How can International Social work as a Human Rights Profession Contribute to Bridging the Statelessness Gap?

Contents

Table of figures

Abbreviations and acronyms

1 Introduction: Anything interesting to say?

2 Mapping the statelessness gap
2.1 Statelessness: Contours of a multifaceted phenomenon
2.2 Access denied: (Beyond) human rights violations
2.3 Closing the gap: Approaches to solving statelessness within the UN
2.3.1 The Statelessness Conventions
2.3.2 Relevant UN mechanisms: Human Rights Council and treaty bodies
2.3.3 From “prevention and protection” to ending statelessness until
2.3.4 Reflections on the international responses to statelessness

3 Why statelessness matters to social work: Exploring the human rights mandate

4 Bridging the gap: Social work action towards inclusion and belonging
4.1 Advocacy action within the legal story
4.2 Telling a different story: Practising inclusive citizenship
4.3 Telling a different story: Translating human rights through global citizenship education

5 Conclusion: Towards inclusion and belonging

6 Publication bibliography

Table of figures

Figure 1: Wendenpass

Figure 2: Global Action Plan to End Statelessness

Figure 3: The Sustainable Development Goals

Figure 4: Roles of social work in human rights localisation

Figure 5: Wenden Passport Declaration

Abbreviations and acronyms

CEDAW Convention on the Elimination of All Forms of Discrimination Against Women

CRC Convention on the Rights of the Child

IASSW International Association of Schools of Social Work

ICERD International Convention on the Elimination of All Forms of Racial Discrimination

IFSW International Federation of Social Workers

ISI Institute on Statelessness and Inclusion

NGO(s) Non-Governmental Organisation(s)

OHCHR United Nations High Commissioner for Human Rights

SDGs Sustainable Development Goals

UN United Nations

UDHR Universal Declaration of Human Rights

UNHCR United Nations High Commissioner for Refugees

UPR Universal Periodic Review

1954 Statelessness Convention United Nations Convention relating to the Status of Stateless Persons

1961 Statelessness Convention United Nations Convention on the Reduction of Statelessness

2030 Agenda 2030 Agenda for Sustainable Development

1 Introduction: Anything interesting to say?

The day I am writing this introduction I have just picked up my renewed German national ID card. I needed to fill out a form, pay some money, and hand in my old ID card. Despite being such a simple and easy process, this time I thought a lot about what it means to have this privilege. My friend in Myanmar was instructed to travel to a remote village to get the birth certificate of her grandmother as evidence of her Burmese ancestry to renew her Myanmar ID card. During my internship in the Smile Education and Development Foundation in Yangon in 2016, I encountered for the first time how nationality regulations can be exclusionary in multiple dimensions. It was then when I was working together with colleagues who were stateless; and when I was thematically working on the issue of statelessness in Myanmar. It was then as well when I felt that something was missing – in the meetings of the UNHCR that I attended, in the proposals of advocacy projects and generally in the way the international community intervened in addressing statelessness. The motivation to write about statelessness in my thesis was born with this dissatisfaction with what is and the curiosity about what could be that I felt during my time in Myanmar. I thought that social work has to have something to offer that can contribute to addressing exclusions on the ground of nationality in a more holistic way. So I set out for a journey to discover how social work theory and practice can help to understand and approach the statelessness gap in complementary ways.

With the term statelessness gap, I refer to a phenomenon of exclusion that has multiple dimensions: The statelessness gap describes the phenomenon of millions of people being denied a nationality through gaps in the implementation of human rights norms, but also in the legal system of human rights itself; the statelessness gap also implies that there are gaps in the ways we understand and practice human rights, how we understand belonging and inclusion and how much we are willing to expand our perspectives beyond the legal narratives that describe our world.

The journey of exploring the statelessness gap and relevant social work engagement passes through three chapters: Firstly, I will map the terrain of the statelessness gap, contouring the phenomenon in its magnitude, constitution and severity. Then I will give an overview of the international responses to statelessness within the legal human rights system as I experienced them in Myanmar: I will introduce the Statelessness Conventions and relevant UN mechanisms as well as expose their limitations. For moving from what is to what could be, I will explore why statelessness matters to social work and on which basis social work can take action. Lastly, the human rights mandate in social work will inform three suggestions for social work action towards inclusion and belonging that could help to bridge the statelessness gap. While Judith Butler says: “If one asks: who writes on statelessness these days? – the question is hardly understood. […] It is not that statelessness disappeared but only we apparently have nothing interesting to say about it anymore” (Butler and Spivak 2007, pp. 13–14) – I believe that social work has something interesting to say about statelessness.

