, though they did not rule No coercive, repressive or security ȱ ȱȱǻĴDZȦȦ out the option of staying in the measures will ever manage to ǯǯȦȦǼǯȱȱȱ ¢ȱȱ¢ȱȱęȱȱ stop a human being taking his or ǰȱȱȱȬ employment or vocational training. ȱȱȱȱȱĴȱ [email protected]. Towards an EU-wide regularisation scheme Alexandra Strang The Council of Europe estimated in late 2007 that there another area or country with greater are as many as 5.5 million irregular migrants residing in employment prospects. These the EU. From both a human rights and a good governance ȱĞȱȱȱȱȱ precarious circumstances but stay put perspective, this situation is crying out for change. if at all possible because this poses the least threat of arrest and expulsion. The EU immigration framework migration cannot and does not is presently based on the idea that succeed in halting undocumented ȱȱȱȱĚ ȱ there are two types of irregular entry into the EU, because those the worker would follow the work, migrants: persecuted refugees (legal) who risk their life to travel to the Dublin II Regulationŗ and other and economic immigrants (illegal). Europe do so not on a whim but in EU rules operate precisely to limit this This presumption informs a policy order to satisfy basic human needs movement. There is much ongoing that aggravates stigmatisation and such as physical security and the debate about easing the Dublin II criminalisation of refugees and opportunity to secure a livelihood provisions, largely in the context of migrants alike. In reality, both ‘types’ that will support themselves and their how best to alleviate the pressures of migrant usually originate from dependents. These are needs that they place on states located on the countries characterised by chronic will be pursued one way or another, eastern and southern frontiers of ¢ǰȱȱĚǰȱȱ regardless of obstacles, dangers the EU. However, Dublin II rules ¢ȱȱȬȱ and institutional discouragement. prohibiting freedom of movement deprivation which generate both create social problems everywhere Ȭȱȱȱ The existing legal framework, – not just in frontier states – because well as other modes of (de facto) however, proscribes the stay of people are, to a considerable extent, forced migration to places of greater migrants who are not considered – by ȁȂȱ ȱȱȱ¢ȱęȱǰȱ political and economic stability. domestic asylum procedures – to be in and end up doing anything they need of international protection. This can to make ends meet. In such ȱȱ ¢ǰȱȱȱěȱ will not deter the more determined conditions, they become vulnerable between the ‘push’ factors of migrants but will rather force them to abuse and exploitation. persecution as anticipated by the to the margins of society, giving rise ŗşśŗȱȱȱȱȁȂȱ to a range of human rights challenges Policy improvements to administer factors of the daily struggle linked with social exclusion. labour migration while avoiding an with a life lacking in economic outcome of internal EU immobility ¢ȱȱĞȱǯȱ An argument for regularisation ȱęȱȱȱęȱ ȱǰȱȱȱĴȱ arrival, countries that require migrant ȱȱȱȱęȱ ȱĚ ȱȱȱ¢ȱȱ labour and migrants themselves. economic and demographic interests employment demand, migration at stake for Europe in the immigration policies have tended towards greater Without regularisation, there is no debate but what is needed, above restriction of migration movement. possibility for administrative controls all, is a human rights approach to Undocumented migrants who are or registration of social support ¢ȱǯȱȱ¢Ȭȱ without work face considerable needs; without an administrative approach to countering irregular ȱȱĜ¢ȱȱȱȱ ‘identity’ and social rights, there can 64 TOWARDS AN EU-WIDE REGULARISATION SCHEME FMR32 Spanish coastguard intercepts a traditional ÀVKLQJERDW laden with migrants off the 81+&5$5RGUtJXH] island of 7HQHULIH in the Canaries. 7KHVH boats can carry up to 150 people and take three weeks to reach the Canaries from ports LQ:HVW Africa. be no inclusion in the host society. ȱȱ¢ȱȱęȱ present and that important principles ȱ¢ȱȱ¡¢ȱĜȱȱ work on account of a negative asylum of justice are served by providing ȱȱȱȱȱęȱ result. It is clear, therefore, that major migrants an identity and a role within spaces to interact normally with the immigration policy reform is needed a society that requires their labour. host society; eventually, they may in order to adapt itself to the changing become uninterested in doing so. A dynamics of mobility and migration. A reformulation of immigration human rights approach could see policy that proceeds towards ȱȱȱ ¢ȱȱěȱ Simple expulsion from Europe as a regularisation could go a long way migrants an important stake in the strategy for responding to irregular in delivering on the human rights society in which they live and work. migration has proven not only principles that the EU embodies, ěȱȱ¢ȱȱȱ¢ȱ and would bring migration policy At present, the asylum ‘channel’ is contentious from a human rights ever closer to the principles of Ğȱȱ¢ȱȱȱ point of view. Seeking to maintain freedom, security and justice on to irregular migrants wishing to the crude distinction between which the Union is based. regularise their stay in the host (lawful) Convention refugees and country, yet many migrants will be (unlawful) irregular migrants is no Discussions in Brussels concerning unable to sustain a claim under the longer administratively practical, possible modalities for a common ŗşśŗȱȱǯȱȱ ȱȱȱĚȱ¢ǯȱȱȱ regularisation strategy regarding who come irregularly to Europe from Ȭȱȱȱȱ¢ȱ Ȭ¢ȱȱȱȱ developing countries will have made must recognise that European ȱęȱȱȱȱ¢ǰȱȱȱ¡ȱ a substantial investment in their migration will continue so long as the of political unease and institutional migration relative to their resources ‘push’ and ‘pull’ conditions caused ambivalence. It is clear that real and are therefore unlikely to be by global economic inequalities are leadership and vision at the Brussels level are required to push forward a comprehensive strategy to address