Statelessness: The Denial of a Fundamental Human Right
TESTIMONY BY BILL FRELICK
Director, Refugee Programs, Amnesty International USA
Before the Congressional Human Rights Caucus
April 19, 2005
Thank you for inviting me to testify on the important subject of statelessness on behalf of Amnesty International USA.
Amnesty International is a nonprofit, nongovernmental organization that was founded in 1961. It is a worldwide movement of more than 1.7 million members that works to protect and promote human rights. Amnesty International USA has more than 340,000 members.
My testimony has three parts. First, I would like to take the opportunity to provide a human rights framework for understanding the global problem of statelessness. Then, I would like to present two case studies of statelessness: Haitian-Bahamians and Rohingyas in Myanmar and Bangladesh. Finally, I would like to make recommendations for how the United States might take a more active role in reducing statelessness.
I. Unresolved Nationality Status Undermines Human Rights
Article 15 of the Universal Declaration of Human Rights (UDHR) holds that every person "has a right to a nationality" and that "no one shall be arbitrarily deprived of his nationality, nor denied the right to change his nationality." Citizenship-or nationality (we will use the terms interchangeably)-is the essential link between an individual and the State. Chief Justice Earl Warren held that citizenship bestows upon an individual the right, in essence, to have rights.1 Consequently, statelessness, or the lack of citizenship, excludes an individual "from enjoying all the benefits conferred on him by international law."2 Establishing and preserving an individual's right to a nationality must thus be viewed as a necessary prerequisite for the effective expansion and enforcement of all other human rights under international law.
The principle of nondiscrimination is the bedrock of international human rights law. Article 1 of the UDHR holds that "All human beings are born free and equal in dignity and rights," and Article 2 declares that everyone is entitled to all the rights in the Declaration without distinction of any kind, such as "race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Both the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) make identical provisions for nondiscrimination.
As will be shown by examples later in this testimony, such as the treatment of the Rohingya ethnic group in Myanmar, the granting or withholding of citizenship often suggests discriminatory treatment toward particular ethnic groups. The denial of nationality rights on the basis of race or ethnic origin is not only itself a fundamental human rights violation, but, in turn, creates a legal lacuna that subjects the stateless person to continuing and deepening discrimination and further human rights violations.
Not all distinctions between the rights enjoyed by citizens and non-citizens are impermissible. Certain rights, such as voting and holding elective office, are appropriately restricted to citizens. The ICCPR also indicates, in Article 12, that the right to freedom of movement and the freedom to choose a residence can be limited to persons "lawfully within the territory of State," thus permitting limits on the exercise of these rights for undocumented aliens, many of whom are stateless. Similarly, the ICCPR's delineation of rights to procedural protections in expulsion proceedings, in Article 13, allow for restrictions to non-citizens "lawfully within the territory" of the State Party.
But most human rights have no such limitation. Stateless persons have an equal right to protection before the law, not to be arbitrarily arrested, subjected to inhumane treatment or torture, denied due process, subjected to forced labor, or returned to a place where they would be persecuted (refoulement), and international human rights instruments accord to stateless persons equal rights to marriage, freedom of belief, expression, religion, and most other economic, social, and cultural rights.3
Nevertheless, in practice, statelessness is often accompanied by the deprivation of a host of basic rights and discriminatory treatment, particularly with respect to labor rights, freedom of movement, and property rights. In practice, States often do not limit the rights of non-citizens to the exceptional distinctions, such as voting and related political rights, that are proportional to the achievement of legitimate State objectives.
In his final report to the UN Subcommission on the Protection and Promotion of Human Rights, the UN Special Rapporteur on the Rights of Non-citizens, said:
There is a large gap between the rights that international human rights law guarantee to non-citizens and the realities they must face. In many countries there are institutional and endemic problems confronting non-citizens. The situation, however, has worsened as several countries have detained or otherwise violated the rights of non-citizens in response to fears of terrorism. Continued discriminatory treatment of non-citizens demonstrates the need for clear, comprehensive standards governing the rights of non-citizen, their implementation by States, and more effective monitoring of compliance.4
The UN Special Rapporteur's comments on the gap between rights and reality for non-citizens generally resonate all the more strongly with respect to stateless persons, who are claimed by no State as citizens. An indication of how little attention the international community accords to non-citizens generally, or stateless persons in particular, is that the mandate of the UN Special Rapporteur on Non-citizens was not renewed.
In the international sphere, citizenship is critical for the defense of individual rights. Stateless persons are often rendered defenseless in the face of competing State interests. States have obligations with respect to their own citizens, including when they are outside the territory of the State. While States do, indeed, also have human rights obligations with regard to all people, citizen or not, in practice the State is often the principal defender of the rights of individuals and groups.
Stateless persons are, therefore, severely disadvantaged. They are also largely invisible, off the radar screen of international concern and response. States are often reluctant to acknowledge the presence of stateless persons on their territories. They are rarely counted in official government statistics as a resident category. More often, they are counted as undifferentiated "aliens," if their presence is recognized at all.
Because so little attention is paid to stateless persons, and because they are an inherently vulnerable population, we are particularly grateful to the Congressional Human Rights Caucus for raising this important issue.
A. International Law Deference to States in Deciding Who is a Citizen
The 1930 Hague Convention on Certain Questions relating to the Conflict of Nationality Laws held, "It is for each State to determine under its own law who are its nationals." The Hague Convention cautioned States to act "consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality."
