Course: Citizenship and National Identity
Module 2: Documentation: Unmaking Citizens?
This module examines the deprivation of citizenship and related legal and human rights issues. Also, how it may lead to statelessness and limit access to basic rights.
This module examines how nation-states formulate citizenship norms through legal and human rights frameworks. It explores how citizenship is acquired, revoked, or denied, and the protections available under international law, with particular attention to how identity documents shape notions of belonging, citizenship, and national identity.
Principles of Citizenship Acquisition
While states have discretion in determining the criteria for granting citizenship, these criteria are generally grounded in three fundamental legal principles governing the acquisition of nationality:
- Jus sanguinis (right of blood) – nationality inherited through lineage.
- Jus soli (right of the soil) – nationality granted by birth in a state’s territory.
- Naturalization – nationality acquired through long-term residence or other criteria, such as marriage etc.
Arbitrary Deprivation of Nationality
Deprivation or denial of citizenship must not be arbitrary and in accordance with international human rights standards.
- UN Human Rights Council report (A/HRC/13/34) recommends that nationality cannot be arbitrarily removed and that although acquisition or loss of nationality is governed by internal legislation, the regulations are limited to maintain international order.
- UN Human Rights Council Resolution 10/13 recognizes that arbitrary deprivation of nationality, especially on discriminatory grounds such as race, colour, sex, language, religion, political or other opinions, national or social origin, property, birth or another status, constitutes a violation of human rights and fundamental freedoms.
- The UN Human Rights Committee, in its General Comments No. 16 and No. 27 under the ICCPR, interprets ‘arbitrary interference’ to include interferences authorized by law. It emphasizes that such interferences must still align with the aims and objectives of the Covenant and must be reasonable in the particular circumstances.
Principle of equality and non-discrimination
As reflected in Article 26 of the ICCPR, States are obliged to respect and protect human rights in all actions. This includes prohibiting discrimination on grounds such as race, gender, language, religion, political opinion, origin, or other status, including in matters related to nationality. States must refrain from both direct and indirect discrimination and take proactive measures to eliminate any discriminatory practices.
Upholding Fundamental Rights
This section aims to balance state sovereignty with international human rights obligations, with particular focus on the right to nationality and the protection of minority rights.
Nationality as a human right
Though international law does not necessarily impose a state mandate towards nationality, it is recognized as an inherent right and a basic requirement for the exercise of political rights and legal capacity of an individual. The right to nationality has been described as right to have rights.
Under Article 15(1) of UDHR, “everyone has a right to a nationality” and “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” With this article, the UDHR is establishing a core legal relationship between the individual and the state. An individual’s legal bond with a State via citizenship often establishes an essential prerequisite to enjoyment and protection of a full range of human rights. Although a soft law, it has been widely accepted as customary international law that articulates a universal standard of human rights and all States are expected to uphold, at minimum, by ensuring respect for core human rights obligations.
Several international human rights treaties affirm the right to nationality. Article 24(3) of the International Covenant on Civil and Political Rights (ICCPR) recognizes every child’s right to acquire a nationality. While states are not explicitly obligated to grant nationality, they must adopt measures, guided by non-discrimination principles, to protect this right. Furthermore, ICCPR Article 12, through its broad interpretation of “one’s own country,” reinforces the right to stay in a country where an individual has special ties.
The Convention on the Rights of the Child (CRC) strengthens this framework. Article 7 mandates birth registration and the right to acquire nationality, emphasizing state responsibility to prevent statelessness, especially for children. States are encouraged to adopt jus soli principles where necessary and ensure nationality laws are non- discriminatory. Article 3 of CRC further requires states to prioritize the best interests of the child in nationality-related decisions.
Other key treaties include CEDAW (Convention on the Elimination of All Forms of Discrimination Against Women), which guarantees women’s equal rights in acquiring, changing, or retaining nationality (Article 9). The 1961 Convention on the Reduction of Statelessness prohibits arbitrary or discriminatory deprivation of nationality, particularly where it results in statelessness.
