Abstract
A variety of writings about fears of the forced repatriation of Rwandan “refugees” in host states refer to the 1951 Convention related to the Status of Refugees (1951 Convention), in particular, the cessation clause.
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Notes
- 1.
In this chapter, the term “refugees” refers to individuals of the following two categories. The first category is refugees under the terms of Article 1(A) (2) of the 1951 Convention related to the Status of Refugees (the 1951 Convention). The second category is former refugees whose refugee status has ceased in accordance with Article 1(C)(5) of the 1951 Convention but who are refusing return to their state of nationality.
- 2.
See for instance, K. O’Connor, “Repatriation: The Politics of (Re)-Constructing and Contesting Rwandan Citizenship”, Working Paper Series No. 92, Refugee Studies Centre, University of Oxford, 2013; F. Ahimbisibwe, “The Politics of Repatriation: Rwandan Refugees in Uganda, 2003–2017”, Working Paper/2017.09, ISSN 2294-8643, IOB, University of Antwerp, 2017, available at: https://www.uantwerpen.be/images/uantwerpen/container2673/files/Publications/WP/2017/wp-201709.pdf (last visited 9 June 2019).
- 3.
This chapter refers to the 1954 and 1961 Conventions as “statelessness conventions”.
- 4.
The following is one of few pieces of literature that analyses the Rwandan refugees from the perspectives of statelessness and the statelessness convention. L. N. Kingston, “Bringing Rwandan Refugees ‘Home’: The Cessation Clause, Statelessness, and Forced Repatriation”, International Journal of Refugee Law, 29(3), 2017, 417–437.
- 5.
D. Weissbrodt & C. Collins, “The Human Rights of Stateless Persons”, Human Rights Quarterly, 28, 2006, 245–276, 248.
- 6.
In this chapter, illegitimate repatriation implies repatriation to Rwanda after an application of the cessation clause (Article 1(C)(5) and (6) of the 1951 Convention) which does not fully consider the following factors for cessation of refugee status. Firstly, for application of the cessation clause, there must be evidence which shows not only a substantial political transformation of Rwanda in a durable sense but also the re-establishment of a relationship with the state to resume protection. Secondly, it is necessary to confirm the presence of a system and procedure to examine the circumstances of each refugee, not the Rwandan national group as a whole, since a risk of being persecuted must be specific to the individual. See the relevant argument in J. Hathaway & M. Foster, The Law of Refugee Status, 2nd ed., Cambridge, Cambridge University Press, 2014, 476–494.
- 7.
UNHCR, “Uganda: Tripartite Agreement Signed on Return of Rwandans”, 25 July 2003, available at: https://www.unhcr.org/news/briefing/2003/7/3f20fbe2c/uganda-tripartite-agreement-signed-return-rwandans.html (last visited 18 May 2019). For the Tripartite Agreement with other states, see the followings. UNHCR, “Rwanda: Voluntary Repatriation Campaign Begins”, 7 Nov. 2003, available at: https://www.unhcr.org/news/briefing/2003/11/3fab7c95b/rwanda-voluntary-repatriation-campaign-begins.html (last visited 13 November 2019). The New Humanitarian, “Namibia-Rwanda: Kigali, Windhoek and UN Agency Sign Refugee Pact”, 7 Nov. 2003, available at: https://reliefweb.int/report/rwanda/namibia-rwanda-kigali-windhoek-and-un-agency-sign-refugee-pact (last visited 13 Nov. 2019). The New Humanitarian, “Rwanda-Zimbabwe: Harare, Kigali and UNHCR Sign Tripartite Agreement”, 10 Dec. 2003, available at: https://reliefweb.int/report/rwanda/rwanda-zimbabwe-harare-kigali-and-unhcr-sign-tripartite-agreement (last visited 13 Nov. 2019). U.S. Committee for Refugees and Immigrants, “U.S. Committee for Refugees World Refugee Survey 2004—Mozambique”, 25 May 2004, available at: https://www.refworld.org/docid/40b459418.html (last visited 13 Nov. 2019).
- 8.
O’Connor, “Repatriation: The Politics of (Re)-Constructing and Contesting Rwandan Citizenship”, 18; UNHCR, “Implementation of the Comprehensive Strategy for the Rwandan Refugee Situation, including UNHCR’s Recommendations on the Applicability of the ‘Ceased Circumstances’ Cessation Clauses”, 31 Dec. 2011, para. 28, available at: https://www.refworld.org/docid/4f33a1642.html (last visited 13 May 2019).
- 9.