2 Mapping the statelessness gap

2.1 Statelessness: Contours of a multifaceted phenomenon

Statelessness is an "international problem of significant magnitude and severe consequence" (van Waas 2008, p. 27). The UNHCR considers at least 10 million people worldwide as stateless. Elsewhere this number is estimated to be up to 15 million stateless people, if not more (van Waas 2008, p. 457). The speculative number stems from a “gap in data coverage” (UNHCR 2011, p. 29), resulting from lacking common identification procedures as well as hidden political agendas, as statelessness often is a highly politicised issue (van Waas 2008, p. 10). While statelessness can appear to be an individual plight, it also comes in form of a "sort-of collective statelessness" (van Waas 2008, p. 11) when whole groups are being expelled from their country. Prominent examples of stateless groups are the Rohingya from Myanmar or the Bidoon from Kuwait.

Officially and legally binding, a stateless person is defined as “a person who is not considered a national by any State under the operation of its law” according to the 1954 Statelessness Convention (UNHCR 2014a). Despite this “single, clear, and unambiguous criterion for statelessness” (Weissbrodt 2008, p. 84), there is up to date no universal interpretation and application of the term “stateless”. A reason for this being that neither of the two conventions on statelessness suggest how to identify stateless persons or persons who “would otherwise be stateless”. The ongoing debate about the meaning of “statelessness” has resulted in a two-fold conception. The legal definition of the 1954 Statelessness Convention as de jure statelessness: One either holds a nationality or not, as a matter of fact rather than quality or attributes. Some legal scholars are advocating for a wider understanding of this technical definition to include situations where people do not fall under the de jure definition but still face similar hardships: de facto statelessness, where a person technically holds a nationality which practically falls short in terms of quality and effectiveness. There are three scenarios encompassed by de facto statelessness: “(1) where a person is deprived of the enjoyment of those rights that are generally attached to nationality, (2) where a person's nationality is contested or disputed by one or more States, and (3) where a person is unable to establish or prove his or her nationality” (van Waas 2008, p. 24). The term de facto statelessness has no legal significance but has still entered common use.

The question here is whether a lack of de facto protection for persons who technically hold a nationality should be addressed as an issue of statelessness. It can be argued that persons with a nationality, even if ineffective, still fall within the ambit of general human rights law and do not need specialised protection, whereas de jure stateless persons fall into a "legal vacuum, because international (human rights) law accords certain functions to citizenship" (van Waas 2008, p. 25). Therefore van Waas advocates for concentrating the efforts on implementing the existing legally binding definition of statelessness – through clarifying the identification of statelessness – and, in order to preclude the problem of ineffective nationality, to generally ensure that States uphold their human rights commitments (van Waas 2008, p. 27). The ongoing debate about the definition of statelessness might just hamper progress in tackling the issue. Throughout this paper, with “stateless” I will refer to persons without a legal nationality that fall under the definition of the 1954 Statelessness Convention.

Even under this narrow definition, “there are many paths to statelessness” (Weissbrodt 2008, p. 86), as Weissbrodt expresses the multifaceted character of the phenomenon of statelessness with regards to its causes. A person may be considered stateless for technical reasons, such as administrative practices and conflict of laws. Another cause of statelessness is the arbitrary deprivation of nationality as well as statelessness following State succession. And then there are the “new” causes of statelessness, namely those that were recognised only after the 1961 Statelessness Convention: birth and marriage registration, and migration in the context of irregular migration, human trafficking and refugee situations (van Waas 2008, pp. 458–459).

To understand the phenomenon of statelessness today and interpret contemporary responses, looking at its historical development as a concept provides important insights. The beginning of statelessness as a recognised legal concept dates to the end of the Second World War, “when millions of people emerged […] because of the new global political situation" (Arendt 1979, p. 297) who were left without a nationality and respective protection. It was following the “mammoth humanitarian crisis“ (van Waas 2008, pp. 457–458) after the Second World War, when in 1948 the right to a nationality was enshrined in the Universal Declaration of Human Rights as Article 15. A few years later the two tailor-made instruments regarding statelessness were adopted by the United Nations: The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness. With this pair of statelessness conventions, a dualistic strategy of dealing with statelessness was born: focusing on the areas of protection and prevention.

