When applying the definition of statelessness in practice and deciding if a person is considered as a national by any state under the operation of its law, it is important to not only look at the content of relevant nationality law. How the legal provisions are interpreted and applied, by the state in a particular case, should also be considered. This means studying how the administrative authorities and the courts work with the nationality law when they apply it in practice. In some cases, but certainly not always, a stateless person may also be undocumented, hold an irregular immigration status or qualify for protection as a refugee. The fact that a stateless person’s circumstances can also be characterised through the use of other terms has no bearing on the finding of statelessness. 1.2 Stateless and at risk populations in the ASEAN region This paper looks at statelessness in South East Asia. The focus is on the ten countries that are presently members of ASEAN:5 Brunei Darussalam, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand and Viet Nam. In terms of statistics, data suggests that this region is significantly affected by statelessness. UNHCR has flagged the existence of a stateless population in eight of the ten ASEAN states.6 Although there are gaps in the reporting of exact figures, information from UNHCR and other sources indicates that the stateless population of several countries in the region numbers in the thousands or even tens of thousands.7 This initial window into statelessness in the ASEAN region suggests a problem of substantial magnitude. Regardless of the question of numbers, it is possible to gain a sense of the problem of statelessness in the ASEAN region from various factors on the ground. To begin with, the colonial era has left a mark on South East Asia. As the contemporary independent states emerged, there were difficult questions of national identity and belonging to answer. The case of the Muslim residents of northern Rakhine State is illustrative of the danger that statelessness can emerge in this context.8 Since gaining independence, Myanmar has not recognised this ethnically, linguistically and religiously distinct minority as full members of the state. When a new nationality law was passed in 1982, the Muslim residents of northern Rakhine State were not included among the 135 “national races” granted full citizenship. They also faced great difficulty establishing an entitlement to nationality under any of the other provisions of the law. When the state started to issue Citizens Scrutiny Cards to all Myanmar nationals from 1989 onwards, the Muslim residents of northern Rakhine State were not provided with any cards, leading to the conclusion that the government considered them to be foreigners.9 Other countries in the region have faced a similar challenge in successfully incorporating ethnic or indigenous minorities in the body of citizens. In some cases, the state’s approach has raised concerns about statelessness. In Indonesia, for instance, efforts to ensure that the country’s ethnic Chinese minority are recognized as citizens and issued appropriate documentation are ongoing.10 Concerns have also been flagged with regards to access to nationality for ethnic Chinese in Brunei Darussalam.11 Meanwhile in Thailand, a proportion of the hill tribe community, comprising various ethnic and linguistic groups, has yet to acquire 5 The Association of Southeast Asian Nations. The only countries for which UNHCR currently has no indication of any information about stateless persons are Lao PDR and Singapore. UNHCR, 2009 Statistical Report: Trends in displacement, protection and solutions, 2010. 7 Note that it is difficult to compile reliable data on statelessness due to, among other issues, a divergence in the interpretation and application of terminology, the challenge inherent in proving that someone does not hold any nationality, the absence of procedures for the identification of stateless persons and political sensitivities that may surround the labelling of a particular individual or group as stateless (or not doing so). 8 Note that this group is commonly referred to as “Rohingya”. 9 Minorities at risk project, Assessment for Rohingya (Arakanese) in Burma, 31 December 2003; M. Lynch; K. Southwick, Nationality rights for all: A progress report and global survey on statelessness, Refugees International, 2009. Note that while this population claim to Myanmar nationality remains unrecognised, a programme was later launched under which Temporary Registration Certificates (TRCs) were issued, confirming lawful residence in northern Rakhine State and even providing eligibility to vote in national elections. These practices are discussed further in section 6. 10 M. Lynch; K. Southwick, Nationality rights for all: A progress report and global survey on statelessness, Refugees International, 2009; US Department of State, 2009 Country Reports on Human Rights Practices – Indonesia, 11 March 2010; Tales of stateless, foreigner status Jakartan Chinese, The Jakarta Post [Indonesia], 12 February 2010. 11 Minority Rights Group International, World Directory of Minorities and Indigenous Peoples – Brunei Darussalam, 2008; US Department of State, 2008 Country Reports on Human Rights Practices – Brunei Darussalam, 25 February 2009; M. Lynch; K. Southwick, Nationality rights for all: A progress report and global survey on statelessness, Refugees International, 2009; Freedom House, Freedom in the World 2010 – Brunei, 3 February 2010. 6 2