Time’s up: China must release imprisoned lawyer Wang Quanzhang

This oped was originally published at Hong Kong Free Press on 9 December 2016.

Where is Wang Quanzhang? After over a year in secret detention it is time for China to end this tragedy. The State must release him, drop all charges, and initiate the process of compensation and reparation. Anything less is to compound the already inexcusable injustice against this brave citizen and selfless human rights defender.

However, on 5 December, rather than releasing him, the prosecutor again sent his case back to the police, seemingly due to a lack of evidence. Wang’s ongoing refusal to cooperate in a sham trial, coupled with China’s fear that his resistance will inspire others, has lead the authorities to prolong his enforced disappearance, hoping through maintaining terror on him and his family they will force a trial without incident. This symbolism is an important demonstration of power in China’s current campaign to annihilate the human rights community, of which Wang has been a rising figure for years.

wang quanzhang

I first met Wang Quanzhang in 2008, following the Beijing Olympics, assisting victims of the crackdown on the Human Rights Torch Relay. From 2009 until early 2014, we worked together closely as part of the Chinese Urgent Action Working Group (China Action).

I often facilitated meetings between Wang and foreign diplomats in Beijing to discuss specific human rights concerns in China.

One thing I remember about Wang is his driving. I think about the contrast of him being the slowest, most timid driver I’ve ever ridden with to his assertiveness in demanding human rights for Chinese citizens, especially the most marginalized whom others feared to defend.

Since August 2015, Wang has been denied contact with his family and lawyers. We won’t know the full extent of his suffering until he is permitted to speak freely. Still, Wang’s case is emblematic of everything wrong with China’s empty rhetoric of being a country governed by the rule of law.

Wang first went missing on 10 July 2015, following the “709 Crackdown.” Although the police claimed to have abducted him along with his Fengrui Law Firm colleagues, he had actually succeeded in evading abduction and spent the next three weeks in hiding.

china lawyer crackdown 709

China claims it is a country ruled by law—it goes without saying that only in authoritarian States are lawyers rounded up or forced into hiding—but through his years of human rights defense Wang was no stranger to State violence and this was not the first time he was forced into hiding. In 2012, after winning over one million RMB in compensation for villagers in Zhejiang, local police traveled to Beijing looking for revenge. Aware of their persecutory intent, Wang spent many days in hiding, sleeping in his car alone in Beijing.

On 3 August 2015, police intercepted a communication between Wang and a friend, revealing his location. First held in criminal detention, on 31 August he was placed under “Residential Surveillance at a Designated Location,” a euphemism for State-sanctioned enforced disappearances.

Until Wang was officially arrested on 7 January 2016, on charges of ‘subverting state power,’ which carries the possibility of life in prison, his whereabouts were unknown. But even after authorities claimed to have transferred him to the Tianjin Number Two Detention Center, nobody has been allowed to see or speak with him, despite numerous attempts by his wife and lawyers.

Wang’s wife, Li Wenzu, explains that in the first six months it was like there was no daylight but as support for her and her husband increased it made her stronger. While she was able to become more positive, the pain in her heart, she says, is with her every day.

Chinese law provides the right to meet with legal representation and family members, but allows for exceptions for national security crimes. There is a sick contradiction for the State to accuse Wang of threatening national security while it terrorizes its own citizens.

tianjin protest 709 liu ermin

In February 2016, Wang’s wife, son, and sister, along with Li Heping’s family and others spent the Lantern Festival outside the detention center where they believed their loved ones were being held. They screamed Wang’s name in hope that their voices might carry some light into the darkness of his isolation.

On other occasions, Li Wenzu and others have been intimidated or detained following visits to the detention center or the prosecutor’s office, or subjected to other harassment. In March, Tianjin Police claimed Wang had instructed that his bankcard be kept with the police, denying his wife access to much needed finances. Li Wenzu has been forcibly evicted several times as police have followed her from residence to residence threatening her landlords. Their son was denied enrollment in kindergarten following pressure from the police this summer.

