Introduction
The COVID-19 pandemic has been at once the most unifying and the most divisive event of our generation. Unifying because it has threatened the entire human race. Divisive because its impact has been highly contextualised. In the UK the initial mantra, “we are all in the same boat,” (meaning, “we are all in this together”) was rapidly replaced by the slogan, “we are all in the same storm, but in different boats.” This change in syntax was driven by a growing realisation that although everyone faced the same “storm,” there were vast discrepancies in access to resources needed to weather it, be they economic, environmental, social, or political resources. But what about those with no boat at all? This blog post considers the impact of the pandemic upon stateless individuals who are in fact “boatless.” In international law, a stateless person is defined as, “a person who is not considered as a national by any State under the operation of its law.” Nationality describes the legal bond between a State and its citizens, and comes with associated rights and responsibilities on both sides.[i] Indeed, citizenship can be seen as the ‘right to have rights’.[ii] Although having a nationality has been declared to be a human right, “many millions” of persons are stateless. As such, they lack a boat in the storm: the protection of any State and the ability to access the rights attached to citizenship. Furthermore, as this article demonstrates, they are largely unable to access the rights enshrined in International Human Rights Law which should be available to all, independent of citizenship. The intersection between statelessness and migration is complex and multi-faceted, with statelessness causing migration and migration leading to statelessness.[iii] However, statelessness itself is so devastatingly exclusionary that statelessness in situ ( i.e. those who are stateless in the country of their birth) has been described as “forced displacement … in place.” Stateless individuals are sometimes termed “legal ghosts.”[iv] This article focuses on selected rights enshrined in the ICCPR and the ICESCR to show the widespread denial of human rights to the stateless during the pandemic. It demonstrates that COVID-19, in addition to causing direct suffering, has illuminated the deep inequalities inherent in our State-centric world. It then looks at whether the stateless could have been better protected, and whether lessons taught by this pandemic could be leveraged to strengthen the rights and protections of the stateless ahead of future gargantuan global challenges.Civil and Political Rights
The rights articulated in the ICCPR are to be ensured by States Parties “to all individuals ….without distinction of any kind…” In times of public emergency, derogation from certain articles is permitted but its use must be proportionate to the nature and scale of the emergency and must not be applied in a discriminatory fashion. The COVID-19 pandemic is unquestionably a public emergency and States have made widespread use of emergency legislation in an effort to control the spread of the virus. This has inevitably limited human rights and freedoms. Such legislation has, in some cases, been proportionate and appropriate. However, as we shall see, legislation has far too often been applied in a discriminatory manner or has had an uneven impact which may or may not have been intentional or foreseen. Stateless individuals have often been the ones to suffer.The right to enter and leave one’s own country (ICCPR Article 12)
Most people have natural ties with a particular country that they would call their ‘own country.’[v] They should be free to enter and leave that country. However, stateless persons do not enjoy that freedom. They have no country they can legally call their own; and with no State willing to grant them a passport, crossing international borders in a legal manner becomes impossible. One of the earliest and most widespread measures taken by States to slow the spread of COVID-19 was to bring their citizens home, while closing their borders to non-citizens. This left many stateless persons stranded in precarious situations in countries ‘not their own’. As an example, under gender-discriminatory nationality laws, Malaysian women are denied the right to confer their nationality on a non-national spouse or on their children born abroad. Against this background, the COVID-19-related ‘Movement Control Order’ left Malaysian women living abroad with difficult decisions about returning home during the pandemic. Although they could travel, their non-citizen husbands or foreign-born children were restricted in doing so. Some women risked statelessness for their children by giving birth overseas during the pandemic because their non-citizen husbands were not able to travel ‘home’ with them. While the travel restrictions were reasonable in the context of COVID-19, they led to serious consequences for persons excluded from Malaysian citizenship and to a risk of new cases of statelessness. Despite this, the Government of Malaysia remains unwilling to amend its nationality laws.The right to life (ICCPR Article 6)