the human rights situation of Europe’s undocumented migrants; a response ȱȱĴȱȱȱ a more just and compassionate 81+&5$5RGUtJXH] society through a fairer access to status regularisation in Europe. ¡ȱȱǻ¡Ŗśȓ ¢ǯmǼȱ ȱ ȱ ȱ ȱȱȱ ȱȱ ȱ ȱȱ ȱ ȱȱȱȱȱȱ ȱȱȱǯ ŗǯȱȱĴDZȦȦǯȦȦȦȦȦřřŗśřǯm and ECRE report ĴDZȦȦ¢ǯȦ I FMR32 5(7851$1'5($'0,66,21,167$7(6·0,*5$7,2132/,&,(6 65 Return and re-admission in VWDWHV·PLJUDWLRQSROLFLHV Jean-Pierre Cassarino The role of the state in protecting its citizens and in migration. Simultaneously, this turns the defending their rights and privileges has become closely resilient disparities between countries intertwined with its capacity to secure its borders and of origin and destination (in terms of undemocratic governance, political UHJXODWHPLJUDWLRQÁRZV instability, disastrous environmental ǰȱȬ¢ȱȱ The need of states to control, count and ěȱȱȱȱ poverty) into secondary causes, ȱȱĚ ȱȱȱȱ migrants, are labelled. The terms although they prompt numerous as strong as it is today. ‘Return’ stands ‘expulsion’ or ‘removal’ – rather than ȱȱȱȱȱĴȱȱ high in the hierarchy of priorities in ‘return’ – would be far more consistent conditions abroad. The expulsion ȱȱȬ ȱȱ with the actual rationale for these ȱȬȱȱȱȱ of international migration, because it policies. Such a terminological confusion the territory of destination countries ȱȱ ¢ȱęȱȱȱȱ was not part of the open and recurrent has been prioritised, regardless of act, that of leaving the territory of a debates about return migration during ȱȱ¢ȱȱȬȱ destination country. In other words, ȱŗşŝŖȱȱŗşŞŖǯȱȱ ȱȱ has the capacity to respect the return is not viewed as a stage in the mixed with expulsion, let alone with fundamental rights and protect the migration cycle. This vision of return ȬǰȱȱȂȱȱ ¢ȱȱȬĴȱǯ has become an integral part of the to return home, on a temporary or instruments aimed at dealing with permanent basis, constituted at that A step forward the issue of unauthorised migration time the main research interests of Today, the implementation of circular and protecting the integrity of the scholars across various disciplines. migration schemes and mobility immigration and asylum systems in partnershipsŘ is being planned in most destination countries. It then Ĵȱȁ¢ȂȱȱȁȂȱ cooperation with the EU Member ęȱȱ¢Ȭȱȱ return, although the frontier between States. Circularity – the repeated to and means of implementation. them remains quite blurred in practice, and fro movements of people between ȱ¢ȱĚȱ two places – will require the adoption At a national level, an array of public discourses and policies on of provisions aimed at sustaining measures, laws and infrastructures migration and return. Current policy the temporary return of circular has been established to serve this measures have come to serve solutions migrants and at creating conditions ¢Ȭȱǯȱȱ ȱȱȱȱěȱ to sustain their reintegration. ǰȱęȱęȱ departure of unauthorised migrants systems, expulsion quotas and laws and rejected asylum seekers. The extent to which both destination on preventative custody are just a few countries and countries of origin examples. At an international level, A policy of containment will concretely respond to these ȱȱȬȱ ȱ Today, the production of knowledge preconditions will determine the undemocratic regimes in neighbouring about migration issues has become ěȱȱ¢ȱȱȱ ȱȱȱęȱȱĜȱ crucial in political terms by straying actions. Reintegration, the process discourses as a necessary evil. The away from the cause of the problem through which migrants take part argument that ‘we cannot do otherwise’ and subtly justifying a unique technical in the social economic, cultural leads to the use of solutions that are solution. The selective allocation of and political life of their country seen as a necessary evil, discarding public funds to given research projects of origin, will become a core issue any alternative interpretation of the viewed by civil servants and the state in future migration policies. issue at stake – and any alternative bureaucracy as concretely useful to their Ȭȱȱǻ ȓ concrete solutions. ȱȱȱȱěȬȱȱȱȱ ǯǼȱȱęȱȱȱȱ to produce and legitimise a form of ȁȱȱȱȱȂȱ But we need to question why it is so Ȭ ȱ ȱȱȱ ȱȱȱȱ¢ȱ and whether it could be otherwise. in general and return in particular. ȱĴDZȦȦ ǯǯȦǯȱ Why has the issue of return been primarily associated with security ¢Ȭȱȱǰȱ ȱȱȱȱ ȱȱ Ȭ ȱȱȱȬȱ ȱȱȱȬȱ ȱȱǻǼǰȱȁȱȱ mechanisms that have been ȱǻȱĴȱȱȱ ȱȱȂǰȱInternational ȱȱȱ¢ȱȱǵȱ ȱȱęǰȱ Journal on Multicultural Societies, redocumentation and expulsion ȱŗŖǰȱȱŘǰȱŘŖŖŞǰȱ ȱęȱȱȱȱ ȱ¢ȱȱ of detained migrants)ŗ have been in the way these policies, which are presented as necessary instruments for ŗǯȱȱĴDZȦȦǯȦȦȦȦȦřřŗŖśǯm ŘǯȱȱĴDZȦȦǯȦȦǯ primarily designed to secure the deterring and combating unauthorised ǵƽȦŖŝȦŗşŝ 66 IRAN: MIGRANT SMUGGLING AND TRAFFICKING IN PERSONS FMR32 Iran: migrant smuggling and WUDIÀFNLQJLQSHUVRQV Nasim Sadat Hosseini-Divkolaye Each year, thousands of people are moved illegally – often and Pakistanis had been broken in dangerous or inhumane conditions – into, through and up and their members arrested. from Iran. NProtection: The Iranian State Ĝȱȱȱȱȱ ĴȱȱȱȱȱȦ Welfare Organization assists victims smuggling are only two forms racing and sexual exploitation, as ȱȱȱȱȱĜȱ of irregular migration; the term well as from Iran to Pakistan and ȱȱȱę¡ȱȱ ȁĜȂȱȱȱȱ ȱȱȱĜǯȱȱ emergency centres. These centres persons against their will, whereas data is indicative of weak border provide counselling, legal services ‘smuggling’ refers to voluntary management as well as established and health care. The State Welfare movements of the migrants.