“Danger is not just our feeling, it is our experience,” says Li Wenzu, “We are pushed, beaten, hit in the face, taken to the police station, threatened, monitored, all those situations make us feel in danger all the time.”

Not only has Wang been denied his right to meet with his lawyers, in early August Tianjin police posted a statement claiming Wang had dismissed his own lawyer in favor of one appointed by the authorities. This claim is absurd for those of us who know Wang, who has been insistent since at least 2010 that he would never accept a State-appointed lawyer. Since 2012, Wang has arranged for lawyer Cheng Hai to represent him. Wang even left a note with friends that under no circumstances would he dismiss his lawyer.

Li Wenzu

So absurd are the charges against Wang that even the police can’t seem to conjure evidence without resorting to authoritarian measures of collective intimidation and reprisal against friends, family members, and lawyers. When another former colleague, Peter Dahlin, was held for three weeks in January, his interrogators tried to convince him to denounce Wang, repeatedly calling him a criminal. Further demonstrating their contempt for legal independence, police have even attempted to pressure Wang’s lawyers to incriminate their client, that is before they decided to just illegally dismiss them.

Beginning in March, police and State security have been relentlessly pressuring Wang’s wife, sister, and parents into recording videos either denouncing his imaginary crimes or pleading with him to confess. They eventually succeeded in early November, forcing his father to release a video urging his son to confess. On the positive side, such measures indicate that Wang has resisted efforts by the State to coerce a forced confession, on the other hand such efforts often mean torture. This is an unspeakable injustice but also a testament to Wang’s strength of will.

Forced confessions are not only about rigging the criminal justice system in favor of the preferred State outcome, but since many watching know when a confession has been forced they are also about breaking the will of the defendant and showing that China has done so. Forced confessions are meant to condemn and communicate.

Wang’s refusal to confess to false charges or cooperate in a sham trial is his latest act of defending the rule of law, while Beijing’s ongoing persecution is a testament to their contempt for the same. The State has no evidence and no excuse.

There is only one acceptable outcome. Wang must be immediately released and the State must begin the process of compensation and reparation. Anything less only reaffirms the emptiness of China’s rhetoric on the rule of law.

The People’s Republic of the Disappeared

This article was originally published at The Diplomat on 6 December 2016.

On November 21, human rights defender Jiang Tianyong disappeared. He was supposed to arrive in Beijing at 6:30 am the following day but when his train pulled into the station he was not onboard. Attempting to file a missing person report at their local police station in Zhengzhou, his family was told to go to Beijing for answers. At the time of writing, Jiang’s whereabouts remain unknown.

Jiang is just the latest victim in Beijing’s terror campaign against the human rights community, which has seen the disappearance of countless individuals into a shadowy network of secret detention. Over the last decade, China has worked to normalize enforced disappearances behind a veneer of the rule of law.

Enforced Disappearances

The International Convention for the Protection of All Persons from Enforced Disappearances, Article 2, defines enforced disappearances as the taking of someone by the State or agents acting on behalf of the State, followed by a refusal to acknowledge the abduction or the concealment of their fate or whereabouts, which places that person outside the protection of the law. Once a person is disappeared, the risk of torture is high.

The Human Rights Council has held that an enforced disappearance can begin with either an illegal or initially legal detention. The United Nations Working Group on Enforced or Involuntary Disappearances states that “there is no time limit, no matter how short, for an enforced disappearance to occur,” and that an enforced disappearance is a continuing offense as long as the fate or whereabouts of the individual in question is concealed.

Because they obviously suffer the worst, family members of the disappeared are considered victims and entitled to, inter alia, the right to truth regarding the fate of the disappeared. The State has an obligation to protect them against intimidation or reprisal. In China, however, family members of the disappeared have not only been denied their right to truth, they are often targeted by the police. The wives of the disappeared human rights lawyers Wang Quanzhang, Li Heping, Xie Yanyi, and Xie Yang have been subjected to reprisal following attempts to gain information about their husbands in addition to being the targets of more general harassment.