UNHCR, “Implementation of the Comprehensive Strategy for the Rwandan Refugee Situation, including UNHCR’s Recommendations on the Applicability of the ‘Ceased Circumstances’ Cessation Clauses”, para. 28.
- 10.
UNHCR Rwanda, “Homepage”, available at: https://www.unhcr.org/rw/ (last visited 13 May 2019). Caution must be exercised that asylum states such as Uganda evaluate the UNHCR’s recommendation as evidence to justify cessation of refugee status and repatriation, given that decision-making is not mandated to UNHCR but to state authorities. Hathaway & Foster, The Law of Refugee Status, 485–486.
- 11.
O’Connor, “Repatriation: The Politics of (Re)-Constructing and Contesting Rwandan Citizenship”, 19.
- 12.
For an overview of various functions of nationality, see A. Edwards, “The Meaning of Nationality in International Law in an Era of Human Rights: Procedural and Substantive Aspects”, in A. Edwards and L. van Waas (eds.), Nationality and Statelessness under International Law. Cambridge, Cambridge University Press, 2014, 11–43. For the role of nationality in controlling individuals, see H. Akiyama, “Enforcement of Nationality and Human Insecurity: A Case Study on the Securitised Japanese Nationality of Koreans during the Colonial Era”, Journal of Human Security Studies, 7(2), 2018, 79–94.
- 13.
O. Arakaki, “Mukokuseki toha Nanika?: Mukokuseki Sakugen Johyaku no Gendaiteki Kadainiokeru Sayo [What is Statelessness?: Function of the 1961 Convention in Modern Issues]”, in K. Koizumi (ed.), Nanmin wo Do Toraeruka? [How do We Conceive of “Refugees”?], Tokyo: Keio University Press, 2019, 200–203.
- 14.
Open Society Initiative, “The Africa Citizenship & Discrimination Audit Preparatory Meeting: Report of a Conference held in Dakar, Senegal on July 19–20, 2004”, 2004, 5, available at: https://www.opensocietyfoundations.org/sites/default/files/audit_20040727.pdf (last visited 10 May 2019).
- 15.
Ibid, 5.
- 16.
S. Buckley-Zistel, “Dividing and Uniting: The Use of Citizenship Discourses in Conflict and Reconciliation in Rwanda”, Global Society, 20(1), 2006, 101–113, 108.
- 17.
O’Connor, “Repatriation: The Politics of (Re)-Constructing and Contesting Rwandan Citizenship”, 11; Kingston, “Bringing Rwandan Refugees ‘Home’: The Cessation Clause, Statelessness, and Forced Repatriation”, 429–432. See also H. Hintjens, “Post-genocide identity politics in Rwanda”, Ethnicities, 8(1), HAL Id: hal-00571890, 2008, 5–41.
- 18.
Human Rights First, “A Decade of Unrest: Unrecognized Rwandan Refugees in Uganda and the Future of Refugee Protection in the Great Lakes”, 2004, 26, available at: https://www.humanrightsfirst.org/wp-content/uploads/pdf/Decade-of-Unrest.pdf (last visited 10 May 2019).
- 19.
Ibid, 26.
- 20.
Cited in O’Connor, “Repatriation: The Politics of (Re)-Constructing and Contesting Rwandan Citizenship”, 22.
- 21.
Ibid., 23.
- 22.
M. Yonekawa, Ayatsurareru Nanmin: Seifu, Kokuren, NGO no Hazama de [Manipulated Refugees: In between Governments, UN and NGOs]. Tokyo: Chikuma Shobo, 2017, 249–50. Kingston, “Bringing Rwandan Refugees ‘Home’: The Cessation Clause, Statelessness, and Forced Repatriation”, 433.
- 23.
It must be noted that Articles 7, 8, 9, 13, 14, 15 and 16 of the 1930 Convention on Certain Questions Relating to the Conflict of Nationality Laws (1930 Convention) contained provisions to prevent statelessness. However, the convention attempted to prevent both dual nationality and statelessness, so prevention of statelessness was not the particular focus of the 1930 Convention.
- 24.
See Article 1 of the 1930 Convention.
- 25.
Regarding the denationalisation during WWII and concerns related to this issue after the end of WWII, see the following. G. G. Schram, “Article 15”, in A. Eide, G. Alfredsson, G. Melander, L. A. Rehof & A. Rosas (eds.), The Universal Declaration of Human Rights: A Commentary, Drammen: Scandinavian University Press, 1992, 231.
- 26.
