Stateless people are those who are obliged to live without the protection of a state. In fact they are the unfortunate few who are forced to be without a nationality, or at least without the protection that nationality should offer. Nationality is the legal bond between a state and an individual. It is a bond of membership that is acquired or lost according to rules set by the state. Once held, nationality, or membership of a state, brings with it both rights and responsibilities for the state and for the individual. As the world has been parcelled out into states, not to be a member of any one of them is a matter of serious concern. While membership of a state is the norm, statelessness continues to be widespread and has not escaped the interest of the international community. Within the realm of public international law, rules have evolved in response to the problem of statelessness.

According to the International Law Commission, the definition of stateless persons contained in Article 1 (1) of the 1954 Convention relating to the Status of Stateless Persons, now forms part of customary international law. The Article defines ‘stateless persons’ as those who are “not considered as a national by any state under the operation of its law”. They therefore have no nationality or citizenship and are unprotected by national legislation and left in the arc of vulnerability. The 1954 Convention relating to the status of Stateless Persons and 1961 Convention on the Reduction of Statelessness exclusively deal with the issue of statelessness. These two legal instruments explain statelessness mainly in two ways de jure and de facto. A stateless person as defined by the 1954 convention is generally equated with the term de jure statelessness. Besides, the Convention also refers to the category of de facto stateless persons— those who remain outside the country of their nationality and hence are unable or, for valid reasons, are unwilling to avail of the protection of that country. ‘Protection’ in this context refers to the right to diplomatic protection exercisable by a state of nationality in order to remedy an internationally wrongful act against one of its nationals, as well as diplomatic and consular protection and assistance, generally including the national’s return to the state of nationality. Again, Article 15 of the Universal Declaration of Human Rights emphasises: “Everyone has a nationality. No One shall be arbitrarily deprived of his nationality or the right to change his nationality”. It implies, first of all, that one cannot have the option of remaining stateless and, secondly, deprivation of nationality or denial of the right to nationality is possible provided it is not ‘arbitrary’. International Law empowers the state to determine by the operation of law who are its citizens. The operation of law must be in accordance with the principles established by International Law. The stateless are those who do not have any nationality and not having nationality may be the outcome of the way a state determines its nationality. One acquires one’s nationality insofar as a ‘genuine and effective link’ is established through any combination of birth, descent and residency within the state.

In this context, it is to be kept in mind that nationality and citizenship are two words most commonly used to describe the same phenomenon – the legal bond of membership between an individual and a state. Nationality can only be conferred or confirmed by states and states are responsible for protecting the fundamental rights of everybody on their territory, including those of stateless persons. Clearly, for all activities relating to statelessness, the states are indispensable actors.

Statelessness most commonly affects refugees, although not all refugees are stateless, and not all stateless men, women and children can be qualified as refugees. Refugee status entails the extra requirements that the refugee be outside his or her country of nationality (or country of habitual domicile if stateless), and is deserving of asylum based on a well-founded fear of persecution for categorised reasons which make him/her unwilling or unable to avail of the protection of that country. According to the 1951 Convention relating to the Status of Refugees or the extended definitions in relevant regional instruments and under UNHCR’s international protection mandate, refugees may also, and frequently do, fall within Article 1(1) of 1954 convention. If a stateless person is simultaneously a refugee, he or she should be protected according to the higher standard which in most circumstances will be international refugee law, not least due to the protection from refoulement in Article 33 of the 1951 Convention.

Statelessness can have serious consequences for the individuals concerned as well as for internal— and international— affairs of states. This is in part due to the role that nationality, as membership, plays in the formation of people’s identities and the connection that they feel to the place where they live and the people around them. To be rejected by every state is to be enveloped by a debilitating “sense of worthlessness”. The possible consequences of statelessness are profound and touch on all aspects of life. It may not be possible for them to work legally, to purchase property or to open a bank account. Stateless people may be easy prey to exploitation as cheap labour. They are often not permitted to attend school or university; they may be prohibited from getting married with a persons from other communities and may not be able to register births and deaths. Stateless people can neither vote nor access the national justice system.

What causes Statelessness?

Experts argue that there is one common root cause for statelessness, i.e. ‘discrimination’. The UNHCR, on its part, has made some valuable observations about how to analyse and deal with the causes of statelessness:

• Understanding that discrimination against a certain group often underlies a statelessness situation facilitates the identification of categories of people that are often exposed to a heightened risk of statelessness. Frequent grounds for discrimination are gender, ethnicity, religion or language.
• To effectively tackle the causes of statelessness (i.e. to develop prevention or reduction strategies), not only must the “sovereign, political, legal, technical or administrative directives or oversights” be developed and improved, but also all underlying discriminations must be weeded out from such preventive procedures. Similarly, addressing protection issues also requires overcoming discriminatory attitudes towards the group as a precondition for a truly successful and durable solution.
• The discrimination that has culminated in statelessness may also fuel (further) persecution, displacement, insecurity and conflict, as will be discussed in the section on the consequences of statelessness. Statelessness can thus be a useful indicator of a broader issue that needs our attention. (UNHCR Expert Meeting on The Concept of Stateless Persons under International Law, 2010, http://www.unhcr.org/4cb2fe326.html)

Causes and Context of Statelessness in South Asia

Normally statelessness emerges from succession of states or territorial reorganisations. But it also emerges from persecution of minorities and a state’s majoritarian bias, which lead states at times to expel citizens or inhabitants. This condition, reinforced by the protracted refusal of the involved states to take them back, creates a circumstance which may eventually lead to the loss of their nationality and citizenship. Also, states in South Asia, being what is sometimes referred to as ‘kin states’, represent social and ethnic continuities across the borders and the cases selected below illustrate this, although there are overlapping sources of statelessness in contemporary South Asia. Experts have identified three salient facts while analysing the causes of statelessness in South Asia.