Wang’s wife Li Wenzu, for example, was forcibly evicted and her son was denied enrollment in elementary school following pressure from the police. In other cases family members have themselves been disappeared. One example is Wang Yu’s son Bao Zhuoxuan who, several months after his parents were disappeared, went missing following his attempt to escape into Myanmar along with two other rights defenders, who have likewise both been held in secret since October 2015.

Enforced disappearances constitute a gross violation of human rights and an international crime, so severe in fact that under certain circumstances it may amount to a crime against humanity. Article 7 of the Rome Statute, which is the basis for the International Criminal Court, holds that enforced disappearances may amount to a crime against humanity when committed as part of a widespread or systematic attack against a civilian population.

Unsurprisingly, there are no circumstances that permit for exceptions. Yet legislating exceptions is precisely what China has attempted, one might argue, quite systematically.

From Black Jails to Residential Surveillance at a Designated Location

In March 2003, 27-year-old migrant worker Sun Zhigang died in police custody in Guangzhou, having been beaten to death. He had been held for three days under an administrative procedure known as custody and repatriation, which allowed police to hold an individual without trial. Increasingly unpopular, it was abolished following national outcry over Sun’s death. Agents of the State would no longer be permitted to arbitrarily detain individuals or hold them in secret. Or would they?

In 2009, my former NGO, China Action, followed by others, documented numerous cases of individuals having been held in secret black jails around China in the years following the abolition of custody and repatriation. Held in State-owned hotels, the backs of restaurants, or psychiatric facilities, individuals abducted into black jails were seldom presented with charges or told how long they would be deprived of liberty; they were not permitted legal representation nor were their relatives notified of their abduction. However, unlike the abolished custody and repatriation administrative procedure, there was no flawed provision permitting the existence of black jails.

During the 2009 Universal Periodic Review before the Human Rights Council, several international NGOs and governments raised the issue of black jails, while China flatly denied their existence. But since 2009 State media has occasionally been allowed to report on their existence, some responsible individuals have been sentenced, and rights defenders have even succeeded in winning compensation for some victims. However, in 2011 China drew serious concerns from the Working Group on Enforced or Involuntary Disappearances for a wave of disappearances that included Teng Biao, Tang Jitian, and Jiang Tianyong.

While black jails served a purpose in maintaining the equilibrium of State violence against petitioners and human rights defenders that had been lost with the abolition of custody and repatriation, their ongoing extrajudicial presence presented an obstacle even to China’s hollow rhetoric of the rule of law. The State would need a way to mask arbitrary detention and enforced disappearance behind a veneer of legality.

China’s amended Criminal Procedure Law, which came into force on January 1, 2013, introduced, at Article 73, “Residential Surveillance at a Designated Location” (RSDL).  It states, for such crimes as endangering national security, when enforcement in the residence may impede the investigation, it may be enforced in a designated location other than a detention center. It also holds that the family shall be notified within 24 hours, unless there is no way to do so. And at Article 33, it guarantees that all detained suspects have the right to a lawyer, who once requested shall be granted a meeting within 48 hours, Article 37.

Although meant to sound like soft detention, when combined with other recent laws the intention is clear: the State has sought to legislate exceptions normalizing enforced disappearances.

Three days after his July 10, 2015 abduction, police informed activist Gou Guoping’s wife that he was being held under RSDL. As China Change reports, at first she was ecstatic, believing it to be a less severe form of detention, but after she contacted the police she was told, “The case is under investigation. The whereabouts of the person is a secret.” Another common refrain is that there are no records of the detained, just as Wang Quanzhang’s wife, Li Wenzu, and lawyers were told when attempting to contact Wang in detention.

