Reasons, Consequences And International Treaties On Stateless Refugees: The Example Of Syrian Kurds

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Introduction

Hanna Arendt conceptualized statelessness soon after the Second World War. In her concept she drew attention to the notion that “statelessness” first necessitates a pre-existing state that does not acknowledge a person as its member. Statelessness as a political phenomenon can emerge through the creation of the state. After the WWII borders were redrawn, several states disappeared, thus millions lost their home and their country of origin. At that point though, the terms of refugees and stateless persons were not clarified. [1: Hanna Arendt, The Origins of Totalitarianism, (New York: Harcourt, Brase Company, 1951), 267] [2: Laura Van Waas, Nationality Matters: Statelessness Under International Law, School of Human Rights Research Series, vol. 29 (The Netherlands: School of Human Rights, 2008), http://www.institutesi.org/Nationality_Matters.pdf, accessed 22 April 2019]

This paper aims to analyse the notion of statelessness. It overviews the definition of statelessness, describes the causes and consequences of being a stateless person. It also examines international and regional instruments on statelessness and refugees, then it concentrates on the legal situation of stateless individuals and refugees in the Middle East, highlighting the special situation of asylum seeking Syrian Kurds in Lebanon and Jordan.

Causes of Statelessness

Many causes can result in statelessness of a person. It can happen with the formation of new states or changing of borders. During these changes a specific group or groups are being left out of the members of the new nation. For instance, after the disruption of the Soviet Union many people became stateless due to border changes in Central Asia and Europe. Owing to the creation of the Sate of Israel and the war between the Israelis and the Arabs, incredible amount of Palestinians turned into stateless in the Middle East. [3: Ibid] [4: Susan M. Akram, The Search for protection for Stateless Refugees in the Middle East: Palestinians and Kurds in Lebanon and Jordan, International Journal of Refugee Law, 2018 30 (3) 411-443, 411]

Nationality can be acquired through three legal ways: States in which the jus soli law principle are applied nationality can be obtained through birth on the territory of the country. According to jus sanguinis the nationality can be acquired only through descent. In that case statelessness is passed on to children, thus, multiple generations can be confined into the status of statelessness. In several countries it is not possible for the parent to pass on nationality to the child, therefore, it can happen that if a child is born in a foreign country, then she or he might become stateless. If a child at birth is not registered, she or he can be also stateless, as she or he has no any proof of where she/he was born or what her/his parents’ nationalities are. Gender based discriminatory laws can also lead to statelessness. In several states women cannot pass their nationality to their children. In that cases statelessness is a result of gender based discrimination. The third possible way to acquire nationality is jus domicilii, by way of naturalisation. [5: Zahra Albarazi, The Stateless Syrians, Report of the Middle East and North Africa, Nationality and Stateless Research Project, May 2013, 13] [6: Ibid 14 ] [7: Susan Akram and Terry Rempel, Temporary Protection as an Instrument for Implementing the Right of Return for Palestinian Refugees, Boston University International Law Journal, (1 Spring 2004), http://www.bu.edu/law/journals-archive/international/volume22n1/documents/1-162.pdf, accessed 22 April 2019] [8: Albarazi, 7] [9: Albarazi, 10]

Consequences of statelessness

Statelessness has serious consequences for the person who is affected. As without citizenship she/he does not possess legal protection from any State. Her/his basic human rights are not taking into account, therefore, she/he is more vulnerable for abuse. as they can easily be exploited physically or sexually, and they can be victims of human trafficking. As children do not have evidence of their true age, they are even more subject to exploitation. Without valid identity documents freedom of movement is seriously restricted. Stateless persons without citizenship cannot access health care, education, or property rights, they suffer from social exclusion, and restricted from travelling freely. They do no have the right to vote, buying properties, sign contracts or participate in political activities. They are often faced forced displacement, as they do not possess the required documents for staying in a state. There status is similar to illegal immigrants, they risk detention constantly. [10: Thomas McGee, The Stateless Kurds of Syria, Ethnic Identity and National I.D, Tilburg Law Review 19 (2014) 171-181, https://www.academia.edu/5677728/The_Stateless_Kurds_of_Syria_Ethnic_Identity_and_National_I.D, accessed 19 April 2019] [11: McGee, 172]

