The unforeseen emergence of the COVID-19 pandemic brought the world to an eerie standstill. Countries around the world proceeded to enforce lockdowns, restrict movement and halt the tumultuous pace of daily life. For many young individuals, the pandemic is the first experience of a lockdown. This experience, however, is far from new for stateless individuals. Lacking basic rights that nationality entails, their situations are especially precarious now and need urgent attention. This holds particularly true for the bidoon jinsiya (Arabic for ‘without nationality’; also known as “Bidoon”) residing in Kuwait, whose plight has caught little international attention at this time. This piece seeks to argue that this dearth of international attention on the situation of the Bidoon is extremely concerning, given that the community has experienced denial of human rights that precedes COVID-19 and its global impact. Simultaneously, it makes a case for the recognition of Kuwaiti nationality and its concomitant rights for the Bidoon.
The Origins of the Bidoon Question
The historical causes for statelessness within the Bidoon vary. Several were excluded during Kuwait’s preliminary efforts to register its population upon attaining independence in 1961. Many did not understand the importance of registering for Kuwaiti nationality or did not have requisite proof establishing their link to the state. Additionally, the geographical location of registration points and lack of means to travel to those places meant that several persons were unable to apply for Kuwaiti nationality. Lastly, this registration exercise was predicated on a territorial notion of citizenship, a concept alien to migratory nomadic and tribal groups, many of whom are situated in outlying areas.
In 1986, Kuwait designated the Bidoon as ‘illegal immigrants’, depriving them of several rights they erstwhile enjoyed. The events of the Iran-Iraq War as well as the Iraqi invasion of Kuwait in 1990 had significant bearings on this systematic deprivation. Several Iraqi refugees were suspected of posing as Bidoons to avoid military service or escape persecution. Most Bidoon were seen as accomplices to the Iraqis and their loyalty was questioned, even though a fair number served in the Kuwaiti military – one of the few places they could still work.
Additionally, the provisions of the Nationality Law, 1959 further problematised the framework concerning statelessness. The effective outcome meant that statelessness would be inherited by successive generations of those persons who failed to prove their link to the State. The patrilineal provisions of the Nationality Law, furthermore, create another category of the Bidoon. This category consists of children who are born to Kuwaiti mothers and Bidoon fathers, highlighting that Kuwaiti women cannot pass on their nationalities in the same way as men.
Impact and Discourse Surrounding COVID-19 Concerning the Bidoon
In the present day, the Bidoon continue to be exceptionally vulnerable and face several barriers to accessing basic rights, including but not limited to healthcare, education, employment, housing subsidies, and so forth. This is mainly due to the fact that access to these services is contingent on securing Kuwaiti nationality. Lacking nationality, their existing vulnerabilities have exacerbated. This is a serious impediment as access to these services is generally linked to possessing the nationality of a state, which makes the issue cyclical, as the Kuwaiti nationality itself entails lucrative benefits, such as access to free education, healthcare, and housing subsidies. Further, in the circumstances of COVID19, the denial of access to healthcare poses an acute risk to the Bidoon at this moment; one of the first confirmed coronavirus cases in Kuwait was that of a young Bidoon man.
Regrettably, Bidoons who were issued green cards by the State (to access public services, including medical treatment at their own expense) could do so only upon signing documents admitting that they were not Kuwait nationals. The consequent humiliation and alienation has proven fatal for several Bidoons. The suicide of Ayed Hamad Medath in 2019 sparked widespread controversy and protests, leading to the arrest of 15 Bidoon activists. Medath, a 20-year old Bidoon man, took his life after being turned down for a job as a result of not possessing a green card. As recent as 25th June this year, a medical student attempted to commit suicide by overdosing on medicine, reigniting outcry over the systemic discrimination faced by the Bidoon.
Despite the non-recognition of their right to nationality, the Bidoon have come forward as volunteers, offering their expertise and assistance during the pandemic. Several Bidoon doctors and nurses have stepped forward to aid national frontline efforts as healthcare volunteers. This step has had the limited effect of countering public suspicion and distrust about the Bidoon and their loyalty. Unfortunately, even this has been countered by attempts to hijack the focus on their participation by diverting attention to citizen volunteer efforts. It is important to note that such a step comes at a time when members of the group continue to face violations of their socio-economic rights. Furthermore, several Bidoons, being undocumented persons, have faced difficulty in registering for the online system to obtain movement permissions to purchase essential supplies. Such systemic barriers to accessing basic necessities render the Bidoon more vulnerable than Kuwaiti citizens.