Although Article 37 guarantees the right to promptly meet with a lawyer, it also states that in national security cases this right may be revoked at the discretion of the police — a transparent exception considering RSDL is specifically designed for national security cases, among others. This is particularly troubling due to the conflation of national security crimes with human rights defense, apparent in the use of national security charges within the “709 Crackdown” on human rights lawyers beginning in July 2015. This trend is certain to continue unless the National Security Law is amended or repealed.

In 2015, China continued its attempts to systematize such exceptions. The Provisions on People’s Procuratorates’ Oversight of Residential Surveillance in a Designated Location ostensibly created oversight to prevent abuses by allowing a complaints mechanism for lawyers and family members, Article 7. While Article 19 guarantees weekly inspection by State prosecutors, it adds that such inspections must not impede police investigation.

Under the above, the police are not only afforded the right to deny lawyers and family members access under the pretext of national security but may even refuse the State prosecutor access to determine the legality of the detention or whether the individual is being ill-treated. There is no question that this places the individual outside the protection of the law, and the denial of access to lawyers or family members is tantamount to the concealment of the fate or whereabouts of the individual.

The case of Jiang Tianyong is emblematic. Since disappearing on November 21, his whereabouts remain unknown at the time of writing. His wife told the New York Times, “I hope the government could at least tell us, his family, where he is and what crimes he has committed… At least we should know his whereabouts.”

At the time of his disappearance, Jiang had been visiting the wife of another human rights lawyer, Xie Yang, who himself has been held almost entirely incommunicado since July 11, 2015, a target of the “709 Crackdown.” Afterward, Xie was held in secret RSDL for six months and formally arrested in January 2016. When he was granted a meeting with his lawyer months later, in late July, the police were clear; his lawyer was there solely to convince Xie to confess to baseless charges. Xie reported having been tortured in police custody. Now Jiang appears to have likewise been disappeared, leaving many speculating that authorities will soon announce he too has been placed under RSDL.

In its 2015 review of China, the Committee Against Torture stated, as a matter of urgency, that China should repeal “the provisions of the Criminal Procedure Law that allow suspects to be held de facto incommunicado, at a designated location, while under residential surveillance.”

China, however, appears to be doubling down on the systematization of enforced disappearances. In its so-called National Human Rights Action Plan (2016-2020), China states that “places of surveillance shall be regularized…” and promises “seriously implementing the system of residential surveillance at a designated location.” Recalling that even ostensibly legal detention can amount to an enforced disappearance, this language is no assurance. In light of the lack of authentic oversight and accountability, the trend in abuse, and the overall vagueness of the law, such statements should only be taken with increased concern. Serious changes are needed.

What Should Happen

China should immediately release all individuals held in secret under residential surveillance at a designated location and all other victims of enforced disappearance.

China has an obligation to ensure the right to non-repetition, which means eliminating the circumstances that permitted the disappearances in the first place.

The Provisions on Oversight must be immediately amended to ensure police may not deny weekly inspection by State prosecutors, who must uphold their obligations to assess the legality of detention and act on complaints by lawyers, relatives, and defendants.

China must clarify its definition and use of national security crimes. The extreme vagueness in the law allows for the State to claim anything it wants. This is doubly concerning when such allegations are part of manipulated legislation that attempts to legalize human rights violations on national security grounds. Again, international law is clear that there are no exceptions when it comes to enforced disappearances.

Most importantly, the Criminal Procedure Law must be amended or the sections that permit for disappearances must be repealed.

China must properly investigate and prosecute those responsible for perpetrating enforced disappearances. The victims of enforced disappearance, including family members, are entitled to compensation and reparation under international law.

Finally, China should ratify the Convention on Enforced Disappearances, and issue a standing invitation to the Working Group on Enforced or Involuntary Disappearances.

The last missing bookseller: One year on, the anniversary of Gui Minhai’s abduction demands action

This op-ed was originally published at Hong Kong Free Press on 17 October 2016.

