The right to a nationality is foundational towards the protection and fulfillment of basic human rights. If you have ever crossed an international border, chances are you hold a national identity document that entitles you to not only leave but also return to your country of residence. Most stateless persons lack such documentation, restricting their ability to travel. Being stateless can also mean you are unable to secure housing, access education, or get married, but what it certainly means is that you are forced to live in a state of indeterminacy, never sure what rights you have and how you can guarantee protection of those rights.
We observe statelessness in collective gradual denationalizations such as with the Rohingya in Myanmar but also in highly individualized situations where national laws and policies exist to safeguard against statelessness but fail, in their implementation, to prevent statelessness. The UNHCR #IBELONG campaign catalogs the main ways a person can become stateless in its Global Action Plan to End Statelessness. These include birth to stateless parents, gender discrimination in nationality laws, lack of birth registration, deprivation of nationality, lack of documentary proof of nationality, state succession, and migration. The specific effects of statelessness on an individual are determined by national laws. One country might only provide education for those without nationality, while another country might limit work permits to those of certain nationalities.
As a part of a multi-year study of statelessness in the Middle East and North Africa, the International Human Rights Clinic has begun working to map statelessness in Tunisia. When we say map, we mean identify where cases of statelessness may present themselves, what legal protections exist that might protect people from becoming stateless, and what gaps in the current protection framework exist. To begin our research in Tunisia, we need to examine the laws that govern nationality, understand the political context around legal reforms, and study the protections instituted to reduce the risk of statelessness to vulnerable groups such as children, nomads, irregular migrants, or refugees.
In 2010, Tunisia addressed one potential cause of statelessness by reforming its nationality code to provide that, “Any child born to a Tunisian father or mother is a Tunisian national.” Previously, children born between Tunisian women and non-Tunisian men would not be able to receive Tunisian nationality automatically. This form of gender discrimination in nationality laws is common across the Middle East and North Africa (MENA) region and one of the main causes of statelessness in the region . Where the father is unknown, missing, deceased, or stateless, such gender discriminatory provisions can result in statelessness. Even if the parents are married but the father is a foreign national, he may not be able to transmit his nationality if, for example, his country of origin lacks diplomatic representation in Tunisia. Despite the success of this reform, which enabled Tunisian women to transmit their nationality to their children, gaps remain. An undercurrent of gender discrimination in the domestic laws of Tunisia appears to account for these gaps. Article 7 of the nationality code grants Tunisian nationality to anyone who can prove their father and paternal grandfather were born in Tunisia, but makes no mention of a matrilineal line. Unfortunately, recent political turmoil in Tunisia has disrupted efforts to overhaul discriminatory laws. The 2010 reform remains an unquestionable success that we hope to explore and trace in our interviews, keenly aware that the dismissal of Tunisia’s prime minister and suspension of parliament on 25 July 2021 by President Kais Saied complicate any predictions about the future of further legislative reform in the country.
People fleeing persecution in their home country (refugees), are at risk of losing nationality because their own government has failed to protect them. Here, the Tunisian legal and policy frameworks fall short of averting statelessness for a vulnerable group. There is no way for refugees to naturalize in Tunisia based on their refugee status, and thus achieve full integration in their country of asylum. Rather, refugees in Tunisia are issued two-year residence permits which can be renewed but do not result in anything resembling permanent residence or automatic access to the right to work. This precarious state is especially difficult for stateless refugees for whom the durable solution of “voluntary repatriation” does not exist. In 2011, Tunisia began a process to create a national asylum law to fulfill its commitments under the 1951 Convention Relating to the Status of Refugees. Unfortunately, our research shows that this legislative process is stalled and concerned actors (such as UNHCR and civil society) now recognize the bill has no pulse. A report by the German Council on Foreign Relations captures this change of direction and recommends that, instead of focusing on advocacy for a draft asylum bill that is going nowhere, efforts should be focused on providing services to refugees, whether this be through agencies like the UNHCR or civil society organizations. This view, taken in June 2021, seems even more prescient now that the very notion of passing further legislation is currently uncertain in Tunisia. We are not aware of any draft legislation implementing Tunisia’s obligations under the two statelessness conventions.
Fortunately, unlike many other countries in the MENA, Tunisia does not have a long-standing population of persons in condition of multigenerational statelessness. Instead, statelessness in Tunisia mostly manifests in the migratory context. Groups such as the Syrian Dom or Tuareg refugees from Libya are seen as at particular risk of statelessness. The risk of statelessness in the migration context is particularly acute for children. When children are born on the move, the basic framework used to register a birth or access a nationality can be become impossibly out of reach. Failure to register or claim a nationality can lead to further problems such as difficulty accessing education, healthcare, residency, and other essential rights.
The first step to prevent statelessness for children is to make sure that every child can obtain a birth certificate. As such, birth registration systems are often a focal point of discussions regarding statelessness. Birth registration in Tunisia, from the perspective of our desk research and remote interviews, appears relatively straightforward, requiring only a birth notification. Having seen in other MENA countries that legal requirements on the books are rarely smoothly implemented, we hope to learn if this process is easily accessible for migrants, whether children born in irregular circumstances can obtain the necessary birth notification. If one exceeds the 10-day deadline set in Tunisia’s law, it may prove costly and time-consuming to register a child through the late registration procedure in court. We can compare Tunisia to Morocco and Egypt where a period of 30 days to register a birth has been seen as prohibitively short. Our interviews with interlocutors to date suggest that Tunisia’s 10-day birth registration period, though in theory straightforward, is also far too short, especially for migrants who do not give birth in hospitals and hesitate to interact with the authorities.
Collaborating with Tunisian partners will help us better understand what laws and policies address or create risks of statelessness, with the goal of identifying solutions and collecting recommendations. Regardless of our ultimate conclusions, our research has already taught us a good deal about statelessness: that the problem can be subtle; the experience is marginalizing; and that addressing the issue takes careful consideration of how the laws of multiple countries interact, how these laws are translated into reality, and how people in dire circumstances are able to negotiate for flexibility and discretion within the bounds of the law.
Harrison Liddle is a second-year law student at Boston University School of Law. Harrison earned his Bachelor’s from Bard College where he studied Literature with an interest in post-colonialism and Palestinian literature. He strives to bring a critical and empathetic approach to his work in Law School, the International Human Rights Clinic, and beyond.