ŗ ȱĜȱ ǰȱ Organization also manages Due to the clandestine nature of particularly along the Afghan temporary shelters for ‘troubled ȱǰȱȱȱĜȱ border with Iran and Pakistan. women’ and facilities for young to estimate the number of persons runaway girls that are available ȱĜȱȱȱȱ Recent policy initiatives ȱȱȱĜȱȱ ǯŘ the illegal status of victims tends to In recent years, Iran has made prevent them reporting incidents ȱȱĴȱȱ NInternational initiatives: While to government authorities. ȱȱĜȱȱ Iran has become party to several persons at national, regional of the relevant Conventions, it Trends and dynamics in Iran and international levels. has not signed some others. It Because of its geopolitical situation, has however signed separate Iran is a country of origin, destination NLegislation:ȱ ȱŘŖŖŚǰȱȱ Memoranda of Understanding with ȱȱȱĜȱȱ ȱȱęȱ the International Organization of smugglers. Long shared borders ȱ ȱȱĜȱ Migration and the International with countries in crisis led to of persons and other laws to Labour Organization to enhance mass irregular immigration from punish both migrant smugglers the capacity of its institutions in Afghanistan and Iraq. During the and illegal migrants. ĴȱȱĜȱ ȱ ¢ȱ¢ǰȱŘǯśȱȱȱ and on security cooperation with and Iraqi immigrants have returned NProsecution: Iran has increased its Turkey and Afghanistan focusing, to their homes but there are still one ȱȱěȱȱ among other things, on campaigns million illegal Afghan immigrants in Ĝȱȱǯȱȱ ȱȱĜȱȱ Iran who have either overstayed their woman and her accomplice bilateral and regional levels. legal stay or entered Iran illegally husband, for example, were with the assistance of organised arrested and convicted for Have these policies criminal smuggling groups. Ĝȱ¢ȱȱȱ ȱ been effective? ȱ ȱȱȱȱȱ£ǰȱ Despite the growing awareness Due to Iran’s particular location as ȱ ȱŘŖȱȱȱȱȱ and the increasing literature on a bridge between Asia, Europe and Ĝȱȱȱȱ¢ȱȱȱ this subject, available information the Middle East, people are both ǯȱȱŘŖŖŚǰȱȱ ȱ in Iran about the magnitude of the Ĝȱȱ ȱȱǰȱ ȱȱȱȱŘśřȱ problem remains limited. The lack ȱĜȱȱ ȱȱȱ Pakistanis smuggled into Iran, ȱ ȱȱȱěȱ Arabian Peninsula and the southern some of them seemingly victims between migrant smuggling and Mediterranean region. Statistics ȱĜǯȱȱȱȱ ĜȱȱǰȱĜȱ ȱȱĜȱȱȱȱ local newspapers, in August information about the causes of all into and out of Iran is on the increase. ŘŖŖŝȱȱȱȱȱ forms of irregular migration and ȱŗśȱ£ȱ ȱȱŗŖȱ suspicions and reservations towards Recent newspaper reports, supported ȱȱ ȱ ȱĜȱ multilateral cooperation have by the declarations of judicial and law women for the purpose of sexual ȱěȱȱȱȱ ȱĜǰȱ ȱ exploitation from central Asian crimes over the past decade in Iran. the existence of organised criminal countries to Arabian countries ȱȱȱȱĜȱ ȱȱȱȱȱ ǯȱ Many countries punish unauthorised of narcotics, and small arms as well as ȱȱȱŘŖŖśǰȱȱ ȱȱȱȱěȱȱ people. In this context, of particular media reported the Tehran police ȱȱȱĜȱȱȱȱ ȱȱȱȱĜȱȱ chief as stating that eight human unfair when a victim is treated the children (Afghans, as well as Iranians) Ĝȱ ȱȱ ȱȱȱȱěǯȱȱ from Iran to the Persian Gulf Region mostly Bangladeshis, Afghans and deportation should not be FMR32 IRAN: MIGRANT SMUGGLING AND TRAFFICKING IN PERSONS 67 ȱȱȱȱȱĜǯȱ Nconduct information campaigns ȱȱ Ȭ¢ȱ Due to the lack of appropriate laws to educate potential victims (ȏȓ¢ǯm) is an MA to respond to these crimes, there about the risks and realities ȱȱ ȱ ȱȱ is evidence that most countries – of irregular migration ȱ ȱěȱȱ including Iran – treat both victims ȱȱ ȱȱȱ and criminals in the same way. Iran’s Nprovide shelters for those £ȱǻĴDZȦȦ ǯǯǼǯȱ ȱ ȱȱȱĜǰȱ ȱȱĜȱ ŗǯȱȱȱȱȱȱȱĜǰȱ in conjunction with the prohibition Ĝȱȱęȱȱȁdzȱǰȱ ȱȱĜȱȱǰȱ Ntrain border and law transportation, transfer, harbouring or receipt of persons, by the threat or use of abduction, fraud, deception, has enhanced Iran’s overall abilities ȱĜȱȱȱ coercion, or the abuse of power or by the giving or to combat most forms of human ěȱ ȱȱ ȱ ȱȱ¢ȱȱęȱȱȱȱȱ of a person having control over another person, for the Ĝȱȱȱȱ crimes and how to distinguish purpose of exploitation…’ and in the smuggling protocol, ȱȱęȱȱȁdzȱȱȱȱȱ ȱĜȱȱȱȱ ǯȱ victims from criminals. entry into or illegal residence of a person in a State Party Iran therefore urgently needs to: of which the person is not a national or a permanent resident in order to obtain, directly or indirectly, a ǰȱȱȱĴȱȱȱ ęȱȱȱȱęǯȂ Nimplement existing laws and all illegal migrants as potential ȱȱŘśȱȁȱĜDZȱȱȱ detection training programmes Ĝȱȱȱ ǭȱȱȂǰȱ ȱŘŖŖŜȱȱ ĴDZȦȦ ǯ ǯȦĜǯ ȱ ȱȱĜ investigations prove otherwise. ŘǯȱĴDZȦȦ ǯ£¢ǯȦ Protection of civilians: conference and resources On 22-24 September 2009 the Refugee Studies Centre, .H\QRWHOHFWXUHVSOHQDU\GLVFXVVLRQVDQGH[SHUWSDQHO in collaboration with the Humanitarian Policy Group at debates, paper sessions and practice updates will focus on: the Overseas Development Institute, is organising an populations at risk: surviving and responding to international conference on the theme of Protecting protection threats 3HRSOHLQ&RQÁLFWDQG&ULVLV 5HVSRQGLQJWRWKH concepts of protection Challenges of a Changing World.9HQXH 2[IRUG8. the politics of protection protection, security and the roles of military and armed actors 7KHFRQIHUHQFHZLOOFRQYHQHDEURDGUDQJHRIDFDGHPLF national and regional responsibilities to protect researchers, humanitarian practitioners, policy makers protection in practice and civil society representatives to review the state of SROLF\DQGSUDFWLFHLQWKHEURDGÀHOGRIKXPDQLWDULDQ 7KHIXOOFDOOIRUSDSHUVSOXVLQIRUPDWLRQRQ protection as we look forward into a potentially turbulent submitting abstracts, is online at http://www.rsc. 21st Century. ox.ac.uk/conf_conferences_210909.html New Oxfam publications on protection of civilians Improving the Safety of Civilians: Designed for use by experienced facilitators, who have A Protection Training Pack some knowledge of protection issues, to train emergency- Sophia Swithern & Rachel Hastie. Dec 2008. 176pp. £19.95. response teams. Free online (English only) at http://tiny.cc/OxfamProtectionPack For a Safer Tomorrow: Protecting Civilians in a Multipolar World 7KLVWUDLQLQJSDFNLVLQWHQGHGWRKHOSKXPDQLWDULDQZRUNHUV Edmund Cairns. Sept 2008. 