How Effective is the United Nations in Dealing With Statelessness?

Author: George Edwards, 2018.

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“There are an estimated 10 million people affected by statelessness worldwide…”


Photo from Pixabay under Creative Commons.

 

There are an estimated 10 million people affected by statelessness worldwide, although this figure could be much higher (UNHCR, Report 2016-17 11). These are individuals who are “not considered as a national by any State under the operation of its law” (UNHCR, Convention on the Reduction of Statelessness 6). In 2014, the United Nations (UN) launched the Global Action Plan to End Statelessness (GAP or the Plan) with the intent “to bring an end to statelessness within 10 years by resolving existing situations and preventing the emergence of new cases of statelessness” (UNHCR, Global Action Plan 4).

This essay will analyze the success of the UN’s new and existing framework for combating statelessness and debate whether they are currently protecting the rights of the stateless. The first section will investigate the United Nations High Commissioner for Refugees (UNHCR), focusing on its policy before 2014, by analyzing the effectiveness of the two statelessness conventions and other measures taken by UNHCR to bring about change. The second section will look at the GAP’s ten-point plan and recent UNHCR reports to judge whether it is realistic to believe that statelessness can be eradicated by 2024. The essay will then move on to discuss the UN’s responses to the plight of the Rohingya, one of the world’s largest stateless populations, asking whether the international community can realistically hope to end statelessness in ten years if it has done little to help the Rohingya in thirty years. Finally, the paper will draw some conclusions about current UN efforts, and make some brief recommendations.

 

The UN and Statelessness During the Cold War

In 1988, the Independent Commission on International Humanitarian Issues (ICIHI) observed that, “UNHCR has remained somewhat indifferent when it comes to the fate of the stateless”, adding that its failure to write about the subject only heightened “a general indifference towards a problem which should rather inspire in human terms the same compassion as that shown to refugees” (UNHCR, The state of the world’s refugees). Written nearly fifty years after the UN first referred to the impact of statelessness on humans, the report noted that there had been little change in the field. These conclusions reflect the indifferent attitude of national governments and the UN towards statelessness that prevailed throughout the Cold War.

The 1954 Convention Relating to the Status of Stateless Persons (the 1954 Convention), designed to protect the already existing stateless population, and the 1961 Convention on the Reduction of Statelessness (the 1961 Convention), created to stop new cases of statelessness and change national citizenship legislation, were both compromised from their inception. The 1954 Convention did not contain a similar measure to Article 35 of the 1951 Refugee Convention that obliged contracting States to cooperate with UNHCR (Seet 10), and the 1961 Convention and its related treaty body did not come into force until six States Parties had ratified the Convention in 1974 (12). UNHCR did not establish a budget for this new body for the first two years of its existence, which can be seen as “a reflection of the level of activity rather than of economy” (Seet 13). All these failures were largely circumstantial. Without the support of the international community or a clear mandate, it was understandably difficult to put statelessness on the global agenda.

 

‘A Global Mandate’: Moving Towards the General Action Plan

In the 1990s, the relative stability of the Cold War was followed by the collapse of the Soviet Union, leading to a period of state succession and population movement. In a short space of time, millions found themselves residing in a country where they were no longer a citizen. Apathy turned to interest as States looked to understand the causes of these new refugee influxes (ibid. 8-9). This new development meant UN Member States were more willing to engage in the subject, but still primarily through the refugee lens. UNHCR responded to this new interest in 1995, when the Executive Committee (ExComm) released a statement on the Prevention and Reduction of Statelessness and the Protection of Stateless Persons. The document gave UNHCR more responsibility to promote accession to the two Conventions and called for it to “actively promote the prevention and reduction of statelessness through the dissemination of information, and the training of staff and government officials” (ExComm). The ExComm report was then supported by the UN General Assembly (UNGA) one year later. Together, the documents “established a truly global mandate for UNHCR on statelessness” (Manly 262).

