Statelessness in Southeast Asia: Causes and Responses

Christoph Sperfeldt (Peter McMullin Centre on Statelessness, Melbourne Law School). This blog is a summarised version of a paper published in the East-West Center’s Asia Pacific Issues series. A more detailed account is also available in a book chapter jointly co-authored with Dr Rodziana Mohamed Razali.

UNHCR estimates that at least 4.2 million people around the world are not considered a national by any state. This is likely to be a significant under-estimate as fewer than half of all states report any data on statelessness. Around 40 per cent of the known global stateless population live in the Asia Pacific region, with Southeast Asia harbouring the largest populations. With over one million stateless people, the Rohingya from Myanmar – now displaced across Myanmar, Bangladesh and other locations in the region – remain the most prominent case. UNHCR also reported large stateless populations in Thailand (475,009), Malaysia (108,332), Cambodia (57,444), Vietnam (30,581) and Brunei (20,863). Due to deficiencies in data collection, the actual numbers are likely higher.

‘Statelessness’ is legally understood as not being recognised as a national by any state under the operation of its law. The central international legal instruments are the two statelessness conventions, the 1954 Convention relating to the Status of Stateless Persons, and the 1961 Convention on the Reduction of Statelessness. Southeast Asian states have a poor record in ratifying these conventions: only the Philippines has acceded to the 1954 Convention, and none have become party to the 1961 Convention. However, other human rights treaties with higher accession rates in the region, such as the Convention on the Elimination of all Forms of Discrimination Against Women and the Convention on the Rights of the Child, stipulate important safeguards against statelessness. Moreover, the ASEAN Human Rights Declaration provides under Article 18 that “every person has the right to a nationality as prescribed by law”.

Over the past decade, momentum has been building to tackle statelessness as an issue of global concern. UNHCR has launched an ambitious campaign, the so-called iBelong Campaign, with the goal of eradicating statelessness by 2024. Moreover, in 2015, UN member states agreed to include a target in the Sustainable Development Goals (SDGs) which aims to ‘provide legal identity for all’ by 2030, focusing on birth registration. The most robust legal identity remains nationality, as it is still the key to accessing many rights and protections.

Causes of statelessness

The long shadow of colonial rule: Ethnicity, nationhood and citizenship are Western-derived concepts that were embraced and modified by Southeast Asian countries during and after colonial rule. Many state-building projects were confined to borders arbitrarily drawn by colonial powers and have since witnessed a dynamic process of (re-)formulating citizenship regimes, often nurtured by inter-communal tensions that had been exacerbated during colonial times. It was at this point that social exclusion turned into the legal-political form of ‘statelessness’. Nowadays, the legal frameworks on nationality in the region are shaped by a prevalence of jus sanguinis modes of nationality acquisition.

Discriminatory policies and practices: Many situations of statelessness have their roots in discriminatory regimes or practices which exclude certain groups from the citizenry. It is no coincidence that 75 per cent of the known stateless populations worldwide belong to minorities. The majority of stateless populations in Southeast Asia are minorities who live in the country in which they were born. Examples of such in situ statelessness are the Rohingya in Myanmar, so-called Hill Tribes in Thailand, certain Vietnamese minority populations in Cambodia or former Chinese immigrants in Brunei. The discriminatory provisions in Myanmar’s 1982 Citizenship Law are just the most obvious example of many in the region. In other contexts, laws may be well drafted but their application has consistently shown discriminatory patterns. Well-documented examples include the difficulties faced by stateless Vietnamese in Cambodia in accessing birth registration, not to mention nationality.

Gender-discriminatory nationality laws: A specific form of discrimination are laws that do not afford equal nationality rights for men and women.Brunei and Malaysia are among the countries in the region that still apply gendered nationality laws. In Brunei, only fathers are allowed to confer nationality on their children. Such provisions have particularly affected children born of mixed marriages or those born outside the territory of their state.