148pp. £12.95. to improve the safety of civilians being subjected to violence, Available in English, Spanish and French. FRHUFLRQRUGHOLEHUDWHGHSULYDWLRQ7KHSDFNLQFOXGHVPRGXOHV Free online at KWWS WLQ\FF2[IDP6DIHU7RPRUURw RQ :KDWLVSURWHFWLRQ" 3ODQQLQJDSURJUDPPH 0DLQVWUHDPLQJ Many people feel protection; Programming that there is little for protection. that can be done to 7KHDFWLYLW\VHVVLRQVZLWKLQ prevent the brutal the modules cover topics targeting of civilians as diverse as international that characterises standards for civilian modern warfare. protection, objective 7KLVUHSRUWEDVHGRQ setting, indicators and Oxfam International’s monitoring, humanitarian experience in most of the negotiation, coordination ZRUOG·VFRQÁLFWVVHWVRXW and alliance building, an ambitious agenda to reducing the risk of sexual protect civilians through violence and advocacy for combining local, national, humanitarian protection. and regional action with Print version includes far more consistent accompanying CD. international support. 68 REGULAR CONTRIBUTORS FMR32 Reproductive Health Access, Information and Services in Emergencies Reproductive health-care provision in emergencies: preventing needless suffering Maaike van Min The provision of comprehensive reproductive health supplies international NGO for years, and and services in all situations would help prevent many is run by the Ministry of Health. unnecessary deaths of women and babies. ȱȱȱȱěȱ and has faulty electricity supplies ¢ȱŘŖŖŝǰȱȱȱ the health clinics accessible only by at best, doctors are standing by to Republic of Congo (DRC): A woman ǯȱȱȱȱȱĞȱ help the labouring woman – but has been in labour for three days. ȱĚȱ ȱȱǰȱȱ there are no sterile surgical supplies, The child is obstructed; the mother, the woman in labour is brought on no anaesthetic or antibiotics, no IV in unbearable pain, has been trying board. The NGO midwife assesses the bags or tubing. The woman died. to reach the main district hospital situation and immediately decides to ȱȱȱŚŞȱȱȮȱȱȱȱ head to the district hospital. The baby The hospital was accessible, doctors ęǰȱȱȱ¢ȱǰȱȱȱ has long since died. The woman is ȱȱȮȱȱ ȱ ȱ ǵ of which has broken down in the alive, however, and a team in town is middle of the lake. The woman and radioed to prepare a car at the port. The logistics of crisis ȱȱȱǰȱĚȱ By their very nature, humanitarian aimlessly. There are no toilets, no food One hour later the motorboat arrives crises render vital services and and no fresh drinking water on board. at the port. The woman in labour ȱǯȱ ȱĚȱ gets into the car and in hospital a areas, lack of security may be only By sheer coincidence, a team of NGO ȱŗŖȱȱǯȱȱȱ ȱęȱȱȱȱǯȱ ȱěǰȱȱȱ ǰȱ is the reference hospital for a large For example, as the supply chain are on a motorboat going to one of area; it has been supported by an lengthens to circumvent dangerous areas, the cost of supplies and services increases. For these reasons, planning and coordinating the logistics of programme response are crucial.ŗ Indeed, through such ěȱȱȬǰȱȱ location of warehouses, chartering ȱȱȱȬȬȱ collaboration, the humanitarian RAISE Initiative/Jessica Scranton RAISE Initiative/Jessica community has made progress in addressing logistics planning for needs such as food, water, shelter and some medical care. ȱȱȱěǰȱ comprehensive reproductive health (RH) services and supplies are not generally prioritised at the level of other key emergency medical interventions. Comprehensive RH care encompasses emergency obstetric care, including the provision of family planning methods; responses ȱȬȱDzȱȱȱ Logging RH supply needs in DRC ȱȱěȱȱȱDzȱ and the prevention and treatment FMR32 REGULAR CONTRIBUTORS 69 availability of key RH Nbroaden governmental and WHO supplies. For example, support: RH organisations must the United Nations work with WHO and governments Populations Fund (UNFPA) to ensure that appropriate has developed an RH kit medication and RH supplies are for emergencies, targeted included on essential drug lists. for use in the initial phase of the emergency.3 But Ncoordinate with logistics UNFPA must sometimes actors: RH organisations must depend on other agencies collaborate with other major to deliver these RH humanitarian actors, especially emergency kits, as ȱȱȱęȱȱ ȱȬ¢ȱ¢ȱ ȱȱěȱȱȱȬ ȱ¢ǰȱ¡ȱȦ positioning supplies. They must or prohibitively expensive. ensure that RH commodities Without commitment become a standard item on early from other humanitarian Ěȱȱȱ¢ȱ¢ǯȱ actors, RH supply and ȱȱĞȱ Nengage with donors: humanitarian remains minimal or actors must work closely with ě¢ȱǯ major donors to emphasise ȱȱȱĞȱȱȱ Other key logistics Minimum Initial Service Package players in humanitarian (MISP) for RH in crisis situations Ĵȱ¢ȱȱ ȱ towards comprehensive RH care RH supplies and services as quickly as possible. Although as priority interventions some key donors do understand in humanitarian crises. the importance of logistics, many For example, recipient have yet to recognise the vital governments may not role of RH products and therefore ,5,17LJJ\5LGOH\ ȱȬȱ ȱ ȱȱȱȱȱȱȬ :RPDQDQGFKLOG'5& supplies in their logistics positioning of humanitarian goods. ȱěǯȱȱ ȱȱěȱȱ N¡ȱȱěȱȱȱ ȱ¡¢ȱĴȱǰȱ for the management of RH conditions RH care: humanitarian actors who ȱ Ȧ ǯȱ¢ȱ¢ǰȱ are not currently registered for are currently making occasional or for lack of emergency obstetric care these uses on the World Health ȱěȱȱȱ ȱ ǰȱȱȱśŖŖǰŖŖŖȱ ȱȱ Organization (WHO) Essential Drugs supplies into emergency response ȮȱȱȱŗŝŖǰŖŖŖȱȱȱ List or not included by governments must be encouraged to prioritise of humanitarian emergency – and in their own essential drugs lists. these services and supplies. many more are permanently disabled. And governments sometimes Lack of comprehensive RH care is obstruct customs clearance for The provision of comprehensive also a major cause of neonatal deaths. vital RH supplies or otherwise RH services in all situations would delay humanitarian response. make it possible to prevent many The ‘Three Delays’ model provides a unnecessary deaths. Humanitarian framework explaining why women Overcoming challenges actors must work to ensure that die in pregnancy.