In conclusion, nationality extends beyond mere formal recognition by a state; it is also inherently acknowledged as a basic human right.
The fundamental nature of the right to a nationality has been consistently reaffirmed by the United Nations General Assembly (for example, A/RES/50/152) and the United Nations Human Rights Council (for example, A/HRC/RES/7/10; A/HRC/RES/10/13; A/HRC/RES/13/2; A/HRC/RES/20/5; A/HRC/RES/26/14).
Effective Remedy Under International Law
When individuals are deprived of their citizenship, they must have access to an effective remedy to challenge such decisions. This principle is rooted in the fundamental right to be recognized as a person before the law and to receive equal protection without discrimination. Various international instruments affirm the right to an effective remedy in cases of citizenship deprivation.
Various international instruments affirm the right to an effective remedy in cases of citizenship deprivation. Article 8 of the Universal Declaration of Human Rights (UDHR) guarantees the right to seek redress for human rights violations, while Article 15 prohibits arbitrary deprivation of nationality. The International Covenant on Civil and Political Rights (ICCPR), under Articles 2 and 14, ensures the right to legal recourse and a fair hearing. Article 13 of the ICCPR also establishes conditions for the expulsion of non- citizens, requiring decisions to be made in accordance with the law and subject to review, except in cases of “compelling reasons of national security.”
The UN Human Rights Committee (HRC, CCPR General Comment No. 15) and the International Law Commission (ILC) emphasize key procedural safeguards, including the right to be heard, legal representation, and access to interpretation services. Additionally, the Inter-American Court of Human Rights (IACtHR, Haitian expulsion case; Juridical status & rights of undocumented migrants) has held that the absence of an effective remedy itself constitutes a human rights violation, reinforcing that remedies must be practical and accessible, not just formally recognized in law.
This leads us to consider what remedies, if any, exist within Myanmar’s legal or administrative system to prevent arbitrary deprivation of citizenship or protect the rights of minorities.
Documentations: Proof of Belonging
Proving citizenship is not always a straightforward process, especially when the burden is often on the individual to provide proof. This section explores the legal standards involved, and the challenges individuals may encounter in presenting ‘acceptable’ evidence in citizenship determination. Under international standards, the burden of proof lies with the state to ensure that the deprivation of nationality does not result in statelessness. This principle is rooted in the idea that every individual has the right to a nationality and should not be deprived of it without due process that is fair and just.
In Myanmar, acquiring citizenship has been particularly challenging for ethnic minorities such as the Rohingyas, Kachins, Karen. Even when they meet the formal criteria, they are often denied the essential documentation required to obtain citizenship. This includes birth registration and other records that would establish their permanent residence in the country.
Case presentation: Barriers to Documentation for Ethnic and Religious Minorities in Myanmar
In Myanmar, acquiring citizenship has been particularly challenging for ethnic minorities such as the Rohingya, Kachin, and Karen. Even when they meet the formal criteria, they are often denied the essential documentation required to obtain citizenship due to complex administrative procedures.
To obtain a national ID card, individuals must present a range of documents, including their original household registration list, a completed family tree covering three generations, and an original birth certificate. The possession of a national ID card is, in fact, the only proof of full citizenship in Myanmar.
Obtaining a birth certificate requires parental ID information. If the parents lack national ID documents, rendering them stateless, their children are automatically stateless as well. For instance, many Karen remain stateless despite being listed as a national race, as they are unable to secure a national ID card and consequently pass on this statelessness to subsequent generations.
Birth registration
A birth registration is the first official record of a child’s birth. It plays a key role in shaping the child’s identity. Without birth registration, a child lacks legal status in the eyes of the State and, for all practical purposes, may be considered invisible and unprotected.
LEGAL IDENTITY is operationally defined as the basic characteristics comprising an individual’s identity, including name, sex and date of birth. The primary vehicle for obtaining a legal identity is through the birth registration process.