Article 1 of the 1954 UN Convention relating to the Status of Stateless Persons defined a stateless person as one who is "not considered as a national by any State under the operation of its law."
The 1961 Convention on the Reduction of Statelessness sought to establish criteria for States to determine which State might be most responsible for providing nationality to a person who otherwise would be stateless. Although it reserves to States the right to determine citizenship, the 1961 Convention provided tangible limits on the power of States to remove nationality from certain individuals who would otherwise be stateless. Article 1, for example, commands states to grant citizenship to children born on their soil, pursuant to their respective national regulations, if such an action would prevent the child from becoming stateless. Article 8(1), meanwhile, declares, "[A] Contracting State shall not deprive a person of his nationality if such deprivation would render him stateless." This provision is subject to a number of exceptions, however, such as circumstances where the nationality is obtained by misrepresentation or fraud or an individual acts "in a manner seriously prejudicial to the vital interests of the state."
The notion implicit in the 1961 Convention, and developed in subsequent International Court of Justice case law, is that the country with genuine and effective links with the stateless individual, including birth, descent, and habitual residence, ought to provide citizenship to that person. Because States reserve the sovereign prerogative to determine, according to their laws, who is or is not their citizen, States are not consistent in the weight they accord to the various elements that establish effective links. The most common disagreement, which leaves untold numbers of children in nationality limbo, is the emphasis on establishing nationality exclusively by place of birth (jus soli) or by descent or "blood" (jus sanguinis).
Usually, citizenship is conferred automatically at birth to those who qualify under either a jus soli or jus sanguinis regime, or, as in the case of the United States, some combination of the two. The United States recognizes both jus soli and jus sanguinis principles in conferring citizenship. The Fourteenth Amendment to the U.S. Constitution holds, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." Therefore, almost all individuals born in the United States are guaranteed citizenship at birth, with exceptions made for the children of foreign diplomats or heads of state, among others. Also, a child born abroad automatically becomes a U.S. citizen if, for instance, both parents are U.S. citizens and one of them resided in the United States prior to the child's birth. Finally, the United States has a naturalization process whereby immigrants may acquire citizenship upon meeting specific obligations, including continuous residency in the United States for a defined period, an ability to read, write, and speak English, a basic knowledge of U.S. civics, and good moral character.
Problems arise if one State operates according to jus soli and another by jus sanguinis. For example, a child born in State X, which confers citizenship exclusively through jus sanguinis to parents who are nationals of State Y, which confers citizenship by jus soli. Such a child can be left stateless. This is most likely to happen to marginalized populations, such as groups popularly perceived as nomadic populations, such as Roma (gypsies) with no true homeland, or, most commonly, to children born of refugees.
B. De Jure Versus De Facto Statelessness
As stated above, people typically acquire their citizenship, whether through jus soli or jus sanguinis, automatically at birth. Those individuals, however, who are not granted automatic citizenship at birth and, to the extent that they must apply for nationality and subject themselves to a state's discretionary determination of citizenship, cannot be considered citizens of a particular state by the operation of its law are referred to as de jure stateless persons until such time as the state grants them citizenship. On the other hand, individuals "who cannot establish their nationality and those without an effective nationality" may be categorized as de facto stateless persons.
The concept of de facto statelessness emerged when the drafters of the 1954 Convention Relating to the Status of Stateless Persons sought to avoid confusion by creating a classification separate from de jure statelessness that pertained specifically to refugees, whom they presumed were the only de facto stateless persons. Over time, though, it has become clear that an ever-increasing number of individuals cannot be adequately categorized as either refugees or de jure stateless persons. Complicating the matter is the lack of uniformity among the nationality laws of various states, especially where a country operating under jus sanguinis principles refuses to grant citizenship to residents whose parents were natives of a primarily jus soli state. The result has been an emerging "gray zone" of de facto statelessness, encompassing everybody from de jure stateless persons with the possibility to apply for naturalization in another state to those whose right to citizenship in a state is hindered by excessive procedural obstacles.
De jure statelessness would seem to be resoluble if agreement could be reached on uniform application of the jus soli concept. In fact, however, because international law defers to States to determine the basis for citizenship, children often fall between the cracks of varying State practices. This could be avoided if States consistently followed Article 7 of the Convention on the Rights of the Child (CRC), which states that a child "shall be registered immediately after birth and shall have the right from birth to a name, [and] the right to acquire a nationality.... State Parties shall ensure the implementation of these rights...in particular where the child would otherwise be stateless." As the Special Rapporteur on the Rights of Non-citizens said in his Final Report on the Rights of Non-citizens, "In view of the near universal ratification of the Convention on the Rights of the Child, the principle of jus soli (citizenship based on the place of birth) has emerged as the overriding international norm governing the nationality of children born to non-citizen parents. This right must be enforced without discrimination as to the gender of the parent."5
Amnesty International USA's Refugee Program office has seen the difficulties close up that arise from the application of jus sanguinis in the context of aliens in immigration detention in the United States who are faced with deportation, but who cannot be removed to the place of their birth that they regard as their homeland because they lack citizenship rights.