At the time, refugees and stateless persons were not separated, but they were regarded as the same category of people. O. Arakaki, “Mukokusekisha no Nanminsei: Nyujirando no Jissen no Kentou wo Chuushinni [Stateless Refugees: Practice of New Zealand as a Case Study of the Refugee Status Determination]”, Sekaihougakkai, Sekaihounenpou[Yearbook of World Law], 31, 2012, 66–68.
- 27.
See UN, A Study of Statelessness, UN Doc. E/1112, E/1112/Add. 1, 1949, 12.
- 28.
However, some argue that Article 15 of the UDHR is recognised as a part of customary international law. J. P. Humphrey, “The Universal Declaration of Human Rights: Its History, Impact and Juridical Character”, in B.G. Ramcharan (ed.), Human Rights: Thirty Years after the Universal Declaration, The Hague, Boston and London: MartinusNijhoff, 1979, 21.
- 29.
See UN General Assembly, “Draft International Declaration of Human Rights: Recapitulation of Amendments to Article 13 of the Draft Declaration (E/800)”, UN Doc. A/C.3/286/Rev.1, 30 Oct. 1948. See also Commission on Human Rights, “Summary Record of the Fifty-Ninth Meeting, Held at Lake Success, New York, Friday, 4 June 1948, at 10.45 a.m.”, UN Doc. E/CN.4/SR.59, 7, 10 June 1948.
- 30.
It must be noted that human rights perspectives were not the only contexts in which statelessness was concerned. In the orthodox conception of the international order, the presence of stateless persons contradicts the assumption that everyone should belong to a state as its member. A single nationality principle is one example. The Preamble to the 1930 Convention notes that “every person should have a nationality and should have one nationality only”. See also R. Donner, The Regulation of Nationality in International Law, 2nd ed., New York: Transnational Publishers, 1994, 18. In this context, statelessness was viewed as an “anomaly”. P. Weis, “The United Nations Convention on the Reduction of Statelessness, 1961”, International & Comparative Law Quarterly, 11(4), 1962, 1073; UN, A Study of Statelessness, E/1112; E/1112/Add.1, V.1.1.
- 31.
For acquisition of a nationality by birth, see Articles 1 to 4 of the 1961 Convention. For prevention of the loss of a nationality, see Articles 5 to 10 of the convention.
- 32.
UN General Assembly, “Draft International Covenants on Human Rights, Report of the Third Committee”, UN Doc. A/5365, para. 25 (17 Dec. 1962). Commission on Human Rights, “Report of the Working Group on a Draft Convention on the Rights of the Child”, UN Doc. E/CN.4/L.1575, para. 14 (17 Feb. 1981).
- 33.
At the level of domestic law and practice in some states, renunciation has been allowed even if she or he becomes a stateless person. For example, Thomas Jolley renounced US citizenship at the US consulate in Toronto to avoid the draft to serve in the Vietnam War, and he made himself stateless though his action. In the early 1990s, a few hundreds Romanians filled for political asylum in Germany and renounced their Romanian citizenship, thereby instantly making themselves stateless. D. Weissbrodt, The Human Rights of Non-citizens, Oxford, Oxford University Press, 2008, 92.
- 34.
Concerning other exceptions for which the 1961 Convention allows a state party to render a person stateless, see, for instance, Article 7(4) (loss of nationality of a naturalised person spending an extended period abroad), Article 8(2)(b) (deprivation of nationality acquired by misrepresentation or fraud) and Article 8(3) (deprivation of nationality of a person acting in a manner seriously prejudicial to the vital interests of a state party that is inconsistently with her or his duty of loyalty to the state).
- 35.
Article 31 of the Vienna Convention on the Law of Treaties, which provides the general method to interpret treaties, states that “A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”.
- 36.
UN General Assembly, “United Nations Conference on the Elimination or Reduction of Future Statelessness, Committee of the Whole, Summary Record of the Seventh Meeting Held at the Palais des Nations, Geneva, on Monday, 6 April 1959, at 3 p.m.”, UN Doc. A/CONF.9/C.1/SR.7, 4, 24 Apr. 1961. The delegate submitted the proposal to insert the following prototype of Article 7(1)(b):
The provisions of the preceding sub-paragraph [the present Article 7(1)(a)] may not be invoked against the exercise by a person of the rights defined in articles 13 and 14 of the Universal Declaration of Human Rights.
UN General Assembly, “United Nations Conference on the Elimination or Reduction of Future Statelessness, HOLY SEE: Amendments to article 7 adopted by the Committee of the Whole”, UN Doc. A/CONF.9/L.65, 1, 16 Apr. 1959.
- 37.
