THE CLAIM OF DE FACTO STATELESS PERSON FOR A REFUGEE STATUS IS INVALID
– Belu George
Asst. Prof., Indore Institute of Law
“Nationality is a legal bond having as its basis a socialfact of attachment , a genuine connection of existence, interest and sentiments, together with the existence of reciprocal right and duties”1 Every individual has a right to have legal connections with one’s own state2. Citizenship has been described as “The rights to have rights”3 because it provides an identity of citizenship which, in turn ensures access to civil and political rights and protection of the state.4 “To be stripped off a citizenship is to be stripped off worldliness; it is like returning to wilderness asa cavemen as savages …they could live without any trace”.5
It is pertinent to discuss the possibility of extending refugee protection of Convention relating to the status of stateless (hitherto 1954 convention) to the de facto stateless persons.
Many stateless persons whether de jure or de facto are not refugees and have no claim to asylum6. The asylum seekers are often seen as a massive threat to their security and are thus “classified as ‘displaced persons’, ‘illegal immigrants’, ‘economic migrants’, quazi-refugees’, ‘aliens’, ‘departees’, ‘boat people’ or ‘stoways’”7. According to the definition under Article 1A(2) of CSR1951 the refugees should be unable or unwilling to avail themselves of the protection of their nationality while, the stateless should be unable or unwilling to return to their state.8 The difference in the characteristic of ‘unwilling to avail’ and ‘unwilling to return’ of article 1A (2) has been stated as an ‘anomaly’ has been understood as an indication ” to apply the requirement of the element of ‘fear of persecution’ in different ways when dealing the two different categories i.e. refugees and the stateless.9 The evidence that can clarify the quality that defines the ‘persecution fear’ of the refugee and ‘persecution fear’ of the stateless is sparse. However the courts have been prompt in adding clarification to the definition of the refugee which helps in segregating the refugee from the categories ofde jure stateless, de facto stateless, internally displaced or forced migrants. It has been recognised by courts that there exists practical differences between the stateless and other refugees10. The Federal court of appeal in ‘Thabet v minister of citizenship and Immigration’11 stated that , “in case of the stateless the question of availment of protection does not arise” as per Article 1A(2) of the CSR1951. The court continued that “The definition ofArticle 1Aunderscores the ‘inherent difference’ between nationals who has the protection of her/his own country and the stateless who is ‘without recourse to state protection’”. Thus the court viewed that because of this clear division the two categories cannot be placed on equal pedestal . As per the direction of the court, one should treat the refugees and the stateless with “consistency” in deciding their status of refugee12. This definitely brings in an advantage in favour of the de jure stateless but not for de facto stateless. Thus a de facto stateless remains deprived of the protection under this provision because she/he has a statehood which is bereft of effective protection which holds her/him back from falling within the ambit of the definition of ‘stateless’. Besides it has been viewed that stateless and refugee status should be viewed as two dissimilar phenomenon.13 The definition given inArticle 1A(2) of the CSR 1951 remains the authority to determine who will be entitled to receive protection and assistance of United Nation.14 This definition does not include the persons who never crossed the international border. 15 This definition did not include those who did not meet other criteria necessary to be given refugee status.16 The difficulty that most stateless persons who require their assistance do not qualifyto be refugees has been accepted by UNHCR.17
Traditionally, it is the lack of protection of the government which differentiates a de facto stateless person from an ordinary alien, which might result in the denial of any ‘assistance’ of his government and non availability of the benefits of the governments ‘collaboration with the authorities of the foreign country’.18 This would practically mean that de facto stateless will be bereft of any initiative of its own government to improve the status of its citizens abroad, monitoring by their own government that their rights and entitlements are well respected
,assistance from the consular services which canfacilitate in forwarding their claims of citizenship and procedures for enabling them to travel abroad, and certification of the documents used in everyday life, assistance in emergency and repatriation.19 The absence of such assistance from one’s own government can make the de facto stateless much more vulnerable and she/he might be a victim of doubt and suspicion.20
De facto stateless cannot be equated with the refugees under article 1 (A) (2) of CSR 1951 because she/he lacks the technical and the legal proof of the fact to define him as a stateless as per the law of the state. Thus even if the advice of maintaining ‘consistency’ in deciding the question of refugee status or status of stateless is sincerely followed , it cannot address to the protection and assistance of a de facto stateless who falls outside the purview of the definition of article 1 A of CSR 1951. Secondly, refugee and statelessness are viewed as dissimilar phenomenon while the definition under the article 1(A) of CSR195121 continues to be an authority for determination of refugee status. 22