Nationality and International Legal Obligations
Although Kuwait is not a party to the Statelessness Conventions of 1954 and 1961, it is still bound to address the situation of the Bidoon, owing to its obligations under international human rights instruments. In particular, Kuwait’s obligations stem from the International Covenant on Civil and Political Rights (“ICCPR”) as well as the Convention on the Rights of the Child (“CRC”). In this framework, the present day descendants of members of nomadic and tribal groups have a firm claim to Kuwaiti nationality under international law.
This is premised on the idea of ‘nationality’ as defined by the International Court of Justice in Nottebohm, where nationality was understood to be the legal expression recognising a person’s genuine link to a given state. Although the Court does not lay down a strict understanding, it identifies certain factors which may be said to show a ‘genuine link’. These include family ties, public participation, attachment for a given country as well as habitual residence. This has to be read with Article 12(4) of the ICCPR, which prevents the arbitrary deprivation of a person’s right to enter “their own country”.
This norm has been held by the Human Rights Committee in its General Comment 27 to include stateless persons who are arbitrarily deprived of the right to acquire nationality of the State in which they are resident. Furthermore, the Committee has given a broad interpretation to the phrase “one’s own country.” This would include individuals who cannot be considered ‘mere aliens’ as they possess special ties or have a firm claim in relation to the nationality of a given country. For the Bidoon, their habitual residence, public participation and family ties, including their ancestry (resident in Kuwait at the time of independence), is quite arguably sufficient to show their genuine link with Kuwait.
Furthermore, Article 24 of the ICCPR enshrines the right of every child to acquire a nationality. This becomes particularly relevant in the context of renewed calls for changes to the Nationality Law by Kuwaiti women. The paternalistic conception of jus sanguinis incorporated in the Law prevents women from transmitting nationality onto their children, especially where the child is born to a Bidoon father. Marriages among Bidoon men and Kuwaiti women are commonplace for a variety of reasons, including familial ties.
The situation also deserves greater attention given Kuwait’s declaration with respect to Article 7 of the CRC, which again contains children’s right to nationality. The state’s declaration of this provision, however, applies only to foundlings (children born in Kuwait whose parents cannot be traced), who acquire Kuwaiti nationality by operation of the jus soli provision of the Nationality Law. This makes for an absurd and discriminatory situation where children born to Bidoon fathers and Kuwaiti mothers are denied citizenship. In practice, the non-registration of birth and the deprivation of nationality of Bidoon children disallows them healthcare access, which is all the more concerning now, during this global pandemic.
Conclusion
Despite the long-standing troubles faced by the Kuwaiti Bidoon, there has been an inadequate response from the international community. This lackadaisical approach further drives the Bidoon to the fringes of mainstream discourse around situations of vulnerable groups around the world. The condition of being stateless interacts with other vulnerabilities (poverty, exclusion from access to services, discrimination, etc.) to impact these groups disproportionately. There is little reporting on the ground condition of the community during the pandemic. However, given the widespread instances of human rights infringements in the past years, there is cause for deep concern.
In 2010, Kuwaiti government officials promised a resolution of the crisis in a timeframe of five years. However, little has been done to substantially address their plight. As of November 2019, the National Assembly was still deliberating on fresh legislation to address the situation, endowing the Bidoon with several rights (free education, healthcare and the right to work) as well as a renewed residency permit. However, the requirement of declaring their original nationalities continues to hold, which becomes troublesome as several Bidoons have a genuine link to Kuwait and do not hold another nationality. Contemporarily, the need to realise and highlight these issues looming within the larger narrative of Kuwait’s crackdown on peaceful demonstrations advocating for the rights of the community.
While states like Portugal have temporarily granted full citizenship rights to migrants and asylum seekers, the situation of the Bidoon continues to bear significant uncertainty. It is both necessary, and critical that this long-standing issue of statelessness be comprehensively redressed at the earliest, so as to bring to light their state of being, as well as vindicate their rights. International attention from media outlets and social media activism can generate greater awareness about the plight of the Bidoon and result in international pressure, reminding Kuwait once again to address the situation comprehensively and in accordance with international law. This would not only consolidate support for Bidoon claims to Kuwaiti nationality, but also highlight a detailed understanding of their plight (only worsened in the pandemic).
Khush Aalam Singh is a third-year student pursuing the B.A. LLB (Hons.) program at Jindal Global Law School. Khush is a Student Fellow at the Centre for Public Interest Law (CPIL) at JGLS, where he is currently assisting research interventions on questions of citizenship and statelessness.
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The JFIEL Conference 