Statelessness, human rights and the Sustainable Development Agenda

Institute on Statelessness and Inclusion

1. Introduction

The Sustainable Development Goals (SDGs) provide a unique opportunity both to further entrench human rights principles within the development framework, and to ensure that the most excluded and vulnerable persons, including stateless persons, have equal access to development. In the lead up to the drafting of the SDGs, former High Commissioner for Human Rights Navi Pillay stated:

“[T]he Post-2015 Agenda must be built on a human rights-based approach, in both process and substance. This means taking seriously the right of those affected to free, active and meaningful participation. It means ensuring the accountability of duty bearers to rights-holders, especially the most vulnerable, marginalized and excluded. It means a focus on non-discrimination, equality and equity in the distribution of costs and benefits. It means embracing approaches that empower people, both politically and economically. And it means explicitly aligning the new development framework with the international human rights framework – including civil, cultural, economic, political and social rights, as well as the right to development. In essence, it means deliberately directing development efforts to the realization of human rights."

Similarly, the outcome document for the UN Summit in September 2015 envisioned:

“[a] world of universal respect for human rights and human dignity; of justice and equality; of respect for race and ethnicity; and of equal opportunity permitting the full realization of human potential while promoting shared prosperity.”

One of the true tests of whether the SDGs have succeeded both in adopting a rights based approach and in the aim of leaving no one behind, will be the benefit they bring to stateless persons and those at risk of statelessness around the world.

2. Statelessness and different frameworks

Statelessness is centrally relevant to the international human rights regime. On the one hand, statelessness is the most extreme violation of the right to a nationality. On the other, the lack of any nationality closes down opportunities to access other rights and services and increases vulnerability to discrimination, exploitation and the violation of rights. This multiple victimisation – where one rights violation can lead to many repeated violations over a lifetime – combined with the barriers stateless people have accessing justice and claiming their rights, makes statelessness a particularly difficult challenge to the universality and indivisibility of human rights.

Similarly, statelessness is also relevant to the SDGs. In the same way as there is a human right to a nationality, SDG Target 16.9 is to “by 2030, provide legal identity for all, including birth registration”. This can be seen as a parallel to human rights obligations related to nationality, identity and birth registration. Thus, the SDGs have the potential to provide a complementary framework to end statelessness. Similarly, the SDGs must be implemented in a manner that does not leave the stateless behind. In other words, the same way that lack of a nationality should not be a barrier to human rights protection, it should also not be a barrier to accessing development on equal terms.

For actors in the ‘statelessness field’, their work is commonly categorised under the pillars of identification, prevention, reduction (with the ultimate aim of eradication) on the one hand, and protection on the other. The UNHCR led #ibelong campaign to end statelessness and its Global Action Plan has ten action points, many of which relate to the human right to a nationality, identity and birth registration and consequently, to SDG 16.9. Similarly, ongoing work on protecting the stateless relates to other human rights principles and SDGs related to education, health, work, equality, poverty etc.

Thus, there is a happy alignment of the different frameworks and discourses, which gives us the opportunity to nimbly move across and between fields, developing arguments that resonate widely and strategising to address statelessness through human rights and development mechanisms. For this to be effectively done though, there is an impetus on actors from all of these fields to learn to speak the same language, and to translate vocabularies across different frameworks.

3. Points of divergence

There are significant points of divergence as well. Human rights obligations are justiciable (though the challenges are many), whereas the SDGs are aspirational. As a result, the development framework may have a further reach. However, it is important to guard against situations in which the aspirations of the development agenda fall short of human rights obligations, thereby undermining human rights standards. it is of concern that the draft indicator to SDG 16.9 - “… children under 5 whose births have been registered …”, is less ambitious than CRC Article 7: “the child shall be registered immediately after birth”. The other key point of divergence, is that human rights law allows for some differential treatment between nationals and non-nationals (to the disadvantage of the latter), whereas the SDGs take the opposite (and fairer) approach of not discriminating against migrants or non-nationals, but clearly articulating that the most vulnerable should be reached first. Thus, when resources are scarce, there is a strong argument to be made for starting with the worst off – even if these are non-nationals.