Protection to de facto stateless person under the International Human Rights. Lauterpacht has advocated for the right to a nationality, because nationality is a link between the individual and international law.23 As a principle of international law a state cannot disown its own citizens who have a right to entry and residence24 as enshrined in the article12 (4) ICCPR 66. On the contrary the travaux preparatories may suggest that merely on the basis of “strong attachment to a state” an alien or a stateless person cannot claim a country as their own country, because the right to return is only applicable to nationals.25 Article 15 of the Universal Declaration of Human rights declares that ‘Everyone has the right to nationality’. Article 15 also provides that none shall be arbitrarily deprived of his nationality which creates a negative duty on states to not to create statelessness26. United Nations Declaration on the Rights of Child principle 3, provides that the child shall be entitled to from his birth to name and nationality 27 Article 24 of the ICCPR, every child has a right to acquire a nationality. The 1961 convention on the reduction of statelessness requires the state to extend citizenship to those born on its territory who would otherwise be stateless. Article 2 &7 convention on right to child( CRC1989) grant a right to the child to acquire nationality and that they shall acquire the citizenship of that of the state of birth if they will otherwise be stateless. while the concept of de jure statelessness which says that no state in the world recognises the persons as its national promotes a negative notion 28. The de facto stateless persons are often victims of grave human rights violations and the states have an obligation to protect such persons which begins by fulfilling their commitment by respecting their nationality. 29 De facto stateless persons in the world mostly include women and children.30 In the process of determination ofstatus of the stateless person very often, labels the claimants as having ‘undetermined’ nationality 31 which precludes their further possibilities of recognition as de jure stateless persons, “a reality undermined as early as 1947”.32 The longer the delay in determination of nationality the greater willbe the deprivation of human rights.33 Thus the definitionde jure hinders the enjoyment of human rights making it simple for the states to eliminate the human rights protection available to the person and adds to further discrimination of the person.34 There exist an unconditional right to return available to all nationals including de facto stateless refugees.35
De facto stateless Tamils, about 190,000, who were of Indian origin brought to srilanka to work on tea and coffee plantations under the British colonial rule ,acquired citizenship in 2004 by ‘grant of citizenship to Persons of Indian origin Act’.36 Sen argues for a valid claim of Bihari’s to refugee status on the basis of well founded fear of persecution for reasons of nationality and political opinion.37 The Bihari de facto stateless work as rickshaw drivers ,street cleaners and petty shopkeepers while access to schools, hospitals , government ration shops are closed to them and they are viewed with suspicion38 . During the Succession of Bangladesh from Pakistan the Bihari migrants fromIndia in Bangladesh who had chosen to be nationals of Pakistan ,were denationalised by Pakistan and refused by Bangladesh ,thus rendering them de facto stateless.39 About 17,000 Meskhetians of krasnodar were rendered de facto stateless by dissolution of Soviet union.40 The Africans located on the border region of Mauritania and Senegal, known as ‘The Black Mauritians’ are now citizens of no state as 120,000 black Mauritanians were forcibly expelled from their across the river into Senegal and their citizenship were snatched away in a “systematic state sponsored campaign of ethnic cleansing.41 Their lands were confiscated and documents burned in front of them42. Hitler’s Nuremberg laws in 1935 took away German citizenship from the Jews which culminated in holocaust43. Eight million Romas have been subjected to racist persecution in many states which continued during Yugoslavia breakup and the resulting Balkan wars44. In 1992 identity of 80,000 non Slovak Roma were clandestinely removed from the registers of Slovenia.45 The Haitians immigrants were brought in DominicanRepublic as sugar cane cutters are subjected to racial discrimination and denied citizenship.46 Similarly, Sudanese were recruited by the British in 1950 to fight anti criminal rebellion in Kenya and are now denied citizenship of either state47. Sudanese genocide has resulted into de facto stateless, similar to those of Hutu and Tutsis in centralAfrica. There are similar cases where the state is unwilling to recognise the nationalityin spite of a genuine evidence of nationalitywhich is defined in terms doctrine of effective link.48 One such case is of the ethnic Chinese born in and residents of socialist republic of Vietnam (SRV)who have arbitrarily been ascribed the ‘overseas nationality’ on the basis of the expired documents of their ancestors 49. Thus the only country willing to recognise this group as its nationals , is not willing to extend to them any attributes of nationality.50 The Cambodian refugee who fled the khmer Rouge, Bihari’s in Bangladesh, Bidoons in Persian Gulf state and such other people are the “world orphans” 51 as victims of situations of conflict which were beyond their control and are “caught on the wrong side of the history”.52 Women victims in human trafficking are often dispossessed of their passport by the pimps and are suddenly deprived of their citizenship and thereby diplomatic protection.53 The Guantanamo detainees after their release were refused by their own countries like Yemen and Algeria while Washington has refused to give them asylum.54
There is no law of right to absolute nationality. 55 There are “grey areas” in the International regime of refugees. 56 It seems that the category of persons who are “without the protection of their government of their state of origin” 57 or de-facto stateless would find it difficult to seek protection and assistance in the CSR 1951.
Inability to justify his nationality in legal and technical terms in accordance with the state law, a de facto stateless person is denied his citizenship and effective protection of her/his state, despite being nationals of state. This anomaly precludes his recognition as a stateless person and disallows him the protection and assistance under the refugee convention 1951 and regardless of his/her factual similarity with the refugees, a de facto stateless is not recognised as essentially refugee.
Cordova argues that the states must assist the international community in helping the stateless to get access to nationality and review their sovereignty in view of international peace. 58 However the international instruments fail to address that on whom shall the obligation of creating /granting of nationality rest59. The durable solution of the de facto stateless refugees can be addressed by renewed efforts by the states to adopt nationality legislation in reflection to the fundamentalprinciples ofinternationallaw as reflected in convention 1954 and convention 1961.60 The regimes of the statelessness need to address the inadequacy 61 of how to extend effective citizenship to end the protracted situations of stateless, specially of those stateless persons who are absolutely destitute.62