The right to life is non-derogable. Yet, for some stateless persons, travel restrictions imposed ostensibly to reduce the spread of COVID-19 directly violated their right to life. In April 2020 Malaysia denied entry to hundreds of Rohingya refugees leaving them drifting at sea for two months, and causing up to 60 deaths from starvation and disease. This was not a tragic, unforeseen accident, nor was it unique; yet it led to no change in Malaysia’s hard-line policy and practice. Had concerns about COVID-19 genuinely lain behind the reluctance to grant entry, this could have been managed by requiring the new entrants to undergo 14 days’ quarantine. Instead, the tragedy demonstrates a blatant disregard for the lives of those individuals—a disregard that the stateless Rohingya encounter not only in Malaysia, but in Myanmar (their ‘own’ country), and wherever they flee for safety across the region. The pandemic is not the cause of their exclusion and suffering, but has become a convenient excuse to subject them to ever-increasing vilification.The (non-derogable) prohibition of cruel, inhuman or degrading treatment (ICCPR Article 7), and the liberty and security of the person (ICCPR Article 9)
The wide-ranging protections offered under these articles include the prohibition of arbitrary arrest and detention. ‘Arbitrariness’ incorporates ideas such as disproportionate and discriminatory, such that the arrest and detention of stateless individuals under immigration powers is frequently arbitrary. Furthermore, since there is no country to which they can be removed, they are “uniquely vulnerable to prolonged detention” which may amount to cruel, inhuman or degrading treatment. The likelihood of this threshold being reached has increased during the pandemic firstly, because of the increased risk of the transmission of COVID-19 in detention centres.; secondly, because with international travel heavily restricted the prospects of timely release are greatly reduced; and finally, because access by legal advisors has been severely curtailed. Nevertheless, the arbitrary arrest and detention of undocumented migrants including stateless persons has continued unabated. The UK Home Office released around 1000 detainees early in the pandemic; however it was criticised for refusing to release the remainder or to make public its rationale for their continued detention. It faced further criticism and legal action over its use of a former military barracks to house newly arrived asylum-seekers. This decision led to protests from detainees, arrest of a photo-journalist, protestations by Amnesty International and the Red Cross, condemnation by (government-appointed) independent inspectors, an outbreak of COVID-19 which infected half of the 400 detainees, and a High Court ruling that the government’s actions were unlawful. Its failure to assess the protection needs of the migrants before detaining them renders this policy arbitrary and unlawful. Arbitrary arrest and detention also occurred in India where the government attempted to track tens of thousands of Rohingya Muslims. The citation of possible exposure to COVID-19 at an Islamic gathering was a thin excuse covering the xenophobic and Islamophobic motives for this campaign, which may be part of a broader anti-Muslim crackdown by the current Indian government, the Bharatiya Janata Party.The right of children to have their birth registered, to have a name and to acquire a nationality (ICCPR Article 24)
The purpose of this article is to ensure that each child exists as a legal as well as a natural person. Failure to register children’s births occurs both because of weak infrastructure and because of legal and bureaucratic complexities.[vi] It often leads to children growing up stateless. Early in the pandemic, UNHCR warned about the risk of increased statelessness should birth registration lapse, and published recommendations about how this could be avoided. Nevertheless, the holes in birth registration increased during the pandemic, with remote and marginalised groups most affected.[vii] Significant logistical effort will be needed to catch up with backlogs in order to prevent new cases of statelessness from arising. States which desire to exclude particular groups for discriminatory reasons may choose to use the exigencies of the pandemic as an opportunity to refuse them registration.Economic, Social, and Cultural Rights
Like those guaranteed under the ICCPR, the rights enumerated in the 1966 International Covenant on Economic, Social and Cultural Rights (ICESCR) are to be exercised by States Parties “without discrimination of any kind.”The right to work (ICESCR Article 6); the right to social security (ICESCR article 9; and the right to an adequate standard of living including food, clothing and housing (ICESCR article 11)
