Kuwaiti Legislations Related To Stateless: An International Law Evaluation

 

Introduction:

Citizenship is a fundamental human right upon which other fundamental human rights are relying.

. For instance the Kuwaiti Constitution specifies few articles to deal with citizenship issues,[1] and the National code of Citizenship was created for such purpose.[2] However, both sources of regulations failed to deal with citizenship without side effects. For instance, an increasing number of stateless people in Kuwait are prevented from basic human rights, and Kuwaiti citizens who enjoy other countries citizenship are threatened to be deprived from the Kuwaiti citizenship.[3]

The citizenship is not a goal itself, but only a path according to which several fundamental human rights, such as rights to work, education, health care, social services… etc., can be accorded.

Citizenship used to be and always is an internal affair regulated by national legislations. Accordingly, the international law is prevented from interfering in the internal affairs of any state, unless there is a severe violation to the human rights’ protection. International law, vis-à-vis to human rights issues, including citizenship, is always in alert position, monitoring the national treatment of human rights, and be ready to interfere whenever there is a national failure in protecting human rights. This harmony between national and international law attribute the priority to examine human rights issues- including citizenship- to the national legal system. The international legal system has no place unless there is a flagrant national failure.

A quick survey to the legal system of citizenship will illustrate unjustified national situations, where in some countries a group of people are completely prevented from the right to citizenship, meanwhile, some other group of people are enjoying more than a single citizenship, which entitle them several human rights in several countries.

Citizenship is not a new issue in the national or the international levels. The approximate number of stateless individuals around the world is 15 million[4], meanwhile another number enjoy double or multi-citizenship.

The occurrence study attempts to examine the citizenship’s issue from a comparative point of view between statelessness and multinational ties, which can, easily, illustrate the unfairness and injustice in dealing with the citizenship issues, especially that when a group of people are suffering and dying as a result from the lack of citizenship some other people are enjoying double protection in different countries. It is unjustified to accord fundamental and non-fundamental human rights to individuals with dual or multi-citizenship, with the knowledge that they are enjoying such rights else where, meanwhile preventing stateless from basic human rights with the knowledge that they do not enjoy such rights any where is also unjustified. Therefore, international law should interfere to regulate such unjustified situation, provoke the principle of equality among humans and prevent any discrimination based on any reason. As long as national legal systems fail to accord citizenship to all individuals under its sovereignty, it should prevent them from enjoying citizenship from other countries. In another meaning, national legal system should not be able to accord citizenship or citizenship’s rights to citizens of another state as long as there are still stateless who are not enjoying any citizenship.

A person not having a nationality under the law of any State is called “Stateless”. He may either be stateless at birth, as a result of the fact that he does not acquire a nationality at birth according to the law of any state, or he may become stateless subsequent to birth by losing his nationality without acquiring another. As a matter of International Law, citizenship and nationality are congruous, although there may be difference between the two concepts in the domestic laws.

The term “Nationality” in the sense in which it is used is a politico-legal term denoting membership of a State. It must be distinguished from nationality as a historic-biological term denoting membership of a nation[5]. In the latter sense itmeans the subjective corporate sentiment of unity of members of aspecific group forming a “race” or “nation” which may, thought not necessarily, be possessed of a territory and which, by seeking political unity on that territory, may lead to the formation of a State[6].

One of the terms frequently used synonymously with nationality is citizenship. Conceptually and linguistically, the terms “nationality” and “citizenship” emphasis two different aspects of the same notion: State membership. “Nationality” stresses the international, “citizenship” the national, municipal aspect[7].

Being Stateless means you do not have any civil rights, such as, personal documents, education, employment or access to medical care. In Kuwait there are around 107 thousand stateless people[8]. Anyone who wants to be a citizen of Kuwait must be registered in the 1965 census. Otherwise he would be considered as illegal resident by the Government[9]. Usually they are Arabs who have long lived in Kuwait and who either have no documentation or do not declare it in order to maximize their chances of remaining in the country. ‘bidouns”, as they are called have suffered discrimination in all avenues where documentation has increasingly come to be required in all aspects of life: education, health, employment and travel[10] .

Bidoun means ‘without’ and connotes those whose legal status is unclear, who are undocumented and may effectively be stateless. Whilst the Kuwaiti Government claims that most Bidouns are concealing their nationalities out of depict, the Kuwaiti bureaucracy was lax about requiring documentation before 1986 and many Bidouns actually worked in the government machinery (especially armed forces), studied at schools, were treated in the healthcare system and travelled freelybefore the tightening up of ID requirements by the Government.

Some Bidouns therefore ‘missed out’ the opportunity to become citizens by not applying in the 1950-60s for registration or may have travelled for work to Kuwait without passports from their countries of origin before its independence.[11]

This study has two aims. It gives an overview of the nature of the nature, backgrounds of statelessness and of the global efforts against statelessness. More importantly. It provides information on the situation of stateless persons in the State of Kuwait, and advances policy suggestions for both improving administrative practices and the institutional groundwork for the treatment of stateless persons, and reducing statelessness. The study canvasses the current international legal regime for the protection and reduction of stateless persons, which is divided into seven Chapters. Chapter 1, Statelessness in International Law is dealing with rights and duties of stateless guaranteed in a state. Chapter 2, Statelessness in International Law Instruments, deals with the specialized instruments meant for statelessness as well as other generalInstruments that spot light over statelessness. Chapter 3, International Law in Kuwait Legislation, gives glimpses of the influence of International Law in Kuwait Legislation with regard to statelessness. Chapter 4, The Role of International Organisations in Fighting Statelessness, deals with different International organizations that fight to protect and decrease the problem of statelessness. Chapter 5, Citizenship Laws in International Law, deals with the types of citizenships and the laws dealing with such citizenships in the International sphere.  Chapter 6, Citizenship Laws in Kuwait, deals with the influence of citizenship laws over statelessness prevailing in Kuwait. Chapter 7, Conclusion, deals with the conclusion to the above study.

1. STATELESSNESS IN INTERNATIONAL LAW:

 

Stateless is the opposite of citizen, which identify someone “who is not considered as a national by any state under the operation of its law,”[12] or “any person who is not considered as a national by any state through its nationality legislation or constitution.”²[13] Accordingly, citizenship is subjected to the national legislation of each state, which may create bizarre situations, such as stateless. International law may only intervene in the internal affairs, to assure the enjoinment of every one of basic human rights and services, where number of stateless live and die “unprotected and unrecognized.”³[14]

Stateless exist in most of the states, such as Kuwait, United Arab Emirates, Taiwan, Saudi Arabia … etc. This phenomenon appeared as a result to the weakness of the national legal systems, which cannot, or do not want to, cover all the actual subjects under its umbrella. Stateless issue would not appear to the surface if all individuals are enjoying their basic human rights, but the systematic violation of such rights and the negligence of the local authorities were always behind the escalation of such matter to reach the international level. Stateless used to live in Kuwait for ever, and the issue was never come up to the surface, because they used to enjoy their rights almost like citizens. When Iraq invaded Kuwait, a number of stateless supported and joined the Iraqi armed forces, which spotted the light over their legal situation in Kuwait, especially that their presence cost the government a considerable amounts for their education, healthcare, work and social services.

So, it was an opportunity to get rid of such financial costs by making pressure and pushes them to find another hosting country. This policy was successful in decreasing the number of stateless to the minimum. Today, the number of stateless in Kuwait went down from 500.000 stateless to 130.000 stateless. The lack of codification of stateless imposes them to sever violations of human rights, such as sexual trafficking, illegal exploitation, theft, and child trafficking.

International law does not differentiate between humans, and seeks human rights protection without regard to neither the beneficiaries nor discriminating among them.

Some states, such as Kuwait, under the pretext of national security, restrict nationalization. Meanwhile, nationalization policy is always recommended and serves the national security, because some crimes, if committed by nationals will be harshly prosecuted, but if committed by foreigners or stateless, the punishment will be attenuated.  For instance, espionage and high treason are subject to harsher punishment if committed by citizens than if committed by non citizens. Article 41 of the Additional Protocol to the Four Geneva Conventions provides that “3. A member of the armed forces of a Party to the conflict who is a resident of territory occupied by an adverse Party and who, on behalf of the Party on which he depends, gathers or attempts to gather information of military value within that territory shall not be considered as engaging in espionage unless he does so through an act of false pretences or deliberately in a clandestine manner. Moreover, such a resident shall not lose his right to the status of prisoner of war and may not be treated as a spy unless he is captured while engaging in espionage. 4. A member of the armed forces of a Party to the conflict who is not a resident of territory occupied by an adverse Party and who has engaged in espionage in that territory shall not lose his right to the status of prisoner of war and may not be treated as a spy unless he is captured before he has rejoined the armed forces to which he belongs.”[15]Moreover, the Kuwaiti Criminal Law No. 31/1970 modifying the criminal law provides in article 1(B) that “Any Kuwaiti join hold arm against Kuwait or join armed forces in status of war against Kuwait will be punished with the death penalty.”[16] The threat will increase if stateless are working in sectors related to the national security, such as Minister of Interior, Armed forces and National Guards, which is the case in Kuwait.

International Law guarantees certain rights and duties for the Stateless. In the following sub sections of this chapter, we shall have a glimpse of the rights and duties of the Stateless people.

