Legal

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This Blog is written by Simran Sahoo from KIIT School of Law, Odisha. Edited by Swati Pragyan.

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INTRODUCTION

Statelessness as defined in International law is a condition in which a person is not considered as a national or citizen by any country under the operation of its law. These stateless people don’t have their identity like a passport and thus are officially considered to be non-existent. They can’t even travel, acquire education, get medical facilities and services, marry, own land or house, open a bank account, or even vote in an election. To support their family, they have to work illegally and have a constant fear of getting detained, deported, or exploited.

Statelessness is mainly faced by a married woman or a new-born child. There are two legal terms- ‘jus soli’ and ‘jus sanguinis’ which would help in understanding the concept of statelessness. ‘Jus soli’ is a Latin term which means ‘law of the soil’, under which citizenship of a person is determined by the place where the individual had taken birth and under ‘Jus sanguinis’ an individual attains citizenship through his or her parents or ancestors. For instance, a lady marries a person from a different nation and loses her original nationality because of such marriage and also the husband’s nation doesn’t give her nationality, then she becomes stateless. In another situation, where a husband and wife belonging to the same state and living together in a different state and that state doesn’t give them nationality based on ‘jus soli’ and even their original state is not giving them nationality based on ‘jus sanguinis’, then the child born to them in that state would become stateless. This problem has to be taken into serious consideration by the government to give these stateless people the basic rights that an ordinary individual ought to get.

CAUSES OF STATELESSNESS

Statelessness is the outcome of various circumstances and reasons which are as follows:

• Conflict of laws– The problem arises when legislation regarding the nationality of one state differs from that of the other state, leaving behind the individual with the nationality of neither state.

• Clash of laws relating to renunciation– There are states which have laws regarding nationality, that allow a person to renounce his or her nationality without having acquired, or been guaranteed the acquisition of, any other nationality. Conflicts of law on this matter arises when one state doesn’t allow renunciation of nationality until the person has first acquired another nationality, while the other state involved will not grant its nationality until the person has first renounced his/her original nationality. Sometimes an individual has to renounce assumed citizenship in a different nation before he/she applies for citizenship. Thus, the person remains stateless in the nation he or she resides, until the new citizenship is attained.

• Women in many countries not permitted to pass their nationality to their children- Even when a child is born in the mother’s state of nationality and his or her father has no nationality or is stateless which ultimately makes the child stateless.

• Orphaned and abandoned children- These children often don’t have any confirmed nationality as they are considered to be illegal in the eyes of law in various states.

• Adoption practices leading to statelessness – In some countries, the adopted children do not acquire the nationality of their adoptive parents.

• Laws and practices that especially affect women- Some countries automatically change a woman’s nationality status when she gets married to a non-national and then she becomes stateless if she doesn’t attain nationality of her husband’s nation and also in case if her husband has no nationality. Even if a woman gets nationality from her husband state, she will ultimately get stateless if her marriage is dissolved and it’s difficult to procure her original nationality.

• Causes related to state succession (Transfer of territory and sovereignty) – When a state acquires independence from a colonial power and after a state is dissolved, if a new state or states succeed dissolved state, or if a state is restored after a period of dissolution, any of these circumstances can lead to the adoption of new citizenship laws or decrees and/or new administrative procedures and people who are not capable of attaining nationality from these procedures get stateless.

• Racial discrimination – It is also one of the greatest causes which leave people of a different race to become stateless.

REMEDIES FOR REDUCTION OF STATELESSNESS

• The nationality of a person should be given either by birth or by operation of the law of the land.

• A mother’s nationality shall be given to her child in case of marriage with a person of another state if the problem of statelessness otherwise arises.

• Loss of nationality shall be based upon the acquiring of another nationality only in the following 3 cases- marriage, divorce, or termination of marriage and adoption.

• A person shall not lose nationality in anyways if it makes him stateless.

• An individual should not be deprived of nationality in case of departure, failure to register, and residence abroad.

• Acquiring a new nationality should make sure that the nationality of the new state is first got and then the individual can lose the earlier nationality.

• The state should include provisions on non-discrimination on the grounds of sex in their national citizenship laws.

• The best interest of the child (orphaned and abandoned child) should always be a primary consideration while determining the nationality of the child.

