citizenship

Born into Statelessness: Unintended Consequences of the End of Birthright Citizenship

/ Ryan Corbett / Leave a comment

In October 2018, in response to growing Central and South American migrant population fleeing violence and approaching the United States, President Trump made a drastic statement that he would seek to end jus soli, or birthright citizenship, through an Executive Order. Lindsey Graham, a Republican Senator from South Carolina, lauded the President’s statement, and indicated that he intended to introduce legislation to the same effect. If successful, this new citizenship law could have a devastating impact on children born in the United States to Central and South American individuals, leaving thousands of them stateless.

As a matter of international law, states are free to determine who is or is not a national of their country without interference from the international community or international law, except in the case of stateless persons. The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness are the two primary international instruments guiding the rights of individuals and the actions of states with regard to nationality. Many international instruments affirm the right an individual has to nationality. Specifically, the 1954 Convention defines a stateless person as someone “who is not considered as a national by any State under operation of its law.” The 1961 Convention requires that states grant nationality to those born on their territory who otherwise would be stateless, and prohibits states from withdrawing nationality from an individual when that individual would then be rendered stateless. Accordingly, under international law, the United States government is free to end, or further restrict, birthright citizenship but only in accordance with the provisions in the 1961 Convention.

Issues arise in practice when the domestic laws of nations conflict, leaving individuals in situations of de facto statelessness. According to the Pew Research Center, about 250,000 children were born in the United States to non-citizen immigrant parents in 2014, with many born to parents who lacked legal status. Because of the domestic laws of the countries from which these immigrants originate, children born to immigrant parents in the United States may lack citizenship of their state of origin. They would therefore be rendered stateless if the United States were to curtail birthright citizenship, in contravention of the 1961 Convention.

For example, the law of Brazil stipulates that individuals born abroad to a Brazilian parent are eligible to acquire citizenship after becoming an adult only if their parent registered their birth with the Brazilian authorities or if they returned to live in Brazil as a child. If the individual is not registered or does not reside in Brazil before the age of majority, he or she is not entitled to Brazilian citizenship, regardless of the nationality of his or her parents. As of 2014, there were approximately 336,000 Brazilian immigrants in the United States.

There are several issues with these requirements of affirmative action on the part of the parents or child. First, to register a child with the authorities of their own birth country, parents must first demonstrate their own citizenship, which may prove problematic. Parents could do this by showing a passport, birth certificate, or identity card. However, these individuals may have fled their homes quickly without such documents, and would therefore risk being unable to register their children even if they desired to do so.

Second, even if the child of Brazilian parents wished to acquire Brazilian citizenship, the decision is entirely in the hands of his or her parents. His or her parents must be the ones to register the child’s birth with the relevant authorities; no other adult is eligible to do this and the child himself cannot make himself known to authorities later in order to qualify for citizenship. If this is not done, the child must return to reside Brazil before the age of majority. For most children, this is a decision entirely out of their control.

Therefore, should the U.S. end birthright citizenship, children born in the U.S. of Brazilian parents would be at risk of de facto statelessness by no fault of their own. This example is meant to be illustrative, though not exhaustive. Many groups of immigrants in the United States would be forced into similarly precarious positions. The domestic laws of many Central and South American countries require parents located out of the country to register their children’s births with the national authorities in order for them to be eligible for citizenship. There are many reasons why parents fleeing violence, persecution, and economic crises may not wish to register the birth of their children. Whatever the reason, innocent children without a choice would suffer as a result of this change of law. Without careful consideration of the potential impact of this change to US birthright law, many children residing in the United States would be rendered de facto stateless and vulnerable as a result.  

Can better access to citizenship help resolve conflict and refugee crises in Africa’s Great Lakes Region?

/ Lucy Hovil / 1 Comment

The manifold problems of conflict and displacement in Africa’s Great Lakes region[1] seem as complex as they do intractable. After all, with the exception of Tanzania, all the countries in the region have generated refugees and internally displaced people (IDPs) in large numbers over the past decades. But while not wanting to diminish the problems facing the region past and present, scale should not be conflated with either inexplicability or insolvability.