1. Stateless Rights:

“Every person has the right to a nationality. Every person has the right to the nationality of the State in whose territory he was born if he does not have the right to any other nationality. No one shall be arbitrarily deprived of his nationality or of the right to change it”[17]

The rights guaranteed by International Law to the Stateless are:

1. Non-Discrimination Against Stateless:

 

In language, culture and social customs the Bidouns are essentially indistinguishable from that of Kuwaiti citizens. Under the Kuwaiti Law, nationality is passed through the father to the children but not through the mother unless she is either widowed or divorced. As a result children born to a Kuwaiti woman and her Stateless Bidoun spouse are considered as Stateless[18].

Lack of citizenship contributes to cycles of poverty and vulnerability. Unable to locate a birth registration or citizenship document, children are unable to attend schools. They may fall victims of abuse and exploitation including gender- based violence, trafficking in persons, and arbitrary arrest and detention.

 

Until the mid of 1980’s even though they were denied automatic nationality, the Bidouns were treated as lawful residents of Kuwait, whose claim for citizenship was under consideration. In 1985, the government began applying provisions of the Alien residence Law 7/1959 to the Bidouns and subsequently issued a series of regulations stripping them of almost all the previous rights and benefits. In 1985, the government restricted the Bidouns’ rights for travel documents and fired many of the Bidouns employees (except from that of police and military.) who could not provide valid passport; private employees were also included in this. In 1987, the government began to refuse the Bidouns from automobile registration and application for driving, thereby restricting their freedom of movement. In the same year, the Bidoun children were deprived of attending schools and in 1988, this was extended to the Universities.[19]

Despite the fact that many Bidouns have lived in Kuwait for generations, have effective links to e national society, and reasonably consider Kuwait as their home Country, their access to Kuwait citizenship is increasingly blocked.

2. Protection of Rights Of Child:

 

Affirmation of rights of child has become a matter of International concern now a days. Child abuses and trafficking in children are increasing day by day. Hence various Organizations such as the Organization of African Unity[20] (now the African Union) adopted the African Charter on the Rights of Child³[21]. Modeled on the convention on the Rights of Child, the Charter shares some key principles with that early treaty, including non- discrimination and the primary consideration of the best interest of the child. Article 6 of the Charter, which focuses on name and nationality, asserts that:

1. Every child shall have the right from his birth to a name;
2. Every child shall be registered immediately after the birth;

• Every child has the right to acquire a nationality; State parties to the charter shall undertake to ensure that their constitutional legislature recognizes the principles according to which a child shall acquire the nationality of the state in which he is born if, at the time of the child’s birth, he is not granted nationality by any other state in accordance with its laws.[22]

In Kuwait Bidoun Children are deprived of the right to nationality as well as right to education. A recent incident is that: a group of Bidoun students were deprived of attending their evening classes (Abdullathif  Al Shamlan middle School and Al jahra School) this October[23]. The Government Ministries continues to restrict Bitouns’ rights to access continues to restrict Bitouns’ rights to access different services.

If statelessness prevents adults from accessing wide variety of rights, such as marriage, real estate ownership, employment and political rights, it is devastating issue for children, where they will have no access of basic human rights such as right to identity, education and health care. All States shall accord to stateless children within their territories treatment at least as favorable as that accorded to their nationals with respect to freedom to practice their religion and freedom as regards the religious education of their children.[24]National and international laws accord right of education to all children without regard to their parents’ legal status.

Since public schools are prevented from accepting stateless children, in the recent years, a Kuwaiti fund was established, by charitable organizations, to accord stateless children the right to enjoy educational rights in private schools. In accordance with this trend some countries provided all children with educational rights without regard to their legal status. Among those countries Thailand, which adopted the policy of “Education is for all” includes those who lack Thai citizenship.[25] But when school officials in Thailand “stamp their diploma with bright red letters indicating that the student is not a Thai citizen”[26]violate other rights, because normally educational rights lead to right to work, which may be affected by such stamp.

3. Right to Speedy Trial on the Matter of Stateless Legal Status:

 

Right to speedy trial is regarded as a fundamental right of an every person. It should be regarded as a Constitutional Right. All International Instruments guarantee the right to have a fair and speedy trial for a person.

A reasonable time limit to decide about the legal status of stateless is primordial issue, where some governmental process may last for decades. For instance, in Kuwait, some stateless cases, even after forty years are not solved yet. In Thailand, the process to receive recognition and documentation of their status, can take almost five years for a citizenship application to be processed.[27]

The question that might arise is what is the time limit that can be described as reasonable? There is no criterion to indicate the reasonable time limit, but no one can argue that forty years is not reasonable time limit. Today, in Kuwait, the fourth generation of stateless is born, and their status is not yet settled.

Unfortunately, spreading bribes among governmental workers became an obstacle preventing qualified stateless from obtaining citizenship within the right timeline, unless they pay bribes. On the other hand, unqualified stateless may possess citizenship if they were able to pay bribes. High-ranking personnel are

Involved in such crime, such as members of the family Royal, Ministers, and Parliament members.[28]

 

To avoid political influence, national courts should have competence over the eligibility of citizenship. In Kuwait, some parliament members use the effect of stateless case to affect on electors; meanwhile, some other governmental tie individuals use the need of stateless people and sell them hopes to obtain citizenship.

1. Attributing to the courts the right to decide eligible individuals will prevent any attempt to misuse such humanitarian case. In plus, court’s decisions are based credible documentations and witnesses, and enforceable by all available methods.
2. Some national systems, such as Thailand, attributed such mission to none judicial committees, which is the District Appeal Committee.[29]
3. Nothing in this Convention shall be deemed to impair any rights and benefits granted by a Contracting State to stateless persons apart from this Convention.

1. Personal Status: All rights regarding personal status especially rights attaching to marriage are confirmed by the convention.[30] In Kuwait stateless persons are ineligible to governmental registration of marriage, where Kuwaiti Ministry of Justice abstains from endorsing marriage contracts involving stateless persons, consequently, their children will not be accorded any official documents. Therefore, the only way for them to endure their marriage is to, unofficially, use two witnesses.

1. Property Rights:Property rights, movable or immovable, are accorded by the treaty to stateless persons.[31] The accorded protection should not be less favorable than that accorded to aliens.[32]

1. Industrial Property: Industrial rights include inventions, designs or models, trade marks, trade names, and of rights in literary, artistic and scientific works. Stateless person shall be accorded in the country in which he has his habitual residence the same protection as is accorded to nationals of that country. In the territory of any other Contracting State, he shall be accorded the same protection as is accorded in that territory to nationals of the country in which he has his habitual residence.[33]

 

 

 

Right to speedy trial also means right to fair trial. The right to a fair trial is one of the cornerstones of a just society. Without fair trials, innocent people are convicted and the rule of law and public faith in the justice system collapses.

Fair Trial is defined as a trial by a neutral and fair court, conducted so as to accord each party the due process rights required by applicable law; of a criminaltrial, that the defendant’s constitutional rights have been respected.[34] As a minimum the right to fair trial includes the following fair trial rights in civil and criminal proceedings.

1. The right to be heard by a competent, independent and impartial tribunal
2. The right to a public hearing

• The right to be heard within a reasonable time

1. The right to counsel
2. The right to interpretation

States may limit the right to a fair trial or derogate from the fair trial rights only under circumstances specified in the human rights instruments.[35]Based on the legal and human rights any accused person must have a fair trial with all the guarantees that save and preserve his/her human gains and rights. This is approved by The Kuwaiti constitution and agreed with all the international treaties and conventions, which are ratified by the State of Kuwait.

Rights are considered to be essential for the expansion of human personality. They offer to the individual a sufficient scope for free action and thus prepare ground for self- development.

1. Stateless Duties:

 

Rights become meaningless in the absence of duties. Rights involve obligation as well.  Every right involves a corresponding duty of others. In other words, every right is a duty in itself. If an individual exercises a right, he must bear in mind the same right belongs to others as well.

 

It became clear that statelessness impairs the ability of an individual to function as a member of a society.[36] For instance, in Kuwait number of deadlysacrifice were been made by stateless members of the Kuwaiti armed forces, such as saving the former Kuwaiti Amire, Sheikh Jaber Ahmad Al-Sabah, in the 1980s from a deadly attempt of assassination, which resulted in the death of three Stateless of his personal guards.

Similarly, after the Iraqi invasion to Kuwait, some of the stateless played a major role in escorting the Amire and most of the members of Family Royal to Saudi Arabia, without underestimating their role in resisting the attacking Iraqi armed forces and smuggling Kuwaiti arms and tanks from occupied armed forces to Saudi Arabia. All those scarifies are attributed to the fact that there was no differentiating in the treatment between Kuwaitis and stateless. With new governmental policy, anti-stateless policy, we do not hear nor witness any of those heroism among stateless in Kuwait.

If the national legal system classifies an individual as a Stateless, he will be bound to respect the sovereignty of the hosting country and conform to the national legislations.

 

1. Respect State Sovereignty:

State sovereignty is intangible right in international law, confirmed by the Charter of United Nations. Accordingly, stateless should not enter any part of the country unless permitted. Otherwise no legal right should be established as a result to such violation, unless provided by the international law. Illegal action cannot establish legal rights, except for the children of the violators and within the limits provided by the international law, such as their right to education and healthcare.