4. Combatting discrimination and promoting equality through the SDGs

The mutually reinforcing relationship between statelessness and discrimination and inequality, should be taken into account if statelessness is to be systematically addressed through human rights and development frameworks. The rights to equality and non-discrimination are well entrenched in international, regional and most national laws. Most states also have Constitutional Bills of Rights which are justiciable and which protect the right to equality and non-discrimination.

Development can be ‘simplistically’ viewed as a question of “is there enough for all?” The more difficult but appropriate question may be – “is there willingness to include all?” This is particularly so in the case of statelessness that has arisen out of discrimination on grounds such as race, religion, national origin, etc. When stateless persons are seen as ‘the other’, the socio-political consensus is for their exclusion and not for their inclusion. In such contexts, the ‘development’ of such communities will yield little by way of political gain and may even be a controversial and unpopular act which the state will try to avoid.

The development agenda will only succeed in leaving no one behind if it is complemented by dedicated action to engage and counter entrenched socio-political attitudes and stereotypes. Indeed, a rights based approach to development calls for engagement with populations that are heavily discriminated against and excluded, such as indigenous groups, minorities, migrants, the disabled and the stateless. Importantly, these groups need to find effective ways to work together to promote their collective inclusion.

Ensuring that the stateless are included and not left behind is both logical and necessary for the development project under the SDGs. Equally important and perhaps even more so is engaging with majority populations and state structures that are the source of dominant societal attitudes which justify the discrimination and exclusion of the stateless. Challenging dominant negative stereotypes and prejudices is essential.

5. Intergenerational statelessness and positive action

One of the biggest challenges that statelessness poses to the development agenda (and indeed the human rights framework), is that communities that have been stateless for many generations, have increasingly been ‘left further behind’ with each new generation. Malnourished and uneducated children grow into unemployed adults, who have less to offer their own children than their parents had to offer them. As the general trend of the world is one of children having access to more and being higher educated than their parents, the trend with intergenerational statelessness can be exactly the reverse. Unless intergenerational statelessness is directly addressed, the gap between the stateless and those with a nationality (including those who live in the same communities as stateless persons) can only widen.

Thus, while it is important to document, to provide healthcare, to educate, this alone is not sufficient. Historical disadvantage can only be redressed through more targeted positive action that takes into account the cumulative impact of intergenerational statelessness and offers the new generation as fair a chance as possible of competing on equal terms.

While the notion of ‘positive action’ is common parlance in the human rights discourse, this is less familiar territory for the development world. However, the motto ‘no one left behind’ will only be truly achievable if historical disadvantage is taken into account and substantive equality pursued. Consequently, there is likely to be a steep learning curve for development actors who seeking to pursue the Sustainable Development Agenda in a meaningful manner. It would be essential that human rights actors weigh in, to help development actors mould and target their activities accordingly, and to ensure that this is the basis for further complementarity and collaboration.

6. Development, socio-economic rights and the stateless

Traditionally, development efforts most obviously overlap with socio-economic rights, which set out the minimum core socio-economic standards that states are obligated to provide to all persons on their territory. The International Covenant on Economic, Social and Cultural Rights is the principle human rights treaty which sets out socio-economic rights, but other treaties (Convention on the Rights of the Child, Convention on the Elimination of All Forms of Discrimination Against Women, Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, etc.) also contain important socio-economic rights related provisions.

There is often little political incentive (and perhaps even strong disincentive) for states to support the development of stateless persons. The aspiration to leave no one behind and to reach the furthest behind first, requires development actors to find creative and sustainable ways to incentivise states to ensure that stateless persons and other similarly disadvantaged and marginalised groups are included, consulted, reached and empowered to exercise their rights in relation to development. Emphasising the link between development priorities and human rights obligations, can be an important strategy in this regard.