Of course, there is no silver bullet either. But research carried out by the International Refugee Rights Initiative over the past six years in the region, all of which focuses in one way or another on conflict and displacement in a number of different settings, indicates that a framework of citizenship can contribute positively to a better understanding of, and better policy responses to, forced displacement in this troubled region.

Citizenship in this context is understood as access to legal citizenship, but also more broadly as recognition of the right of a person to belong in a community and the power of that acceptance/belonging as a means of accessing other rights. And the research suggests that while there are many causes of political conflict and displacement in the region, unequal or inadequate access to citizenship has been a major contributing cause. At the same time, not only has the failure to ensure inclusive citizenship contributed to displacement, it has also made it harder to resolve: exclusive understandings of national citizenship limit refugees’ access to citizenship in host states and inhibit local integration, and the continued operation of exclusionary policies has made return “home” impossible for many.

As a result, the research underscores the fact that proper realisation of citizenship is one factor that determines whether or not a particular person or group will be forced into displacement; whether they will be able to repatriate; whether they will be accepted by those in their home communities if they do return; how they are perceived in exile both by host communities and those “at home”; whether durable solutions are possible; or whether they will end their lives in exile.

This assertion suggests that there needs to be a paradigm shift in responses to refugees in the region whereby discussions around “durable solutions” to displacement are viewed through a citizenship lens. In the case of repatriation, this means recognition that repatriation can only be a solution when there is a genuine re-assertion of the bond of citizenship between citizen and state, permitting the latter to protect the former and the former to engage in dialogue on the nature of the protection required. Without re-establishing the state/citizen bond and the realisation of their full rights as citizens, refugees will continue to resist return – and others who face similar exclusion will continue to flee.

It also means that repatriation should not be assumed to be the preferred – or, at times, the only – solution. The preconception that the only place refugees can legitimately belong is in their original homes both drives, and is driven by, an emphasis on repatriation that has been promoted by both national governments and the United Nations High Commissioner for Refugees (UNHCR). This attitude has inhibited the possibilities for refugees to forge new forms of belonging, whether through local integration or resettlement to a third country. It also prevents refugees in protracted situations from integrating meaningfully (unless they choose to fall off the official radar and “self-settle”, albeit with a different set of challenges), creating strong feelings of marginalisation and alienation.

Therefore, greater emphasis needs to be placed on local integration as a lasting solution to exile and as a means of re-establishing citizenship rights. Those in exile desire meaningful citizenship, not least in situations where returning “home” is unlikely to be possible for the foreseeable future. In this context, local integration should be promoted as both a temporary and long-term solution to displacement. Integrating refugees into the host community empowers them to act as rational actors capable of addressing their own needs, as opposed to passive recipients of humanitarian aid in camps.

One of the key ways in which local belonging can be supported is through the way in which humanitarian assistance is given to refugees and their hosts. The findings have shown that refugee policy, by isolating refugees in settlements or camps, reinforces separation, undermines local integration and should be avoided wherever possible. The benefits to humanitarian programming in the short-term – as well as the misappropriated policy assumptions that underlie the settlement policy – are small compared to the benefits of supporting and allowing refugees to integrate freely within their country of exile.

Ultimately, therefore, the problem of conflict, displacement, and refugees in the Great Lakes region is intertwined with the crisis of citizenship and the logic of inclusion and exclusion. The way forward, therefore, lies in a process by which refugee policies and practices in the region are re-aligned to become more inclusive, and to have a focus on building the dignity and supporting the resourcefulness of refugees. Refugees need to be viewed as rational actors, who are best placed, either as individuals or as communities, to determine what their interests are and how to protect their rights. This assertion translates into a policy that promotes an organic process of interaction between refugees and host communities that starts at the onset of a refugee influx and allows both to mutually benefit from each other; that identifies potential areas of tension and encourages collaboration between both communities to identify ways of removing the cause of that tension; and that allows local actors to benefit from the economic and business opportunities that result from the presence of the refugees and thereby minimises xenophobia.

 

[1] The Great Lakes region consists of the territory covering 12 states that are members of the International Conference on the Great Lakes Region (ICGLR): Angola, Burundi, Central African Republic, Republic of Congo, Democratic Republic of Congo, Kenya, Uganda, Rwanda, South Sudan, Sudan, Tanzania, and Zambia.