BIRTH REGISTRATION is the official recording of the occurrence and characteristics of a birth by the civil registrar within the civil registry, in accordance with the legal requirements of a country. This establishes the existence of a person under the law and provides legal proof of his or her identity.
BIRTH CERTIFICATE is a vital record, issued by the civil registrar, that documents the birth of a child. Because it is a certified extract from the birth registration record, it proves that registration has occurred – making this document the first, and often only, proof of legal identity, particularly for children.
—- UNICEF
Fernand de Varennes – Global challenges to birth registration
Case study: Birth Registration Challenges for Rohingya Children
Rohingya children are often denied birth certificates by Myanmar authorities, with their births in some cases recorded only in household lists. Those born in refugee camps or temporary accommodations in countries like Bangladesh and Thailand are typically unregistered and lack legal identity or refugee status. As a result, they face double marginalization, excluded from both Myanmar and their host countries.
Link between Birth Registration and Citizenship
Birth registration plays a crucial role in securing a child’s right to identity, citizenship, and legal protection. It documents essential information such as the child’s name, place of birth, and parentage. Birth registration is directly tied to the process of obtaining citizenship.
Article 7 of the CRC emphasizes that children must be registered immediately after birth and have the right to a name and acquire a nationality, as well as, as far as possible, the right to know and be cared for by their parents. It also obliges states to ensure these rights, especially in cases where a child might otherwise be stateless.
Article 24 of the ICCPR echoes these rights, highlighting that every child, without discrimination, must be registered at birth, have a name, and the right to acquire a nationality. It also underlines the duty of the family, society, and the State to offer protection appropriate to the child’s status as a minor.
Target 16.9 of the 2030 Agenda for Sustainable Development aims to achieve “legal identity for all, including birth registration.”
The Global Compact on Refugees adopted by the UN General Assembly in 2018, also called on states to register the births of the children of refugees and migrants.
Rights of Minorities
As discussed in Module 1, the relationship between ethnicity, religion, national identity, and citizenship reflects a complex interplay. This dynamic may be understood in two ways with respect to the enjoyment of citizenship.
First, citizenship may be grounded in a civic bond with the state, independent of identity markers such as ethnicity, religion, or gender, and aligned with human rights obligations. Second, the acquisition, determination, or deprivation of nationality may be conditioned on ethnicity or religion, resulting in restrictive conceptions of citizenship. This latter approach often marginalizes minority groups within the State and carries profound implications for their right to nationality. More than 75% of worlds known stateless population belong to minority groups.
Minority identity is understood to involve subjective and objective elements. The self-identification of the person concerned is taken to be determinative.
UN definitions, set out primarily in the 1992 Declaration, focus on four categories: national, ethnic, religious and linguistic. It is commonly understood that in many cases, these are not hard-and-fast categories, but rather potentially overlapping ones.
Fernand de Varennes – Minority Rights is Human Rights
Multiple international instruments protect the right to nationality for minorities, including the ICCPR, ICESCR, CERD, CRC, CAT, CEDAW.
The UN Forum on Minority Issues promotes dialogue and adherence to these principles; its 2018 session focused on statelessness as a minority issue.
The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities offers key guidance for protecting minority rights.
The UN Declaration on the Rights of Indigenous Peoples (UNDRIP) guarantees the right to nationality (Article 6) and non-discrimination (Article 2).
CERD Article 5(d)(iii) explicitly prohibits discrimination in enjoying the right to nationality and affirms principles of equality and non-discrimination.
Genuine Connection and Nationality
Nationality is not merely a legal status conferred by birth or formal recognition; it also reflects an individual’s genuine connection or special ties to a country. Under international law, nationality should be based on a meaningful relationship between the person and the state, ensuring that citizenship is not an arbitrary grant but a reflection of real social, economic, and political relations.
Each of the three primary legal principles of citizenship acquisition (as highlighted in the beginning of this module) assumes a certain degree of connection to the state. However, scholars like Bauböck et al. propose a fourth concept of citizenship based on genuine links, emphasizing an individual’s special relationship with a country rather than just birth, or lineage.