International treaties on refugees and statelessness

The UN does not give a universal definition both for refugee and stateless person, and their rights to protection. In 1948, after the Second World War the UN adopted the Universal Declaration of Human Rights (UDHR). This document includes the right to seek and enjoy asylum, the prohibition of depriving a person from her or his nationality, and the right to leave and return to one’s country. In 1949 ECOSOC created a Study of Statelessness that suggested a treaty concerning the rights of both refugees and stateless persons. Though Member States did not agree in distinguishing issues concerning refugees from stateless persons. In 1951 the Convention adopted the Status of Refugees. The Convention includes group and individualized definition of refugees. The individualized definition in the Refugee Convention’s article 1A(2) concerns such persons who have a nationality and also those who are stateless. ECOSOC’s Study differentiate two types of stateless persons. Persons who are refugees as well, and persons who are not refugees but stateless. The Study states that de jure stateless persons are those who ‘are not nationals of any state, either because at birth or subsequently lost their own nationality and did not acquire a new one’. De facto stateless persons are those, according to the Study, who “have left their country of nationality, (and) no longer the protection and assistance of their national authorities’ for whatever reason”. [12: Akram, 412] [13: Universal Declaration of Human Rights, (adopted 10 December 1948 (UNGA res 217 A(III) arts 13-15., UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), available at: https://www.refworld.org/docid/3ae6b3712c.html [accessed 23 April 2019] ] [14: UN Ad Hoc Committee on Refugees and Stateless Persons, ‘A Study of Statelessness, UN doc E/1112, E/1112 Add. 1, (1 August 1949) (A Study of Statelessness), https://www.refworld.org/docid/3ae68c2d0.html [accessed 22 April 2019] ] [15: ‘UN Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons, UN doc A/CONF.2/SR.19 (November 1951), https://www.refworld.org/docid/3ae68cda4.html [accessed 22 April 2019] ] [16: Ibid] [17: Convention relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954), 189 UNTS 137 (Refugee Convention), https://www.refworld.org/docid/3be01b964.html [accessed 20 April 2019] ] [18: Refugee Convention, 1A(2)] [19: A Study of Statelessness 8-9. ]

A refugee is not stateless, by definition, though, a refugee also lacks the protection of a State. A refugee encounters similar political and social disadvantages as a stateless person.

The UN passed a Convention on the Status of Stateless Persons in 1954. This Convention deals with those persons who are stateless but not refugees. According to the Convention a stateless individual is ‘A person who is not considered as a national by any States under the operation of its laws’. [20: Convention relating to the Status of Stateless Persons (adopted 28 September 1954, entered into force 6 June 1960) 360 UNTS 117 (Stateless Persons Convention) art 1. https://www.refworld.org/docid/3ae6b3840.html [accessed 21 April 2019] ] [21: Ibid]

The definition of the Convention is regarded customary international law. The same rights should be guaranteed by the host State as for refugees. The Convention does not include a non-refoulement provision, therefore a stateless person is not guaranteed with a right to enter a State, and stateless persons are allowed only ‘lawfully staying’ in the territory of the State. It is also not a prerequisite that a State would issue identity documents to all stateless individuals in its territory who do not possess valid papers. The Convention only requires that a State should provide travel documents. [22: Akram, 412] [23: Stateless Persons Conventions arts 15, 17, 19] [24: Ibid art 27] [25: Ibid art 28]

In 1961, the Convention on the Reduction of Statelessness was adopted. This convention incorporates provisions on the prevention and reduction of statelessness. The Final Act of the Convention of 1961 requires that a ‘persons who are stateless de facto should as far possible treated as de jure’ in order to hold a nationality. Article 11 requires the establishment of an organ that is responsible for determining a person’s status as stateless. In 1974 UNHCR was mandated by the General Assembly to be this body. [26: Convention on the Reduction of Statelessness (adopted 4 December 1954, entered into force 30 August 1961) 989 UNTS 175 (Reduction of Statelessness Convention), https://www.refworld.org/docid/3ae6b39620.html [accessed 18 April 201] [27: Final Act of the UN Conference on the Elimination or Reduction of Future Statelessness’ UN doc A/CONF.9/14 and Add.1 (29 August 1961), https://www.refworld.org/docid/3ae6af970.html [accessed 24 April 2019] ] [28: UN General Assembly, Question of the establishment, in accordance with the Convention on the Reduction of Statelessness, of a body to which persons claiming the benefit of the Convention may apply, 10 December 1974, A/RES/3274(XXIX), available at: https://www.refworld.org/docid/3b00f17723.html [accessed 20 April 2019] ]

Stateless refugees: the example of Syrian Kurds

A stateless person who is also a refugee, makes her or him more vulnerable. The miseries of stateless refugees are doubled. The host States do not recognize them as refugees nor as stateless. The status of Syrian Kurds is a clear example for this phenomenon.

