This Article is written by Ms. SRI ROSHINI NAKKA, a 3rd year student of DSNLU, Visakhapatnam.
ABSTRACT
One essential human right is the ability to live in one’s country. It suggests that everyone has the freedom to acquire, modify, and keep their nationality. According to international law, a state’s ability to determine who its citizens are is qualified, and states are especially required to abide by their commitments under human rights laws with regard to the conferral and revocation of nationality. It might be difficult for someone without a nationality to get a job, open a bank account, work, attend school, or even consult a doctor at times. This is the condition that millions of people worldwide are in; they are ‘stateless’. It is the responsibility of the state to protect the citizens and when one is not felt belonged by any how are going to protect them? The article below will discuss the statelessness and right to nationality with the legal protections for the migrants from war zones.
INTRODUCTION
Statelessness, in a strictly legal sense, refers to the non-national status of individuals who are not acknowledged by any state (United Nations 1960), presents a particularly acute challenge for migrants fleeing war zones. The 1954 Convention defines a stateless person as one “who is not considered as a national by any State under the operation of its law” (Article 1). Conflict and state collapse can disrupt nationality documentation systems, displace populations across borders, and leave individuals trapped in legal limbo, struggling to access basic rights and necessities. One of the main causes of statelessness is discrimination, which includes prejudice based on factors such as sexual orientation, sex, sex features, age, gender identity or gender expression, disability, racial or ethnic origin, religion or belief, or a combination of these.
Members of minority groups make up an estimated 75 percent or more of the world’s known stateless population. Statelessness makes obstacles that minorities and other underprivileged people already face worse. When it comes to gaining, maintaining, or changing their nationality, as well as giving their children their nationality, prejudice based on gender may further marginalise women who belong to minority groups.
Nationality is often essential to the full and equal enjoyment of human rights and freedoms, even while it is not a panacea for the stigmatisation and persecution stateless minorities endure. The right to nationality is primarily classified as a civil and political right by the various international law sources that codify it. Articles 3 through 21 of the UDHR are regarded as civil and political rights. Nationality is included in the list of civil rights and freedoms in Article 7 of the Convention on the Rights of the Child.
Each person’s ability to obtain, alters, and maintains their nationality is implied by their right to a nationality. The ban of arbitrarily depriving someone of their nationality aligns with their right to keep their nationality. Land mark judgment with respect to nationality is the Nottebohm Case: Guatemala v. Liebenstein. Nottebohm, a 34-year-old naturalised citizen of Guatemala, maintained economic relationships with the government. Despite having no connection to Liechtenstein, he petitioned for citizenship in that country after World War II. Liechtenstein granted approval for the application, but it was scheduled to be waived after three years.
Following this clearance, Nottebohm made his way to Liechtenstein. He was refused entrance upon his return since he was no longer a German citizen. Because his Liechtenstein was not respected, Liechtenstein indirectly filed a lawsuit in an international court to compel Guatemala to acknowledge Nottebohm as one of its citizens. The Honourable Court concluded that citizenship-related matters are the exclusive province of the country that bestows it. This is meant to be common knowledge. This does not, however, imply that other states must accept the granting state’s designations without examination. There is no connection between Liechtenstein and Nottebohm, just as in this instance so Guatemala was not obliged to recognize him.
INTERNATIONAL LEGAL FRAMEWORK:
Universal Declaration of Human Rights (UDHR): Article 15 of the UDHR affirms the right to nationality and prohibits arbitrary deprivation of nationality. It says: “Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” 1954 Convention relating to the Status of Stateless Persons i.e Convention on status of stateless persons 1954: This convention provides basic rights and protections for stateless persons, including freedom of movement, access to employment, and education.
1951 Refugee Convention: While not specifically addressing statelessness, the Refugee Convention can offer protection to certain individuals who become stateless due to persecution based on race, religion, nationality, political opinion, or membership in a particular social group. Section 2 of the ICCPPR: States are required by Article 2(1) to uphold and protect the rights enshrined in the Covenant. The responsibility to take the required actions to give such rights effect is added in Article 2(2).
Convention on the Reduction of Statelessness 1961: The 1961 Convention is the sole worldwide agreement that provides precise, comprehensive, and tangible measures to guarantee an equitable and suitable reaction to the risk of statelessness. Regional agreements: Several regional agreements also address statelessness, such as the European Convention on Nationality and the Bangkok Convention on Nationality Relating to Stateless Persons in their Countries of Nationality.
The creation of “a body to which a person claiming the benefit of this Convention may apply for the examination of his claim and for assistance in presenting it to the appropriate authority” is mandated by Article 11 of the 1961 Convention on Refugees.
United Nation: “States must enact laws governing the acquisition, renunciation, and loss of nationality in a manner that is consistent with their international obligations, including in the field of human rights,” the UN Secretary General stated in a report to the Human Rights Council. States are required to “guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law,” specifically in the enjoyment of several fundamental human rights, including the right to nationality (Article 5).
This obligation stems from the 1965 Convention on the Elimination of All Forms of Racial Discrimination (CERD). One of the main causes of statelessness is discrimination against women in nationality laws, which is addressed in Article 9 of the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).
CHALLENGES IN WAR ZONES FOR NATIONALITY:
First challenge was Destruction of documentation: Conflicts often destroy birth certificates and other crucial documents proving nationality. This is the biggest challenge for the war migrants for them to ask for help through legal means.
Second challenge was Discriminatory nationality laws: Pre-existing discriminatory laws based on ethnicity, religion, or gender can create conditions for statelessness in conflict zones.
Third challenge, State succession: Breakup of states or changes in government can leave populations facing complex questions about their nationality status.
Fourth challenge, Limited access to legal assistance: Migrants fleeing war zones often lack access to legal support to navigate complex nationality and asylum procedures.