The International Court of Justice (ICJ) affirmed the importance of genuine connection in the Nottebohm Case (1955), stating that nationality should reflect a real and effective bond between the individual and the State. Similarly, in the Haitian Expulsion Case, the Inter-American Court of Human Rights (IACtHR) recognized that long-term residents who establish deep ties in a country should not be treated as transients but as individuals with legitimate claims to nationality.
The Human Rights Committee (HRC) General Comment No. 27, interpreting Article 12(4) of the ICCPR, expands the concept of “own country” beyond formal nationality. It acknowledges that individuals with special ties to a country, such as long-standing residence, family connections, or socio-economic integration, should have a right to enter and remain in that country, even if they lack formal citizenship. This interpretation is particularly relevant for stateless persons and those arbitrarily deprived of nationality.
Recognizing nationality based on genuine ties is in line with international human rights standards. It guarantees that individuals who have established their lives in a country are not deprived of their fundamental rights. By adopting the principle of genuine connection, states can uphold the right to nationality, ensuring that citizenship is granted not solely by law but through real, meaningful relationships between individuals and the nation-state they call home.
Potential Consequences
The absence of basic identity documents, such as birth certificates, affects an individual’s right to acquire citizenship. This deprivation of citizenship can lead to statelessness and its corresponding consequences, including indefinite detention and refugee crises. Moreover, these situations significantly impact individuals’ ability to enjoy other essential rights, including access to healthcare, education, employment, legally recognized marriage, inheritance, voting rights, and freedom of movement.
Statelessness
Statelessness is a highly vulnerable condition that leaves individuals exposed to arbitrary treatment and denial of basic rights. It may result from a range of factors, including discriminatory laws, gaps in citizenship legislation, state dissolution or succession, or the arbitrary deprivation or exclusion from citizenship
Fernand de Varennes – Statelessness in the Case of Rohingya
De jure Stateless – A stateless person ‘who is not considered as a national by any State under the operation of its law’ (Article 1 of the 1954 Convention Relating to the Status of Stateless Persons)
De facto stateless – where such persons are persons outside the country of their nationality who are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country. (UNHCR, Handbook on Protection of Stateless Persons, 2014)
In Situ Statelessness – Refers to people born or residing in their country of residence who are denied or deprived of nationality, leaving them stateless within the borders of their own country, despite their strong connection to it, often due to discrimination, gaps in nationality laws, or administrative barriers.
(UNHCR, Handbook on Protection of Stateless Persons, 2014)
Preventing Statelessness
From a human rights perspective, a key consideration in the state’s approach to the citizenship framework is the prevention of statelessness.
Fernand de Varennes – Statelessness and Key Human Rights Protections
Statelessness: Perpetuating Marginalization and Discrimination
It is important to address statelessness within the broader context of minority rights. Another critical dimension associated with statelessness is its gendered impact.
Refugees and statelessness
Statelessness does not automatically result in refugee status, but the lack of citizenship can increase vulnerability to persecution and displacement, often leading individuals to seek asylum or refugee protection. How does the experience of the Rohingyas demonstrate the ways in which statelessness can contribute to persecution and forced displacement?
“someone who owing to well- founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
— Art 1 of The Convention Relating to the Status of Refugees (1951) and Art 1 (2) & (3) of The Protocol Relating to the Status of Refugees (1967).
Please note that there are specific exceptions to this definition, even if an individual otherwise may meet its criteria. For example, those suspected of war crimes, crimes against humanity, serious non- political crimes, or actions against the principles of the United Nations.
Case Presentation: The Rohingyas
Denied citizenship in Myanmar, they also face the challenge of not being granted legal status as a refugee in the countries to which they flee to escape persecution. This lack of recognition leaves them in legal limbo, deepening their vulnerability and restricting access to basic human rights
Effects on Children
Children without basic documents, such as birth certificates, are often denied access to education and healthcare, leading to serious long-term consequences for both individuals and their communities. For example, Rohingya children have long been denied education and basic healthcare within Myanmar. Similar challenges persist for those living in refugee camps in host countries such as Bangladesh, where they continue to face the effects of persecution and marginalization.