II. Case Study: Haitian-Bahamians6
A. Haitian-Bahamians Facing Removal from the United States
Individuals in immigration detention in the United States who claim to be Haitian-Bahamian immigrants who are facing removal to Haiti sometimes write to Amnesty International USA's Refugee Program office seeking our help. Their letters claim that their genuine and effective ties are actually with the Bahamas, but that the Bahamas is unwilling to recognize them as Bahamian nationals. R-T- wrote to us from the federal detention center in Oakdale, Louisiana, and sent us a copy of his Bahamian birth certificate. He said:
[T]he conditions in Haiti are inhumane, unsafe, chaotic, and unfit for even a plant to survive, but not under this or even those conditions would change Immigration and a certain administration views on repatriating Bahamian born Haitians who never been to Haiti. I was born in the Bahamas of or from Haitian parents, after the adoption of the infamous and racist and biased Bahamas independence law, which is depriving many Bahamian born Haitians of their heritage and identity. I strongly believe that this law the Bahamas passed was merely to target individuals who are of Haitian descent.7
H-P- also wrote to us from Oakdale, and sent us a copy of a letter he wrote to the Haitian consulate:
Immigration [and Naturalization Service] requested travel document from your consulate offices before my appeal process was over and purposely neglected to request travel document from the Bahamas, my country of origin! Which is illegal and without my consent! I am hoping we can rectify the situation that I am a citizen of the Bahamas and not a citizen of Haiti!8
R-D- wrote to us from the Calcasieu Parish Jail in Louisiana to say:
There is a major case of racism and ethnic discrimination being directed towards Bahamian Haitians and Haitian migrants. This issue needs to be in front of some type of review panel for human rights and civil rights violations. I appreciate your organization researching and making an inquiry about this growing epidemic, but now we need to come up with a solution because I have two children here in the United States that I am being forced to abandon by Immigration.9
We were not able to help R-T-, H-P-, or R-D-, all of whom were deported to Haiti. But we are pleased, today, to fulfill R-D-'s wish that this issue be brought before a human rights review panel, and thank the Congressional Human Rights Caucus for giving us the opportunity to present the situation of R-D- and other Haitian-Bahamians who spend extended periods of time in immigration detention while their requests for removal to the Bahamas are being processed-and ultimately denied.
The letters that we receive from Haitian-Bahamians are consistent with accounts from other sources. In 2001, for instance, media sources reported that at least five Florida residents who had been ordered by U.S. immigration authorities to be deported to the Bahamas were instead sent to Haiti.10 One of them, Gertha Clairville, who had immigrated to the United States with her Haitian parents as a baby, was removed to Haiti even though she had been born in the Bahamas, had visited Haiti only once, and did not speak Creole.11
The apparent reason some Haitian-Bahamians have been deported to Haiti, despite orders for their removal to the Bahamas, is that the Bahamas has refused to accept them. Under Bahamian law, individuals born in the Bahamas to non-Bahamian parents do not automatically acquire citizenship at birth. Thus, Bahamian officials might believe that they are under no obligation to accept Haitian-Bahamian deportees, especially if they assume that such individuals are actually Haitian citizens.
B. Haitian-Bahamians in the Bahamas
Meanwhile, the majority of Haitian-Bahamians who remain in the Bahamas face persistent social discrimination as well as the uncertainties associated with an undefined legal status. Although many Bahamians blame the Haitians for straining their nation's health and education systems and contributing to an increase in crime, they continue to use Haitians and their Bahamian-born descendants as an ample source of cheap labor. Many Haitians and Haitian-Bahamians are relegated to living in crowded settlements, some without electricity or running water. Despite these conditions, removable Haitian-Bahamians in the United States, if asked to choose between returning to the Bahamas and being deported in Haiti, would most likely choose the former, since they have a genuine link to the Bahamas and often lack any compelling connection to Haiti.
The ambiguities of the Bahamian and Haitian nationality laws, combined with a lack of concern on the part of Bahamian authorities, leave many Haitian-Bahamians in a legal limbo. Uncertain whether they possess Haitian nationality, and craving citizenship in the country of their birth, some Haitian-Bahamians have tried unsuccessfully to become Bahamian nationals. A number of Haitian-Bahamians, including some frustrated by their futile efforts at acquiring Bahamian citizenship, decide to immigrate illegally to the United States. As one Haitian-Bahamian said, reflecting on his lack of status in the Bahamas and the temptation of life in the United States: "It hurts you to be a nobody."12
C. Bahamian Citizenship Law
Upon independence from Great Britain in 1973, the Bahamas drafted a new constitution that featured stricter citizenship provisions. These provisions represented the Bahamas' shift from a jus soli to a jus sanguinis nationality regime. Thus, while every person born in the Bahamas before July 10, 1973 retained Bahamian citizenship, those born after the enactment of the 1973 Constitution are now no longer guaranteed automatic citizenship at birth. According to Article 6, for instance, individuals born in the Bahamas after July 9, 1973 become automatic Bahamian citizens as long as one of their parents is a Bahamian citizen. However, Article 7(1) of the 1973 Constitution provides:
A person born in The Bahamas after 9th July 1973 neither of whose parents is a citizen of The Bahamas shall be entitled, upon making application on his attaining the age of eighteen years or within twelve months thereafter in such manner as may be prescribed, to be registered as a citizen of The Bahamas . . .
This provision affects Haitian-Bahamians in particular, who by definition are the children of non-citizen parents. The 1973 Constitution also provides that individuals born outside of the Bahamas acquire automatic citizenship only if their fathers are Bahamian citizens.