The 1951 Refugee Convention and the 1954 Convention on the Status of Stateless Persons as well as the 1961 Convention on the Reduction on Statelessness have not been ratified by most countries in the Middle East. Some regional documents on the protection of refugees exist, but most of them breached or disregarded. Several countries do not apply any domestic law governing the status of stateless persons or refugees, instead ad hoc policies are applied.[29: Akram, 414] [30: Ibid, 416]

The estimated population of the Kurds is around twenty-two million people around the world. The Kurds are one of the largest ethnic groups in the Middle East. Their population is spread along Iraq, Iran, Syria and Turkey, and in some parts of the former Soviet Union. [31: Albarazi 13] [32: IbidFor ajanib who have silable at: nal Law, less KurdsInternationaliduals and refugees in the Middle East, highlighting the special]

In the seventh century Kurdistan was conquered by Muslim Arabs. Most part of the Kurdish territory fell under Ottoman rule in the 16th century. To get rid of the foreign restraint, Kurds supported the Allies in order to regain independence from the Ottoman Empire. In the Treaty of Sevres of 1920 the Allies included a provision for n independent Kurdistan, but Turkey did not agree to sign. After WWI the Kurdish population were split into four countries, Iraq, Syria, Iran and Turkey. In all of these countries Kurds suffered severe discrimination. [33: Ibid, 14]

Kurds comprises about 2 million ethnic minorities in Syria. 300 000 of these 2 million were already stateless long before the civil war. [34: Zahra Albarazi and Laura van Waas, ‘Statelessness and Displacement Scoping Paper’ Norwegian Refugee Council, http://www.institutesi.org/stateless_displacement.pdf, 15 April 2019]

In Syria Kurds were not discriminated during the French Mandate and could fill important employment positions until 1944. After its independence Syria began to proclaim a strong Arab nationalism. Owing to this Arab nationalistic attitude the non-Arab Kurds were excluded from getting nationality status automatically. Kurds suffered not just political but also cultural suppression. [35: Akram, 422] [36: Akram, 423] [37: Albarazi, 17] [38: Chatty Dawn, Displacement and Dispossession in the Middle East, (Cambridge University Press, 2012), 271-73]

The census of 1960

In 1960 Syria organized a census in the al-Hasaka region. Syria’s aim with the census was to decrease the amount of Kurds who claim Syrian citizenship. The census determined three categories of people. Those who could documented their residency in Syria before 1945, those whose proof of residency prior to 1945 were not sufficient, and those who could not be present in the census or whose presence was not recorded. [39: Albarazi, 7-10] [40: Ibid]

The first category of people became “Syrian nationals”, the second were considered foreigners (ajanib), and the third were regarded “illegal residents” (maktoumeen). 120 000 Kurds, 20 per cent of the Kurdish population of Syria were bereaved from their citizenship in a day. The majority Syrian Kurds became stateless. Many of the denationalized Kurds fled to Lebanon when the civil war broke out in Syria. [42: Ibid, 14]

In Syria nationality can be passed with the jus sanguiinis law, but children of denationalized Kurds born in Syria have not been granted to citizenship. Another constraint of the application of jus sanguiinis in Syria is based on gender discrimination: only father can pass Syrian nationality to their children born outside Syria (except when the father is unknown). In 2011 at the beginning of the Syrian uprising the government adopted a Presidential Decree no 49. The Decree stated that Syrian nationality would be granted to foreigners (ajanib) in al-Hasaka province. 37 000 ajanib Kurds had claimed Syrian citizenship, but still about 300 000 ajanib and maktoumeen could not become citizens.