However, the conventions were ratified by few countries, only as of July 2018 acceded to by 90 (to the 1954 Statelessness Convention) and 71 countries (to the 1961 Statelessness Convention) respectively (UNHCR 2018, p. 7). The adoption of both conventions was followed by "a long period of neglect" (van Waas 2008, p. 458) with little efforts for their implementation. Since the “recent revival of interest” (van Waas 2008, p. 18) in statelessness in the 1980s and 1990s – when the successions of the UDSSR and Yugoslavia brought the issue back to international attention – the international legal framework relating to nationality and statelessness has undergone “a rather major evolution" (van Waas 2008, p. 414). It is no coincidence that statelessness has repeatedly been called a “forgotten human rights crisis” (Kingston 2013) because of the decades in which the international community has failed to catch up to – and to further develop – the standards set forth in the Statelessness Conventions. This timeline gap in responding to statelessness is one aspect to consider when interpreting current approaches to solving the issue. Another aspect are the circumstances under which the Statelessness Conventions came into being: a time when statelessness was understood solely as “internal concern, (and) nationality (as) a strictly sovereign matter” (van Waas 2008, p. 17). Van Waas therefore concludes that the conventions have "suffered from being a product of the (now outdated) conceptions of nationality, statelessness and sovereignty that presided at the time of their adoption" (van Waas 2008, p. 434). However, statelessness has re-entered the international agenda, recently propelled by the United Nations’ #IBelong Campaign along with the Global Action Plan to End Statelessness launched in 2014. The gap of neglect between the formation of legal frameworks after World War II and the revival of interest since the 1980s explains why working in the expanding field of statelessness today has been called a “great privilege” (van Waas and Khanna 2017, p. 1). Conclusively, while on the one hand the international response to statelessness can be described as delayed and based upon outdated conceptions, it is on the other hand gaining momentum – opening pathways for new possibilities, which I set out to explore in this thesis.

2.2 Access denied: (Beyond) human rights violations

I will now illustrate what it means to be stateless, looking at everyday life and respective human rights standards. According to the UNHCR’s publication “What would your life be like if you had no nationality?”, statelessness pre-empts one from being able to “go to university; get a job; get medical care; own property; travel; register the birth of your children; marry and found a family; enjoy legal protection; have a sense of identity and belonging; participate fully in developments in a world composed of states, in which nationality is key to membership” (UNHCR 1999, p. 3) While experiencing statelessness may range from “minor annoyances to severe rights violations” (van Waas 2008, p. 433), the overall picture is troubling: Statelessness translates into increased vulnerability, marginalisation, discrimination and insecurity. Not only for the individual – but also affecting the family and the wider community of stateless persons. In cases of collective statelessness, sometimes even regional stability and security are considered to be at risk (Weissbrodt 2008, p. 107).

The accumulation of intersecting discriminations following statelessness is alarming, amplifying already existing vulnerabilities: More than 75% of the world’s known stateless people belong to minority groups such as descendants of migrants, nomadic populations and ethnic minorities. Discriminatory nationality laws are in place in at least 20 countries, where nationality can be taken away on the basis of ethnicity, race, religion or language (UNHCR 2017, p. 1). Additionally, gender discrimination in nationality laws is one of the root causes of statelessness. At the start of 2018, “25 countries deny mothers equal rights as fathers to confer nationality on their children, and over 50 countries deny women equal rights to acquire, retain or change their own nationality, or confer it on their spouses” (Institute on Statelessness and Inclusion 2018, p. 2). Partly as a consequence of this, over a third of the world’s stateless are children, falling into "a legal quicksand the day they are born" (UNHCR 2014c, p. 8), inheriting and later often passing on statelessness to their children themselves. This means that statelessness can perpetuate itself as an intergenerational cycle, which needs to be interrupted. While the exacerbation of exclusions faced by vulnerable groups is yet another evidence of the severity of statelessness, it also points to the wider human rights framework when searching for solutions – such as to the Convention on the Rights of the Child and the Convention on All Forms of Discrimination Against Women (Weissbrodt 2008, p. 105).