• Very few contiguous South Asian states have entirely normalised relations with each other, usually on account of disputes concerning borders and cross-border movements, or histories of unwelcome intervention in each others’ affairs. The inherent and massive heterogeneity of South Asian states has frequently given rise to militant resistance— often with a secessionist agenda— to the exercise of central power and the project of national consolidation. These resistances have usually obtained support and legitimacy from the governments or societies of neighbouring states. As threats to the project of national consolidation have accumulated over the past decades— because of interstate conflict, border and territorial disputes, insurgencies, illegal migration, increasing scramble for resources and unfavourable demographic drift— the resistance has intensified, and so has the tension of regional relations. It would not be incorrect to say that a shadow of suspicion hovers over South Asia— a suspicion that has driven the states to progressively tighten their citizenship criteria, thus creating growing pockets of statelessness at their cultural and geographical margins. Examination of the changes that have been introduced to citizenship laws of South Asian states provides an optic on how this tightening of conditions has proceeded. This has happened largely by way of restricting the acquisition of citizenship by right in favour of granting citizenship at the government’s discretion.
• South Asian statelessness was engendered by political turmoil. Such a genesis may be considered the second salient feature of statelessness in the subcontinent. In almost every case, such turmoil has marked and marred the ways in which postcolonial states in South Asia have attempted to mould themselves into culturally unique nation-states by favouring dominant national claims. In the process, of course and predictably, they have had to cast out minority claims/ groups. Conversely, political turmoil and hasty territorial reorganisation have oftentimes left disgruntled minority groups stranded in what they perceive to be hostile national spaces and they have attempted to secede from the dominant majority to create their own uniform homeland. Two of the most tumultuous dissections of South Asia occurred for precisely these reasons— the Partition of India in 1947 and the secession of Bangladesh from Pakistan in 1971. It follows, then, that these nation-building experiments created the ideal conditions for inducing statelessness.
• The third aspect of statelessness in South Asia is the fact that it is a product of economic migration between states. The subcontinent in the pre-colonial and colonial times could not have had and did not have clear-cut, regulated borders. Fuzzy frontiers had engendered and maintained traditions of seasonal migration and permanent minority settlements; for example: Nepali migrants from as early as the seventeenth century in Bhutan or Tamil labourers from the nineteenth century in Sri Lanka. The formation of postcolonial nation-state could not completely obstruct and contain these flows and movements. Bangladeshi Muslims, for instance, continue to flow into India. Since the advent of independent nation-states, however, leaders representing the majority have argued for the disenfranchisement of such groups, which appear to have closer ties to the national identity of a neighbouring state than to the identity of the states of their residence. Political centres have demanded migrants’ ‘repatriation,’ which has been refused by the neighbour state on account of resource constraints and political concerns of its own, leaving the group stateless. (Raghu Amay Karnad, Rajeev Dhavan and Bhairav Acharya, Protecting the Forgotten and Excluded: Statelessness in South Asia, New Delhi: Public Interest Legal Support and Research Centre, 2006)

Against this backdrop, this module seeks to find answers to the following questions in the light of our experience in South Asia. (Participants are requested to make their presentations touching on any of these questions, or a combination of them, with reference to various cases of statelessness in the region.)

• How certain groups and communities are rendered stateless? While successor states in South Asia remain far from being ethnically homogeneous, are minorities living within them more vulnerable to statelessness than others?
• Does protracted refugee-hood eventually result in statelessness? Is the distinction between refugee-hood and statelessness increasingly wearing thin?
• Is it possible to put in place an early warning system for addressing and, if possible, pre-empting the problem of statelessness?
• Is the existing legal regime adequate to deal with the problem of statelessness? What has been the experience with case laws in different countries of South Asia?
• Can judicial activism, as evident in some of the countries, particularly in recent years, serve as an effective guarantee?
• Does the varied nature of our experience in South Asia call for changes in the existing municipal and international laws? Does this underline the necessity of framing a regional law relating to the stateless in South Asia?
• Do policymakers need to think beyond legal terms?
• Does all this call for activating and strengthening the civil society institutions? But how does one take the first step towards combating xenophobia directed at stateless groups?

Some Relevant Cases of Statelessness in South Asia

• Chakmas living in Arunachal Pradesh, India
• The inhabitants of the Chhitmahals (Indo-Bangladeshi enclaves)
• Lhotshampas or the heterogeneous ethnic Nepalese population of Bhutan
• The displaced Hindus from Pakistan living in India
• Tamils in Sri Lanka and Sri Lankan Tamils in India
• Urdu-speaking Bangladeshis (sometimes referred to as the ‘Biharis’, an appellation the subjects themselves do not always approve of)
• Rohingyas in Myanmar
• Chinese population in Kolkata