CASE LAW ANALYSIS

One of the greatest landmark cases on statelessness is the Chakmas case, 1961. In 1962-64 near the India-east Pakistan border, the Chakmas were forced out of their lands during the construction of the Karnafuli reservoir and Kaptai dam in East Pakistan (now Bangladesh) that washed away 54,000 areas, 40% of their farmland, parts of rangamati town, the capital city of Chittagong hill tracts and the place of their leader Chakma raja. Nearly 100,000 Buddhist Chakma’s and some Hindu Hajongs, who also faced religious persecution, took refugee in the lushai hills of Mizoram, which was a part of undivided Assam and in Tripura in the years of 1964 & 65. The northeast frontier agency, now Arunachal Pradesh over objections from their indigenous people, took in 2598 Chakma families comprising almost 14,138 people and resettled them in the vacant areas of Tirap, Lohit, and Subansiri districts. In 1981, 15 years past the incident, the 50,000 families that had settled in Arunachal Pradesh Gautompur and Maitripur in 1966, had swelled to 788 families. Soon they began demanding citizenship in India, but the state government asked them to get back to the allotted land given for 50 families and vacate additional areas. The matter wound its way to the Supreme Court, that rejected their claim for citizenship in 1993, Justice Mohan, S in the case of Arunachal Pradesh vs Khudiram Chakma, 1993, SCR (3) 401 stated that they were indulging in illegal and criminal activities and constantly troubling locals and this enraged the situation. The 2600 Chakma families, had grown into 65,000 units by 1991. Other states were also facing the same refugee crisis. In 1987, 45,000 refugees came into Tripura alone in 15 days. All these years, the Congress-led Centre had not only failed to protect India’s northeast borders, but they had also failed to address the grievance of locals. Relations between refugees and locals deteriorated to such an extent that in August 1994, all Arunachal Pradesh student’s union issued “Quit Arunachal” notices. The National human rights commission objected and approached the SC on behalf of the Chakma’s, and the Apex court in its judgment (NHRC vs Arunachal Pradesh, (1966) 1 SCR 742) stated that they cannot permit anybody or group to threaten Chakma’s to leave (Justice Ahmadi A.M.). The Chakma’s are true victims of history. The name Chakma derives from the Sanskrit word ‘Sakthiman’ that signifies ‘Beholder of power’. Simultaneously, the name evolved to ‘Sakma’ and then latter it beacme‘Chakma’. They are believed to have been part of Buddha’s Sakya clan from Himalayan tribes, who lived in the ancient kingdom of Magadha, part of present-day Bihar & Bangladesh, and who migrated to the Chittagong hill tracts at some point. When the last ruler of Muslims Dharam Baksh Khan (1812-1832) died, they converted to Theravada Buddhism, after his widow, Queen Rani Kalindi, adopted the faith and this led to the Chittagong hill tracts having a population of 97% non- Muslims.

CONCLUSION

Statelessness is one of the major challenging problems faced by every county which needs to be resolved at the earliest. In the field of refugee, there has been a well-established principle which states that it is the primary responsibility of every country to stop themselves from taking any actions which would compel the people of the land to abandon their homes and it is also the responsibility of the government to bring the exiled population back to their native country. The government has to be formally acknowledged as well as in practice that it doesn’t have the right to withdraw or withhold the benefits of citizenship from a section of the population who are capable enough to bespeak a genuine and efficient link with the country.

REFERENCES

[1] Archana Raghuvanshi, Dual Citizenship: Impact of Overseas Citizenship of India, Legal services India, http://www.legalserviceindia.com/articles/dual_cet.htm.

[2] All Answers ltd, What is the Concept of Statelessness, Lawteacher.net (July 2020), https://www.lawteacher.net/free-law-essays/international-law/what-is-the-concept-of-statelessness-international-law-essay.php.

[3] Ganesh Poojary- Law for All, Double Nationality and Statelessness, YouTube (Feb. 20, 2020), https://youtu.be/rQyoZBQ9Ses.

[4] UNHCR the UN Refugee Agency, What does it mean to be stateless? YouTube (Oct. 18, 2019), https://youtu.be/U8xZpNG39oc.

[5] Bisbo, Where CAA works, Casestudy on the Chakmas, a fit case to grant citizenship, YouTube (Jan. 10, 2020), https://youtu.be/ukcr7lFInCo.

[6] Arunachal Pradesh vs Khudiram Chakma, (1993) 3 SCR 401.

[7] NHRC vs Arunachal Pradesh, (1966) 1 SCR 742.