Řȱȱęȱ¢ȱ Making the right RH supplies this universal human right is is the time that the family or the accessible at the onset of an approached with the same level of community takes to recognise the emergency is paramount if urgency and foresight as are other need to seek medical intervention; humanitarian actors are serious aspects of humanitarian crisis. the second is the delay experienced about saving lives and treating the Ĵȱȱȱȱ¢Dzȱȱ ęȱ ȱȱ¢ȱ¢ȱ Maaike van Min (Maaike. ȱȱ¢ȱȱȱĴȱ ǯȱȱȱȱĴȱ ȱ ȓȬǯe) is appropriate care at the facility ȱȱ¢ȱĴȱȱ ȱ¢ȱȱȱȱ itself. In the case described at the great, and solutions must be devised ȱ ȱǻĴDZȦȦ ǯȱ beginning of this article, the patient ȱęǰȱȱȱȱ initiative.org) in the Marie Stopes was delayed in seeking care and levels, including the need to: ȱȱĜǯȱ in reaching the facility. Once she ŗǯȱȱȱŗŞȱȁȱȱDZȱȱ arrived at the hospital, skilled Nraise awareness within the ȱȂǰȱȱŘŖŖřǰȱĴDZȦȦ ǯ ǯȦȦŗŞȦŗŞǯȱ providers were available; yet without ȱ¢DZȱęȱ ŘǯȱǰȱȱȱǰȱȱȁToo far to walk: maternal essential supplies and equipment and foremost, humanitarian actors mortality in context’, Social Science & MedicineȱȱŗşşŚǰȱ they were unable to save her life. must acknowledge RH care as řŞǻŞǼDZŗŖşŗȬŗŗŖǯȱ 3. Visit ǯǯȦȦȦŘǯm for a primary need alongside food, an overview of content of the UNFPA RH emergency kit Some humanitarian actors do have shelter, sanitation and other key and a description of the Minimum Initial Service Package (MISP); MISP also available online at ĴDZȦȦǯǯ processes in place to facilitate the components of primary health care. orgȦ 70 REGULAR CONTRIBUTORS FMR32 On the money 9LFN\7HQQDQWDQG)UDQ]LVND7URHJHU Can cash grants support the voluntary repatriation and ȱ¡Ȭęȱȱȱȱȱ reintegration of refugees? ¢ȱȱȱȱȱȬ kind assistance. A range of distribution Recent years have seen a growing some 4.4 million Afghan refugees mechanisms can be considered, interest in the use of cash grants as a have returned to Afghanistan since ȱĴȱǰȱ tool for humanitarian assistance and ŘŖŖŘȱȱȱȱ ȱ ȱ ¢ȱǰȱȬȱ as a component of social protection cash assistance. At the beginning of banks and local cooperatives, as ǯȱĞȱȱȱ the operation, returnees also received well the use of new technologies such as the Indian Ocean tsunami and Ȭȱȱǻ Ǽȱȱȱ ȱ such mobile phone transactions. ȱȱǰȱȬȱ found that the costs of procurement, ȱȱȱĚ¡ȱ warehousing and distribution were Cash grants may also have a positive ȱȬěȱȱȱǯȱȱ prohibitive and that in any case protection impact, and can play a returnees tended to monetise the role in the empowerment of women, ȱȬ¢ȱȱȱȱ items to meet their immediate needs. provided that it is part of a broader out by the Humanitarian Policy Group Accordingly, NFIs were phased approach to promote gender equity. ȱȱ¢ȱŘŖŖŝȱȱȃȱȱ out and the level of the cash grant body of evidence is starting to emerge increased. It now consists of a transport UNHCR is currently evaluating the to indicate that providing people with ȱȱȱę¡ȱȱȱ ȱȱȱȱȱȱśŖǰŖŖŖȱ cash or vouchers works”.ŗ Cash is person for reintegration purposes. Burundian francs per person for ĞȱȱȱȬȱǰȱ Burundian returnees from refugee ȱȱȱȱęȱ ȱȱȱęȱȱ ȱȱ£ȱȱȱȬ who are empowered to determine the primary impact of the cash grant ŘŖŖŝǯȱȱȱȱęȱȱ their own needs, and is likely to have a in Afghanistan has been in providing in assistance under the programme, ȱěȱ ȱȱȱȱ families with disposable income to ȱȱȱȱȱŘŖŖŘǯȱ of cash into the local economy. enable immediate reintegration costs The evaluation should therefore to be met, with food, transport and enable a comparative assessment in While highlighting that cash should shelter coming top of the list. However, progress towards reintegration made not be seen as a universal panacea, ȱȱȱȱȱȱȬ by returnees returning with cash the study recommended that cash term reintegration needs, nor protection grant assistance, and those without. transfers need to be seen as “part of issues. Accordingly, UNHCR has also the toolbox of humanitarian response, maintained an extensive reintegration ¢ȱȱǻȓǯ as both a complement and in certain programme inside Afghanistan. Ǽȱȱȱȱ¢ȱĜȱȱ circumstances, an alternative, to Ȃȱ¢ȱȱ ȬȱȄǯȱę¢ǰȱ Future developments ȱȱǯȱ£ȱ many aid agencies and donors A workshop to review the use of ȱǻ£ȓǯ have now developed operational cash grants in UNHCR voluntary Ǽȱȱȱȱ ȱǯ guidelines on the use of cash grants. repatriation operations, held in Geneva ŗǯȱȁȬȱȱȱȂȱȱ ¢ǰȱ ȱŘŖŖŞǰȱȱȱȱȱȱȱ ȱȱŘŚǰȱ ¢ȱŘŖŖŝǰȱ ȱ¢ȱ ǰȱ Cash transfers have formed part of grants was indicative of a considerable ȱȱ ǰȱȱŘŖŖŝȱ ŘǯȱȱȱȱȱĴDZȦȦ ǯǯȦȦ UNHCR’s protection and assistance Ğȱȱȱȱȱ ȦŚŞŘřŘǯ programmes for many years, ȱȬȱǰȱȱ ¢ȱȱȱȱĴȱ was a valuable tool for providing and in repatriation operations. A ęȱ ȱȱȱȱ Witchcraft, Displacement recent example of the former can be the use of assistance, and a sense of and Human Rights Network seen in Syria, where cash grants are independence and dignity.Ř Participants http://maheba.wordpress.com/ distributed to vulnerable Iraqi refugees nonetheless emphasised the importance Following the high levels of response to in Damascus using an ATM system. of a comprehensive needs assessment, -HII&ULVS·VDUWLFOHRQ¶:LWFKFUDIWDQG Cash grants have also been extensively including a situational analysis, an displacement’ in the last issue of FMR ȱȱȱ¢ȱŗşşŖȱȱ ȱ assessment of household productive (http://www.fmreview.org/FMRpdfs/ operations supporting the voluntary capacity and a rapid assessment FMR31/74.pdf), the Policy Development repatriation and reintegration of of local markets. The need to and Evaluation Service in UNHCR has ǯȱȱȱşŖŖǰŖŖŖȱȱ supplement cash grants with other created an informal network where refugees returned home from Pakistan interventions was also emphasised. information about new developments, ȱȱȱȱŗşşŖȬşřǰȱȱ research and news related to witchcraft ȱřŝŖǰŖŖŖȱȱȱ ȱȱȱȱ¢ȱȱěȱ can be shared. If you are interested ȱȱȱȱŗşşŘȬşřȱ and partners involved in transporting