7. Stumbling blocks

There are some common ‘stumbling blocks’, which historically have served as barriers to people – particularly vulnerable and marginalised people - accessing rights and services. In the context of stateless persons, or those at risk of statelessness, the lack of documentation and the lack of a ‘legal status’ are two of the most visible, significant and seemingly insurmountable stumbling blocks. Other stumbling blocks, such as language, race, gender, etc., can have an equally debilitating impact, but often play out in a subtler manner. Discrimination on such grounds that undermines access to socio-economic rights often manifests through ‘proxy reasons’ such as the lack of documentation, which can be presented as a more objective, bureaucratic and fair basis on which to deny people access to their rights, than overtly referring to their race or language or gender.

These stumbling blocks do not only serve as barriers to accessing the rights or services being sought by the individual; they can also bring the individual to the attention of the authorities, resulting in the violation of other rights. For example, an undocumented migrant who seeks healthcare, risks being denied the healthcare he or she needs, and being criminally charged for violating immigration law (in some countries, immigration violations are criminal offences), and being detained and subject to removal proceedings. When the individual is stateless and irremovable, this is likely to lead to other human rights violations as well.

A paradigm shift is required in how these stumbling blocks are perceived and approached. Instead of seeing the lack of documentation or legal status as legitimate reasons to deny people their rights and access to development, the emergence of this information in the specific context of them attempting to access another right, should trigger a process which results in their documentation or status also being addressed and resolved. In addition to ensuring that more stateless and similarly disadvantaged persons will benefit from development programmes, this approach will also:

1. Strengthen the rolling out of SDG 16.9 and other SDGs which require structural change, by identifying disadvantaged, excluded and discriminated against individuals and groups when they come into interaction with the state for very ‘normal’ reasons.
2. Minimise the risk of increasing the divide between those who have the ‘right’ type of documentation, and those who have the ‘wrong’ type or no documentation at all.
3. Closer align the human rights and development frameworks and contribute to strengthening state observance and compliance with treaty obligations.

8. Achieving structural change related to statelessness

Arguably, the most revolutionary aspect of the SDGs, is that many of them go beyond the ‘standard’ delivery of development aid, to require the scrutiny and reform of discriminatory and exclusive legal and societal structures.

While many of the SDG targets across the different goals require (or depend upon) structural change in some form or other, there are three Goals which stand out for what they set out to achieve, and how this in turn relates to statelessness:

• SDG 5: Achieve gender equality and empower all women and girls
• SDG 10: Reduce inequality within and among countries
• SDG 16: Provide peaceful and inclusive societies for sustainable development, access to justice for all and build effective, accountable and inclusive institutions at all levels

All three of these Goals and the targets they contain are strongly aligned with existing human rights obligations. They address some of the root causes of statelessness (in particular, discrimination in all its forms) as well as the key factors which further disadvantage the stateless. Furthermore, they provide important avenues for structural and institutional change, which can create a more conducive environment to confront and effectively address statelessness, and to ensure that stateless people are treated more fairly and equally by society.

One of the challenges that development actors are likely to face in their efforts to implement these SDGs, is resistance from states when raising questions about structural inequality, when they have previously been welcomed by those very same state actors, for example, when offering to construct schools. The relationship that states have historically had with human rights actors has been more fractious and confrontational than the relationship between states and development actors. This is because states see more tangible benefits through the work of development actors, whereas human rights actors are more likely associated with uncomfortable questions and notions of encroachments on state sovereignty. However, in the absence of efforts to address structural change, the Millennium Development Goals largely failed to address crucial issues of inequality, discrimination and exclusion, ultimately undermining the sustainability of development efforts.

In this context, it is significant that the SDGs also include structural issues. It will require some adjustment in strategy and approach, as development actors begin occupying this more difficult territory, which is likely to bring with it more closed doors and challenges to their mandate and legitimacy. It is of crucial importance that this adjustment is handled properly. The danger if not, is that certain SDGs and targets will get left behind. A fractured approach through which – not the full package, but its component elements – are separately offered to states, will allow states to pick out the development activities which they see as non-threatening and beneficial, while pushing back on those which promote structural change. As development actors are ready to ‘run’ with the activities they have been implementing for decades, but face a steep learning curve with regard to others, this is a very tangible danger.