Read more about restrictions on Rohingya children’s access to formal education in Bangladesh.
Article 3(1) of CRC: In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
For those who live without a recognized nationality, the consequences extend beyond individual hardships, affecting entire communities and creating a cycle of exclusion, deprivation, and discrimination across generations.
For instance, Karen minorities, who possess a distinct cultural identity from the mainstream Burmese population, face systematic discrimination. In addition to complex citizenship requirements, decades of armed conflict between the Karen National Union and the Myanmar military, along with the fallout from the 2021 military coup, have further disrupted governance structures and made access to documentation even more difficult.
Many Karen families live in informal settlements, conflict zones, or as internally displaced persons (IDPs), where access to government offices and basic services is extremely limited. In such contexts, registering births becomes virtually impossible.
The absence of legal identity has far-reaching consequences. Stateless Karen children are often denied access to formal education, healthcare, public assistance, and legal protection. Without citizenship, they cannot legally work, marry, travel, or own property. This exclusion severely undermines their development and perpetuates cycles of poverty, marginalization, and vulnerability to exploitation, including child labor and trafficking.
Similarly, the Rohingya have faced systemic exclusion and persecution for decades. Unable to prove citizenship due to insufficient documentation and arbitrary administrative decisions, Rohingya have become one of the largest stateless populations in the world. The lack of birth registration for Rohingya children reinforces their statelessness, preventing access to basic rights such as education, healthcare, and legal protection. Children born without legal identity face compounded vulnerability, perpetuating exclusion across generations.
The consequences of lacking identity documents, even something as basic as birth registration, are severe. The inability to register births or prove a parent’s legal status often means that children inherit statelessness, continuing the cycle of exclusion.
The intergenerational consequences are clear: without birth registration and citizenship, children are trapped in a cycle of marginalization and exclusion, leading to a lifetime of limited opportunities and human rights violations. Statelessness thus becomes a cycle, passed from one generation to the next, undermining access to education, healthcare, and legal protections.
Additional Resources
Research papers/ articles
- Jacqueline Stevens, “Introduction” in Citizenship in Question: Evidentiary Birthright and Statelessness, Duke University Press, 2017
- Adjami, M., and J. Harrington. 2008. “The Scope and Content of Article 15 of the Universal Declaration of Human Rights.” Refugee Survey Quarterly 27 (3): 93–109. https://doi.org/10.1093/rsq/hdn047.
- Edwards, Alice. 2014. “The Meaning of Nationality in International Law in an Era of Human Rights.” In Nationality and Statelessness under International Law, edited by Alice Edwards and Laura Van Waas, 11–43. Cambridge: Cambridge University Press. https://doi.org/10.1017/CBO9781139506007.002.
- Pickering and J. Ham (eds.), Routledge, 2014; Daniel Kanstroom,Deportation, Social Control, and Punishment: Some Thoughts About Why Hard Laws Make Bad Cases, 113 HARV. L. REV. 1893-94 (2000); Reno v. American Arab Anti-Discrimination Committee 525 U.S. 471 (1999).
- Crouch, Melissa. 2017. “Judicial Power in Myanmar and the Challenge of Judicial Independence.” In Asia-Pacific Judiciaries, edited by H. P. Lee and Marilyn Pittard, 1st ed., 264–83. Cambridge University Press. https://doi.org/10.1017/9781316480946.014.
- Parashar, Archana, and Jobair Alam. 2019. “The National Laws of Myanmar: Making of Statelessness for the Rohingya.” International Migration 57 (1): 94–108. https://doi.org/10.1111/imig.12532.
- Martin Mennecke and Ellen E. Stensrud. “Myanmar and (the Failure of) Atrocity Prevention”, Global Responsibility to Protect, vol. 13 (2-3) 2021.