While these rights ought to be available to all, in practice, access to housing, formal employment, and social security usually depends upon having recognised identity documents. Hence, for the most part, the stateless are unable to access these rights. Instead, they often live in a “netherworld of formal exclusion.” The pandemic has greatly worsened their situation, and has profoundly impacted stateless communities’ access to the basic necessities of life, even in ‘resource-rich’ European nations. The restriction of mobility associated with lockdowns left migratory peoples and those working in the informal sector unable to work. A particularly poignant example is that of the stateless Pemba fisherman community in Kenya whose livelihood was decimated by the combination of dawn-to-dusk curfews and closure of markets. It is improbable that this was a targeted action; rather it illustrates the precarity and invisibility of stateless persons whose needs are overlooked in government policy-making. In addition to being unable to work, the stateless have been excluded from any income protection offered by governments to citizens and ‘legal’ residents. In many cases, they have also been ineligible for food relief. The vulnerability of stateless populations is well illustrated by the Nubians living in Kibera, Kenya, where many hazards converge: overcrowding, lack of clean water and sanitation, insecure employment, and poor access to healthcare and education as well as to information about COVID-19. Furthermore, lack of documentation leaves Nubians excluded from government social security packages. They have become ever-more dependent upon charities and NGOs during the pandemic, which have themselves faced challenges of depleted funding and restricted access to the groups they serve.The right to the highest attainable standard of health (ICESCR Article 12)
The foundation of good health is a good living environment, including adequate food, appropriate, safe work, and adequate housing. In the absence of these conditions, mortality from all causes rises. Thus, the denial of these basic necessities to stateless persons violates also their article 12 rights. Regarding healthcare provision, barriers facing the stateless in Europe in accessing healthcare during the pandemic have included lack of identity documents, prohibitively high non-residents’ medical fees, fear of detention and deportation resulting from visiting health facilities, and lack of information in appropriate languages and accessible media. Provision of healthcare, including mental health treatment, both by State services and voluntary organisations, was also restricted at a time of increasing need which had a disproportionate impact upon groups already experiencing poor access and those heavily dependent upon the voluntary sector. Worryingly, and despite calls for their inclusion, the stateless also risk being excluded from COVID-19 vaccination, because of lack of information, fear of becoming visible, or simply because the system of delivery is predicated upon universal registration. Such exclusion of the stateless and other marginalised groups from healthcare is deeply concerning given that the WHO has said, “None of us will be safe until everyone is safe.” Instead of exclusion, COVID-19 could, paradoxically, have been harnessed to hasten the end of statelessness. The creative idea that registration and documentation be linked to vaccination campaigns was put forward by the Secretary General in 2018, and the current unparalleled global vaccination drive affords an ideal opportunity to realise this vision. However, doing so would entail more than a shift in logistics. It would mean dealing with the reasons why States deliberately exclude certain groups. Sadly, States largely have no appetite for such deep-rooted structural change. While some States have announced policies that include undocumented persons in their national vaccination programmes, and some have granted legal status to certain previously undocumented groups, to date there do not seem to be any examples of States actually using the vaccination programme to reduce statelessness.Could the Stateless Have Been Better Protected?
Numerous bodies recognised early in the pandemic that the stateless were at risk of being excluded, and warned about the likely disastrous outcomes for them if protections were not strengthened. Filippo Grandi added his voice, stating, “The pandemic can only be beaten if everyone … is included in the response. … [T]hat means including often invisible, stateless populations.” The Special Procedures of the UN Human Rights Council stated that without fulfilling human rights obligations, a public health response to the pandemic would be wholly inadequate. Alarmingly, despite all this prior knowledge, within months of the virus being reported the appalling impact of the pandemic upon stateless populations was undeniable. As we have seen, the overwhelming weight of evidence is that the exacerbated suffering of the stateless during the pandemic was not inevitable, they were systematically excluded from the help and support that was given by States to citizens. International human rights instruments are designed to provide for human flourishing or at least survival. However, making these instruments available to everyone who needs them depends upon States ratifying and fully implementing these instruments, and applying them without discrimination. We have seen that both before and during the pandemic the stateless were excluded from the protection afforded by the rights articulated in the 1966 Covenants, even those that ought to be universal. Stateless persons living in States party to the 1954 Convention should at least have access to the protections offered to them under that Convention which are similar to the protections afforded to refugees under the 1951 Convention. However, in order to realise this protection, States must put in place effective statelessness determination procedures (SDP) to identify and document stateless persons under their jurisdiction. Without these procedures, the stateless remain invisible and unprotected.[viii] Though some states do have procedures in place, unsurprisingly, faced with the immense challenges of COVID-19, the legal procedures necessary to determine statelessness status slowed down or stalled. This left stateless individuals in legal limbo, unable to access even their rights under the 1954 Convention.Conclusion – finding the way ahead