in participating please email Maria ȱŚřǰŖŖŖȱȱ ȱ and delivering cash also have to be Riiskjaer at [email protected] ȱȱŗşşŘȬşŝǯȱȱ¢ǰȱ put in place. However, security risks FMR32 REGULAR CONTRIBUTORS 71 Brookings-Bern Project on Internal Displacement Internal displacement and peacebuilding in Colombia (OL]DEHWK)HUULV The advances in laws related to IDPs have not addressed the relationship between internal displacement and peacebuilding in Colombia. A seminar held in Bogotá in IDP associations and in consultative ȱŘŖŖŞȱȱȱ mechanisms, is particularly important UNHCR/MH Verney representatives of the Colombian yet remains a challenge. Additionally, government, IDP associations, civil a large number of IDP associations society organisations, donors, UN receive constant threats and several agencies and academic researchers of their leaders have been murdered. to explore the relationship between Colombia’s protracted IDP situation IDPs have been among the main and transitional justice processes victimsȱȱȱĚȱȱȱ currently underway. It was organised and this should be recognised. It ¢ȱȱȬȱȱȱ ȱĞȱȱ¢ȱĜȱȱ Internal Displacement, the Swiss civilians to maintain their neutrality Finding durable solutions for IDPs 7KH(PEHUD people of Federal Department of Foreign ȱȱĚȱ ȱȱȱ is the most urgent (and most northern ěȱȱȱęȱȱ on all sides have systematically ĜǼȱȱȱȱȱ Colombia suffer Javeriana. Some of the themes which been urging them to participate government. There is no consensus a very high rate of forced emerged in the discussions were: in the hostilities. While IDPs are on what the durable solution should displacement certainly not the only victims of the be and while most IDPs would like that threatens Displacement and peacebuilding Ěǰȱ¢ȱȱęȱȱ to return, many seem to have given their social and are connected. Sustainable peace related to their loss of property, up hope of doing so. Conditions in familial unity. in Colombia cannot be achieved livelihoods and communities. the countryside, particularly the lack unless and until the displacement ȱ¢ǰȱȱȬȱȱ of some three million displaced Relations between IDPs and other impossible at the present time. Colombians is brought to an end. victims’ groups have sometimes been Yet ending displacement depends on strained. The longer displacement Progress on transitional justice both establishing peace and security in the ǰȱȱȱĚȱȱ ěȱȱȱěȱ¢ȱȱ country. Peacebuilding – even while ȱȱ ȱěȱȂȱ solutions for IDPs. Yet, policies people are still being displaced – is ȱȱȱȱĚȱ toward IDPs and for transitional both a challenge and a necessity. there will be over the amount of justice are being implemented reparations. The sheer number of on parallel tracks. In some cases, IDPs need to participate in the displaced people – between three IDPs are competing with other processes which affect their lives. and four million – also represents ȱȱĴǯȱȱȱȱ Participants stressed the importance ȱęȱȱȱ resentment at the imbalance between of developing and implementing to developing a viable reparations resources available to perpetrators mechanisms to ensure the system which is able to include IDPs. of crimes and to IDPs as victims. involvement of IDPs not only in At the same time, there is fear that transitional justice and peacebuilding Land is central both to achieving Ȭȱȱȱ but also in decisions about sustainable peace and to ending joining new armed groups which humanitarian assistance and durable displacement but is a complicated in turn can displace people. ǯȱȱȱȱŗŖŖȱȱ issue in Colombia, given the intense associations of IDPs, of various kinds, concentration of land ownership £ȱȱǻȓǯ but participants stressed the fact that in the hands of a few and the wide eduǼȱȱȱ ȱȱȬ ȱȱȱȱĜǯȱ variety of relationships of people ǰȱȬȱȱ For example, IDP associations are to the land. There have long been ȱ ȱȱǻĴDZȦȦ ĞȱȬȱ ȱȱȱ disputes over land in Colombia ǯǯȦǼǯȱȱȱ the displacement occurs in rural ȱȱĚȱȱȱ ȱȱȱȱȱȱ areas. The importance of securing ȱȱĴȱȱȱ DZȱĴDZȦȦ ǯǯȦ the representation of women, both in usage and productivity. ȦŘŖŖşȦŖŘŘśȏǯ¡ 72 REGULAR CONTRIBUTORS FMR32 One last chance for &RORPELD·VYLFWLPV Jacob Rothing and Richard Skretteberg While the number of new IDPs in Colombia is expected Reparation and Reconciliation to reach record levels, prevention policies are failing and Commission. Developed through reparation initiatives have been blocked. dialogue between civil society organisations and state institutions This grim scenario has unfolded recommendations,4ȱȱęȱȱ ȱ with the support of UNHCR and amidst a regrouping of paramilitary ȱȱ¢ȱȱĴȱȱȱ NRC, the National Restitution Plan groups and disputes between the ȱȂȱĜȂȱ provides for durable solutions ELNŗ and the FARCŘ, involving Early Warning System, which detects in keeping with the spirit of the ȱĴȱȱǰȱ¡ȱ situations of imminent risk to the paramilitary negotiations previously violence and child recruitment. civilian population and suggests carried out by the Uribe government. ¢ȱěȱȱȱ¢ȱ ¢ȱȱȱĴȱȱǯȱ Unless the Commission votes in and eradicate coca crops have ȱȱȱȱȱęȱȱ favour of the current version, which only exacerbated a dire situation way to avoid blurring the distinction includes many of the essential and contributed to the massive between civilians and combatants and features of the Victim’s Law, the displacement unfolding. Though keep civilians away from hostilities. government’s commitment to ȱȱĴȱȱȱȱ policies providing for reparation given the continuous infractions Durable solutions to displacement will ring hollow and the notion of of international humanitarian are directly related to transitional law transitional justice in the midst of law, state prevention policies and negotiated solutions. Colombia’s warfare will have foundered. ȱȱȱęȱȱȱ ȱȱȱ ȱȱŘŖŖśȱ reducing the risk to civilians. facilitated the demobilisation of some ȱȱǻjacob.rothing@ paramilitary troops and emphasised nrc.org.co) is an advisor to the New displacement is the best the importance of addressing