Thailand adopted such rule when prevented any person who illegally entered Thailand from being eligible for Thai citizenship.[37]

Respecting the hosting countries’ extends beyond their entrance to the country, to include abstaining from assisting relatives or friends to join them by breaching the sacredness of borders. Most stateless cases in Kuwait were resulted in by assistance from the part of already settled stateless in Kuwait. Kuwait is a bordering Saudi Arabia, Iraq, and Iran, from which the majority of stateless believed to be originated. In 1960s, in synchronism with the economic outburst, smuggling business, from surrounding countries, Syria, and Jordan to Kuwait flourished.

Today, Al-Qaeda, under the pressure of international governmental fight, found that dispirit stateless can be militarized and used to achieve its goals in hosting countries[38]. Earlier, in 1990-91, during the Iraqi invasion to Kuwait, Some stateless were useful to the invader army, providing critical information causing the capture of key figures in the Kuwaiti armed forces and the ceasing of arms in other cases. Some stateless continue to work normally, like the country never been invaded. Some of the traitorous were moving under the will to revenge from the government that mistreat them and the country mis-host them. The traitorous names were left behind by the retreating armed forces and ceased be the liberating armed forced, and used to prosecute them. With the retreating Iraqi armed forces, a great number of stateless traitorous and their families left the liberated country.

 

1. Respect the national legal system:

 

Every hosted individual, citizens, foreigners and stateless are bound by the national laws, regulations, and measures taken for the maintenance of public order in the hosting country.[39] In view to be registered and enjoy human rights and services provided by the hosting countries, stateless should registerthem as provided by the national legislations. In Kuwait, no service can be provided unless certain documents should be presented. However, regulating any matter in the daily life should not reach to the level of preventing it. In another meaning, regulating the legal status of stateless is the state’s right, but such regulation should not cause a barrier preventing the stateless from enjoying their basic human rights.

Prior to the Iraqi invasion to Kuwait in 1990, stateless were treated as Kuwaitis, study in public schools, treated in public hospitals, possess driving licenses, practice the business, enjoy housing services, and security social for members of the armed forces who fought beside Kuwaiti armed forces. After this date, hell was open in the face of stateless and their families. All previous rights were restricted by the security identification, which can only be issued by a new established committee, Illegal Residents Committee (IRC). The declarative purpose of IRC is to identify stateless that deserve citizenship, those who deserve permanent residency, and those who should leave back to their home countries.

The effective goal of IRC is make pressure over all stateless to recognize their home countries if they have one, otherwise to find, by all methods, countries that accept to host them. As a result, a great number of stateless in Kuwait bought citizenships in poor countries, Yemen, Comer Islands, Chad etc, which subjected them to be victims of organized crime who sell them counterfeiter documents, threatening them to be subject to criminal responsibly.[40]

Today, civil identification is the main document that is required by all governmental departments, which cannot be issued without a birth certificate. All Kuwaiti hospitalsprovide birth declaration, which is required for the issuance of birth certificate. However, only the Ministry of Health (MOH), Neonate and Late Department (NLD), that is eligible to issue the birth certificate. This NLD is directed not to issue Birth certificate unless the parent citizenship is indicated. In a stateless case, they have to provide a “To Whom It May Concern” letter from the IRC attesting the nationality of parents. The IRC provides letters with primary guessing of the nationality of parents, which is denied by the parents and consequently shut out the issuance of birth certificate. Number of Court Orders required that the MOH should not delay the issuance of Birth Certificate, because it is a violation to the international law requirements regarding those rights of child to be recognized and have a nationality. This obligation was set fourth in the United Nations Convention on the Rights of Child, to whom Kuwait took part.²[41] On the other hand, abstaining from providing a child a birth certificate is denying a fact that the child is born to those parents, which may qualify him citizenship based his mother’s blood right. So, if the local authorities in Kuwait abstaining from verifying the location of birth, they should not abstain from verifying the parents of the child.

Today, the majority of stateless in Kuwait, as a result to the lack of Civil Identification, have no Driving Licenses, no job, no education, no health care, living in jail after passing the punishment because there are no country accepting to host them, and the government do not want to release them.

Duty is a phrase used to express some sense of moral dedication or responsibility to something or someone. Rights are permissible, communal or moral doctrines of sovereignty or power. As much as rights are important itself- governing they are incomplete without duties attached to them. The relationship between rights and duties is that every right of an entity involves a subsequent duty of others. We shall abide by the rights and duties over a State in which we live for the upliftment and wellbeing of mankind.

1. STATELESSNESS IN INTERNATIONAL LAW INSTRUMENT:

 

Many efforts have been taken by the International Organizations for the elimination or reduction of Statelessness, mainly by treaty, has been frequent. It is obvious that jus sanguinis is more apt to lead to statelessness since it makes it hereditary. The adoption of jus soli as a secondary principle for the acquisition of nationality by jus sanguinis countries, and the adoption of the rule prohibiting loss of nationality except concurrently with the acquisition of another nationality would lead to the elimination of statelessness. So far States have not, however, been willing to accept these rules.

The United Nations has resumed the efforts for the reduction and elimination ofstatelessness. The Commission on Human Rights[42] at its second session in 1947 a Resolution on Stateless Persons. The Universal Declaration of Human Rights, which was prepared by the Commission and adopted by the General Assembly of the United Nations on December 10, 1948, proclaims the “right to nationality.”[43]

It is interesting to note from the foregoing that two different methods have so far been adopted by the United Nations in their efforts to reduce or eliminate statelessness: first, by recommendations on the governments in the form of resolutions adopted by the Economic and Social Council, and secondly, by the preparation of binding multilateral agreements, i.e., the method of international legislation.

International law recognized the stateless and dealt with them as subjects of the international law. Several instruments directed to human rights including stateless, and few other instruments were directed only to the protection of stateless rights. The next few pages will spot light, in the first part, over specialized instruments that were only scarified to the stateless protection. The second part will treat the general instruments of human rights that spot light, among other issues, over the rights of stateless.

1. Specialized Instruments For The Protection Of Stateless

 

The 1954 Convention relating to the Status of Stateless Persons[44] and the 1961 Convention on the Reduction of Statelessness[45] are the key legal instruments in the protection of stateless people around the world and in the prevention and reduction of stateless. While they are complemented by regional treaty standards and International human Rights law’ the two Statelessness Conventions are the only global Conventions of their kind.

1. Convention Relating To the Status of Stateless Persons (CRSSP):

 

1. History of the Convention:

Most of international law documents connect between refugees and stateless,[46] and this connection find its roots in the fact that the Convention Relating to the Status of Refugees, of 28 July 1951, was planned to be annexed with a protocol relating to the status of stateless.

However, the vote of member states, that time, resulted in the separation between both documents.[47] The decision to have a convention instead of a Protocol was taken by 12 votes to none, with 3 abstentions.[48]

1. Stateless Definition:

According to the CRSSP Stateless person is “a person who is not considered as a national by any State under the operation of its law.”[49] In this article the CRSSP excluded individuals

[Receiving from organs or agencies of the United Nations other than the United Nations High Commissioner for Refugees protection or assistance so long as they are receiving such protection or assistance, … persons who are recognized by the competent authorities of the country in which they have taken residence as having the rights and obligations which are attached to the possession of the nationality of that country, … and persons…committed a crime against peace, a war crime, or a crime against humanity, committed a serious non-political crime outside the country of their residence prior to their admission to that country, or been guilty of acts contrary to the purposes and principles of the United Nations.][50]

The content of this article matches the trend of international law, which seeks to protect unprotected individuals, such as stateless. Therefore, individuals enjoying citizenship and consequently protection and assistance from their states and enjoying international organization’s protection and assistance are not treated as stateless. Since the purpose of attributing the stateless status to certain individuals is to assure their protection, any individual enjoying the “rights and obligations which are attached to the possession of the nationality” of the host country will be excluded from the definition.

Moreover, the host country is always eligible to host and provide citizenship to distinguished individuals, and, in the meantime, refuse to host or provide citizenship to criminals, whether international crimes or serious non-political crimes outside their host country and before their admission. Basically, only ideal and distinguish individuals who lack assistance and protection can be treated as stateless.

Any individual that is not included in this definition may not enjoy rights provided by the convention, but this does not prevent national authorities from including certain individuals under their umbrella of protection despite the international exclusion.

1. Exceptional Circumstances:

Despite the importance of stateless rights in international law, most of international law instruments regarding human rights provide member states exceptional authority in special circumstances to trespass over the pre-designed limits. For instance, the International Covenant On Civil and Political Rights (ICCPR) empowers member states to violate certain human rights, and so does the European Convention on Human Rights and Fundamental Freedoms (ECHRFF)[51]. Similarly, the occurrence convention provides member states the same exoneration in times of wars and for national security reasons.[52]

The limited purpose of the CRSSP, which are, to define a class of stateless persons and to regulate and improve their status and to assure them the widest possible exercise of fundamental rights and freedoms. The reduction and elimination of stateless, however, were to require further international cooperation and coordination and harmonization of national laws. This was the role set for the International Law Commission and its work towards the 1961 Convention on the Reduction of Statelessness.