Deficiencies in civil registration systems: Weak civil registration systems are another factor contributing to statelessness. Shortcomings in birth registration expose children to risks of statelessness as they leave them without proof of parentage or birth in a country, all of which constitute vital facts for claiming nationality. The rates of birth registration vary greatly across the region, ranging in 2014 from 62 per cent in Cambodia and 67 per cent in Indonesia to 96 per cent in Vietnam and 99 percent in Thailand. Common barriers to registration include lack of awareness, inaccessibility of registration systems, or corruption.

Cross-border mobility: ASEAN is a region with rising cross-border labour migration. It contains both countries of origin (e.g. Myanmar, Indonesia, the Philippines and Cambodia) and destination countries (e.g. Singapore and Brunei), as well as countries of both origin and destination (e.g. Thailand and Malaysia). Irregular migration has formed around 40 percent of the total size of migration. Human trafficking has also exposed affected individuals to risks of statelessness. A lack of legal protection, limited rights for temporary workers and low registration rates among migrants often create conditions where children grow up without proof of legal identity, putting them at risk of statelessness.

Mobile lifestyles: Marine mobile populations or ‘sea nomads’, such as the Moken of the Andaman Sea, and the Bajau Laut of the Sulu Sea, have lived historically (semi-)mobile lifestyles. State-based nationality laws and registration grounded in a system of fixed territorial links struggle to capture the particularities of such populations.As a result of their past or present mobile lifestyle and ongoing discrimination, many Moken and Bajau Laut are not recognised as citizens by the states on whose territory they live.

Inadequate legal safeguards: Many nationality laws in the region have insufficient safeguards to prevent statelessness. This has caused statelessness in cross-border marriages, such as in the case of marriages between Vietnamese women and foreign men, mainly from East Asia. Many Vietnamese brides and their children became stateless when they had to renounce their own citizenship in order to acquire the nationality of their foreign husbands, but failed to attain a new nationality. Protections for foundlings through nationality attribution of the country on whose territory they are found is absent in the nationality laws of some countries in the region.

Responses to statelessness

Some governments are recognising the problem. In 2016, the Thai government expressed its commitment to achieving ‘zero statelessness’ and, in 2017, the Philippines launched a National Action Plan to end statelessness by 2024. Given the low accession rates to the statelessness conventions as well as the lack of regional frameworks, much of the heavy lifting to solve the problem will have to be done at the country level. Policy responses have focused on identifying affected persons, improving civil registration, law reforms, and facilitating naturalisation.

Identifying affected individuals and groups: Data on stateless persons are hard to come by due to lack of commonly agreed definitions, logistical barriers, or simply lack of political will to address the problem. This impedes the formulation of effective policies. Yet, there are positive examples, such as Thailand, the Philippines and Malaysia, where both government and NGO-led initiatives to identify stateless or at-risk persons led to an improvement in the level of data on affected populations.

In 2005, Thailand adopted the ‘National Strategy on Administration of Legal Status and the Rights of Persons’ with the objective of ensuring non-nationals obtain a legal status. Together with an amendment to the civil registration act, in 2008, this allows stateless or undocumented persons to be recorded by the authorities and issued an identity document, which enables them to access basic rights such as health care. For undocumented migrant workers, Thailand established a nationality verification scheme in cooperation with countries of origin, especially Cambodia, Lao PDR and Myanmar.

Another example of cross-border collaboration is the Philippines, where the government, in partnership with the Indonesian government, carried out a mapping exercise, from 2012 to 2014, to resolve the citizenship status of thousands of long-term residents of Indonesian descent. By 2019, more than 90 per cent of the 8,745 registered individuals had their citizenship confirmed. The Philippines has since gone one step further and established, in 2012, a statelessness determination procedure, which enables the identification and recognition of stateless individuals.

An example of governmental and non-governmental collaboration has come from Malaysia. This concerned the identification and registration of stateless Indians of Tamil descent, who had migrated to Malaysia during British colonial times. Efforts at documenting this population had been carried out by a local NGO, the Development of Human Resources in Rural Areas (DHRRA), with support from UNHCR and the Malaysian government. Since 2014, DHRRA’s community-based paralegal program documented the cases of around 12,350 individuals and assisted with registration and nationality applications.