The 1973 Bahamas Nationality Act further governs the citizenship procedure for Bahamian-born individuals with non-citizen parents described in Article 7 of the Constitution. According to the Act, the government has wide discretion to refuse citizenship to an Article 7 applicant for a variety of reasons, including "behavior", "maintenance of law and public order", and "for any other sufficient reason of public policy . . . not conducive to the public good."
D. Haitian Citizenship Law
Haiti appears to confer nationality based primarily on jus sanguinis. The 1987 Constitution provides in Article 11 that:
Any person born of a Haitian father or Haitian mother who are themselves native-born Haitians and have never renounced their nationality possesses Haitian nationality at the time of birth.
In its publication, Citizenship Laws of the World, the U.S. Office of Personnel Management says that Haitian nationality is acquired through descent, if "at least one of [the child's] parents is a native-born citizen of Haiti, regardless of the child's country of birth." However, it further adds that a child born abroad "must be registered at the nearest consulate or embassy for the citizenship to be recognized."13
E. Haitian-Bahamian Statelessness
If the U.S. Office of Personnel Management's interpretation of Haitian citizenship law is correct, it is likely that Haitian-Bahamians do not acquire Haitian nationality automatically at birth. Haitian expatriates may not realize that their children need to be registered to acquire Haitian citizenship. Even if they are aware of the registration requirement, Haitian parents might be prevented from registering for any number of reasons, including difficulty in establishing their own claims to Haitian citizenship. If a child born abroad to Haitian parents acquires Haitian citizenship only upon registration at the nearest Haitian consulate or embassy, as described by the U.S. Office of Personnel Management, then it is likely that some Haitian-Bahamians are de jure stateless.
Haitian-Bahamian children could thus be considered de jure stateless, since they have a right, technically, under both Haitian and Bahamian law, to apply for citizenship. Nevertheless, such children seeking Bahamian citizenship would remain without a nationality at least until they turn 18. Even then, the acquisition of citizenship would still be at the discretion of the Bahamian government.
Even if Haitian citizenship is conferred automatically at birth to Haitian-Bahamians without a registration requirement, such individuals could still de facto stateless insofar as current Bahamian citizenship laws, along with the near unfettered discretion of Bahamian government officials in granting nationality, place an undue procedural burden on Haitian-Bahamians seeking to acquire Bahamian citizenship.
Assuming that unregistered Haitian-Bahamians are, in fact, de jure stateless, those Haitian-Bahamians who either have failed to apply for Bahamian citizenship within the one-year period prescribed in Article 7(1) of the Bahamas Constitution, or have had their citizenship applications rejected by the Bahamian government, could essentially be de facto stateless. Some Haitian-Bahamians might not know of the one-year application period or, alternatively, might be unable to complete their application within that time.
Compounding the problem is the wide discretion of the Bahamian government in granting citizenship. The government can withhold citizenship from any applicant who is deemed to have threatened the public order or whose citizenship would not be considered conducive to the public good. The Bahamian Minister of Foreign Affairs, Fred Mitchell, has been quoted on the "Haitian problem" as saying that the "large numbers of people coming in who are undocumented migrants . . . pos[e] a threat to the safety and security of the country." This suggests a bias toward viewing the presence of Haitians, including Haitian-Bahamians, as a threat to the public good.
An individual's genuine and effective link to a particular state includes his or her habitual residence there, and is relevant in determining whether an individual should be recognized as a citizen of that state. The majority of Haitian-Bahamians have a clear link to the Bahamas. Although some might be considered citizens of Haiti, many have never been in that country. Haitian-Bahamians are born in the Bahamas, and many are issued Bahamian birth certificates. A number of Haitian-Bahamians, even those who immigrate to the United States, reside first for years in the Bahamas with jobs and families to support. Even those who immigrate to the United States at a young age have a more compelling connection to the Bahamas, where they were born, than to Haiti, which they may never have visited.
Whether Haitian-Bahamians are considered stateless or not, the Bahamas, Haiti, and the United States must realize that a significant share of the international community has recognized the importance of an individual's effective link to a state in determining nationality. Widely accepted international agreements that do not explicitly deal with citizenship have nonetheless included provisions addressing the right of nationality. Recent regional instruments indicate a trend towards the recognition of other factors beyond jus soli, jus sanguinis, and even habitual residence in assessing an individual's connection to a state. While such a trend may not yet represent international custom, it still arguably represents a growing consensus in the international community.
As a party to the Convention on the Rights of the Child, the Bahamas has an obligation under Article 7(1) to ensure that all children born within its borders "shall be registered immediately after birth and shall have . . . the right to acquire a nationality." The CRC also obliges states parties in Article 2(1) to "respect and ensure the rights set forth . . . to each child within their jurisdiction without discrimination of any kind" and, in Article 3(1), to make certain that the "best interests of the child shall be a primary consideration." The treatment of Haitian-Bahamians by the Bahamian government, however, leaves in doubt whether the Bahamas is fulfilling its obligations under the CRC.
In addition, Article 51(2) of the CRC states "[a] reservation incompatible with the object and purpose of the present Convention shall not be permitted." However, the Bahamas ratified the CRC with the following reservation:
The Government of the Commonwealth of the Bahamas upon signing the Convention reserves the right not to apply the provisions of article 2 of the said Convention insofar as those provisions relate to the conferment of citizenship upon a child having regard to the Provisions of the Constitution of the Commonwealth of The Bahamas.