 

2. Convention on the Reduction of Statelessness (CRS):

 

1. History:

 

The 1954 Convention relating to the Status of Stateless Persons had limited purpose, namely, to define a class of stateless persons, to regulate and improve their status, and to assure to them the widest possible exercise of fundamental rights and freedom. The reduction and elimination of statelessness, however, required further international cooperation and would need national laws to be harmonized, “at the earliest possible date the necessary draft international convention or conventions for the elimination of statelessness.[53]

At its 6^th Session, in 1954, the United Nations Law Commission reviewed the special Rapporteur introduced two working papers on present statelessness, one each on elimination and reduction.[54]The Commission discussed an alternative Convention on the Reduction of Present Statelessness”, nothing that the solution laid normally be that of their country of residence. The Special Rapporteur had also proposed that stateless persons be accorded the special status of “protected person” pending acquisition of nationality, entitling them to civil rights and diplomatic protection.[55]

In the case of occupied Kuwait, the Commission gave the Special Rapporteur  “the mandate to examine the human rights violations committed in occupied Kuwait by the invading forces of Iraq”[56],thereby limiting the report to Iraq activities on Kuwaiti territory during the period of occupation and excluded

 

Alleged human rights violations in Kuwait after the complete retreat of Iraqi armed forces.[57]

1. How The Convention Works To Reduce Statelessness:

In respect of contracting States:

1. ‘Stateless birth’ on their territory attracts the grant of their nationality;Transfer of territory must occur in a manner that avoids the occurrence of statelessness for persons residing in the territory transferred. When a State acquires its territory, the inhabitants of that territory presumptively acquire the nationality of the State;
2. persons otherwise stateless shall be able to take the nationality of one of their parents (possibly prior to a period of prior residence not more than three years);

• absent circumstances of fraudulent application or disloyalty towards the Contracting State, deprivation of citizenship shall and renunciation shall only take effect where a person has or subsequently obtains another nationality in replacement;

1. the United Nations High Commissioner for Refugees (UNHCR)[58] will issue travel documents evidencing nationality to persons, otherwise stateless, having a claim of nationality under the Convention.

One of the most significant elements in the 1961 Convention is the fact that it imposes positive obligations on States to grant nationality in certain circumstances, by contrast with the essentially negative obligations contained in the Convention on certain questions adopted in the Hague in 1930.[59]

The prevention and elimination of statelessness is the ultimate goal of the international community. However, Statelessness inevitably occurs as long as the granting of nationality remains a sovereign preserve of states. The Convention provides for civil, economic and social rights. The degrees to which those rights should be guaranteed by the contracting states differ according to the nature of each right.

 

1. Other General International Instruments That Spot Light Over Stateless Rights

Apart from the two Conventions relating to the status of Stateless as well as for the reduction of Statelessness, there are certain other International Instruments that give importance to the matter of Statelessness. They are:

 

• The Universal Declaration of Human Rights:

The UDHR, as a common standard of achievement for all people and all nations, to the end that every individual and every Organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedom and by progressive measures, national and international, to secure their universal and affective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.[60]

The UDHR declares in Article 15 that “everyone has the right to nationality and no one shall be arbitrarily deprived of his or her nationality.”[61] Despite the beauty of this article, it does not provide enough protection to stateless. Firstly, it examines the right citizenship without obliging hosting countries to provide such citizenship. Secondly, it does not object over depriving individuals from their citizenship if it was not arbitrarily.[62]

The question that might be posed here, why certain countries should provide citizenship to stateless, meanwhile, some other countries do not? Stateless is an international problem, and the international community should unite to solve it. If the right of stateless to possess citizenship is undisputable, then, the participation of all countries in the solution is required. It is unjustified to nationalize all stateless in Kuwait, meanwhile Switzerland is just monitoring.

As member of the United Nations, Kuwait is bound by the UDHR, however, violations of the UDHR will not result international responsibility, because it only includes general principles that are accepted by the international community.

• The International Covenant on Civil and Political Rights (ICCPR):

Articl.2, para.1 of the Covenant on Political and Civil Rights[63] obliges each State party to ensure the rights of the Covenant “to all individuals within its territory and subject to its jurisdiction”. This means that every individual who lives irrespective of caste, creed etc. He should be given the opportunity to enjoy the Civil and Political Rights ensured by the Constitution of the Country.

Human Rights Conventions normally apply wherever the contracting party has jurisdiction and whenever its agents, regardless of the normality of the person concerned, act. In this sense, the Convention “in any territory under its jurisdiction”[64], the Covenant on Economic, Social and Cultural Rights, does not even mention its scope of application ratione persone et loci.

• The United Nations Convention on Child Rights (UNCCR):

The UNCCR  grants children the right to be registered immediately after birth, the right to name from birth, and the right to acquire a nationality[65]. Kuwait is a signatory to the UNCCR.

Article 16 of the UNCCR provides that every child, whatever his parentage, has the right to the protection that his status as a minor requires from his family, society and the State. Every child has the right to grow under the protection and responsibility of his parents; save in exceptional, judicially- recognized circumstances, a child of young age ought not to be separated from his mother. Every child has the right to free and compulsory education, at last in the elementary phase, and to continue his training at higher levels of the education system²[66]^.

 

 

 

 

• Convention on the Elimination of All Forms of Racial Discrimination (ICERD):

The Charter of United Nations[67] is based on the principles of the dignity and equality inherent in all human beings, and that all Member States have pledged themselves to take joint and separate action, in cooperation with the Organization, for the achievement of one of the purposes of the United Nations rights and fundamental freedoms for all, without distinction as to race, sex, language and religion.

In this Convention, the term “racial discrimination” shall mean any distinction, exclusion, restriction or preference base on race, color, descent, or national or ethnic origin which has the purpose of effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.[68]

Alarmed by manifestation of racial discrimination, still in evidence in some parts of the world, including Kuwait, and by governmental policies based on racial superiority or hatred, such as policies of apartheid, segregation or separation.

 

• The International Covenant on Economic, Social and Cultural Rights (ICESCR):

The State Parties have agreedupon the said Covenant[69]considering that, in accordance with principles proclaimed in the Charter of the UN, recognition of the inherent dignity and equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

Article 1 says that, “ All peoples have the right of self- determination.  By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

In fact, economic, social and cultural rights contain three layers of State obligations, namely:

• Obligation not to destroy minimal essential levels of economic, social and cultural achievements referred to by the Committee[70] which exist in a given society at a given time and not to reduce standards above these core guarantees except on grounds spelled out in Article 4 of the ³[71]
• The obligation not to discriminate in limiting access to goods and services protected by such rights solely on grounds of race, color, sex, language, religion, etc. This obligation is clearly stated in Article 2, Para 2 of the Covenant.
• The obligation to progressively take all steps necessary for the full achievement of these rights, i.e., a duty “to fulfill the exceptions of all for the enjoyment of such rights.³

The provisions of these International Instruments are not strong enough to irradicate the problem of statelessness through out the world. The support for these instruments has been minimal. Hence the UN General Assembly should adopt more adamant provisions for the reduction of statelessness such as to give UNHCR the role to work with governments on solving this problem and protecting those affected by it.

• INTERNATIONAL LAW IN KUWAIT LEGISLATION

 

Kuwait’s human rights record drew increased international scrutiny in 2010, as proposed reforms for stateless persons, women’s rights and domestic workers remain stalled. Freedom of expression deteriorated as the government continued criminal prosecutions for libel and slander, and charged at least one individual with state security crimes for expressing non- violent political opinions.

Kuwait continues to exclude the stateless Bidouns from all citizenship, despite their longstanding roots in Kuwait territory. The Bidoun also face discrimination accessing education, healthcare and employment, as well as violations of their right to marry and establish a family because they are not allowed to register births, marriages or deaths.

Kuwait hosts up to 120,000 stateless persons, known as Bidouns. The State classifies these long- term residents as “illegal residents”, maintaining that most do not hold legitimate claims to Kuwait nationality and hide “true” nationalities from Iraq, Saudi Arabia or Iran, Law makers in December 2009 failed to reach the quorum required to discuss a 2007 draft law that would grant the Bidoun civil rights and permanent residency, but not nationality. In January 2010, the assembly tasked the Supreme Council for Higher Planning with reporting on the Bidoun situation. Bidoun from Kuwait continued to seek and receive asylum abroad in countries including the United Kingdom and New Zealand, based upon their treatment by Kuwaiti government authorities[72]. However,  the Resolution of Statelessness passed in May 2013, by the National Committee[73]  gives a ray of hope for a revolutionary change in the pathetic condition of the Bidouns.

In respect to the ratification of the International Instrument of CRS, the Kuwait government has established a National Committee for the Reduction of Stateless residing in her territory.

 

 

 

1. National Committee for the Resolution of Statelessness in Kuwait:

 

The important aims   of the Committee are:

2013. The National Committee for the Resolution of Statelessness in Kuwait[74] held its first meeting on May 5 2013. The participants discussed the proposed solution draft and
2014. Adopted it in its final form as follows:

• Suggested time for implementation: 4years

1. Change the terminology and legal status of Bidouns from “illegal residents” to “Stateless” and grant Civil and Human Rights.
2. Legal and legitimate reasons to change the term “illegal residents” to “stateless” in reference to Bidouns in Kuwait.