Statelessness has the power to separate relationships through the physical and legal divisions it causes: the inability to visit relatives, to marry the partner or to pass on the nationality to a child. However, the latitude and longitude of the phenomenon of statelessness also spans an invisible web that ties together families, generations and minority groups in their struggles to participate and belong in a world of nation-States.

These everyday struggles are human rights violations, such as civil and political discrimination – because nationality is a “practical prerequisite for accessing political and judicial processes” (Weissbrodt 2008, p. 97). The right to freedom of movement, the right to vote, the right to recognition everywhere as a person before the law, the right to marry and the right not to be arbitrary detained are among the rights frequently denied to persons without a nationality – which is in itself a human rights violation of Article 15 of the UDHR (OHCHR 1966; UN 1948). Unnecessary imprisonment is a serious problem that stateless persons are facing when being caught without any official identification document, as the detention is often prolonged due to the cluelessness of where to send the person back to (Weissbrodt 2008, p. 99). In addition to the denial of civil and political rights, most economic, social and cultural rights are inaccessible for stateless persons as well. This is reflected in the hardships that stateless persons face on a daily basis when trying to get a job, accessing medical care or buying property (van Waas 2008, p. 355). Especially the denial of the right to education is a major impediment for children to escape the intergenerational cycle of statelessness. As Juliana from the Dominican Republic exemplarily expresses in her testimony to the UNHCR:

“'The school asks for the documents of my children,' documents Juliana does not have. 'I want my children to study, to get ahead [...],' but without those vital pieces of paper her children [...] may not be able to even attempt living a normal live" (UNHCR 2014c, p. 11) While it is important to frame the struggles of stateless persons within the human rights system, the impact that the denial of a nationality has on a person’s life cannot be described merely with legal terms. As one of the few philosophers engaging with the topic, Hannah Arendt analysed the two-fold harm of statelessness in The Origins of Totalitarianism already in 1951 as the “exp(ulsion) from humanity” (Arendt 1979, p. 296) that goes along with (1) the exemption from the system of human rights protection and (2) the alienation from the political community. Although Arendt’s analysis predates the adoption of the first State­lessness Convention in 1954, the situation of the world’s stateless remains precarious and her analysis of the harm of statelessness is of “enduring relevance” (Draper 2016, p. 1) until today. Despite having a recognised status within the international human rights system, stateless persons still find themselves excluded not only from the legal regime, but also from society. The "fundamental function of nationality is providing […] a 'home'” (van Waas 2008, p. 460), a state to which one can always return to and where they have the irrefutable right to reside. Lacking this sense of home, "the rejection that statelessness implies […] contribute(s) to a 'sense of worthlessness'" (van Waas 2008, p. 13) which can lead to depression, alcoholism, violence and suicide. We therefore need to acknowledge that, beyond the language of rights, statelessness touches upon what lies at the heart of being human: belonging, inclusion and identity. Realising that statelessness reaches far deeper than what can be comprehended through a narrative of rights, the field opens for alternative or complementary ways to theorise and tackle statelessness. In the following, I will give an overview of current strategies to solving statelessness within the international human rights system, including new developments such as the SDGs. Through identifying strengths as well as gaps in the international response to statelessness, spaces will become visible for social work to take action in bridging the statelessness gap.

2.3 Closing the gap: Approaches to solving statelessness within the UN

The UNHCR holds the global mandate to “identify, prevent and reduce statelessness and protect stateless persons” (UNHCR 2014b, p. 4). It particularly focuses on technical and advisory services to prepare and implement nationality legislation to close the statelessness gap. In this chapter, I will map out the landscape of the international human rights system in which the UNHCR operates its mandate. I will introduce the 1954 and 1961 Statelessness Conventions as important instruments and two main mechanisms within the UN through which to tackle statelessness: The Human Rights Council with the UPR and the special procedures as well as the treaty bodies. In general, the United Nations’ human rights mechanisms are seen as one of the “most promising avenues for addressing statelessness” (Khanna and Brett, p. 13) because of the dynamic practice and variety and frequency of UN human rights meetings. Although the level of attention to statelessness and nationality by these mechanisms remains low when compared, it has begun to increase in recent years (Khanna and Brett, p. 43).