UN General Assembly, “United Nations Conference on the Elimination or Reduction of Future Statelessness, Summary Record of the Tenth Plenary Meeting Held at the Palais des Nations, Geneva, on Tuesday, 16 April 1959, at 10.15 a.m.”, UN Doc. A/CONF.9/SR.10, 8, 24 Apr. 1961.
- 38.
Ibid, 8.
- 39.
Ibid, 9–10.
- 40.
UN General Assembly, “United Nations Conference on the Elimination or Reduction of Future Statelessness, Summary Record of the Eleventh Plenary Meeting Held at the Palais des Nations, Geneva, on Tuesday, 16 April 1959, at 3.10 p.m.”, UN Doc. A/CONF.9/SR.11, 10, 24 Apr. 1961.
- 41.
UNHCR, Expert Meeting: Interpreting the 1961 Statelessness Convention and Avoiding Statelessness resulting from Loss and Deprivation of Nationality, 2014, para. 43, available at: http://www.refworld.org/pdfid/533a754b4.pdf (last visited 25 May 2019).
- 42.
UN General Assembly, “United Nations Conference on the Elimination or Reduction of Future Statelessness Committee of the Whole Summary Record of the First Meeting Held at the Palais des Nations, Geneva, on Wednesday, 1 April 1959, at 4.30 p.m.”, UN Doc. A/CONF.9/C.1/SR.1, 4, 24 Apr. 1961.
- 43.
UN General Assembly, “United Nations Conference on the Elimination or Reduction of Future Statelessness Committee of the Whole Summary Record of the Seventh Meeting Held at the Palais des Nations, Geneva, on Monday, 6 April 1959, at 3 p.m.”, UN Doc. A/CONF.9/C.1/SR.7, 3. Statement of Herment, Belgium.
- 44.
Ibid, 8.
- 45.
Ibid, 4.
- 46.
For example, see UN General Assembly, “Declaration on Territorial Asylum”, 14 Dec. 1967, UN Doc. A/RES/2312(XXII), Article 1(1).
- 47.
Caso Familia Pacheco Tineo vs Estado Plurinacional de Bolivia, Sentencia de 25 de noviembre de 2013, 3. Translated and quoted in M-T. Gil-Bazo, “Asylum as a General Principle of International Law”, International Journal of Refugee Law, 27(1), 2015, 13.
- 48.
Ibid.
- 49.
G.S. Goodwin-gill and J. McAdam, The Refugees in International Law, 3rd ed., Oxford, Oxford University Press, 2007, 365.
- 50.
UNHCR Executive Committee, “Safeguarding Asylum”, No. 82 (XLVIII), 48th session, 1997.
- 51.
UN Treaty Collection, “Convention on the Reduction of Statelessness”, available at: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=V-4&chapter=5&clang=_en (last visited 13 May 2019).
- 52.
Article 18 of the Rwandan nationality law. The English translation of the Rwandan Nationality Law is available from the following website of the Citizenship Rights in Africa Initiative. http://citizenshiprightsafrica.org/wp-content/uploads/2016/07/Rwanda-Organic-Law-Nationality-No30-2008.pdf (last visited 13 May 2019).
- 53.
UN General Assembly, “United Nations Conference on the Elimination or Reduction of Future Statelessness, Committee of the Whole, Summary Record of the Seventh Meeting Held at the Palais des Nations, Geneva, on Monday, 6 April 1959, at 3 p.m.”, UN Doc. A/CONF.9/C.1/SR.7, 3.
- 54.
See a chapter titled “‘Voluntary’ Repatriation of Rwandan Refugees in Uganda: An Analysis of Law and Practice” and section 4 “Forced repatriation under the UN-sponsored cessation clause” of a chapter titled “Where is Rwanda’s Peace” of this book. See also The Fahamu Refugee Programme, “Rwanda: Cessation of Refugee Status is Unwarranted” (Memorandum of Fact and Law), 2011, 2, available at: http://www.refugeelegalaidinformation.org/sites/srlan/files/fileuploads/Memo%20of%20Fact%20and%20Law.pdf (last visited 9 June 2019); Ahimbisibwe, “The Politics of Repatriation: Rwandan Refugees in Uganda, 2003–2017”, 13–14.
- 55.
