Statelessness- Events

Statelessness is the quality of being, in some way, without a state. In fact it means 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 – membership – brings with it both rights and responsibilities for the state and for the individual. As the world has been divided into state systems not to be a member of any one of them is a 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. A definition has also emerged describing a stateless person as a person who is not considered as a national by any state under the operation of its law (generally equated with the term de jure statelessness). This definition can be found explicitly in Article 1 of the 1954 Convention relating to the Status of Stateless Persons, one of the two major international instruments to deal specifically with the issue of statelessness. Keeping these facts under consideration this workshop intended to focus on the issues related to statelessness in South Asia. This special workshop was the part of our Eighth Annual Winter Course on Forced Migration.

Module Note… CLICK HERE

Theme Lecture by Samir Kumar Das, Department of Political Science, University of Calcutta and Member, CRG

Participants’ Workshop by Aneeta Ghotge, Roopshree Joshi, Anindiata Ghoshal , Kaberi Das

Presentation of CRG’s Research on “Sate of Being Stateless: A Case Study of Chakmas in Arunachal Pradesh” by Sabyasachi Basu Ray Chaudhury, President, CRG and Department of Political Science

Lecture on “International Legal Obligations on Statelessness” by Manoj Sinha, West Bengal National University Juridical sciences, WBNUJS, Kolkata

Round Table on “Stateless in India”
Participants: Atig Ghosh, CRG and Ashok Gladston Xavier, Loyola College, Chennai, Paul Chung, former President of Indian Chinese Association, Kolkata
Moderator: Samir Kumar Das

Activities under Module D

Theme Lecture by Paula Banerjee, President, CRG and faculty, Department of South and Southeast Asian Studies, University of Calcutta.

Participants’ Workshop by Sanghita Dutta, Jawaharlal Nehru University, New Delhi; Pravina Gurung, International Organization for Migration, Nepal; Natalia Herbst, Universidad Torcuato Di Tella, Argentina

“Experiences of Field Work on Stateless in Arunachal Pradesh” by Anasua Basu Ray Chaudhury, CRG and Sucharita Sengupta, Independent Research

Special Interactive Session with Chris Dolan, Director, Refugee Law Project, Makrere University, Uganda
Special lecture by Manoj Sinha, NUJS, Kolkata

CRG’s Research presentation on Module D by Atig Ghosh, CRG
Special lecture by Hans Schodder, Deputy Chief of Mission, UNHCR, New Delhi

Module Note

Module D: Statelessness in South Asia

Core faculty Member: Paula Banerjee and Atig Ghosh

The module examined the various aspects and intricacies enmeshed with the issue of statelessness in general and the way it thwarts South Asia. Statelessness refers to the condition or quality of being, in some way, without a state. In fact it means someone 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 divided into state systems not to be a member of any one of them is a 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 recognized as nationals 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 International Law Commission has observed that the definition of a stateless person contained in Article 1(1) is now part of customary international law. 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 – who remain outside the country of their nationality and hence are unable, or, for valid reasons, unwilling to avail themselves 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 her return to the State of nationality. Again, Article 15 of the Universal Declaration of Human Rights lays down: “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.

Statelessness most commonly affects refugees although not all refugees are stateless, and not all stateless men, women and children may be able to qualify 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 upon a well-founded fear of persecution for categorized reasons which make it unwilling or unable to avail itself of the protection of that country. Statelessness can have a severe impact on the lives of the individuals concerned as well as on the 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. 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 for exploitation as cheap labour. They are often not permitted to attend school or university, may be prohibited from getting married with 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. It is against this backdrop, that the module explores the condition of ‘statelessness’ especially in the South Asian context.

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.

Against this backdrop, this module attempted to find answers to the following questions in the light of the experience in South Asia.

• 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 that the module explores-

• Chakmas living in Arunachal Pradesh, India
• The inhabitants of the Chhitmahals (Indian enclaves in Bangladesh/ Bangladeshi enclaves in India)
• Lhotshampas in Bhutan
• The displaced Hindus from Pakistan living in India
• Tamils in Sri Lanka and Sri Lankan Tamils in India
• Biharis in Bangladesh
• Rohingyas in Myanmar

Assignments

• Discuss with reference to a case study how the distinction between a Refugee and a Stateless Person is increasingly getting blurred.
• Discuss the 1954 Convention on Statelessness. Frame a Model Regional Law in order to address the problem of Statelessness in South Asia against the background of international legal regimes.
• Suggest with reference to a case study a roadmap for civil society activism in order to address the problem of Statelessness.
• Do you think that the Stateless should have a right to citizenship in the host country? Please enunciate your view on global responsibility relating to statelessness.
• Can stateless women be considered as a special category? Write a research paper on one group of stateless women in South Asia.