A year ago today Gui Minhai disappeared while vacationing in Thailand. A Swedish citizen, Gui is one of five Hong Kong booksellers to have been abducted by China last year but the only one who remains missing. On the anniversary of his abduction, it is time to redouble the call for his release.

On January 17, he reappeared, in China, on State-owned television to deliver a forced confession. He admitted having fled China after a supposed hit-and-run in 2003. Chinese lawyers, however, have found no record of the conviction, despite legal requirements that such be public. He claimed he had returned to China willingly, refutable by the lack of official immigration records of him leaving Thailand. Puffy-eyed and struggling with the words, he went on to say he didn’t want help or legal counsel, a common refrain of forced confessions.

Gui Minhai

Broadcasting his forced confession denied his right to a fair trial, which the UN Human Rights Committee has held must be protected at all times. Treating the CCTV broadcast as a conviction in the court of public opinion, the government sought to not only deny him the right to a fair trial but to a trial altogether.

See also: A call that never comes: Why I cannot remain silent after Chinese authorities abducted my father

Following the broadcast, Reporters Without Borders called on the European Union to adopt sanctions against CCTV and Xinhua for ceasing to be news media and violating his right to a fair trial. The European Union passed a similar measure in 2013 against Iranian Press TV but there is no such political will to do so with CCTV, despite a rising trend in televised forced confessions from journalist Gao Yu to human rights lawyer Zhang Kai and others.

For a year now, Gui has been denied regular communication, his whereabouts a secret. The Swedish government hasn’t been informed of the specific charges against him and no legally mandated detention notice has been presented. Angela, his daughter, has been denied contact for months, refused even basic information about his fate

Under international law, an enforced disappearance is when the State takes someone and refuses to acknowledge the abduction or conceals their fate or whereabouts. It is a crime, without exceptions. The International Commission of Jurists has even called it “one of the most odious violations of human rights.” And yet, this is what China did to Gui Minhai.

missing booksellers lee bo

On February 4, the European Parliament called for the immediate release of the five Hong Kong booksellers. Coordinated diplomatic and media attention raised the stakes on China and contributed to the release of the other four but comparable targeted actions for Gui Minhai have been lacking.

Such efforts have been stalled by China’s refusal to acknowledge his Swedish citizenship, attempting to block his access to international support. Sweden’s unwillingness to push his case as forcefully as we might expect if he was a natural born citizen has not helped.

While Sweden’s foreign minister, Margot Wallström, did call Gui’s treatment unacceptable in January, her public statement came only after another Swedish citizen, my friend and former colleague Peter Dahlin, was also detained and forced to confess on CCTV. This lack of proactive action continued, as it took Angela Gui’s moving appearance on Swedish television in September to prompt Wallström to publicly call out the urgency of Gui’s detention. Wallström claims that Sweden is engaged in quiet diplomacy but this approach has been largely insufficient.

Margot Wallström

Margot Wallström.

Although Swedish authorities were finally allowed a second meeting with Gui at the end of September, more than half a year after the first, this should arguably be seen more as the result of slowly mounting international attention than of Sweden’s quiet diplomatic efforts.

Because Gui Minhai is Swedish, diplomatic protocol dictates that it is Sweden’s prerogative on how to proceed. Their failure has been treating this as a simple consular issue, and pursuing the softer-toned approach of quiet diplomacy, which has not worked with China. Without political ramifications, China has little reason to give concessions. This has prevented other countries and the EU from pursuing more active or public measures.

European diplomats with whom I have spoken in private have expressed concern at the apparent lack of urgency from the Swedish government and for treating the abduction of an EU national as a mere consular issue. To be fair, some Swedish parliamentarians and officials have said the same informally.

Because this is not only a Swedish or Chinese issue, when China can abduct a foreign citizen from a third country and hold them in secret detention for over a year it weakens the universality of human rights for all, and puts anyone who opposes China at risk.

In May, the US Congressional Executive Committee on China discussed Gui Minhai’s detention, and in September Angela spoke before the Human Rights Council. It is disappointing that there has been no comparable action before the Swedish or European Parliaments.