Expanding civil registration: In 2014, states in the region proclaimed the Asia Pacific Civil Registration and Vital Statistics (CRVS) Decade with the goal of improving civil registration systems by 2024, including achieving universal birth registration. These initiatives have reinvigorated CRVS efforts. After reforming its civil registration law and providing a more flexible registration system, Thailand now has the highest birth registration rate in the region, with Vietnam and the Philippines following closely. Yet, replicating this success has been challenging, especially in states with high income disparities, such as Indonesia, Cambodia, and Myanmar. Even in countries with high registration rates, persistent pockets of low registration exist, mostly affecting marginalised and hard-to-reach populations. Discrimination, inequalities, hidden costs, linguistic and logistical barriers, as well as difficulties with late birth registration, all pose challenges for achieving universal birth registration.

Reforming laws and improving legal protections: Tackling deficient or discriminatory nationality laws can improve protections for those affected by statelessness. Indonesia’s post-Suharto nationality law reform, in 2006, removed a differentiation between ‘natives’ and ‘non-natives’ in the law and thereby reduced barriers faced by minorities of Chinese and Indian descent in confirming their nationality. This law reform also addressed the situation of Indonesian migrants living overseas, who would no longer lose their citizenship if that would render them stateless. In 2008, Vietnam instituted legal reforms that enabled restoration of Vietnamese nationality to women and children from cross-border marriages, and also enacted a condition requiring renunciation of citizenship to be subjected to confirmation that a new nationality was obtained. Furthermore, many states have now enacted laws that protect foundlings against statelessness.

Reducing statelessness through naturalisation: Given the scale of statelessness in Southeast Asia, prevention alone will not suffice. One solution entails facilitating the acquisition of nationality through naturalisation. This is particularly true for cases of in situ statelessness, where the only viable solution is the acquisition of the nationality of the country in which people have resided for generations. Effective responses to in situ statelessness, such as in Myanmar, have yet to be developed. In 2015, Cambodia embarked on a census among its Vietnamese minority, although it remains unclear whether this will result in a pathway to Cambodian nationality. Vietnam resolved the situation of more than 10,000 refugees from Cambodia, who fled during the 1970s and were not considered nationals by the Cambodian government. After requirements for documentary proof were eased, since 2010, these former displaced populations have been able to acquire Vietnamese nationality.

Putting in the hard yards

Statelessness remains a widespread problem in Southeast Asia. However, growing interest by states is an acknowledgment of the detrimental effects such exclusion has on economic development, social cohesion and stability. The initiatives undertaken during the past decade have led to the reduction of statelessness in some states. While the Philippines has thus far been the only state in the region which has aligned itself with relevant international legal frameworks, Thailand and Vietnam both show that determined government action is the key to resolution. However, enhanced efforts at identification are also making more affected populations visible. Moreover, persistent problems remain regarding protracted situations of in situ statelessness – often nurtured by longstanding discrimination, such as in Myanmar and Cambodia – and the continuous growth of intra-regional migration. Addressing these problems calls for upscaling many of the responses identified in this blog, including further awareness-raising, capacity development among officials and more generous naturalisation programs for long-term resident populations without proof of nationality.

Such action requires political will, long-term strategies and the mobilisation of a broader coalition of actors. While regional knowledge exchange on CRVS is already well-advanced, the ASEAN Intergovernmental Commission on Human Rights and the ASEAN Commission on the Promotion and Protection of the Rights of Women and Children have called for more regional cooperation to tackle statelessness. UNHCR has become an important partner for technical assistance to governments and NGOs. Non-governmental actors have also moved closer together, including by forming the Statelessness Network Asia Pacific in 2015. The attention of these actors will now have to focus on addressing the more politically-sensitive situations that cannot be resolved through technical assistance and law reform alone. In a region where state sovereignty frequently prevails over international frameworks, collective efforts need to be tailored to specific country contexts and engage states’ underlying concerns and sensitivities with respect to the social inclusion of particular individuals and communities.