Although this represented a huge leap forward as far as UNHCR’s mandate was concerned, there were still some recurring limitations to the ExComm conclusion and the UNGA resolution. Most importantly, the UN still primarily addressed statelessness as a cause of displacement and refugees instead of a stand-alone issue (ExComm; General Assembly). The UNGA resolution also reaffirmed “the purely humanitarian and non-political character of the activities of the Office of the High Commissioner” (General Assembly). One of the main issues facing UNHCR was the highly politicized nature of statelessness vis-à-vis state sovereignty. This reaffirmation and the call for “States to adopt nationality legislation with a view to reducing statelessness” shows that States were still being given the option to decide for themselves whether or not to change. Although UNHCR’s new mandate was global, it was not much more powerful than it had been before.

At the beginning of the twenty-first century, UNHCR was free from the constraints of the Cold War and armed with a global mandate. In theory, it was much better placed to effect change than it had been forty years before. Despite the flawed legal framework of the statelessness conventions, the UN has continued to be influenced by them in its attempts to “mainstream” issues of statelessness (Manly 276). The Convention on the Rights of the Child (CRC) is a good example of this. Although a small group of States ratified the 1961 Convention, the CRC enjoys almost universal ratification “giving it more potential to combat statelessness than any other convention” (Stein 660). Article 7 of the CRC calls for the registration of all births and underlines the right of every child to acquire a nationality (ibid.). This echoes Article 1 of the 1961 Convention, which binds Contracting States to “grant its nationality to a person born in its territory who would otherwise be stateless” (UNHCR, Convention relating to the status of stateless persons 7). In other attempts at mainstreaming statelessness, UNHCR has worked closely with the UN Children’s Fund on birth registrations (Türk 48), and in 2010, it made statelessness one of the four pillars of its budget structure (Manly and Persaud 9-10).

Similar positive results were achieved with the drafting of the European Convention on Nationality in 1997 and the Convention on the Avoidance of Statelessness in Relation to State Succession in 2006. This success was gradually replicated across the world. Policy-orientated research was funded in Canada and Bangladesh, while citizenship campaigns were supported in Sri Lanka in 2003, and in Nepal and Turkmenistan in 2009 (ibid. 8). In 2008, a Bangladeshi High Court ruling granted citizenship to approximately 300,000 stateless Bihari Urdu speakers, and headway has also been made on reducing statelessness in Cote d’Ivoire, Kyrgyzstan and Tajikistan (UNHCR, A Special Report 7). Some of UNHCR’s largest achievements in the fight to eliminate statelessness have come thanks to this global outlook and stronger mandate. The work done by the UN in the two decades after the end of the Cold War began to create a space for statelessness to become an important issue in its own right. The stage was set for its boldest initiative yet.

 

The Global Action Plan: The Beginning of the End for Statelessness?

The Global Action Plan to End Statelessness, released by the UN in 2014, finally confirmed statelessness as a global issue in its own right. The Plan’s aim, “to bring an end to statelessness within 10 years by resolving existing situations and preventing the emergence of new cases of statelessness” (UNHCR, Global Action Plan 4), is as succinct as it is ambitious. The Plan outlines ten actions to be developed over a ten-year period. These include the resolution of existing situations of statelessness, prevention of statelessness through birth registration, better nationality documentation, removal of discriminatory laws, greater protection for stateless persons, and accession to the statelessness conventions and improved data collection (ibid.). On several occasions, UNHCR has made it clear that the political will of the international community is key to making progress on the actions (ibid.; UNHCR, A Special Report 8). In order to gauge whether the GAP has managed to increase political will to eliminate statelessness since its introduction in 2014, this section will look at its influence on regional activity and its success in making statelessness an important global issue.

The GAP encourages States to create their own action plans to eliminate statelessness (UNHCR, Global Action Plan 5). Much like the Sustainable Development Goals, the ten actions are designed to be scaled down to the local level by regional organizations. Since 2014, and directly influenced by the Plan, Latin America, the Economic Community of West African States (ECOWAS), the Middle East and North Africa (MENA), and the Asia-Pacific region have had regional meetings related to statelessness, all with similar positive results.