ȱȱȱȱ indicator for measuring the human victims’ needs. It also sought to ȱȱȱĴȱ ȱȱȱȱĚǯȱȱ remove the incentives for land (ǯĴȓǯǯo) is ȱȱŘŝŖǰŖŖŖȱ ȱ ǰȱ ȱȱȱĚǯȱ ȱȱȱȱȱ¢ȱ ȱȱŘŖŖŝǯȱȱ ȱ 3 ȱ ȱȱ ȱ estimated that an equal number ȱȱȬȱȱ ȱ ȱȱȱ would be requiring registration in ȱȱȱŘŖŖŞǯȱ¢ǰȱȱ ȱ ¢ȱǻĴDZȦȦ ǯǯo). ȱęȱ¡ȱȱȱŘŖŖŞȱǯȱ president issued a decree which ŗǯȱ·ȱȱàȱȱȮȱȱȱ ȱȱȱȱĴȱ ěȱȱȱȱȱ Army ȱȱĴȱȱȱȱ ȱ¢ȱȱȱĴǯś Řǯȱ£ȱȱȱȱȱȮȱ ȱȱȬ¢Ȭ ȱ Secondly, through wide consultation Revolutionary Armed Forces of Colombia ȱ ȱěȱȱ with victims of guerrilla, state and 3. www.codhes.org Śǯȱ àȱ¢ȱǯȱBalance de la política pública Emergency Relief Coordinator, John paramilitary abuses alike, as well de atención integral a la población desplazada por la violencia, ǰȱȱȱ¢Ȭ Ȃȱ as through dialogue between civil 2004-2006 Available in Spanish at ĴDZȦȦ ǯǯȦ ȦȦŚşŖŗǯf Representative on the Human Rights society organisations and congress, śǯȱȱȱŗŘşŖȱȱŘŖŖŞ of Internally Displaced Persons, an unprecedented Victim’s Law was ȱ §ǰȱȱȱ ȱ¢ȱ introduced promising reparation. visited the country. In the words of But the presidential decree – which Norwegian Refugee Council Secretary ¡ȱȬȱȱ 7KH1RUZHJLDQ5HIXJHH&RXQFLO 15& General Elizabeth Rasmussen, who ȱ¢ȬȱȱȮȱȱ works to provide assistance and recently travelled to some of the yet to be implemented. And the protection to refugees and displaced ȱȱȱȱȱęȱ Victim’s Law was seriously weakened people in Africa, Asia, Europe and the Coast, “new displacement strikes at by a government alliance arguing Americas. www.nrc.no/engindex.htm the most vulnerable groups: women, for budgetary limitations and then children and ethnic minorities. Civil blocked by a disappointed opposition. 7KH,QWHUQDO'LVSODFHPHQW0RQLWRULQJ society and government must unite Centre (IDMC) is part of NRC to shield them and guarantee them ȱȱǰȱŘŖŖşȱ DQGLVDQLQWHUQDWLRQDOQRQSURÀW access to humanitarian assistance.” ěȱȱȱȱȱȱ organisation that monitors internal consequences of the violence. The GLVSODFHPHQWFDXVHGE\FRQÁLFWV The government’s current strategy National Restitution Plan which www.internal-displacement.org for protecting citizens has proved tackles the issue of restitution of Contact : IDMC, 7-9 Chemin de inadequate and urgently needs stolen property and aims to facilitate %DOH[HUW &KDWHODLQH*HQHYD ȱȱȬǯȱȱ ȱ Ȭȱȱ ǰȱȱȱ 6ZLW]HUODQG(PDLO [email protected] has made some noteworthy ŘŖŖşǰȱȱȱȱ¢ȱȱȱ FMR32 REGULAR CONTRIBUTORS 73 Stateless former farm workers in Zimbabwe .DWLQND5LGGHUERV Several hundred thousand people of foreign ancestry simply not aware that they had to who used to work on white-owned commercial farms in renounce the foreign nationality to Zimbabwe are stateless, jobless and either displaced or at which they may have been entitled due to their foreign ancestry. Even risk of displacement. if they knew, the administrative Xenophobic government policies ȱȱȱȱȱȱ Ȭȱ burdens of the process of renouncing designed to drive out farm owners as the white farmers themselves. ȱĞȱȱȱȱȱǯȱ and undermine the political ȱȱĞȱȱȱȱ ȱ ¢ȱŘŖŖŖǰȱȱȱȱȱ At the same time, because their farm workers with nowhere to go. ȱȱȬȱȱȱ ancestors came from outside programme, an estimated two million Zimbabwe, when these workers ¢ȱŘŖŖŖǰȱ Ȃȱȱ farm workers, seasonal workers and lost their homes on the commercial ȱȱȱ Ȭȱ¢ȱ their families lived and worked on farms they had no ancestral homes ȱǰȱȱȱęȱȱȱ the commercial farms.ŗ Of these, an in Zimbabwe to which they could ȱȱŗşŞŖǰȱęȱ ȱȱȱȱǻŘŖŖǰŖŖŖȱ return. As a result, many farm political opposition. With a crucial farm workers and their families) are workers of foreign descent are stuck: presidential election coming up thought to have lost their homes and they continue to live on the farms ȱŘŖŖŘǰȱ Ȭȱȱ¢ȱ their jobs as a direct consequence where they used to be employed but, ȱȱȬȱȱȱ of the land reform programme. with their former employers having programme, which provided for ȱȱěȱȱǰȱ¢ȱȱ the forcible acquisition of (mostly ȱřŖƖȱȱȱȱ ȱ ¢ȱĴȱȱȱ ȱ Ȭ Ǽȱȱǯȱ million farm workers and their homes and are at constant risk of families were of foreign descent. forcible displacement by the new farm The government also brought in the ȱ ȱ¢ȱȬȱȱȬ owners. They are among the most £ȱȱȱȱŘŖŖŗǯȱ generation immigrants whose parents vulnerable people in Zimbabwe today, This Act introduced a prohibition on or grandparents had moved to ȱǰȱ ȱĴȱȱȱ dual citizenship, so that people with Zimbabwe (or the former Rhodesia access to social services, and with no dual nationality would automatically ȱȱȱȱŗşŞŖǼȱȱ support structures to fall back on. lose their Zimbabwean citizenship migrant labourers from Malawi, unless they renounced their foreign Zambia or Mozambique. Prior to ȱȱǻǯ citizenship. The Act’s main aim was the introduction of the Citizenship ȓǯǼȱȱ¢ȱ ȱȱȱȱřŖǰŖŖŖȱ Amendment Act, many of these ¢ȱǻǰȱȱȱ white Zimbabweans, many of whom ‘foreign’ farm workers had been Ǽȱȱ ȱǻĴDZȦȦ ǯ held British passports and who entitled to Zimbabwean nationality ȬǯǼǯ ȱȱ¢ȱ Ȭȱȱȱ under the country’s Constitution ŗǯȱ ǰȱȁȱ¢ȱȱȱDZȱ ȱȱ their dual citizenship to discredit and the Citizenship of Zimbabwe ȂǰȱȱŘŖŖŞȱ ǯȬǯ ȱ Ȭȱȱȱȱ Act. Indeed, many of them had ȦȦ eǰȱřŘǯ of bankrolling the opposition lived in Zimbabwe their entire lives Movement for Democratic Change and had no formal links with the (MDC). People who opposed – or countries of their ancestral origin. 40-page special ȱȱȱȱȮȱ Ȭ FMR issue on PF’s rule were seen as enemies of Nevertheless, as a result mainly of ¶7HQ Forthcoming RSC events, courses and FMR International Advisory Board conferences in 2009 (all held in Oxford) ȱȱȱȂȱȱĜȱȱȱ below, they serve in an individual capacity and do not necessarily represent their institutions. 