Khanna and Brett have identified three roles that the relevant UN human rights mechanisms – Human Rights Council and treaty bodies – fulfil in solving statelessness: raising awareness, spreading good practices and making specific recommendations to States (Khanna and Brett, p. 13). I will assess the mentioned UN conventions and mechanisms in terms of their potential to close the statelessness gap. My assessment is largely based on the contribution Making effective use of UN human rights mechanisms to solve statelessness by Khanna and Brett in Solving Statelessness (van Waas and Khanna eds. 2017) due to a lack of similarly detailed and up-to-date analyses. I will start with the two tailor-made instruments addressing statelessness in the UN system: the 1954 and 1961 Statelessness Conventions.

2.3.1 The Statelessness Conventions

The first Statelessness Convention was adopted in 1954 and entered into force in 1960: The Convention relating to the Status of Stateless Persons. Its most significant contribution to international law is the definition of a stateless person as someone “who is not considered a national by any State under the operation of its law” (UNHCR 2014a, p. 3). Furthermore, the convention provides minimum standards of treatment for those who fall under this definition. Stateless persons are to enjoy the same rights as citizens with respect to freedom of religion and education of their children. For other rights, such as the right to employment and housing, stateless persons are to enjoy at least the same treatment as other non-nationals. Ultimately, the 1954 Statelessness Convention “provides practical solutions for States to address the particular needs of stateless persons that guarantee their security and dignity until their situation can be resolved” (UNHCR 2014a, p. 4). It therefore covers the protection of stateless persons.

The second Statelessness Convention was adopted in 1961 and entered into force in 1975: The Convention on the Reduction of Statelessness. It is the leading international instrument that “sets rules for the conferral and non-withdrawal of citizenship to prevent cases of statelessness from arising” (UNHCR 2014b, p. 3). The convention focuses on three scenarios in which to prevent statelessness: Prevention of statelessness at birth by granting nationality to new-born children, later in life by prohibiting the withdrawal of citizenship from state’s nationals as well as in the context of transfer of territory. Despite its name, the 1961 Statelessness Convention covers the prevention of statelessness rather than reducing existing cases of statelessness. It thereby complements the 1954 Statelessness Convention to a two-fold approach to tackling statelessness in international law: through protection and prevention.

I have already identified the 1954 and 1961 Statelessness Conventions as based upon outdated conceptions of nationality and state sovereignty in chapter 2.1. Adding to this structural deficit, four aspects further hollow the conventions’ effectiveness. First, the small – but growing – number of States who have ratified the conventions limits both their symbolic value as well as practical scope for implementation. Secondly, with regards to the content, it is to criticise that the conventions omit most civil and political rights of persons without nationality. Thirdly, neither of the conventions offer any concrete suggestion for the identification of stateless persons or persons who would “otherwise be stateless”. The matter of identification is thereby "wholly overlooked” (van Waas 2008, pp. 460–461) by the two Statelessness Conventions and has received only little attention from the international community until the launch of the UNHCR’s Action Plan to End Statelessness in 2014. It therefore remains difficult to identify those situations in which the norms agreed upon in the Statelessness Conventions become relevant in the first place. This hampers concrete action and contributes to the continuing vagueness of statelessness as an international phenomenon. And lastly, none of the bodies set up by the UN monitoring human rights treaties are responsible for monitoring the 1954 or 1961 Statelessness Conventions (Weissbrodt 2008, p. s).

In summary, the Statelessness Conventions bare five weaknesses: Outdated conceptions, low accession numbers, omission of civil and political rights as well as identification guidelines and the absence of a monitoring responsibility. However, despite these weaknesses, the two Statelessness Conventions are the cornerstones of working on the issue of statelessness within the UN – that need to be further built upon. They have contributed to bringing the issue out of the shadows and continue to be important tools for advocacy to reveal the statelessness gap layer by layer. This is why van Waas concludes with the importance of the two conventions. Her vision for the future of the 1954 and 1961 Statelessness Conventions is that a growing number of States acceding will set the ball rolling: The scope for implementation of existing norms will grow and normative gaps will be reviewed. This will lead to more common, clear and closely-knitted standards to protect and prevent persons from being stateless. The creation of the UN Member State "Friends of the Campaign to End Statelessness" group can be seen as a step towards this vision, getting more States to commit more strongly to ending statelessness (Khanna and Brett, p. 14)