- Stensrud, Ellen E. “The Rohingya Crisis, the Democratisation Discourse, and the Absence of an Atrocity Prevention Lens,”Global Responsibility to Protect, vol. 13 (2-3) 2021.
- Petrozziello, Allison J. 2024. Gaps and Challenges for Ensuring Universal Birth Registration for Children Born to Migrants and Multiply Marginalized Mothers (https://www.ohchr.org/sites/default/files/documents/issues/digitalage/cfis/birth- registration/subm-universal-birth-registration-aca-dr-allison-petrozziello-toronto-metro- pdf)
- UN High Commissioner for Refugees (UNHCR),Good Practices Paper – Action 2: Ensuring that no child is born stateless, 20 March 2017, https://www.refworld.org/policy/opguidance/unhcr/2017/en/121326
- Groot, Gerard-René de. “Children, Their Right to a Nationality and Child Statelessness” Chapter 6 in Nationality and Statelessness under International law, 144-68. Cambridge: Cambridge University Press, 2014
Audio-Visuals
- Expert documentary – the right to learn one’s language https://www.inclusive-citizenship.no/the-right-to-learn-ones-own-language/
- expert interview- What would democractic mayanmar look like – https://www.inclusive-citizenship.no/what-would-a-democratic-myanmar-look-like/
Case laws
- Institute for Human Rights and Development in Africa (IHRDA) and Open Society Justice Initiative (on behalf of Children of Nubian Descent in Kenya) v. the Government of Kenya, Decision No 002/Com/002/2009, African Committee of Experts on the Rights and Welfare of the Child (ACERWC), 22 March 2011, https://www.refworld.org/jurisprudence/caselaw/acerwc/2011/en/85284
- Nottebohm Case (Liechtenstein v. Guatemala); Second Phase, International Court of Justice (ICJ), 6 April 1955, available at: https://www.icj-cij.org/public/files/case-related/18/018-19550406-JUD-01-00-EN.pdf
- The Haitian Centre for Human Rights et al. v. United States, Case 10.675, 10.675, Inter-American Commission on Human Rights (IACHR), 13 March 1997, available at: https://www.refworld.org/cases,IACHR,3ae6b71b8.html
Questions for reflection and discussion
- The burden of proving citizenship often rests on individuals who must provide official documents. What challenges might this pose, and how could people in your community be affected if such requirements were enforced?
- Do you think that the lack of birth registration is an early indicator of a child’s increased vulnerability and marginalization? If so, how?
- What responsibilities do States have to ensure that every child is registered at birth?
- How can ethnic and religious minorities protect themselves from discrimination in accessing official documentation?
- Considering the concept of genuine links, can ethnic and religious minorities deprived of citizenship in your country be recognized as citizens? If so, how and why?
- Do you see ways in which the State might also be impacted, directly or indirectly, by how it addresses or fails to address the situation of ethnic and religious minorities in Myanmar?
- The Rohingya are stateless and often not recognized as refugees in the countries where they seek safety. What does this double exclusion show about gaps in international protection, and how might similar risks apply to other ethnic and religious minorities in Myanmar?
Excercise
Case:
The Yean and Bosico v. Dominican Republic case (2005) involved two girls of Haitian descent born in Dominican Republic, were denied Dominican nationality and birth certificates, leaving them stateless. The Inter-American Court ruled that this violated their rights to nationality, equality, and special protection as children, setting a landmark precedent against discrimination and statelessness.
Guiding Questions:
- Which human rights were violated in this case?
- Why is the right to nationality considered fundamental to accessing other rights?
- How did the denial of birth certificates contribute to the girls becoming stateless?
- In what ways did racial or ethnic discrimination play a role in this case?
- What measures would you put in place to prevent similar violations?
Activity (group discussion):
- Compare this case with situations in your own country or region.
- Identify key lessons from the case that could apply to strengthening citizenship, identity, or protection against statelessness locally.