In 2014, UNHCR launched the “#IBelong” campaign to end statelessness globally by 2024. For more details on the campaign, see UNHCR, #IBelong, https://www.unhcr.org/ibelong/ (accessed on 20 May). For the effects and challenges of the #IBelong campaign, see H. Akiyama, UNHCR niyoru Mukokuseki no Yobou to Sakugenni Muketa Torikumi: Sono Kouka to Kadai [UNHCR's Role in Preventing and Reducing Statelessness: Its Effects and Challenges], The United Nations Studies, 19, 2018, 191–219. UN General Assembly, “Declaration on Territorial Asylum”, UN Doc. A/RES/2312(XXII), Art. 1(1). UN General Assembly, “Question of the Establishment, in Accordance with the Convention on the Reduction of Statelessness, of a Body to which Persons Claiming the Benefit of the Convention may Apply”, UN Doc. A/RES/3274 (XXIX), 10 Dec. 1974; UN General Assembly, “Question of the Establishment, in Accordance with the Convention on the Reduction of Statelessness, of a Body to which Persons Claiming the Benefit of the Convention may Apply”, UN Doc. A/RES/31/36, 30 Nov. 1976. In 1996, UNHCR was requested to “provide relevant technical and advisory services pertaining to the preparation and implementation of nationality legislation”. UN General Assembly, “Resolution Adopted by the General Assembly [on the Report of the Third Committee (A/50/632)] 50/152 Office of the United Nations High Commissioner for Refugees”, UN Doc. A/RES/50/152, 9 Feb. 1996, para. 15, available at: http://www.un.org/documents/ga/res/50/ares50-152.htm (last visited 1 Nov. 2017).
- 56.
UN General Assembly, “Declaration on Territorial Asylum”, UN Doc. A/RES/2312(XXII), Article 1(1). UN General Assembly, “Question of the Establishment, in Accordance with the Convention on the Reduction of Statelessness, of a Body to which Persons Claiming the Benefit of the Convention may Apply”, UN Doc. A/RES/3274 (XXIX); UN General Assembly, “Question of the Establishment, in Accordance with the Convention on the Reduction of Statelessness, of a Body to which Persons Claiming the Benefit of the Convention may Apply”, UN Doc. A/RES/31/36. In 1996, UNHCR was requested to “provide relevant technical and advisory services pertaining to the preparation and implementation of nationality legislation”. UN General Assembly, “Resolution Adopted by the General Assembly [on the Report of the Third Committee (A/50/632)] 50/152 Office of the United Nations High Commissioner for Refugees”, UN Doc. A/RES/50/152, available at: http://www.un.org/documents/ga/res/50/ares50-152.htm (last visited 1 Nov. 2017).
- 57.
UNHCR, “UNHCR Action to Address Statelessness: A Strategy Note”, March 2010, para. 69, available at: https://www.unhcr.org/protection/statelessness/4b960ae99/unhcr-action-address-statelessness-strategy-note.html (last visited 25 March 2019).
- 58.
As to information relevant to the claim of possible incompatibility between the human rights situation in Rwanda and the principles in Article 14 of the UDHR, see 2018 Country Reports on Human Rights Practices published by the US Department of State noting that torture took place in Rwanda, referring to a report by Human Rights Watch. US Department of State, 2018 Country Reports on Human Rights Practices: Rwanda, 2019, available at: https://www.state.gov/reports/2018-country-reports-on-human-rights-practices/rwanda/ (last visited 20 May 2019).
- 59.
Uganda became a contracting party in 1965 and Zambia in 1974. UN Treaty Collection, “Convention relating to the Status of Stateless Persons”, available at: https://treaties.un.org/Pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-3&chapter=5&Temp=mtdsg2&clang=_en (last visited 20 May 2019).
- 60.
For the rights to be protected as stateless persons pursuant to the 1954 Convention, see UNHCR Handbook on Protection of Stateless Person under the 1954 Convention relating to the Status of Stateless Persons, Geneva, UNHCR, 2014.
- 61.
However, it must be noted that unlike the 1951 Convention, the 1954 Convention does not possess a clause on non-refoulement.
- 62.
UNHCR, Handbook on Protection of Stateless Person under the 1954 Convention relating to the Status of Stateless Persons, para. 51.
- 63.
For the role of likeminded-states in preventing and ending statelessness, see Akiyama, UNHCR niyoru Mukokuseki no Yobou to Sakugenni Muketa Torikumi: Sono Kouka to Kadai, 199–202.
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Acknowledgements
The authors of this chapter express gratitude towards Associate Professor Herman Salton, International Christian University, and Associate Professor Yue Fu, Ibaraki University, who reviewed draft and provided valuable comments. This work was partially supported by JSPS KAKENHI Grant Number 18K01479.
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Akiyama, H., Arakaki, O. (2020). Renouncing Nationality to Avoid Repatriation: A Perspective from the Convention on the Reduction of Statelessness. In: Yonekawa, M., Sugiki, A. (eds) Repatriation, Insecurity, and Peace. Springer, Singapore. https://doi.org/10.1007/978-981-15-2850-7_2
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