This brings us to a final question: could we do better next time? The picture is certainly not entirely gloomy. Pre-pandemic, a momentum was building to raise the profile of statelessness on the international agenda. For example, the launch of the ISI in 2014, UNHCR’s 10-year #Ibelong campaign to end statelessness by 2024, the many pledges made at the 2019 High Level Segment on Statelessness, and the highlighting of statelessness as a concern during routine UN monitoring mechanisms[ix] all helped put a spotlight on statelessness. During the pandemic human rights actors continued to raise their voices loudly on behalf of the stateless. In addition, COVID-19 has generated its own unique momentum of change. It has revealed unequivocally the deeply-entrenched inequalities in our divided world, and has demonstrated that we can live differently in so many ways that would have been unimaginable two years ago. This presents both an opportunity and a responsibility for civil society. The COVID-19 Emergency Statelessness Fund (CESF) Consortium furnished examples of steps that can be taken by multiple stakeholders to maintain the momentum and push for change in the desired direction. There are scattered indications that such change may be occurring. There have been instances of good practice, both by States and by individuals who have defied government policy to reach out to people in need. A noteworthy example was the shift in Kuwaiti society towards including the (stateless) Bidoon as fellow citizens after numerous Bidoon health professionals volunteered in response to the COVID-19 outbreak. Sadly, this narrative shift was not maintained. We have seen that during the COVID-19 pandemic the stateless were left vulnerable to the worst ravages of the pandemic (they were ‘caught in the storm without a boat’). Furthermore, their precarious situation was rooted in the structural inequalities of a world system where rights are still a function of citizenship (the ‘storm’ was not the reason they had no ‘boat’). It is wishful thinking that COVID-19 will be the last or the worst ‘storm’ of this century. The COVID-19 pandemic confirmed what was already known: storms hit the most vulnerable the hardest. For future storms to have lesser impacts we need to strengthen the protection of the stateless; we need to ensure they have ‘boats’. This depends upon States, civil society, and the International Community working together to ensure the human rights instruments are not merely fine words, but rather protect everyone—even those to whom the State-citizen bond is not available. Essentially, as the world emerges from the pandemic, we face a challenge and a choice: to build back better and fairer, or to reinstate the status quo ante. The latter is the easy path and the default option. However, if we choose the more challenging path, then out of the immense sufferings of the COVID-19 pandemic we might yet construct a more equal and inclusive world. The author is grateful to Tamas Molnar for his valuable comments on a previous draft of this blog. [i] A. Edwards, ‘The Meaning of Nationality in International Law in an Era of Human Rights: Substantive and Procedural Aspects’ in Edwards, A. and L. van Waas (eds) Nationality and statelessness under international law. (Cambridge University Press 2014). [ii] US Supreme Court Chief Justice Earl Warren, Trop v. Dulles, 356 U.S. 86, 31 March 1958, quoted in (e.g.) T. Molnár, ‘A Fresh Examination of Facilitated Naturalisation as a Solution for Stateless Persons’ in van Waas, L. and M.J. Khanna (eds) Solving statelessness (Wolf Legal Publishers 2016) 225. [iii] Laura van Waas, Nationality matters: statelessness under international law. (Intersentia 2008). [iv] Tamas Molnár, ‘Remembering the Forgotten: International Legal Regime Protecting the Stateless Persons – Stocktaking and New Tendencies’ (2014) 11 US-China Law Review 822; [v] Caia Vlieks, E.M.H. Hirsch Ballin and M.J. Recalde Vela, ‘Solving Statelessness: Interpreting the Right to Nationality’ (2017) 35 Netherlands Quarterly of Human Rights 158. [vi] Supra 3. pp153-5 [vii] Laura van Waas and Ottoline Spearman, ‘The Life-or-Death Cost of Being Stateless in a Global Pandemic’ (2020) 32:3 International Journal of Refugee Law 499 [viii] G. Gyulai, ‘The Determination of Statelessness and the Establishment of a Statelessness-Specific Protection Regime’ in Edwards, A. and L. van Waas (eds) Nationality and Statelessness Under International Law (Cambridge: Cambridge University Press, 2014) [ix] Khanna, MJ., and P. Brett, ‘Making Effective Use of UN Human Rights Mechanisms to Solve Statelessness’ in van Waas, L. and M.J. Khanna (eds), Solving statelessness (Nijmegen: Wolf Legal Publishers, 2016)The views expressed in this article belong to the author/s and do not necessarily reflect those of the Refugee Law Initiative. We welcome comments and contributions to this blog – please comment below and see here for contribution guidelines.