1. Benefits:
2. Ending the increasing number of stateless population
3. Newborn will not be a burden on state service, since the State will have the time needed to prepare before they enter schools or labor market.

• Preparing Kuwait Society to accept “Stateless” and to remove the social, cultural and ideological barriers and the fear that naturalization of the Bidouns will disturb the social structure.

 

1. A Case Study On The Issues Of Bedouns In Kuwait:

 

• Yousuf H. was born in Kuwait in 1934 and since 1967 has been married to a Kuwaiti citizen. In November 1990, the Iraqi occupation force, having been suspected of residence acts, killed Ya’qoub, their 23-year-old son. They have 3 other sons, ages 22, 17 12 and a 25 year old daughter. Yousef and his 4 children are considered illegal residents: they have no permits to work or drive the family car, and are threatened with deportation[75].
• Mohammed I. was born in 1926 to an unknown father, and heas documents provin he has lived in Kuwait since 1958, he has been married to a Kuwaiti citizen and they have 5 sons ranging in age between 22 and 33 years of age. In 1990, he was dismissed from his government job and lost his laissez-passer and driving license[76].
• Hassan Muslim A. was born in 1959 in Kuwait and worked as locomotive engineer for the Ports Authority, a government agency. He was dismissed, with all other Bidouns, effective August 1990, but rehired after liberation under a new contract with less than half of his former salary of KD.700 ($2,345) to KD.250 ($837.50)[77]
• Ahmed Ali Mohammed Awadh was born in Kuwait in 1948 and has been married to a Kuwaiti citizen since 1966. They have a 13year old daughter and 4 sons, aged 24,22,20,17 years old – all classified Bidouns. Their adult children have been denied admission into the University and he was dismissed from his government job of 60years service at the Ministry of Social Affairs and Labor.[78]
• Jassem Ghaleb M. was born in Kuwait in 1940 and has been married to a Kuwait citizen since 1963. He left Kuwait during the occupation, but has not been permitted to return since then, despite his wife’s repeated petitions to sponsor him to return to Kuwait.[79]
• Hani is a 25year old High School graduate who has never worked in his life because he is a Bidoun. He was born in Kuwait to Bidoun parents; he has documents dating to the 1950s showing his father had lived in Kuwait for many years before that, but he said the documents were not considered sufficient by the nationality committee. He told an interviewer, “ I am not allowed to work or continue my education. I am not even allowed to get married. What kind of a future do I have?[80]
• F, al Anezy, is a Bidoun married to a Kuwaiti citizen. In 1992, upon finishing his studies in the United States, he attempted to return to Kuwait, but was denied entry because his laissez-passer had expired. Although he was born in Kuwait, and many in his family, including 2 of his brothers, were Kuwaiti Citizens (and high ranking police officers), hewas denied entry to be with his wife. Later, he was able to secure Canadian travel documents and was able to return to Kuwait as a foreign resident[81].
• Ayed is a 49-year-old Bidoun, former police sergeant. He is living with his brother, who has been rehired by the army. Ayed was dismissed with the rest of the Bidouns after the war and has not been reinstated. He has been unemployed for 3years. He also lost his government – provided house since he was not rehird. “I saw many Bidoun families evicted from their military homes, where many are out on the street. Some stay at their homes, even after the government disconnected electricity and water[82].

9. Ali Hajj Ramadhan Ali was born in Bahrain in 1925 and came to Kuwait in 1945. He was classified as bidoun in both countries. In 1960, he married a Kuwaiti citizen and they now have 11 children, all born in Kuwait and all Bidoun. He was dismissed from his job in Ministry of health without a pension. The adult children are treated as foreigners in regard to residence permit requirements and were not accepted in the University because of their Bidoun status[83].
10. Halima Muhammed A, aged 48 is a Kuwaiti citizen. In 1966, she married Abdel Karim Hussain, a Bidoun, who died in 1987. She has 5 daughters, ages 25,19,14,8 years and 3 sons, ages 26,24,22 years. All children are classified as Bidouns, despite the fact that Article 5 of the Citizenship Law[84] clearly entitles them citizenship since their mother is a citizen and their father is deceased. Further, more, the adult children are still considered illegal residence and therefore unable to work.[85]

1. INTERNATIONAL ORGANIZATIONS’ ROLE IN FIGHTINGSTATELESSNESS

 

These organizations with other NGOs are working together to define stateless populations, provide guideline and support for timely birth registrations, and combat the arbitrary deprivation of nationality.[86]

1. A) U.N. High Commission On Refugees (UNHCR)

1. B) U.N. Children Fund (UNICEF)

1. C) U.N. Population Fund (UNEPA)

1. United Nations High Commission for Refugees²[87] (UNHCR):

Although stateless people may sometimes be refugees, the two categories are distinct and both groups are concern to UNHCR. Statelessness is a massive problem that affects at least 10 million people worldwide. Statelessness also has a terrible impact on the lives of individuals. Possession of nationality is essential for the enjoyment of the full range of human rights.

Given the seriousness of the problem, the UN in 1954 adopted the Convention Relating to the Status of Stateless Persons.[88]                                                                                      Yet the problem can be prevented through adequate nationality legislation procedures as well as universal birth registration. UNHCR has been given a mandate to work with governments to prevent statelessness from occurring, to resolve those cases that do occur and to protect the rights of stateless people. A first step is for States to ratify and implement the 1961 Convention on the Reduction of Statelessness.[89]

 

1. United Nations Children’s Fund[90] (UNICEF):

UNICEF is the driving force that helps build a world where, the rights of every child are realized. They have the global authority to influence decision makers, and the variety of partners at grass route level to turn the most innovative ideas into reality. This makes it unique among world organizations, and unique among those working with the young. The advocate for measures to give the best start in life, as proper care at the youngest age forms the strongest foundation for a parson’s future. They promote education of children, especially of girl children.

1. Some Recent Activities of UNICEF[91]:

1. UNICEF condemns attack on school in Domascus, Syria;
2. UNICEF calls for immediate release of abducted school girls in Chibok, Borno State, Nigeria;

• Children malnutrition in South Sudan could double, warns UNICEF;

1. Bridging the gap: Leaders to map future of investments in water, sanitation and hygiene.

 

1. United Nations Population Fund[92] (UNFPA):

The work of UNFPA involves promotion of rights of every woman, man and child to enjoy the life of health and equal opportunity. This is done through major national and demographic surveys and with population censuses. The data generated are used to create programs to reduce poverty and address issues concerning the rights of particular minority population groups. One of their aims is to ensure that “every pregnancy is wanted, every birth is safe, every young person is free of HIV and sexually transmitted diseases, and every girl and woman is treated with dignity and respect.[93]

The UNFPA supports programs in more than 150 countries, territories and areas spread across four geographical regions: Arab States and Europe, Asia and the Pacific, Latin America and the Caribbean and sub- Saharan Africa. Around three quarters of the staff work in the field.[94]

 

At the operation level, UNHCR works with several non- governmental organizations (NGO)to address statelessness. They provide legal advice and assistance so that stateless people have less difficulties confirming their nationality, acquiring documentation that proves their nationality or going through naturalization procedures. They also conduct outreach campaigns to inform the public about citizenship. NGOs also help address statelessness through advocacy at national and international level.

 

 

1. CTIZENSHIP IN INTERNATIONAL LAW:

In a regular situation a country’s nation is divided, excluding the stateless, between citizens and foreigners. Both groups are citizens of the host country or the home country. Citizenship “provides a link between an individual and the nation and carries with it fundamental benefits and rights.”[95]The citizenship is not a goal per se. The rights and advantages attributed to citizens are the only intensive behind seeking citizenship. For instance, financial facilities enjoyed by Kuwaitis, the right to enjoy free housing, security social, free healthcare, and the right to buy real estate encouraged foreigners to seek Kuwaiti citizenship. A strong tie between citizenship and accorded rights, that’s why defining citizen, cannot take place without considering human rights. For instance, citizen is defined as a member of a state who is entitled to the rights and privileges of a freeperson.[96]

To define citizens, national laws should adopt clear criteria, which cannot exceed the two traditional theories, the blood or the land criteria. In addition, nationalization policy may add new criteria, such as setting a date for the entrance the country or special services provided in favor of the country.

1. Single Citizenship
2. Dual and Multi-Citizenship
3. The Proposed Citizenship System International Law

Article 15 of the Universal Declaration of Human Rights[97]says, “[e]very one has the right to nationality” and that “[n]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality”. Most Articles of the UDHR are considered customary international human rights laws.

The right to citizenship/nationality is clearly stated. In spite of such provisions of the Declaration, there is a global, and particularly in Kuwait problem with statelessness. The types of Citizenship that are internationally accepted are:

 

1. Types Of Citizenship:

 

The International Law divides citizenship into two, traditionally. They are Single Citizenship and Dual Citizenship or Multiple Citizenship.

 

• Single Citizenship:

Single Citizenship means a person is a citizen of a country irrespective of whichever State he chooses to live in or belong to. The citizens of Kuwait enjoy Single Citizenship. Similarly in India, it is one person- one vote. If a person is born in a country, he gets the citizenship of the country (that is, single citizenship.)