21st annual Elizabeth Colson lecture Wednesday 20 May, 5pm Diana Avila Amelia Bookstein Kyazze Diálogo Sudamericano Venue: Magdalen College Auditorium, Save the Children UK ¡ȱŗȱŚ Paula Banerjee Erin Mooney ‘Fractures and Flows. Africa, Elizabeth Colson and ȱĴȱ ProCap the Current Global Meltdown’ Research Group by Carolyn R Nordstrom, Professor of Nina M Birkeland Frances Nicholson Anthropology at the Kellogg Institute for Ȧ UNHCR International Studies, Notre Dame University. All welcome. For further information please ȱĴ Dan Seymour contact [email protected] OCHA UNICEF Workshop: A non-negotiated solution to Henia Dakkak Judy Wakahiu WKH&RORPELDQFRQÁLFW"7KHLPSOLFDWLRQV UNFPA Refugee Consortium of Kenya for sustainable peace and democracy Rachel Hastie Richard Williams ŘŗȮŘŘȱ¢ȱ Oxfam GB Organised jointly with the Department of Peace Independent consultant Khalid Koser Studies, University of Bradford. Geneva Centre for ȱ Ĵ Details at ĴDZȦȦ ǯǯ¡ǯǯȦȏ Security Policy Refugee Studies Centre ȏŖşŖŞǯl For further information, contact [email protected] Workshop: Humanitarian action in Somalia: expanding humanitarian space Thank you to all our donors in 2008-2009 ŞȮşȱ FMR is wholly dependent on external funding to cover all of the project’s costs, Details at ĴDZȦȦ ǯǯ¡ǯǯȦȏ LQFOXGLQJVWDIÀQJ2XUH[SHQGLWXUHLQRXUODVWÀQDQFLDO\HDU WRWDOOHG ȏŖŜŖşǯl For more information, DSSUR[LPDWHO\ 86 :HDUHGHHSO\DSSUHFLDWLYHWRDOORIWKH contact [email protected] IROORZLQJGRQRUVERWKIRUWKHLUÀQDQFLDOVXSSRUWDQGWKHLUHQWKXVLDVWLFFROODERUDWLRQ International Summer School over the last couple of years. in Forced Migration ŜȮŘŚȱ ¢ %URRNLQJV%HUQ *7=*HUPDQ)HGHUDO 6DYHWKH&KLOGUHQ8. Residential course at Wadham College and the Project on Internal Ministry for Economic Oxford Department of International Development. Displacement Co-operation and Spanish Agency ȱȱȱȱěȱȱǰȱ Development of International interdisciplinary and participative approach to Catholic Relief Services Cooperation the study of forced migration. It enables people International Rescue working with refugees and other forced migrants to &KDULW\,VODPLF7UXVW Committee Swiss Federal Ěȱ¢ȱȱȱȱȱȱȱ El Rahma Department of Foreign dominate the world of the displaced. Closing date Norwegian Ministry of Affairs ȱDZȱŗȱ¢ǯȱ CIDA Foreign Affairs See ĴDZȦȦ ǯǯ¡ǯǯȦȏǯ UNDP DanChurchAid html or contact [email protected] Norwegian Refugee UNEP Conference: Protecting people in Danish Refugee Council Council FRQÁLFWDQGFULVLV UHVSRQGLQJWRWKH UNHCR challenges of a changing world OCHA Department for ŘŘȮŘŚȱȱ UNICEF International Open Society Justice Organised by the RSC in collaboration with the Development (DFID) Initiative Humanitarian Policy Group at the Overseas US Department of Development Institute, this conference will convene 6WDWH%XUHDXRI ')$,7&DQDGD 2[IDP*% a broad range of academic researchers, humanitarian Population, Refugees, practitioners, policymakers and civil society DHL and Migration Reproductive Health representatives to review the state of policy and Access, Information ȱȱȱȱęȱȱȱ European Union :RPHQ·V5HIXJHH and Services in ȱȱȱȱȱŜ7ǰȱ Commission ȱĴDZȦȦ ǯǯ¡ǯǯȦȏ Feinstein International Emergencies (RAISE) ȏŘŗŖşŖşǯȱ &HQWUH7XIWV8QLYHUVLW\ Initiative ZOA Refugee Care or email [email protected] /HWWHUIURPWKHÀHOG The experience of refugees in Oru refugee camp, Nigeria. Alexandre Foulon [email protected] Foulon Alexandre Alexandre Foulon [email protected] Foulon Alexandre A reader of FMR, Kehinde Okanlawon, in Ile “My mother would tell me that I should not come back Ife, Nigeria, recently wrote to the FMR Editors: home without bringing food and money, knowing full well that I don’t have a job or any source of livelihood. “FMR aroused my consciousness about issues relating to You are our only hope of survival, she would say. the reproductive health of refugees and I decided to go to My mother obviously expects me to sell my body the Oru refugee camp in Ogun State to volunteer as a peer ȱ¢ǰȄȱȱȱŘŚȬ¢Ȭȱȱǯ educator and work in the area of health communication in the camp.” Kehinde had read in FMR about the Minimum Refugees – especially women and girls – need skills Initial Service Package (MISP) for Reproductive Health and economic opportunities that can provide a source ȱȱȱȱȱ ȱ Ȭęǯȱ ȱȱ of livelihood for them. For example, hairdressing skills ȱ ȱȱȱ ĴȱȱȱȱDZ have been instrumental in empowering some of them to make choices in their personal lives. Female students ȱȱȱȱȱȱȱȱŘŖȱ of the University in the host community come to have years. For many years there was a regular supply of their hair braided and plaited in the camp and many contraceptives, given free to refugees, but this stopped ȱ ȱȱȱȱȱǯȱȱȱěȱ ȱȱȱȱȱȱŘŖŖśǯȱȱȱ an alternative to abusive marriages for some, while it has still available in the camp but women have to visit helped others to gain greater respect and autonomy within ȱȱȱȱ¢ȱęȱȱ ¢ȱ their homes. “I came to this camp six years ago with my to get contraception – which is not free of charge. ǰȱ ȱȱ ȱȱȱ ȱĞȱȱ disabled during the war in Liberia,” says a mother of ȱȱȱȱȱȱĴȱ three. “I can now earn enough to buy food and some ȱȱȱȱȱȱȬ£ǯȱ other basic items for my family and pay medical bills.” Contraceptive use can prevent unwanted pregnancies, unsafe abortions, complications during pregnancy and This is extracted from a longer article entitled ‘The experience maternal mortality. The availability of contraceptives ȱȱȱȱȱǰȱȂȱȬ Ĵȱ¢DZȱ and their consistent use by refugees can enlarge the Kehinde Okanlawon ([email protected]), a choices of women in the camp. It can help reduce student of Obafemi Awolowo University and volunteer peer ȱ¢ȱ ȱȱȱęȱȱȱȱ educator on Reproductive Health Issues in Oru; Titilayo problem in Oru camp. It can help adolescents postpone Ayotunde ([email protected]), a PhD candidate and Ȭȱȱȱȱȱȱȱȱ researcher in Obafemi Awolowo University; Agbaje Opeyemi fewer, well spaced out and healthier children. Not least, ([email protected]), a student of Obafemi Awolowo ȱȱȱȱȱȱȱ ȱȱ Ȧ University, and Mantue S Reeves ([email protected]), a AIDS, condoms can help prevent these diseases. Liberian refugee resident in Oru refugee camp for the last ęȱ¢ǰȱȱȱȱȱȱȱȱȱȱȱ With poverty a stark reality in the camp, some parents and currently a student of Obafemi Awolowo University. encourage their daughters to engage in prostitution.