In reserving the right not to implement Article 2 fully, the Bahamas may well have acted contrary to the object and purpose of the convention.
The Bahamian government's reservation may have a direct impact on Haitian-Bahamians. Although the 1973 Constitution and Nationality Act do not contain language that explicitly discriminates against any particular social group, in practice they may be applied in a discriminatory fashion against Haitian-Bahamians. The reservation allows the Bahamian government to implement Article 2 only to the degree that it does not conflict with national law. While this may been seen as the type of compromise inherent in all international agreements, in this particular case the Bahamian government's reservation could allow it to skirt its other obligations under the CRC vis-à-vis Haitian-Bahamian children. This especially holds true if Haitian-Bahamian children are born stateless. Even if Haitian-Bahamians do acquire Haitian citizenship at birth, the Bahamian government's naturalization regulations, which require all individuals born in the Bahamas to non-citizen parents to wait 18 years before applying for citizenship, leave Haitian-Bahamians with a tenuous legal connection to Haiti at best and, in fact, no appreciable status in the Bahamas.
III. Case Study: Rohingyas15
The State Peace and Development Council (SPDC), Myanmar's government, denies citizenship to the vast majority of the Rohingyas, a Muslim ethnic minority from northern Rakhine State in western Myanmar. The treatment of the Rohingyas dramatically illustrates how ethnic discrimination in the granting of citizenship is interwoven with a host of other discriminatory practices and serious human rights violations. The situation of the Rohingyas shows the extreme vulnerability that goes hand in hand with statelessness.
A. Myanmar's Citizenship Laws
Myanmar's citizenship laws are harshly restrictive and discriminatory. The laws are based primarily on the 1983 Burma Citizenship Law, which creates three classes of citizens: full citizens; associate citizens; and naturalized citizens and a government-controlled "Central Body" with broad power to determine citizenship. Decisions of the Central Body cannot be appealed to an independent appellate body, but can be appealed to the Council of Ministers.
Full citizenship is reserved for specified ethnic groups, such as the Kachin, Kayah, Karen, Chin, Burman, Mon, Rakhine, and Shan ethnic groups. Although some Rohingyas have deep ancestral ties to Myanmar, Myanmar's government, the State and Peace Development Council (SPDC), does not recognize them as one of Myanmar's 135 "national races." In fact, Myanmar's Minister of Foreign Affairs once described the Rohingyas as "illegal immigrants" who "do not hold immigration papers like other nationals of the country."16
The Central Body may grant full citizenship to members of other ethnic groups who can trace their settlement within the territories of the State from before 1823. Children born to parents who are members of specified ethnic citizenship, whether born inside or outside Burma, are nationals by birth.
The second category, associate citizenship, is for people who applied for citizenship under the earlier 1948 citizenship law and their children. The Central Body has unlimited discretion to deprive associate citizens of their nationality rights, and may revoke associate citizenship for grounds such as "disaffection or disloyalty to the State" or "moral turpitude."
The third category, naturalized citizenship, is granted to members of ethnic groups not recognized as indigenous races. Theoretically, this would include the Rohingyas, and the government formally states that members of the Rohingya minority are "recognized as permanent residents within Myanmar." However, hurdles to naturalization are high, and discretion to deny is wide. Applicants for naturalized citizenship must be over 18 years of age, able to speak the national language well, and be of good moral character and sound mind. As with associate citizens, the Central Body is authorized to deprive naturalized citizens of their status based on disloyalty or moral turpitude.
The government issues color-coded identity cards to reinforce the three citizenship categories, as well as the status of non-citizen residents. The cards also often identify the bearer's ethnicity and religion. Full citizens receive pink cards, associate citizens carry blue cards, and naturalized citizens hold green cards. Rohingyas who repatriated from Bangladesh after 1991-1992 with the assistance of the UN High Commissioner for Refugees (UNHCR) are issued yellow cards. Yellow cards simply identify the bearer as a "returnee" from Bangladesh, and do not establish any particular immigration or nationality status. In 1995, at UNHCR's request, Myanmar officials in Northern Rakhine State began issuing white cards to Rohingyas living there. White cards are for "temporary registration," and explicitly are not evidence of citizenship. Not all Rohingyas have even been issued these temporary cards.
B. Discrimination Against Rohingyas and Denial of Their Fundamental Rights
The SPDC severely limits Rohingyas' freedom of movement, requiring them to apply for permission to leave their villages, even to visit a nearby village. These restrictions are not imposed on other ethnic groups living in Rakhine State, primarily the Rakhines. This restriction on movement has had serious repercussions on the Rohingyas' ability to work and to obtain food, health care, and basic sustenance.
While, as mentioned above, the ICCPR, allows for some restrictions on the freedom of movement and residence of aliens not legally resident in a country, Myanmar's restrictions do not meet the minimal criteria of being based on law, proportional, and in pursuit of a legitimate objective, such as protecting public order. These restrictions on movement, in fact, violate fundamental principles of equality and non-discrimination. Amnesty International's report, Myanmar: The Rohingya Minority: Fundamental Rights Denied, says:
The sweeping restrictions on the movement of Rohingyas are disproportionate and discriminatory; they are imposed on all Rohingyas because they are Rohingyas, and not on members of other ethnic nationalities in Rakhine State. They are broad and indiscriminate in their application and as such are unlawful. They have a severe negative impact on the lives of thousands of Rohingyas who have not committed any offence. Especially serious is the fact that these restrictions constitute, in addition, violations of other basic human rights for the Rohingyas, including the right to work, and the right to an adequate standard of living, both of which are enshrined in the UDHR.17
Rohingyas are also subjected to forced evictions and demolition of houses. This is part of an SPDC program to build "model villages" in Northern Rakhine State populated by relocated Rakhine Buddhists and other non-Rohingyas. The large majority of model villages are built on land confiscated from Rohingyas. Forced Rohingya labor is used to build the houses in the model villages, and the majority of settlers in the model villages do not cultivate the land allocated to them, but, instead, in some cases, hire Rohingya farmers as sharecroppers to farm the very land that was confiscated from them.