These regional meetings are promising because, not only do they restate the goals of the GAP, but they also focus on the specific statelessness issues affecting each area, showing that governments across the world have internalized its message and are willing to make changes. For example, the MENA region, an area experiencing huge migratory flows caused by conflict, developed the Sharjah Principles relating to the birth registration of refugees (UNHCR, Investing in the Future). It also organized the Arab Conference on Good Practices and Regional Opportunities to Strengthen Women’s Nationality Rights in October 2017, acknowledging another one of the main causes of statelessness in the region, women’s inability to pass their nationality to their children (Global Campaign for Equal Nationality Rights). Similarly, in the Asia-Pacific region, a Ministerial Declaration by members and associate members of the United Nations Economic and Social Commission for Asia and the Pacific, on birth registration and providing identity documentation for all, responded to UNHCR’s calls for better quantitative data and aligned itself with the GAP by setting 2024 as the end date for the initiative (Ministerial Declaration).  Regional willingness to adapt the GAP to the individual needs of States shows engagement with the Plan, and crucially, political will to combat statelessness.

ECOWAS is the best example of the Plan’s influence at the regional level. In 2015, the Abidjan Declaration was endorsed by all the region’s heads of states in Accra, Ghana. The Declaration expresses support for UNHCR’s global campaign and reflects most of its key issues, including providing identification documents, fighting gender inequality in nationality laws, more widespread birth registration, accessions to the 1954 and 1961 Conventions, and the UN’s broader concept of mainstreaming statelessness by working on the issue with other UN departments and local organizations (ECOWAS, Abidjan Declaration). Two years later, ECOWAS produced the Banjul Plan of Action that set tangible targets to be met over the same time frame as the GAP. The existence of a framework with clear goals, measurable outcomes and deadlines, means West African States can now be held accountable for any future inaction on statelessness. By the time the Banjul Plan came into effect, twelve of the fifteen ECOWAS States had acceded to the 1954 Convention and eleven had acceded to the 1961 Convention, with two more States in the accession process (ECOWAS, Banjul Plan).

In Latin America, the Brazil Declaration and Plan of Action was developed during the Cartagena +30 conference­, the first since the conferences began in 1984 to focus on regional statelessness (ACNUR). In both Latin America and Africa, there is a real possibility that all States could have acceded to both Conventions by 2024, thus achieving one of the Plan’s central aims. The UN has successfully mobilized key regional organizations, and in doing so, has given itself a much better chance of meeting some of its ten-year targets.

In order for the Plan to be truly effective, statelessness needs to emerge as an issue that is not just on UNHCR’s agenda, but also on agendas of NGOs and the general public. As the issue emerges onto the world stage, more governments will be pressured to make changes. In her work on statelessness and issue emergence, Lindsey Kingston identifies four problems preventing statelessness from emerging as a key issue on the NGO agenda (73-87). First, it is a heterogeneous problem. There are many ways someone can become stateless and each cause requires a different solution. Second, statelessness is often misunderstood. It can be mistakenly linked to terrorism and non-state actors and is described using complicated legal jargon. Third, there is a lack of data. Without knowing the full scale of the problem, NGOs struggle to create a narrative to sell the problem to the public. Finally, there is no “CNN factor”. Without compelling imagery and shocking photos to demonstrate the extent of the problem, it is more difficult to move governments and the public into action (ibid. 80-82). Kingston argued that for statelessness to emerge as an issue it would need to be framed publicly with a central action plan (ibid. 83-85). Writing one year prior to the release of the GAP, Kingston offers a four-point framework to judge whether the UN has successfully helped statelessness emerge as an issue.

UNHCR went out of its way in 2014 to clarify the issue of statelessness for a wider audience. Fleeting references in official reports made way for glossy leaflets full of pictures and simple explanations aimed at non-specialists, such as “Ending Statelessness within 10 Years.” UNHCR’s website now frequently reports on success stories from across the globe, each article accompanied with a photo of one of the lucky individuals to have received citizenship (Jedsadachaiyut and Al-jasem; Sturm). This in-house, positive reporting has been accompanied by independent projects like Greg Constantine’s photography documenting the plight of the Rohingya (Constantine). The use of the #iBelong campaign to tie this content together online was designed to capitalize on the growing momentum to address statelessness (UNHCR, Report 2014-2015 15). All this work has increased the profile of statelessness by overcoming the obstacles to issue emergence outlined by Kingston.