2.3.2 Relevant UN mechanisms: Human Rights Council and treaty bodies

The Human Rights Council plays an important role in solving statelessness, with the UPR and the special procedures under its auspices. To name the structural hindrances first, we need to keep in mind that the Human Rights Council is an inter-State body that reflects the interests of States. Its work reflects established understandings of human rights and reaffirms existing standards (Khanna and Brett, p. 16). Remembering that statelessness can be a highly politicised issue, this means that the Human Rights Council has only limited impact on addressing root causes of statelessness, especially in cases of state discrimination. However, there has been an increasing number of resolutions by the Human Rights Council that concern statelessness and related issues – which, in the vision of van Waas, is an important step towards ending statelessness (Khanna and Brett, p. 17). What again limits the potential of the council to contribute to a wider visibility of the phenomenon of statelessness are the “significant omissions how statelessness is addresse(d) […] (in) thematic resolutions dealing with specific groups, such as the Roma, the indigenous, and migrants (which) have not mentioned statelessness or access to nationality as issues of concern" (Khanna and Brett, p. 20).

Another relevant UN mechanism are the special procedures of the Human Rights Council, which are “independent human rights experts with mandates to report and advise on human rights from a thematic or country-specific perspective” (OHCHR). In spite of being independent human rights experts and not State actors, the special procedures as well tend to "reiterate established standards rather than exploring their limits" (Khanna and Brett, p. 23). There is no special rapporteur on the right to nationality or on statelessness. According to Khanna and Brett, this deserves consideration as a longer-term advocacy goal in order to improve dedicated attention to statelessness in the UN human rights system (Khanna and Brett, p. 44). Meanwhile, many of the special procedures have touched on statelessness and nationality issues but “few have done so in depth or with any regularity" (Khanna and Brett, p. 23).

The second UN mechanism within the Human Rights Council is the Universal Periodic Review. Every four and a half years, the human rights situation in every member State of the UN is examined. This format is again an inter-State mechanism, where States give their recommendations to the State under review. However, for the submission of information on the human rights situation, there is scope for civil society involvement. A critique of the UPR process is its inconsistency with regards to following up on the specific recommendations (Khanna and Brett, p. 28). The UPR is portrayed as an avenue for dealing with statelessness because an accepted recommendation on the right to nationality is a public commitment. This opens the floor for other actors to offer their support or a basis on which to lobby the state (Khanna and Brett, p. 30). What becomes clear when assessing the UPR process is the sensitivity that is required in dealing with statelessness in inter-State settings: "it seems that keeping recommendations on birth registration separate from questions of nationality, statelessness and specific groups improves the likelihood of their acceptance" (Khanna and Brett, p. 33). This raises the question how explicitly statelessness can and should be addressed. It seems to me that the severity of the phenomenon in the reality of millions of people requires the integration of both a politically sensible strategy as well as the explicit acknowledgement of its severity. Here the limitations of a purely legal approach to dealing with statelessness become clear, when the same system that upholds the statelessness gap is supposed to close it. Meanwhile, for walking step by step towards van Waas’ vision of increasing the momentum and expanding allies to end statelessness, the UPR is one pathway for progress within the UN. As with the UN Member State "Friends of the Campaign to End Statelessness" group, the little successes are signs of hope. Such as the UPR Info's recent decision to make its database searchable by "statelessness and the right to nationality" (Khanna and Brett, p. 34).

The third pathway within the UN human rights system towards solving statelessness are the treaty bodies. Compared to the UPR, the treaty bodies can review human rights standards in far greater depth – at least the specific rights encompassed by the respective convention – and somewhat more consistently (Khanna and Brett, p. 35). Issues regarding statelessness could arise in any of the human rights treaty bodies as most of them entail the right to a nationality or related provisions. When criticising the small number of States that have ratified the Statelessness Conventions, it is important to remember that the right to a nationality is also enshrined in “widely ratified and monitored human rights treaties” (Weissbrodt 2008, p. 105). On the one hand, this opens alternative ways of implementing the right to a nationality and thereby preventing statelessness. On the other hand, it also shows the ineffectiveness of the human rights system to make this right a reality regardless of the well-establishment of standards and procedures.

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