• Dual or Multiple Citizenship:

Dual Citizenship means simultaneous possession of 2 citizenships. It arises because there is no common International Law relating to citizenship. Dual Citizenship is not accepted by Kuwait.  The most common reasons for Dual Citizenship are:

1. Marriage to a citizen of another country;
2. Adoption by parents who are citizens of another country;

• Birth in a country that grants citizenship by birth, to parents who are citizens of a country that grants citizenship by descent

Multiple Citizenship, also known as Dual Citizenship or Multiple Nationality, is a person’s citizenship status, in which a person is concurrently regarded as a citizen of more than one State under the laws of the States. Multiple Citizenship arises because different countries use different or not necessary mutual exclusive criteria for citizenship.

 

Some countries do not permit Dual Citizenship. This may be by requiring an application for naturalization to renounce all existing citizenships, or by withdrawing its citizenship from someone who voluntarily acquires another citizenship, or by other devices. Some permits a general dual citizenship while others permit dual citizenship, but only of a limited number of countries.

Most countries which permit Dual Citizenship still may not recognize the other citizenship of its nationals within its own territory, for example: in relation to entry into the country, national service, duty to vote, etc.  Similarly it may not permit consular access by another country for person who is also its national[98].

 

1. Dual Citizenship and International law:

Three important European Conventions reflect distaste for dual citizenship around the world, especially in Europe, but demonstrate a slow progression toward its acceptance: the Hague Convention of 1930[99], the Council of Europe’s 1963 Convention[100], and the Council of Europe’s European Convention of Nationality.[101]

1. Hague Convention of 1930:

 

During this Convention, world leaders made clear their opposition to Dual Citizenship. The Hague Convention was written to “codify [the] existing global doctrine on the conflict of nationality laws”[102]. The Preamble of the Hague Convention states, “every person should have a nationality and should have one nationality only”[103]. Article 6 of the Convention also authorizes“a person possessing two nationalities acquired without any voluntary act on his part [to] renounce one of them with the authorization of the State whose nationality he desires to surrender”[104].

1. 1963 Convention of The Council of Europe:

In this Convention, the States of the Council of Europe recognized that “cases of multiple nationality are liable to cause difficulties and that joint action to reduce as far as possible the number of cases of multiple nationality, as between member States, corresponds to the aims of the Council of Europe”[105]. Additionally, the Convention requires citizens of one state who voluntarily accept the citizenship of another state to give up their original citizenship.[106]

• Council of Europe’s Convention on Nationality:

In 1967, the Council of Europe heavily amended the 1963 Convention and opened the door for the legality of dual citizenship. Through a series of additional protocols, the Council of Europe allowed for more liberal dual citizenship laws, while still allowing states to make their own decisions on subjects such as citizen’s voluntary acquisition of citizenship of another country.[107]

In the explanatory report of the Second Protocol Amending the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, the Council of Europe admitted that the “context in which the 1963 Convention came into being has changed considerably”[108] Thus the protocols promote a “less strict attitude to the automatic loss of previous nationality”[109]

Finally, the Council of Europe combined the Protocols and developed the new European Convention on Nationality (the Convention on Nationality), which is much more cooperative regarding instances of dual citizenship.

 

1. Reasons for Opposition to Dual Citizenship:

Many States oppose Dual Citizenship out of fear that Dual Citizenship creates divided loyalties.[110] This argument assumes that people cannot serve two countries at the same time. Just as persons do not belong to two religions or two political parties, so too it is sensible to affirm loyalty to a single state.[111] An example for this argument concerns voting[112] a person may be able to vote in both countries if the country in which the person does not reside permits or requires absentee voting.[113] The concern is that a person may vote in the interest of one country over the other.

A second argument against dual citizenship is that liberal dual citizenship laws create a security threat.[114] This is especially relevant if high officials are allowed to hold dual citizenship because they may use the citizenship of one country to obtain sensitive information for the other. In such case, some states usually require officials to actually renounce all other citizenship.[115]

A third argument holds that dual citizenship hinders integration.[116] In other words, the immigrants maintain ties and attachments to their country of origin instead of integrating into their new society.[117]

Fourth, dual citizenship may create a conflict of laws, since laws differ when it comes to marriage, military services, inheritance, and taxation.[118] Conflict of laws is also an issue when people choose to acquire citizenship for purposes of commerce or convenience.[119]

A fifth argument pints out that dual citizenship creates inequality by providing dual citizens with two support systems, granting them more rights and opportunities than those who hold only one citizenship.[120]

Finally, concerns regarding military service have given rise to the following question: upon which front will persons of dual citizenship fight in times of war. Since many nations no longer practice conscription, this concern has diminished. The Convention on Nationality, for example, determined that “[p]ersons possessing the nationality of two or more states  Parties shall be required to fulfill their military obligations in relation to one of those State Parties only”.[121]

 

1. Reasons in Support of Dual Citizenship:

As previously mentioned, dual citizenship occurs automatically in certain circumstances. Since states have differing citizenship laws, and an international agreement satisfactory to all countries is unlikely to occur in the near future, certain people will acquire dual citizenship automatically. Moreover, dual citizenship furthers integration due to the correlation between permanent residents who chose to become citizens and dual citizenship laws.[122] Finally, in countries of immigration, dual citizenship may actually help spread western liberal values.[123] This would especially hold true if dual citizens are still able to vote in their country of origin.

The Constitution of Kuwait does not recommend dual citizenship to her citizens. In other words, in the present situation those who hold dual nationality are forced to maintain their nationality only to avail of the privileges the State grants to its people. Under such circumstance having dual nationality is not a question of love and allegiance to two countries as might be perceived in other civilized nations. In the first place, these people hold two citizenships because they are not loyal to any country.

1. The Proposed Citizenship System in International Law:

 

On account of the different political and class interests of States, which results from their different socio- economic systems, few universal international treaties exist in this field. However, there are a number of multi- lateral treaties and bi- lateral treaties. A universal codification of International citizenship is necessary in this post- modern era[124]. This is the age of globalization and globalizing citizenship is in high demands. Citizenship is becoming a globalizing regime to govern mobility and access to rights and resources as nations in the global North harmonize border and detention policies, outsource State functions and power to international organizations and private companies, and rely n technologies to discipline the individual body.

Although many of the rights contained in the UDHR have been elaborated into binding international human instruments, some with treaty bodies to interpret them, International Law has made little progress in developing the right to citizenship/ nationality relative to other rights. This is understandable if one considers that for decades, human rights were so imperfectly defined and poorly respected that most people did not have their rights whether they were citizens or not.

1. CITIZENSHIP LAWS IN KUWAIT:

 

In Kuwait, Citizenship Laws are based upon the Constitution of Kuwait.[125] Birth within the territory of Kuwait does not automatically confer citizenship. Kuwait has a large number of guest workers living in the country. Kuwait law considers them to be citizens of their country of origin. Children born in Kuwait of long term guest residents do not qualify for citizenship. In all cases, unless the child is born to a Kuwaiti citizen, the child is born a citizen of the parents’ country.

Citizenship can also be obtained by descent. Child born in wedlock, whose father is a citizen of Kuwait, regardless of the child’s country of birth. Child born out of wedlock, to a Kuwaiti mother and an unknown father, regardless of the child’s country of birth.

A foreign woman who marries a citizen of Kuwait may obtain citizenship after 15 years of residency. A foreign man who marries a citizen of Kuwait is not eligible for citizenship.

Kuwaiti citizenship may be obtained by specific conditions like Naturalization. Person is granted citizenship through a special act of Government.

Dual citizenship is not recognized under the Kuwait laws.[126]

As a consequence of their statelessness, the Bidun cannot freely leave and return to Kuwait; the government issues them one-time travel documents at its discretion. As non-Kuwaitis, they face restrictions in employment, healthcare, education, marriage, and founding a family. Kuwait issues Bidun with identity cards, but issue and renewal can be accompanied by pressure to sign affidavits renouncing any claim to Kuwaiti nationality. Prosecution and deportation to Iraq and other countries as illegal aliens are possible consequences of failing to sign such waivers,A 2007 draft law would grant the Bidun civil rights, but not nationality. At this writing it has not been passed.³[127]

• خاتمة

 

Despite the fact that the regulation of citizenship is a pure internal affair, International law is competent to assure that no individual should be exempted from his rights as a result to the miss -codification of the citizenship code. Moreover, international law should be competent to assure that no national legal system support the dual or the multi-citizenship in a climate full of stateless.

States are bound by the limits of international instruments regarding who deserve their assistance and protection. However, beyond this limit national authorities are free of any limitation to provide or prevent individuals from their assistance and protection. International law cannot impose over states the duty to host individuals who are enjoying the protection of other countries or international organization, or criminals in term of national or international law.

States are contesting in host distinguish and ideal individuals, and may be attribute them with their citizenship.

It is illogic to provide extra citizenship to individuals who already enjoy it elsewhere. The priority in providing citizenship should be attributed to those who are completely exempted of it. No one can prevent national authority from using its discretionary power in attracting financial capitals, by providing citizenship to foreigners. However, the legal status of stateless should be settled before attributing citizenship to any foreigner.

When national citizenship legislations lack enforcement, exceptional situations will occurred and affect other groups of people. If Kuwaitis are subject to inequality as a result to the misinterpretation of the Kuwaiti citizenship law, stateless cannot be in a favorable situation.

