Kuwait: Is it legal to deport stateless protesters?

Image via Mideastposts.com

According to news coming in the past few days from Kuwait, a meeting assembled by the Central Agency in charge of illegal residents (bidoon/bedoon) has reached a decision following several weeks of protests by members of the community. The government will take "deterrent measures" against protesters, including layoffs, eviction, cancellation of naturalization cases and, most crucially, deportation. These measures will apparently be levied against those who participated in the protests, and those who plan to participate in the future. (if you're not raising an eyebrow now, go back and re-read that sentence.)

Although there are an estimated 100,000 bidoons in Kuwait, naturally only a portion of these participated in the protests, and an even smaller portion are currently in jail or under investigation for such participation. (Some 80, according to the AFP.) Even one person in jail for peaceful protest is too many, but symbolically these actions are even more important as instruments to intimidate the bidoon population and to discourage further shows of solidarity or discontent with their untenable situation. In recent weeks the protests have turned ugly, with riot police attacking protestors with tear gas and batons and government spokesmen claiming that the demonstrations have been incited by Iraqis and other "enemies of Kuwait."

Despite the tough talk, both supporters and non pretty much agree that the aim of the protests has always been to ensure citizenship and other basic rights for this population that has been living illegally for almost 4 decades, and of course I tend to believe that too, absent evidence to the contrary. It seems much more likely that bidoons were inspired to non-violent protest by Arab Spring than that they were foreign provocateurs trying to destabilize one of the most democratic regimes in the Middle East.

Regardless, it is worth asking now: under international human rights law, is it legal to deport non-citizens based on their participation in a protest? In other words, do non-citizens possess the right to assemble?

First, let's look to the Universal Declaration of Human Rights. Article 20(1) states "everyone has the right to freedom of peaceful assembly and association." (Other relevant provisions for this question could be articles 6, 9, 15, and 19.) A threshold question might be whether the UDHR is binding on Kuwait. My opinion is of course "yes"- as I have stated elsewhere:

"through multiple invocations in state constitutions, international law cases, and repetition in subsequent conventions, the UDHR is regarded to be of special significance and almost certainly of an instructive character in defining what is meant in the U.N. Charter by “human rights". 

I think the UDHR has special status as evidence of international customary law on human rights. (For case law on the subject, see e.g., Corfu Channel Case (Merits), ICJ Reports (1949), Iranian Naturalization Case, 60 ILR 204 at 207,  Case Concerning the United States Diplomatic and Consular Staff in Tehran, ICJ Rep 1980, 3).

Moving more to the point, can the expansive term "everyone" really mean, well, everyone? Is a state really bound to protect the rights of non-citizens, especially when it comes to expressing discontent? Again, I would say "yes." The drafters were not shy about sprinkling universalizing terms like "all" "no-one" and "everyone" throughout the UDHR, but neither were they shy about confining rights when necessary by adding modifiers like, "within their own state." Further, the Preamble states that "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world," a sentence that leaves little room for quibbling about territorial jurisdiciton.

We can look elsewhere for evidence that Kuwait must, under international law, respect the rights of stateless persons to peacefully assemble. The International Covenant on Civil and Political Rights (to which Kuwait is a signatory) protects freedom of association and right of peaceful assembly in articles 21 and 22 and the right also shows up in the Migrant Workers Convention and IESCR. However, these rights are proscribed by law, and Kuwait is entitled to regulate them based on national security and public order- an argument they will likely raise to support deportation.

However, the stated intent of the protests is to gain basic human rights. If this is considering a destabilizing or threatening concept to the government, what does this say about Kuwait?

Who are Kuwait's Stateless?

Source: Arabian Business

At the end of a year dominated by a profound upswing in attention to statelessness, Kuwait's stateless Bidoons (alt.  Bedoun, Bidun) have seized the day to protest an untenable situation in their country, one that has stretched almost half a century. Not being well-informed on Kuwaiti history, I would point those interested to the following sources, which I have been following to get information on the continuing protests and legal battles.

• As usual, Open Society is up on any emerging human rights issue seemingly anywhere, and thus this concise introduction to the Bidoon by blogger Sebastian Kohn is a good place to start.

• "Prisoners of the Past: Kuwaiti Bidun and the Burden of Statelessness" a recent report by Human Rights Watch, includes background and recommendations.

• Mona Kareem's blog has great coverage and links from a Kuwaiti Bidun freelance journalist/ poet.

• Lebanon's Daily Star has been following daily developments, as has Arabian Business, and to a lesser extent Al Jazeera.

• And of course, for the most up-tp-date news, you can always turn to the twitter machine: try hashtags #Kuwait, #Bidoon and naturally, #Stateless

Please feel free to leave any additional good sources in the comments. Meanwhile, I offer my solidarity to the stateless Bidoons of Kuwait, and hope that the government and the Kuwaiti people will see the light before anyone else has to get hurt.

Denmark: Points and Palestinians

Denmark's ousted Immigration Minister

For the last few weeks Denmark has been rocked by a political scandal featuring leaked documents, intrepid reporting, a shady minister and... stateless Palestinians?