The maktoumeen and ajanib are de jure stateless. For ajanib who have citizenship de jure on paper but not in practice, the problem is the de facto statelessness. [46: Akram, 423]

In the case of the Kurds the cause of their statelessness is relating to discriminatory legislations, state successions, and the conflict of laws between the host States and the Sates of origin. Though Syrian Kurds fled to several countries across the globe, in Lebanon and Syrian Kurd stateless refugees can be found in great numbers. Lebanon and Jordan are not part of the 1952 Refugee Convention/1967 Protocol or the 1954 Convention on the Status of Stateless Persons and the 1961 Convention. They are are reluctant to sign international treaties regarding stateless persons and refugees. The reason for that can be traced back to the Palestinian displacement and the formation of the State of Israel. [47: Akram, 424] [48: Ibid] [49: Akram, 428]

Neither of these countries apply the jus soli law. It means that a child cannot acquire citizenship automatically. Therefore, for Kurd stateless refugees it is almost impossible to get child and school certificates, travel documents, when they are trying to get naturalization. Without documents they remain limbo in third States which try to send them back to a country from where they cannot prove persecution and can get a refugee status due to the fact that they are not eligible to return again. [50: Albarazi, 21] [51: Laura Van Wass, The Situation of Stateless Persons in the Middle East and Africa, UNHCR Oct 20109, 3, 17), https://www.refworld.org/docid/4cea28072.html [accessed 17 April 2019] ]

The role of UNHCR and regional instruments in the Middle East

UNHCR is the only agency for protection of non-Palestinian stateless persons and refugees in the Middle East countries like Jordan and Lebanon. UNHCR can help in a resettlement procedure within an exact time frame. If resettlement is not possible, the protection of UNHCR does not mean much, as UNHCR has no legal status. [52: Ibid] [53: Akram 438]

According to the definition of asylum seekers in the Lebanese judiciary system an asylum seeker is a person who seeks asylum in a country other than Lebanon. Refugees are granted to stay temporary in the territory of Lebanon seeking resettlement in third States by UNHCR. For refugees other than Palestinians, like Kurds, Lebanon establishes a temporary status that must be renewed. [54: UN High Commissioner for Refugees (UNHCR), UNHCR Country Operations Plan 2004 – Lebanon, 1 September 2003, https://www.refworld.org/docid/3fd9c6a14.html [accessed 22 April 2019] ] [55: Akram, 429]

In Jordan asylum seekers can stay for maximum six months. During that period UNHCR must resettle them in a third country. Though Jordan is not part to the Refugee Convention but respects non-refoulement, non-discrimination, and several other rights of refugees if they register with UNHCR. Though most stateless Kurd are unable to secure resettlement. [56: Akram, 430] [57: McGee, 6]

The Arab League (LAS) aimed to form a regional system of human rights. On 24 May 2004 a revised Arab charter on Human Rights was adopted. This second Arab Charter entered into force in 2008. Lebanon and Jordan ratified this charter as well. It guarantees for every person the right to a nationality, the right to acquire another nationality, the right to seek political asylum from persecution, the right to freedom of movement. [58: League of Arab States, Charter of Arab League, 22 March 1945, https://www.refworld.org/docid/3ae6b3ab18.html [accessed 20 April 2019]] [59: League of Arab States, Arab Charter on Human Rights, (22 May 2004, entered into force 15 March 2008), https://www.refworld.org/docid/3ae6b38540.html [accessed 20 April 2019]

In 2017, the Arab League held a conference on “Arab States on Good Practices and Regional Opportunities to Strengthen Women’s Nationality Rights’. The result of the conference was a declaration which called on Arab states to secure the rights of all refugees and stateless children to gain a nationality, and to reform their nationality laws granting equal nationality rights for women and men. [60: ‘The First Arab Conference on Good Practices and Regional Opportunities to Strengthen Women’s Nationality Rights’ League of Arab States Secretariat General (1-2 October 2017), https://www.refworld.org/docid/5a256c4a4.html [accessed 20 April 2019] ]

Conclusion

Stateless refugees face insurmountable difficulties gaining nationality. Several Middle Eastern States are reluctant to sign international treaties on statelessness and refugees. As several Arab States are reluctant to ratify the Refugee and Statelessness Convention, international treaties and regional agreements together can help gain more rights for refugees and stateless persons in the Middle East than either international treaties or regional agreements alone. [61: Akram, 443]

Lebanon and Jordan predominantly respect the non-refoulement principle for refugees facing inhuman treatment, though temporary protection is not a robust protection for Kurd stateless refugees. Though Lebanon and Jordan allow Kurds to enter their States and basic services from humanitarian organizations are secured, but it is attached to renewal status. UNHCR does not have the legal basis to issue documents to register individuals as stateless after a statelessness determination, as it can register refugees following a refugee status determination. Statelessness could be reduced significantly introducing such procedure. A similar registration would help defeat the tension between de jure and de facto statelessness.[62: Ibid] [63: Van Waas, 9]

Bibliography

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