A reflection on the developments in the global political climate over the past decade would reveal two defining characteristics: first, the rise of notorious right-wing governments worldwide; and second – a corollary of the first – the amplification of the “us vs. them” mentality held both within and among nations. An insidious manifestation of these trends has been the discrimination and persecution of minorities, which has in turn resulted in a mass exodus of such people rendering them stateless. Recent data – which is admittedly not comprehensive – would suggest that there are at least 10 million persons who are presently stateless. This article aims to highlight the increasing tendency of democratic countries to subvert the rights of their minorities through discriminatory citizenship laws, which further violate their obligations under various international law instruments.
II Democratic Nations, Despotic Laws
The following examples shall illustrate how the “due process of law” can be misused to enable the systemic subversion of minority groups through discriminatory laws and policies on citizenship.
The most recent example of this trend can be found in the world’s largest democracy – India – which is presently ruled by the right-wing Hindu nationalist BJP government. India’s new citizenship law disguises itself as a beneficial legislation – it purports to confer citizenship to such persons compelled to seek shelter in India due to persecution by States on the ground of religion. However, one cannot ignore the exclusion of only one religious community from the scope of its protection – Muslims. The Citizenship Amendment Act also fails to include migrants from non-Muslim countries, albeit the fact that they might be fleeing persecution, particularly Rohingya Muslim refugees from Myanmar, Hindu refugees from Sri Lanka, and Buddhist refugees from Tibet, China. This is despite the fact that documents such as the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR) expressly prohibit discrimination in naturalisation or grant of citizenship on the grounds of race, religion or country of origin. While the law in itself is problematic, it also forms the basis for further exclusion. For example, the incumbent government has suggested that they would carry out an exercise to create a “National Register of Citizens”, which would be a record of all the citizens of India. Even if one was to assume that the intentions of the government are not ill-founded, a mere error of even one percent in the preparation of such a list would delegitimise nearly 13.5 million people of the country, affecting the most marginalised communities with weak paper documentation or understanding of their rights, and of course, the Muslim community. As of today, ‘detention centres’ have already been built and are in the process of being built, with the speculation that they are for the purpose of “processing” such persons who are not able to evince their citizenship.
- United States of America
It is not always the law itself that is discriminatory, but the process involved that ultimately fails to uphold the principles of equality. The Immigration and Nationality Act is unequivocal inasmuch as it states that there shall be no discrimination based, inter alia, on race and religion in granting citizenship to persons. The rules further state that the application for naturalisation ought to be processed within a period of 6 months. However, in 2008 a covert program termed the Controlled Application Review and Resolution Program (CARRP) was launched, by which the application for naturalisation for persons originating from Middle Eastern, South Asian, Arab or Muslim heritage could be delayed for up to several years on the ground of suspicious terrorist activity. The gross misuse of this program has been highlighted in several cases where the process for acquiring citizenship for such minority groups has been delayed for several years, only to find no evidence to support the suspicions of the investigating agency. The communal intentions of the current US Government led by President Trump are made clearer in light of the Executive Order 13769, later replaced by Executive Order 13780, which bans the entry of citizens hailing from certain countries – most of which have a Muslim majority. In fact, the US Supreme Court has also upheld the constitutional validity of this law. A notable effort was made by the introduction of the 2019 New Deal for New Americans Act by a Democrat Congresswoman, Grace Meng, although the bill is not likely to find support in a Senate with a strong Republican majority.
- Dominican Republic
Another alarming example can be found in the actions of the Dominican Republic targeted against its Haitian-origin citizens. Their law granted citizenship to anyone born on Dominican soil – except children of diplomats from other countries, or persons ‘in-transit’. The Dominican government grossly misused the latter exception by arbitrarily asserting that anyone hailing from Haitian descent would classify as an individual in-transit. Observing the illegality of this law, the Inter-American Court of Human Rights (IACHR) ruled that such a distinction was not only against the standards of international human rights, but was violative of the Dominican Constitution itself. What ought to have shook the conscience of the Dominican government only created greater discord – pursuant to this ruling, the Dominican Republic’s Constitutional Court declared that the State’s recognition of IACHR’s contentious jurisdiction was unconstitutional and that the said ruling was not binding. While there has been no formal denunciation of the treaty by the State, the government has through legislative and judicial acts continued to exclude all persons from Haitian descent from the scope of its citizenship. Similar to what India now plans to do, a list of “foreigners” was prepared, consisting primarily of Haitian-origin persons, thereby changing their status from nationals to aliens. There have been mass deportations, denial of basic documentation as well as stripping of documentation, and detention of such persons over the past few decades, with nearly no attention or condemnation from the international community.
- European Union
The European Union stands on a different footing, where several Member States have adopted ‘Immigrant Investor Programmes’, which create a more classist and capitalist approach to citizenship. This is commonly understood as the commercialisation of citizenship, as rich foreigners are granted citizenship to the said member state based either on an investment in the public sector or simply by paying a minimum amount to the government. Observing this policy in light of the increasingly stringent measures that are being implemented against refugees paints a poor picture of the direction that the apparently more liberal European Union is taking in this regard. It raises the question: are human rights subservient to the so-called economic development of these countries? Unfortunately, the above examples are far from exhaustive as more countries continue to adopt similar practices.
III International Law and the Right to Citizenship
What solution then does international law provide to the increased legitimisation of xenophobic practices being adopted by States? The Dominican Republic example unfortunately reflects that international treaties and dictums of international courts can be disregarded by States without any adverse consequences. There are several treaties that certainly protect the concerned rights on paper – notably, Article 15 UDHR recognises that everyone has the right to a nationality and further that no one can be arbitrarily deprived of such right. Similarly, Article 24 ICCPR recognises the right of every child to acquire a nationality – a concept which has now been butchered by the Dominican Republic. However, these texts have at present been reduced to mere academic arguments and sentiments with little to no enforcement. It may be noted that neither India and the USA nor the Dominican Republic are parties to the 1954 Convention Relating to the Status of Stateless Persons, which sets out specific rights of stateless persons. Neither have these countries ratified the 1961 Convention on the Reduction of Statelessness. To the contrary, they continue to play pass-the-parcel with respect to whose obligation it would be to grant citizenship to an individual – while one cites national security as a defense, the other State cites its sovereignty.
Political and economic capital within the international community is the only incentive that States can offer to regulate the enforcement of even the most basic of human rights – such as the right to have nationality rights. The laws and processes discussed above echo the features of the Reich Citizenship Law of Hitler-ruled Germany, where persons with Jewish ancestry were stripped of their German citizenship. Similar patterns of systemic discrimination can only be thwarted by other States imposing strict sanctions and regulations against countries adopting such laws. Domestic law should not operate in a manner that leaves individuals in a vacuum without any basis to assert their existence – and the international community should not be mere spectators if it does.