However, the Kuwait Government has made some attempts in recent years to face this issue of discrimination and citizenship, for example: by approving free education for Bidoun children since 2004, beginning to address their health needs and facilitating a process by which some could become documented as citizens. However, the process required proving residency prior to 965, and hence still excluded the vast majority (roughly 10,000 have received citizenship in this manner thus far). Statelessness for Bidouns therefore continues to weigh heavily on the enjoyment of their human rights in Kuwait.

1. Kuwaiti Constitution of 1961.
2. Kuwaiti Citizenship Law of 1959.
3. As a result to the confrontation between the Minister of Interior and the Bedwin PMs who have a family ties with some Gulf countries, especially Saudi Arabia, and believe to possess its citizenship, were threatened by the Minister and his PM supporters to unmask all PM with dual citizenship and to withdraw their Kuwaiti citizenship.

[4].       N. High Comm’r for Refuges, 2006 Global Trend: Refugees, Asylum-Seekers, Returners, Internally Displaced and Stateless Persons 14(June 2007), available at http://www.unhcr.org/statstics/STATISTICS/4676a71d4.pdf

[5].       Cf. Vishnaik, “Le Statut International des Apatrides”, in Recueil des Cours, 43 (1933) (i)’pp. 115-246,at p.135.

[6].       State Nation”: cf. joseph, Nationality, Its Nature and Problems, passim, esp. at p.353.

[7].       Cf. Gargas, “Die Staatenlosen,” in Bibliotheca Visseriana, vol. VII (1928), p.6: “Nationality is the delimitation of personal jurisdiction, while citizenship reers to the legal relationship of the citizens of the state.” (Author’s translation)

[8].       “World Directory of Minorities and Indigenous People “  available at: http://www.minorityrights.org/4278/kuwait/bidoun.html  (last visited on April 19, 2014)

[9].       The Report from Amnesty: “The With outs of Kuwait” ( published on September 17, 2013) available at: http://www.reliefweb.int/report/kuwait/‘withouts’-kuwait  (last visited on April 2, 2014).

[10].      1986 Amendment of The Kuwait Nationality Law, in order to demarcate the privileges of     Citizenship from migrant workers.

[11]. See Nationality Law 15/1959, creating a period of registration of citizenship in 1960.

[12]. Convention Relating to the Status of Stateless Persons, art. 1, Sept. 28, 1954, 360 U.N.T.S.     117, [hereinafter CRSSP.]

[13]. Interview with Philippe Leclerc, Chair, U.N. H. C.R. Statelessness Unit, Reuters Alert Net (May18,2007), available at http://www.alertnet.org/thenews/newsdesk/UNHCR/14bbdcab1076d21f508b51057342262f.htm (last visited May 13, 2010).

[14]. Maureen Lynch, U.S. Congress Holds Briefing on Stateless Children, REFUGEES INT’L, Feb. 16, 2007, available at http://www.refint.org/content/article/9853/?  ,[hereinafter Lynch, U.S. Congress].

[15]. API to the Four Geneva Conventions, art. 41 (3,4).

[16] Kuwaiti Criminal Law No. 31/1971 Modifying the Criminal Law No. 16/1960

[17]. Article 20 of the American Convention of Human Rights (1969).

[18]. An Article by Refugee International titled “Kuwait Gender Discrimination Creates Statelessness and Endangers Families” (published on October 17, 2011) available at: http://www.refintl.org/policy/field-report/kuwait-gender-discrimination-creates-statelessness-and-endangers-families( last visited on March 31, 2014)

[19]. See Human Rights Watch “Kuwait Promises Betraid: Denial of Rights of Bidun, Women and Freedom of Expression (2000): ‘The Biduns of Kuwait: Citizens without Citizenship”

[20]. The Organization Of African Unity was established on 25th May 1963 with 32 signatory governments. It was disbanded on 9th July 2002 by its last chairperson, the South African President Thabo Mbeki and is now replaced by the African Union. 2. African Charter On The Rights And Welfare Of The Child OAU.DocCAB/LEG/24.9/49 (1990) entered into force in 1999.

[21]. African Charter On The Rights And Welfare Of The Child OAU.DocCAB/LEG/24.9/49 (1990)

entered into force in 1999.

See Human Rights Watch “Kuwait Promises Betraid: Denial of Rights of Bidun, Women and Freedom of Expression (2000): ‘The Biduns of Kuwait: Citizens without Citizenship”

[22]Report by Central Agency, Education (published on October 7 , 2013) available at: http://www.bedoonrights.org/about/ (last visited on 10th April 2014)

[23]. See -Lynch, supra note (   ).

[24]. CRSSP, supra note (    ), art. 4.

[25]. Joy K. Park et all, A Global Crisis Writ Large: The Effect of Being Stateless in Thailand on Hill-Tribe Children, 10 San Diego Int’l L. J. 495, 500 (2009)[hereinafter Joy Park et all].

[26].  Joy Park et all, supra note (  ) at 499-500.

[27].  Joshua Stiff, supra note (   ).

[28]. Nawaf Al-Fozeia, a Kuwaiti lawyer and a political activist, declared that he is willing to receive and follow any information from Stateless who were asked to pay bribes in view to settle their situation. Al-Watan Kuwaiti Newspaper, Apr. 15, 2010, During A Lecture to the Association of Abatement of Racial Discrimination: Politicians Financially Benefited From The Stateless Case, available at http://www.alwatan.com.kw/ArticleDetails.aspx?Id=22034 (last visited Apr. 22, 2010).

[29]. Thailand, Thailand’s Supplementary Clarification to the Human Rights Committee

[30]. CRSSP, supra note (    ), art. 12 (2).

[31].      CRSSP, supra note (    ), art. 13.

[32].           CRSSP, supra note (    ), art. 13.

[33].      CRSSP, supra note (    ), art. 14.

[34]. Webster’s New World Law Dictionary.

[35]. Doebbler, Curtis (2006). Introduction to International Human rights Law. CD Publishing. p. 108. ISBN 978-0-9743570-2-7.

[36]. Stacie Kosinski, State of Uncertainty: Citizenship, Statelessness, And Discrimination in the Dominican Republic, 32 B. C. Int’l & Comp. L. Rev. 377, 397(2009)[hereinafter Kosinski.]

[37].        Joshua Stiff, Admin. Intern Thail, Int’l Justice Mission, in, Chiang Mai, Thail. (Mar. 4, 2008).

[38]Al-Watan, Kuwaiti Newspaper, March 11 March, 2010, at 1, available at http://www.alwatan.com.kw/ArticleDetails.aspx?Id=13367  (last visited on March 28, 2014).

[39].     CRSSP, supra note (    ), art.

[40]. A stateless family offered to by South Yemenis passports in beginning of the 1990s, and after they paid the requested amount, the Kuwaiti authorities, in cooperation with the Yeminis, found that such documents are counterfeiter. The family members face a possible punishment for committing the crime of counterfeit official documents, which may reach up to 5 years in prison. This is a case that was consulted by the author, and attributed to the Attorney Mubarak Saadoon Al-Motawaa.

[41]. Convention on the Rights of the Child, opened for signature Jan. 26, 1990, G.A. Res. 44/25, U.N. GAOR 61st. plen. mtg. at 166, U.N. Doc. A/44/736 (1989), reprinted in 28 I.L.M. 1448 (1989) with corrections at 29 I.L.M. 1340 (1990) [hereinafter UNCCR].

[42]. The United Nations Commission on Human Rights (UNCHR) was established in 1946 by the ECOSOC, and was one of the first two “Functional Commissions” set up within the early UN structure. In 2006, it was replaced by the United Nations Human Rights Council.

[43]. The Universal Declaration of Human Rights (UDHR), proclaimed by the United Nations General Assembly in Paris on 10 December 1948, General Assembly217 A (III) (French) (Spanish).

[44]. Convention relating to the Status of Stateless Persons, NY, Sept. 28,1954,360 U>N>T>S> 117, entered into force June 6, 1960

[45]. Convention on the Reduction of Statelessness, done at New York on 30 August 1961. Entered into force on 13 December 1975, United Nations, Treaty Series, vol.989, p.175.

[46]. Convention relating to the Status of Stateless Persons, 360 U.N.T.S. 117, entered into force June 6, 1960, at Preamble, [hereinafter CRSSP].

[47]. Nehemiah Robinson: A Commentary: Convention Relating To The Status Of Stateless Persons: Its History and Interpretation, Institute Of Jewish Affairs, World Jewish Congress 1955, Reprinted by the Division of International Protection of the United Nations High Commissioner for Refugees 1997, at 2-3.

[48]. Id., fn. 13. 47

[49]. CRSSP, supra note (   ) art. 1 (1).

[50]. CRSSP, supra note (   ) art. 1 (2).

[51]. International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976, article 4(1); Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 222, entered into force Sept. 3, 1953, as amended by Protocols No. 3, 5, 8, and 11 which entered into force on 21 September 1970, 20 December 1971, 1 January 1990, and 1 November 1998 respectively, art. 15.

[52]. CRSSP, supra note (    ), arts. 8 & 9.

[53]. United Nations Economic Social Council in resolutions 319 A and B (XI), 11 and 16 August 1950.