A 22-year-old Rohingya man from southern Maungdaw had his land confiscated when a model village was constructed. He told Amnesty International:
My family had 5 kanis [21/2 kani is 1 acre] of land. But these fields were confiscated by the NaSaKa18 about two years ago [early 2002]. There is a NaTaLa19 village in our area, which was established in 1995 or 1996, shortly after the NaSaKa was formed. Since then, every year, the NaSaKa is extending this village by bringing in five to six new families a year. Two years ago, the NaSaKa brought a few Burmese families in this NaTaLa village and confiscated our land, my family's land as well as others' land too. I remember that, the time we lost our land, they brought in 30 new families from Upper Myanmar. Moreover, we had to build houses for them with forced labor in late 2001 and early 2002. Our life became much harder after we lost our land. We were a farming family and suddenly we became a labor family... Last year, the NaSaKa, also confiscated almost all our grazing pasture and distributed it to the NaTaLa villagers for their cattle. Some of them leased it out again back to our villagers.20
The SPDC also imposes discriminatory treatment on Rohingyas with respect to financial restrictions on marriage and arbitrary taxation. Rohingyas are also pressed into forced labor, although this is happening less often than in previous years.
Not surprisingly, large numbers of Rohingyas have fled to Bangladesh and other countries. Between 1992 and 1994, however, Bangladesh forcibly repatriated about 50,000 Rohingyas back to Myanmar. Nevertheless, others have continued to cross into Bangladesh. Since 1996, however, Bangladesh has not allowed new arrivals to reside in refugee camps. Calling them "economic migrants," Bangladeshi authorities have not recognized tens of thousands of new arrivals as refugees or as stateless persons in need of international assistance. The government blocks UNHCR's access to them. The UN refugee agency also has a mandate on behalf of stateless people.
IV. Recommendations
This hearing itself is important simply for drawing attention to a significant human rights problem that could well affect millions of people, but which is largely invisible and widely ignored. The United States government has an important role to play, first in drawing attention to this serious and extensive problem, and secondly in working in concrete ways to reduce statelessness or, at least, to ameliorate the vulnerabilities of stateless people.
Recommendations for Ways the U.S. Government can help draw attention to the problem:
(1) The State Department's annual Country Reports on Human Rights Practices should explicitly address the issue of statelessness. A variation of the term "stateless" is featured-and defined-in two international conventions: The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.
The State Department should not shy away from the word "stateless" to describe people or groups denied citizenship rights. For example, the most recent report on Myanmar (Burma), published in February 2005 and covering 2004, discusses the deprivation of citizenship rights to Rohingyas and other minorities living in Myanmar, and documents various human rights violations and discriminatory treatment, but never uses the word "stateless" to describe these native-born, long-term non-citizen residents:
Only persons who were able to prove long familial links to the country were accorded full citizenship. Native-born but non-indigenous ethnic populations (such as Chinese, Indians, Bengalis, and Rohingyas) were denied full citizenship and were excluded from government positions. Members of the Rohingya Muslim minority in Rakhine State continued to experience severe legal, economic, and social discrimination. The Government denied citizenship to most Rohingyas on the grounds that their ancestors did not reside in the country 1 year prior to the start of British colonial rule in 1824, as required by the country's highly restrictive citizenship law.21
(2) There should be a focal point on Statelessness within the Bureau of Population, Refugees, and Migration. To our knowledge, there is no person or office responsible for reporting on or tracking stateless populations within the State Department. A similar problem existed some years ago when the State Department lacked a focal point on internally displaced persons, a category that has a less firm basis in international law. The establishment of responsibilities on behalf of internally displaced persons within the bureaucracy (most notably in USAID) has greatly enhanced knowledge of the problems associated with internal displacement and has advanced the U.S. government's responsiveness towards them. Such a designation would similarly enhance understanding of, and response to, the problems of stateless persons.
(3) The United States should support the Office of the High Commissioner for Human Rights to conduct a global study on human rights and statelessness. The United States should support the draft resolution of the Russian Federation to the 61st session of the Commission on Human Rights on "human rights and the arbitrary deprivation of nationality." The resolution calls on UN human rights mechanisms, UNHCR, and the Secretary General to "collect information" on statelessness and to make this information available to the next meeting of the Commission on Human Rights.22
(4) The United States should support a revived Special Rapporteur for the Rights of Non-citizens whose mandate would explicitly include statelessness and access to citizenship. That the mandate of the Special Rapporteur for the rights of non-citizens was not renewed raises the prospect that international community attention will less likely be drawn to the problems facing stateless people and other vulnerable non-citizens, such as asylum seekers and migrant workers.
