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UNHCR Workshop on Statelessness

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by Joti Kohli

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Photo Credit: Arsaldhillo

VoC attended a workshop on Statelessness in January organized by UNHCR and facilitated by Nick Oakeshott, UNHCR regional protection officer and a specialist in statelessness. The workshop was conducted in an interactive manner and was very informative. The information below is mainly from what was gained from the workshop and is only a glimpse into the whole day session.

UNHCR has embarked on an ambitious undertaking to eradicate statelessness within a decade by concentrating on four key elements: a) identification of stateless persons, b) prevention of statelessness, c) reduction of statelessness and, d) protection of those who are stateless.

In working on these four areas, UNHCR is encouraging States to strengthen their nationality law.  The workshop also concentrated on international law and statelessness and how to align domestic law, especially the respective nationality laws, with international standards by looking at Malaysia and Myanmar.

UNHCR estimates there are 12 million stateless people worldwide,[i] of which it was stated at the workshop that about 42% are in the ASEAN region.  Clearly, much needs to be done by the countries in this region and the workshop started by emphasizing a clear understanding of the definition of the term ‘stateless’.

Nationality being part of the legal identity of a child, it is important to understand what it means to be without any nationality and thus ‘stateless’. Dissecting the definition of a ‘stateless person’ as given in Article 1 (1) of the 1954 Convention relating to the Status of Stateless Persons (1954 Convention), it was reiterated that even though the manner in which nationality is acquired varies from one country to another, generally there are three ways in which nationality is granted to children. Firstly, children can acquire their parents’ nationality which in legal circles is known as jus sanguinis.  Secondly, by the country of their birth known as jus soli, and finally through long-term residence.

It is important to note that there are a number of international instruments that ensure a child is not denied her/his nationality, which many countries in the region have ratified. Some have also been ratified by Malaysia, though in the case of The Convention on the Rights of the Child (CRC) and The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) with reservations to various provisions.  The relevant articles pertaining to the right to identity or nationality of the international instruments binding upon Malaysia are as follows:

  1. Article 7 of the CRC clearly states a child’s right to a nationality, but Malaysia maintains reservation to this article.
  2. Article 9 of CEDAW states there should be no gender discrimination when it comes to transferring nationality to children and Malaysia maintains a reservation to paragraph 2 of this article.
  3. Article 15 of the Universal Declaration of Human Rights highlights that “everyone has a right to nationality” and nobody should be deprived of or denied this right.
  4. Article 18 of the Convention on the Rights of Persons with Disabilities provides the right to a nationality to persons with disability, and finally
  5. Article 7 of The Covenant on the Rights of the Child in Islam also clearly states the right to name and nationality:
    1. “A child shall from birth, have right to a good name, to be registered with authorities concerned, to have his nationality determined and to know his/her parents, all his/her relatives and foster mother.
    2. State parties to the Covenant shall safeguard the elements of the child’s identity, including his/her name, nationality, and family relations in accordance with their family laws and shall make every effort to resolve the issue of statelessness for any child born on their territories or to any of their citizens outside their territory.
    3. The child of unknown descent or who is legally assimilated to this status shall have the right to guardianship and care but without adoption.  He shall have a right to name, title and nationality.”

Malaysia is not a signatory to the 1954 Convention, which highlights a clear framework to protect stateless people. Nor is it a signatory of the 1961 Convention on the Reduction of Statelessness which provides guidelines for States to align their nationality laws with international standards. The latter convention obliges States Parties to adopt the policy of jus soli to those children who would otherwise be stateless.

Even though Malaysia is not a signatory to the above two conventions, the international instruments it has ratified are legally binding.  Furthermore, Article 14(1)(b)  Part II Section (1)(e) of the Federal Constitution guarantees the right to a nationality to a child not only through his/her parents but also if the child would otherwise be stateless.

Article 14(1)(b) of the Constitution entitles “every person born within the Federation of whose parents one at least is at the time of the birth either a citizen or permanently resident in the Federation,“ or  “every person born within the Federation who is not born a citizen of any country,” if born on or after Malaysia day to Malaysian citizenship by operation of law.

This article of the Malaysian Constitution clearly protects children who could be at risk of statelessness. Yet, in practice children are denied nationality due to complex procedural matters.  Aligning these procedures and strengthening the nationality law in accordance to Article 14(1)(b) of the Federal Constitution will contribute tremendously to the reduction of statelessness in Malaysia.  This is not going to be easily accomplished, but it is an important effort to pursue for the future of thousands of children who will otherwise be denied a healthy and just future.

The interview with Nanthini Ramalo will give more information on the problem of lack of documentation and statelessness in Malaysia and can be accessed here.

For a more detailed overview on the legal and human dimensions of statelessness see Sarah Meschenmoser’s article here.

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