[54]. Year Book of the International Law Commission, 1953 vol. II (doc. A/CN.4/75)

[55]. Year Book of The International Law Commission, 1954, vol. II (doc. A/CN. 4/81)

[56]. Resolution 1991/67, para.9

[57]. For a discussion of these and other limitations of mandate, see Report, para 12-16, infra p.74. See also infra p.13

[58]. “History of UNHCR: A Global Humanitarian Organization of humble origins “. UNHCR. Retrieved 2009-11-01

[59]. Convention on certain Questions relating to the conflict of Nationality Laws, The Hague, 12 April 1930, League of Nations, Treaty Series, Vol. 179, p.89.

[60]. Universal Declaration of Human Rights, adopted Dec.10, 1948, G.A. Res. 217 A (111), 3. U>N> GAOR (Resolutions, part 1) at 71, U.N. Doc. A/810 (1948), reprinted in 43 am. J. INT’l. SUPP. 127 (1949).

[61]. Universal Declaration of Human Rights, G.A. Res. 217A(III), U.N. GAOR, 3d Sess., art. 15, U.N. Doc. E/CN41AC.1/5R.2(1948) [hereinafter UDHR], available at <http://www.unhchr.ch/udhr/lang/eng.pdf.>.

[62]. Emanuel Gross, Defensive Democracy: Is It Possible To Revoke The Citizenship, Deport, Or Negate The Civil Rights Of A Person Instigating Terrorist Action Against His Own State?, 72 UMKC L. Rev. 51, 62 (Fall 2003).

[63]. International Covenant on Civil and Political Rights, Dec. 19, 1966, 999 U>N>T>S> 171, art.24 (hereinafter ICCPR)

[64]. Article 2 of ICCPR against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 Dec. 1984.

[65]. UNCCR, supra  note ()art.7

[66]. Convention on the Rights of Child, adopted Nov.20, 1989, G.A. Res.44/25, 44 UN GAOR Supp. (No.49) at 165, U.N. Doc. A/44/736 (1989) reprinted 28 INT’L LEGAL MATERIALS 1448 (1989)

[67]. United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI, available at: http://www.refworld.org/docid/3ae6b3930/.html [accessed 10 April 2014]

[68]. International Convention on the Elimination of All Forms of Racial Discrimination, adopted December 21, 1965, 660 U.N.T.S. 195 (entered into force January 4, 1969)

[69]. General Comment No.3, see Supra at note 119.

[70]. ASBJORN EIDE, strategies for the Realization of the Right to Food, in: Katheleen. E. Mahoney/ Paul Mahoney, Human Rights in the 21st Century, Dord- recht/Boston/London, 1993, freedom of action and the use of resources against other, more assertive or aggressive subjects (more powerful economic interest ; protection against fraud…)

[71]. EIDE (note 122) p. 465.

[72]. Human Rights Watch, World Report, 2011

[73]“The National Committee for the Resolution of Statelessness” available at: http://www.statelessinq8.org/national-committee-for-the-resolution-of-statelessness-in-kuwait-statement/  (last visited on April 1, 2014)

[74]. Available at: http://www.statelessinq8.org/national-committee-for-the-resolution-of-statelessness-in-kuwait-statement/ (last visited on March 30, 2014)

[75]. Human Rights Watch interview, January 1994

[76]. Human Rights Watch interview, Kuwait, January 1994

[77]. Human Rights Watch interview, Kuwait, January 1994

[78]. Human Rights Watch interview, Kuwait, December 1993. The mass dismissal was retroactive to August 2, 1990, the day of the Iraqi invasion.

[79]. Human Rights Watch interviews, Kuwait, December 1993 and telephone interview February 1994

[80]. Human Rights watch interview, Kuwait, December 1993

[81]. Human Rights Watch interview, New York, September 1994

[82]. Human Rights Watch interview, Kuwait, January, 1994

[83]. Human Rights Watch interview, Kuwait, January 1994

[84]. The Citizenship Law of Kuwait, promulgated in 1959 via, Amiri Decree, edited and re-editted, written and re-written, promulgated and un- promulgated over and over throughout years; 1959, 1960, 1965, 1966, 197, 1980, 1982, 1986, 1987, 1994, 1995, 1998, 2000…

[85]. Human Rights Watch interview, January 1994

[86]. Interview with Leclerc, supra note (   ).

[87]. United Nations High Commission for Refugees (herein after UNHCR) , adopted on December 14, 1950, by the UN General Assembly, is the main advocacy group in the international sphere for those displaced by war, natural disaster and political or religious persecution. They provide protection for the rights of people displaced across borders and work to repatriate refugees.

[88]. Convention relating to the Status of Stateless Persons, 360 U.N.T.S. 117, entered into force June 6, 1960, at Preamble, [hereinafter CRSSP].

[89]. Convention on the Reduction of Statelessness, done at New York on 30 August 1961. Entered into force on 13 December 1975, United Nations, Treaty Series, vol.989, p.175.

[90]. United Nations Children’s Fund, established by the General Assembly, on December 11, 1946 and is originally known as the United Nations International Children’s Emergency Fund. (herein after UNICEF).

[91]. “From The Press Centre” available at: <http://www/unicef.org/> (last visited on April 21, 2014)

[92]. United Nations Population Fund (herein after UNFPA)  began operations in 1969 as the United Nations Fund for Population Activities (the name was changed in 1987), under the administration of the United Nations Development Fund. In 1971 it was placed under the authority of the UN General Assembly.

[93]. “UNFPA – About UNFPA”. UNFPA. Retrieved 28 July, 2011

[94]. ^ UNFPA in the UN system. Retrieved 28 February, 2013.

[95]. Maureen Lynch, Lives on Hold: The Human Cost of Statelessness 3, Refugees Int’l, Feb. 2005, at 3, [hereinafter Lynch, Lives on Hold].

[96]. Merriam-Webster’s Online Dictionary, available at http://www.merriam-webster.com/dictionnary/citizen/  (last visited on March25, 2014)

1. [97] Universal Declaration of Human Rights, adopted Dec.10, 1948, G.A. Res. 217 A (111), 3. U>N> GAOR (Resolutions, part 1) at 71, U.N. Doc. A/810 (1948), reprinted in 43 am. J. INT’l. SUPP. 127

[98]. ^See, for example, Egyptian nationality law Dual Citizenship

[99]. Convention on certain Questions Relating to the Conflict of Nationality Laws, The Hague – 12 April, 1930

[100]. Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, 1963  (EST No. 43, herein after “the 1963 Convention”)

[101]. The European Convention on Nationality (E.T.S. No. 166) signed in Strasbourg on 6 November 1997.

[102]. Martin, supra note 2, at 4.

[103]. Hague Convention Governing Certain Questions Relating to the Conflict of Nationalities, Pmbl, opened for signature Apr. 12, 1930, 179 L.N.T.S. 89 [emphasis added].

[104]. .Id.at art. 6.

[105]. . Id. At pmbl.

[106]. . Id. At arts. 2-4.

[107]. Protocol Amending the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, opened for signature Nov. 24, 1977, Europ. T.S. No.95; Additional Protocol to the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, opened for signature Nov.24, 1977, Europ. T.S. No.96; Second Protocol Amending the Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality, opened for signature Feb.2, 1993, Europ. T.S. No. 149.

[108]. Second Protocol Amending the Convention on the Reduction of Cases of Multple Nationality and Military Obligations in Cases of Multiple Nationality, Intro., Feb. 2 1993, Europ. T.S. No. 149.

[109]. .Id.

[110]. Hansen & Weil, supra note 54, at 7. See also Aleinik off & Klusmeyer, supra note 21, at 82.

[111]. Aleinnikoff & Klusmeyer, supra note 21, at 83.

[112]. .Id. at 80.

[113]. . Id. Belgium, Italy, Australia and Greece actually require their citizens to vote, no matter where they are residing. Christopher W. Carmichael, Proposals for Reforming the American Electoral System After the 2000 Presidential Election: Universal Voter Registration, Mandatory Voting, and Negative Balloting, 23 Hamline J. Pub. L. & Pol’y 255, 313 (2002).

[114]. Hansen & Weil, supra note 54, at 7.

[115]. .Id.

[116]. Hansen & Weil, supra note 54, at 7.

[117]. .Id.

[118]. Hansen & Weil, supra note 54, at 7.

[119]. Aleinkoff & Klusmeyer, supra note 21, at 84. For example, the islands of Dominica, Grenada,        and Saint Kitts- Nevis hand out passports to people who invest $50,000 to $250,000. However, it is not clear how often this practice is exercised and what effects it has. Id.

[120]. Hansen & Weil, supra note 54, at 7.

[121]. European Convention on Nationality, supra note 84, at art. 21 , para. 1.

[122]. Id. At 10.

[123]. Id.

[124]. The American Journal of International Law, vol.84, p.318

[125]. The current Kuwaiti Constitution is enacted on June 19, 1961, shortly after Kuwait gained independence from the British Empire.  Citation Format: CONST. KUWAIT <article>.

[126]. “KUWAIT- Non- Commercial Information about Citizenship, Dual Citizenship and Multiple Citizenship”. available at http://www.multiplecitizenship.com/wscl/ws_KUWAIT.html (last visited on April 22, 2014)

[127]. Human Rights Watch, World Report 2010.