The GAP has built a strong foundation for future efforts to eradicate statelessness. The Plan itself has served as a model for regional organizations that have implemented their own measures. Further, the media produced since the beginning of the campaign has simplified the issue by giving a human face to a sometimes complicated legal problem. According to UNHCR’s yearly reports, the GAP is starting to produce tangible results. In 2013, 37,700 people acquired nationality in 19 different countries; the year after another 31,700 acquired nationality thanks to UNHCR’s work with NGOs in Kyrgyzstan and Malaysia (UNHCR, Report 2013-2014; Report 2014-2015). Between July 2015 and June 2016, nearly 50,000 people had their nationality confirmed, and that figure had jumped to over 60,000 only a year later (UNHCR, Report 2015-2016; Report 2016-2017).

However, this progress is still too slow if the UN hopes to eradicate statelessness by 2024. While there have been huge steps forward for many, large groups of stateless persons have taken steps backward. For example, as the Makonde, an ethnic group in Kenya, were finally granted their national identification cards, Nubians stood by and watched sadly knowing they were no closer to citizenship (Masinde). However, the most troubling situation involves the Rohingya, the largest stateless population in the world, who are being persecuted while the UN remains inactive. If the Plan’s legacy is to be positive, UNHCR must have a significant impact on the world’s most challenging situation of statelessness.

 

The UN and the Rohingya

The UN has established a much-improved framework for dealing with statelessness over the last decade and has made good progress when States have been willing to collaborate. However, its inability to help the Rohingya over the last forty years could single-handedly undermine the rest of its progress on statelessness. The Rohingya, an ethnic minority in Myanmar, have been consistently marginalized and denied citizenship. This situation worsened when the 1982 Citizenship Law was passed, making it more difficult for the Rohingya to prove their Burmese citizenship (Human Rights Watch).

On November 6, 2017, the President of the Security Council, Sebastiano Cardi, condemned “the mass displacement of more than 607,000 individuals, the vast majority belonging to the Rohingya community” (United Nations Meetings Coverage). He went on to call for the full implementation of the recommendations set out by the Advisory Commission on Rakhine State chaired by Kofi Annan (ibid.). Kofi Annan’s report highlighted statelessness as the main cause of a “human rights crisis” in Myanmar and acknowledged that any lasting resolution would need to address the issue (Advisory Commission on Rakhine State 9; 26-29). The content of the Presidential Statement was promising, although it was not a legally binding resolution. China had made it clear that it was “strongly opposed” to such a resolution being passed, supporting the opinion of Myanmar’s ambassador that the statement was “based on accusations and falsely claimed evidence” (Lederer). In the face of denial and Security Council deadlock, the Plan does not have the power to change State behavior.

Instead of trying to innovate, UNHCR has repeatedly fallen back on the same solutions, which have continued to be ineffective. In both the late 1970s and the early 1990s, over 200,000 Rohingya fled to Bangladesh escaping persecution in Myanmar (Human Rights Watch). In both cases, the majority were repatriated. UNHCR tried to control the repatriations in the 1990s by interviewing refugees to verify they had not been coerced into returning, but by August 1994, it was allowing mass repatriation into “less than optimum conditions” (ibid.). Despite acknowledging that its decision to repatriate Rohingya in 1994 “was challenged by many commentators” (Kiragu et. al 10), UNHCR has welcomed the opportunity to scrutinize a recent Memorandum of Understanding between Bangladesh and Myanmar that would see the voluntary return of Rohingya to Rakhine State (Dhaka Tribune). Even if human rights standards are upheld and conditions are safe – as UNHCR has promised (ibid.) – as long as the Rohingya remain stateless, it is almost certain that the cycle of persecution will continue.

The responsibility to protect the Rohingya should not depend solely on the decisions of the Security Council. The UNGA also has a role to play. Promisingly, the UNGA’s Third Committee, which addresses social, humanitarian and cultural issues, voted to put forward a new draft resolution condemning human rights abuses in Myanmar to the full UNGA (Nichols). Disappointingly, this will be another non-binding resolution, giving more ammunition to human rights advocates who claim that the world’s leaders do little more than shake hands at the UN these days (Amnesty International).