LEGAL PROTECTIONS:
Prevention of statelessness: States have a responsibility to prevent statelessness; including ensuring birth registration systems are accessible and non-discriminatory.
Reduction of statelessness: Simplifying procedures for acquiring nationality, facilitating access to documentation, and addressing discriminatory laws can help reduce existing cases of statelessness.
Access to asylum: War-zone migrants who become stateless due to persecution may be eligible for asylum in other countries under the 1951 Refugee Convention.
Statelessness determination procedures: Fair and efficient procedures are crucial for identifying and providing necessary protections to stateless individuals.
Role of UNHCR: The United Nations High Commissioner for Refugees (UNHCR) plays a vital role in protecting stateless persons and promoting solutions to statelessness.
Civil society engagement: Grassroots organizations and advocacy groups can contribute to raising awareness about statelessness and pressing governments to improve legal protections.
Recommendation: States ought to uphold their commitments under international law to protect all individuals present on their soil, regardless of their nationality. States ought to establish sufficient safeguards against violations that disproportionately impact individuals without legal status, such as trafficking in persons and the imposition of indefinite detention. States should create anti-discriminatory laws and procedures, such as judicial reform, civil servant training, and the cultivation of an environment that upholds the rule of law; States should make sure that children have the resources to obtain citizenship at birth. It might not always be possible for stateless people to get legal status normalisation in the nation in which they now reside. For these people, relocation to another nation may be the best course of action.
INDIA
India’s Constitution guarantees everyone’s fundamental human rights, including protection for minorities. The religious fundamentalism that supports a homogenous national identity founded on the Hindutva ideology is a greater threat to these safeguards. The idea of a future Hindu state that is non-secular has gained political traction since the Babri Mosque was destroyed in 1992. Indian citizenship laws and most importantly the National register of Indian citizens, which through a quasi-judicial process identifies one’s nationality in the country and declare others as foreigners and not given citizenship.
In the State of Andhra Pradesh v. Mohammed Sakeel (2008), Supreme Court elucidated the distinction between nationality and citizenship, ruling that obtaining Indian nationality does not inevitably translate into obtaining Indian citizenship. It highlighted that obtaining Indian citizenship, as defined by the Citizenship Act, entails a distinct legal procedure. Articles 5 to 9 deal with citizenship, whereas Articles 10 and 11 provide Parliament the authority to enact legislation that establish who is eligible for Indian citizenship. Article 21 safeguards each person’s life and liberty; Article 25 ensures the freedom to practise, profess, and spread religion; and Article 14 assures equality before the law and equal protection under it. These regulations offer protection to more than just citizens. These provisions throw light on the aspect of one’s rights and nationality in India.
The Citizenship Amendment Act (CAA), which the Indian government introduced in December 2019, sparked intense public outcry and legal discussions. Under the CAA, illegal immigrants from Pakistan, Afghanistan, and Bangladesh who belonged to six religious communities—Hindu, Sikh, Christian, Buddhist, Jain, and Parsi—and who arrived in India before December 31, 2014, were awarded citizenship. This act of exclusion of Muslims of certain areas was argued as against the constitution of India, as is discriminating.
In Sarbananda Sonowal v. Union of India, Supreme Court ruled that safeguarding the rights and interests of Indian nationals requires the identification and removal of unlawful immigrants. As a result of the lawsuit, the Foreigners Tribunals were established, and Assam’s National Register of Citizens (NRC) was later updated.
CONCLUSION:
The authority to determine someone’s statelessness should be delegated to qualified individuals with expertise in the issue of statelessness who are able to evaluate the application and supporting documentation in an unbiased and objective manner. A central body in charge of making these decisions would decrease the possibility of inconsistent rulings, be more successful in gathering and sharing data on the nations of origin, and be better equipped to advance its knowledge of statelessness-related issues through its targeted efforts. The gathering and examination of laws, rules, and practices from other States is necessary to determine a person’s status as stateless. Decision-makers gain by working with colleagues who are informed about nationality laws and the problem of statelessness both inside the government and in other States, even in the absence of a central authority. Addressing the plight of stateless migrants from war zones requires a multi-pronged approach, combining international legal frameworks, national policy changes, and effective implementation on the ground. By upholding the right to nationality and providing access to necessary legal protections, we can offer dignity and hope to individuals caught in the tragic intersection of conflict and statelessness.
REFERENCES:
- http://www.mcrg.ac.in/RLS_Migration/Reading_List/Module_E/10.%20pb3-statelessness-protection-equality-2009.pdf
- https://www.ohchr.org/en/nationality-and-statelessness.
- https://www.refworld.org/pdfid/53d0a0974.pdf.
- https://www.ohchr.org/en/nationality-and-statelessness/international-standards-relating-nationality-and-statelessness.
- https://nludelhi.ac.in/download/publication/2015/august/India%20and%20the%20Challenge%20of%20Stateless-A%20Review%20of%20the%20Legal%20Framework%20relating%20to%20Nationality.pdf.
- https://www.refworld.org/topic,50ffbce524d,50ffbce525c,,0,,CASELAW,IND.html
- Human Rights Council, ‘Report 13/34’ (n 2) para 21. See also Johannes M Chan, ‘The Right to a Nationality as a Human Right’ (1991) 12 Human Rights Law Journal 1, 13.
- https://www.ohchr.org/en/nationality-and-statelessness/international-standards-relating-nationality-and-statelessness.
- Liechtenstein v. Guatemala [1955] ICJ 1.
- https://blog.finology.in/Legal-news/citizenship-act-of-india.
- Sarbananda Sonowal v. Union of India writ petition (C) No. 117 of 2006.
- State of Andhra Pradesh v. Mohammed Sakeel 5468 of 2022.