Recommendations for Ways the U.S. Government can reduce statelessness or ameliorate its affects:
(5) The United States Government should ratify the1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. International cooperation to reduce statelessness has been hampered by the small number of State Parties to either instrument. Accession by the United States would be an important boost to international solidarity to combat this problem and to position the United States more effectively to provide leadership for reducing statelessness.
(6) The United States should provide funding to enable UNHCR to fulfill its mandate on behalf of stateless people. Since 1974, when the UN General Assembly requested UNHCR to assist stateless persons according to the terms of Article 11 of the 1961 Convention on the Reduction of Statelessness, stateless persons have, in effect, been UNHCR's stepchildren, often treated as an afterthought to UNHCR's primary focus on refugees. Funding and interest from the United States would encourage UNHCR to provide assistance on behalf of stateless persons, and should, in particular, help UNHCR to expand its work for stateless persons beyond Europe.
(7) The Bureau for Population, Refugees, and Migration processing priorities for refugee admissions should be written to facilitate the admission to the United States of stateless persons in need of protection and durable solutions. For purposes of admission to the United States through the U.S. refugee admissions program, the Immigration and Nationality Act includes in the refugee definition discretion for the President, in consultation with Congress, to specify "any person who is within the country of such person's nationality or, in the case of a person having no nationality, within the country in which such person is habitually residing, and who is persecuted or who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."23 (Emphasis added.)
In writing U.S. refugee law in this way, the drafters of the Refugee Act of 1980 demonstrated remarkable sensitivity to the plight of stateless persons. The State Department has recently designated one particularly vulnerable stateless population, the Meskhetian Turks in the Russian Federation, a Priority Two (P-2) group eligible for admission to the United States under the U.S. refugee resettlement program, and the first U.S. Citizenship and Immigration Service refugee status determination interviews are now taking place.
The Meskhetian Turks were one of the nationalities deported by Joseph Stalin in1944 from Georgia to central Asia (mostly to Uzbekistan). After the break up of the Soviet Union, the Meskhetian Turks were attacked by newly independent Uzbeks and tried to return to Georgia, but were rebuffed by the newly independent Georgia as well. Between 13,500 and 20,000 of them ended up in the Krasnador Krai region of the Russian Federation. The Meskhetian Turks were one of the many stateless populations created as a result of post Cold War border shifts, problems that also occurred for Roma and other minorities from Czechoslovakia and Yugoslavia as well. Although they technically appear to be eligible for Russian citizenship, they remain de facto stateless because local authorities have refused to register them, making it extremely difficult for them to regularize their status. They have had difficulty gaining access to employment or education, and have not been able to register marriages or own property. They have also been subjected to attacks by paramilitary Cossack groups.
The United States deserves praise for recognizing this stateless population and for providing them a permanent home. But many other groups worldwide face similar persecution on account of their statelessness. It has taken many years of advocacy by nongovernmental organizations, including Amnesty International USA, to convince U.S. authorities that the Meskhetian Turks both qualified for U.S. refugee admissions and were in need of resettlement. To facilitate the identification of other vulnerable stateless populations, the State Department's Priority One for U.S. refugee processing should be amended to reflect the statutory authority in INA § 101(a)(42)(B). The new Priority One would read:
Priority One is reserved for compelling protection cases or refugees for whom no other durable solution exists who are referred for U.S. resettlement by the UNHCR or a U.S. embassy. Historically, these have included: persons facing compelling security concerns in countries of first asylum; persons in need of legal protection because of the danger of refoulement; those in danger due to threats or armed attack in areas where they are located; persons who have experienced persecution because of their political, religious, or human rights activities; women-at-risk; victims of torture or violence; physically or mentally disabled persons; persons in urgent need of medical attention not available in a first-asylum country; and persons-including stateless persons-for whom other durable solutions are not feasible and whose status in the place of asylum-or the place of habitual residence in the case of stateless persons residing within the country of habitual residence-does not present a satisfactory long-term solution. P-1 referrals must still establish a credible fear of persecution or history of persecution in the country from which they fled (or, in the case of stateless persons, the country of habitual residence if they are still within that country).
(8) The United States should not remove a stateless person until the receiving state has provided assurances about their nationality. When removing deportable stateless persons, the Department of Homeland Security should work closely with the State Department to seek diplomatic assurances for resolving the individual's nationality, taking into account, as much as possible, the reasonable assessment of the stateless person about the country to which he or she has genuine and effective links. The United States should make every effort to persuade countries to which deportable aliens have genuine and effective links to take responsibility for them.
(9) The United States should limit to situations that are absolutely necessary the detention of stateless persons during the often-protracted process of determining the State responsible for receiving them and procuring the proper travel documents. Stateless persons often suffer prolonged periods of immigration detention for lack of a country willing to accept them or the mounds of red tape that are often involved in providing identity and travel documents. We are gratified that the U.S. Supreme Court has ruled in two cases, Clark v. Martinez and Zadvydas v. Davis, that aliens with final orders of removal whose home countries are unwilling to accept them cannot be held indefinitely if they cannot be removed in the foreseeable future, and set a six-month time limit for their detention. Justice Sandra Day O'Connor, in a concurring opinion, noted that under some circumstances it is permissible to detain for longer than six months, if a longer period is reasonably necessary to effectuate removal of the alien, or if the alien poses a security risk. She further noted that aliens released per Zadvydas or Martinez would be subject to the conditions of supervised release, and could be re-detained, and subject to criminal penalties, for failure to adhere to those conditions. The Department of Homeland Security has been slow to implement these decisions, in part, because of interpretations about how "foreseeable" their removal might be. Congressional oversight should be particularly vigilant with regard to stateless persons in detention, bearing in mind Justice O'Connor's recommendations about supervised release.