That's right. Denmark, being a signatory to the 1961 Convention on the Reduction of Statelessness, is required to offer citizenship to children born in the country who would otherwise be stateless. On the contrary, it was recently revealed that a number (36, to be exact) of youngsters of Palestinian heritage had been rejected when they applied for citizenship- and that far more had never been informed about their right to become Danish.

Worse, it turns out that this human rights violation was more than just an oversight. The Immigration Minister, Birthe Hornbech, when questioned earlier in the month about her possible involvement, denied any prior knowledge of the mistake and claimed the rejections occurred under earlier administrations.  However, leaks soon made their way out that confirmed that Hornbech knew about the error- as far back as 2008- and failed to inform anyone. She even asked for and recieved legal advice that directly contradicted Denmark's procedure. Now, being forced to file a report at the prompting of a media investigation, Hornbech has been fired as the government tries to distance itself from her actions. But so long as its just an isolated incident, alls well that ends well, right?

Or, one could see this in the context of further worrying anti-immigrant developments that have been occurring in the country in the last year. For instance, in January the government announced a new point system that would make the country's already strict requirements for foreign spouses even tougher. It requires, among other things, that the Danish spouse put up a large sum of money, that both spouses be 24 years old, and that the foreign-born spouse pass a language and knowledge test. In other words, they are trying to make it extremely difficult for Danes to marry foreigners, and possibly violating the ECHR by interfering in the right to private and family life.

These developments are worrying, and are significant of a larger swing to the right throughout Europe. The question is, to what extent can countries' prior generous human rights commitments restrain them from making the temporarily popular decisions that violate them? Denmark would be a good case to watch.

Aleinikoff and Kluysmeyer on Migration-friendly Citizenship Policies

*I will be presenting occasional notes/ reviews of important old and new scholarly articles in migration studies/ law/ political science. When possible I will link to the article*
(Also, this review was submitted for a class at my university)

Article: T. Alexander Aleinikoff and Douglas Klusmeyer. Executive Summary: Citizenship Policies for an Age of Migration Except available online at CEPS.

In the Executive Summary for their book Citizenship Policies for An Age of Migration, Aleinikoff and Klusmeyer layout their back-door plan for creating more immigrant friendly societies: adapt humane and pro-immigrant citizenship legislation. By altering citizenship policies, the “tension and anxiety” (3) caused by migration influxes can be partially eased, while avoiding the political landmines of migration politics. While this is likely partially true, this brief overview fails to take into account two factors: first, that processes of determining citizenship are likely to be as political or more so then the other types of national legislation that deals with migrants. Second, the possession of legal citizenship does not necessarily lead to integration, social rights, or a feeling of belonging among migrants, or for that matter, other groups in society.

Many of the policy recommendations outlined by Aleinikoff and Klusmeyer are creative and humane; an accomplishment considering how often progressives are criticized for offering problems but no solution. For instance, the concept of changing the discourse of comparative citizenship by identifying countries policies not by their key requirement but by the practical number of generations required to acquire citizenship is a step towards recognizing the injustice of the traditional systems. It also allows for recommendations common to both to be identified more clearly (such as the concept of 1st generation citizenship for children raised in the host state from an early age.) Even those requirements which are not so creative, such as eradicating barriers to holding dual citizenship, are still certainly proposals that deserve implementation.
However, as the dual citizenship example demonstrates, these are highly controversial and inherently political proposals and do not necessarily present an easy path to integration. For example, the suggestion that parties should “refrain from campaigns that stigmatize ethnic minorities” (9) is something that most people would agree with, and yet sounds hopelessly naieve. Stigmatizing ethnic minorities and immigrants is a long-cherished political tradition that is so widespread that a suggestion to “refrain” from it can hardly be considered a policy proposal. Similarly, the suggestion that citizenship not be regarded as the gateway to welfare and other social benefits is likely to be met by massive skepticism by policy makers.

A nation’s citizenship policies reflect a lot about its conception about itself, and so those policies are bound to be controversial, regardless of how reasonable reforms may be. Even simple shifts can call into question issues of national identity. For instance, the removal of vague requirements like “good moral character” that Aleinikoff and Klusmeyer recommend could awaken a sleeping monster. One can imagine the headlines: “Good Moral Character no longer required to become citizen!” The problem is that reason and fairness has so much less to do with citizenship policies than does that intangible “spiritual principle” described by Renan. If citizens cannot put their finger on what exactly makes them belong, its hard to be rational about what qualities in others should distinguish them enough to join.

Of course, even within a relatively heterogeneous society there are bound to be outsiders of some sort creating tension and anxiety by their presence. These people are not necessarily non-citizens, and citizenship, even with all of the enlightened proposals in the world, does not always eradicate these problems. Ultimately citizenship, even bolstered by the wisest policies unimpeded by political barriers, is only one aspect of the tension and frissures created by diverse modern societies.

These points are more than likely considered by the authors within the full text of their book. And in general, the proposals presented by Aleinikoff and Klusmeyer are refreshingly well-balanced and no doubt effective in achieving the stated goal of promoting inclusion, and a liberal-minded person could almost not help but agree with them. However, the reformation of citizenship policy is not a simple thing. On the contrary, it involves grappling with some of the most fundamental and political questions in any society. It just seems to me that any society that was able to unproblematically implement the reforms suggested in the Executive Summary may not need them anyways.