The UNGA could do more and has done more in the past to challenge the Security Council. An advisory opinion could be requested from the International Court of Justice (ICJ) on the subject of the persecution of the Rohingya; first by the Myanmar government and second for possible non-refoulement violations committed by Bangladesh and Thailand. (Deppermann 310-312). This advisory opinion would only be soft law to start, but it could be used by the World Bank – where only the US has veto powers – to impose sanctions on Myanmar (ibid. 314). At the very least, this could bring the Myanmar government to the negotiating table where Rohingya citizenship could be placed at the top of the agenda. If the UN is going to successfully combat statelessness in countries without the political will to make changes, it needs to think outside the box.

 

States and the Stateless

Every success and failure this essay has covered so far is governed by an underlying principle that the UN has had to contend with since its conception in the 1940s. That principle is state sovereignty, and includes the limits placed on the organization by Article 2(7) of its charter, namely that it “has no authority to intervene in matters which are within the domestic jurisdiction of any State” (Charter of the United Nations 6). This is particularly problematic in the case of statelessness because States and only States can confer nationality on individuals. China and Russia have opposed draft resolutions on the violence in Myanmar, reasoning that it is “an internal affair of a sovereign state” (Balazo 11). “Recognition of nationality…is a vital aspect of state power” (Staples 174), which makes statelessness an incredibly difficult topic to broach with States who have constructed national identity through the exclusion of certain groups.

A difficult situation is made even more so by the wording of the UN conventions designed to protect the stateless. For example, the 1954 Convention obliges States to allow stateless persons the freedom of movement as long as they are “lawfully in the territory” (UNHCR, Global Action Plan 16). Many stateless populations exist because a government has deliberately excluded them by law. The responsibility to protect the Rohingya lies with the same government bodies that claim they are illegal economic migrants (Balazo 10). The 1954 Convention also lacks a clear statelessness determination procedure (SDP), allowing countries to set different standards or ignore excluded groups. Hopefully, UNHCR’s recent good practices paper on SDPs (UNHCR, Good Practices Paper) will give States less room to abuse a system over which they already have near total power.

 

Conclusions and Recommendations

On the issue of statelessness, the UN faces a challenge that asks it to reassess its very purpose. If the UN sees itself as an organization made up of States, stateless people are by definition of little interest to the organization. By contrast, if it sees itself as a representative of the people, addressing statelessness must be its top priority. Whether we like it or not, currently human rights are accessed through a “gateway of nationality” (Swider 205), leaving the stateless practically unprotected. It seems fair to suggest that over the course of seventy years, the UN has progressed from the former to the latter. The aim of eliminating statelessness shows a clear intent to bring every human being under the UN’s protection.

It is one thing for the UN to change its attitude, and another for it to bring about meaningful change. Even though statelessness is now firmly on the agenda of the UN, regional organizations and a growing number of NGOs, the work to effectively deal with statelessness has only just begun. Accessions to both statelessness conventions are increasing at unprecedented rates, but work still needs to be done to limit reservations to key articles from States and to clarify ambiguities. Most importantly, the establishment of SDPs by all States Parties to the conventions must be made a priority. Without accurate documentation and clear definitions of stateless persons, it is incredibly difficult to help them.

Although the GAP marked the emergence of statelessness as a key human rights issue, the UN must do more to encourage NGO participation, especially at the local level where stateless people are often too vulnerable to organize effectively (Kingston 85). Increased coverage of individual success stories helps capture the attention of civil society, but these stories should not be used to distract from the relatively slow progress in reducing the overall number of stateless persons. Focusing on birth registration will also be key if UNHCR wants to eliminate statelessness for generations to come.

Finally, Member States must do everything they can to pressure Myanmar to grant citizenship to the Rohingya. If the UN truly wishes to eliminate statelessness, it must treat its continued existence like apartheid, and other social injustices, and tirelessly advocate for change. In the past ten years, more progress has been made by the UN on statelessness than many may have thought possible; however, unless more is done, a world without statelessness still seems out of reach.

 


 

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