(10) The U.S. Congress should resist efforts by some of its members to enact legislation that would discontinue U.S. citizenship based on birth in the United States. The automatic bestowal of citizenship through jus soli is the clearest and fairest basis for acquiring nationality at birth. Abandonment of jus soli would inevitably result in an increase in statelessness. In the 108th Congress, Rep. Mark Foley (R-FL) introduced a resolution (H.J. Res. 44) to amend the U.S. Constitution to provide that no child born in the United States would be granted citizenship unless a parent is a U.S. citizen or lawfully admitted for permanent residence at the time of birth. On February 9, 2005. Rep. Nathan Deal (R-GA) introduced the Citizenship Reform Act of 2004 (H.R. 698) that would amend the Immigration and Nationality Act to deny birthright citizenship to children born in the United States to parents who are not U.S. citizens or permanent resident aliens. Such measures, if enacted, would contribute to the erosion of international human rights protection and would dramatically increase the likelihood that children born in the United States could become stateless-essentially abandoned by the United States and the international community.
1 Chief Justice Earl Warren, cited by Carol A. Batchelor, Statelessness and the Problem of Resolving Nationality Status, 10 Intl. J. Refugee L. at 159 n. 5 (1998).
2 Johannes M.M. Chan, The Right to a Nationality as a Human Right: The Current Trend Towards Recognition, 12 Human Rights L.J. 1, 3 (1991) (citing the observations of H. Lauterpacht).
3 Article 2 of the ICESCR gives developing countries some allowance in the granting of economic rights to non-nationals.
4 David Weissbrodt, Final Report on the Rights of Non-citizens, U.N. Doc. E/CN.4/Sub.2/2003/23 (2003).
5 Id.
6 This section was co-authored by Andrew P. Sonin, an AIUSA Refugee Program intern and J.D./M.A. candidate at American University, Washington College of Law.
7 Letter from immigration detainee, on file with AIUSA. The author's identity is being protected.
8 Letter from immigration detainee, on file with AIUSA. The author's identity is being protected.
9 Letter from immigration detainee, on file with AIUSA. The author's identity is being protected.
10 Teresa Mears, U.S. Sends Bahamian-born Deportees to Haiti, Agence France Presse (Mar. 3, 2001); see also Bill Douthat, Suit: Fort Pierce Man Deported Illegally, Palm Beach (Fla.) Post 1A (Mar. 1, 2001).
11 Id., Mears; see also Allen Elsner, U.S. Deportees in Dire Straits in Haitian Prisons, Reuters, printed in Los Angeles Times A13 (Mar. 24, 2002).
12 Quoted by Gary Kane, The Misery of Living in a Tropical Ghetto Leads Many Haitian-Bahamians to Accept the Risks of the Bahamian Pipeline, Palm Beach (Fla.) Post 1A (Apr. 20, 2003).
13 U.S. Off. of Personnel Mgt., Citizenship Laws of the World (2001), at 90.
14 Fred Mitchell, Minister of Foreign Affairs, quoted in PalmBeachPost.com, Interview with a Top Bahamian Official, http://www.palmbeachpost.com/news/content/news/smuggler_mitchell.html (2003)).
15 This section is based largely on Amnesty International's report, Myanmar: The Rohingya Minority: Fundamental Rights Denied, ASA 16/005/2004 (May 2004). Available at: http://web.amnesty.org/library/Index/ENGASA160052004?open&of=ENG-MMR. See also, Myanmar/Bangladesh: Rohingyas-The Search for Safety, ASA 13/007/1997 (September 1997).
16 Id., citing Press Release of the Ministry of Foreign Affairs of the Union of Myanmar, 26 February 1992.
17 Id.
18 The NaSaKa are the security forces most frequently cited by the Rohingyas as committing human rights violations against them. NaSaKa is an acronym for "Nay-Sat Kut-kwey Ye", a border task force, consisting of the police, Military Intelligence (MI), the Lon Htein (internal security or riot police), customs officials, and the Immigration and Manpower Department (IMPD). The NaSaKa was established in 1992, initially only in Northern Rakhine State, and is believed to be under the direct command of the SPDC, in this case the Western Military Command with its headquarters in Sittwe.
19 "NaTaLa" is an acronym for the Ministry for Development of Border Areas and National Races, the agency that administers the model villages in Rakhine State. They are, therefore, locally known as "NaTaLa villages."
20 AI, Myanmar, supra n. 15.
21 Burma, Country Reports on Human Rights Practices, 2004, Bureau of Democracy, Human Rights, and Labor, Department of State. February 28, 2005. Available at: http://www.state.gov/g/drl/rls/hrrpt/2004/41637.htm.
22 The text of the Russian draft resolution is available at: http://portal.ohchr.org/pls/portal/docs/PAGE/COMMISSION61/DRAFTRESO/L58%20FINAL%20ENGLISH_0.DOC
23 INA § 101(a)(42)(B).
24 Clark v. Martinez, No. 03-878, 2005 WL 50099, January 12, 2005.
25 Zadvydas v. Davis, 533 U.S. 678 (2001).
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