Swedish Parliamentarians should request an urgent debate at the upcoming plenary session of the European Parliament. This must receive the strongest possible support from the European Parliament’s subcommittee on Human Rights and Delegation to China group.

The European Union should be prepared to outline concrete follow-up measures.

I understand the importance of cautious diplomacy on sensitive human rights cases, and have personal experience with such mechanisms, but it has limitations. It is no longer enough to rely on quiet diplomacy alone. And so, for the one-year anniversary of his abduction, it’s time for both the European Parliament and the international community to treat Gui Minhai with greater priority and to demand his immediate release.

China should be proud of Wang Quanzhang – instead it persecutes him

This oped originally appeared at the Guardian on 23 September 2016, co-authored with Peter Dahlin.

Last July, the Chinese government launched its most widespread crackdown on rule of law advocates in decades, detaining some 300 rights defenders. Some have been held incommunicado since, with lawyers and family members trying to visit them in detention being told to look elsewhere.

Meanwhile, state media has been given exclusive access to parade many activists as criminals on television before their trial.

One of the key targets of the crackdown is lawyer Wang Quanzhang.

Wang has drawn the ire of the government many times for his defence of villagers against corrupt local officials, Falun Gong practitioners and fellow rights activists such as Ni Yulan whose treatment in police custody in 2010 left her confined to a wheelchair.

In 2013, Wang was detained during trial for refusing a judge’s illegal demand. This was perhaps the first instance of a rights lawyer being held under a process called judicial detention. Hauling away a lawyer in the middle of defending his client aptly illustrates the barriers to legal aid in China.

Following his release, Wang characteristically treated the incident as a learning opportunity and wrote a legal manual on judicial detention for rights defenders. Wang often devoted as much time to assisting other lawyers as he did defending the rights of those who few others dared to represent.

For this he has suffered in secret detention for over a year and now faces a show trial on charges of subverting state power.

Having known Wang for many years and worked together at China Action until early 2014, we can say he is one of the bravest people we will ever meet. His commitment to the rule of law is unimpeachable. The charges are baseless.

State security has explained that Wang’s crime was defending ‘evil cult’ Falun Gong practitioners and using social media to highlight abuses against his clients. It didn’t seem to matter that these actions aren’t illegal, that Wang has broken no laws.

The lack of actual evidence has been highlighted several times since January. Beginning in March, police and state security have tried to pressure Wang’s wife, Li Wenzu, his parents, and even a fellow lawyer to record video accusations against him. They failed.

The authorities tried coercing responses through threats and promises of lightening his sentence, while the detention centre denied his lawyers and tearful family any contact on the pretext of having no record of him.

Li Wenzu has not been spared. She has been harassed and on several occasions detained, a tactic of political violence designed to scare her into betraying her husband or to intimidate Wang into cooperating.

Such lawlessness and abuse of power only reinforces the hollowness of his impending trial.

In early August, the court claimed Wang had given up his right to counsel and preferred a court appointed lawyer, an absurdity for anyone who knows him. Since 2012, Wang has arranged with a trusted colleague to represent him if detained or arrested, a sad necessity in China that most rights lawyers eventually need their own defence lawyers.

Wang has told us many times since 2010 that under no circumstances would he ever accept a court appointed lawyer. It seems no sham trial is complete without a sham lawyer.

At trial, imaginary “hostile foreign forces” will likely be blamed for Wang’s equally imaginary crimes, as we have seen with recent show trials and a slew of anti-Western propaganda videos.

Wang’s work with China Action has been used against him, despite our not having worked together since 2014. It seems irrelevant that our work focused on strengthening Chinese law, because the “crimes” for which he stands accused are meaningless unless the implementation of Chinese law itself is seen as subverting state power.

If the government is serious about there being room for the rule of law in China, it must immediately release Wang Quanzhang and dismiss all charges against him. We hope it is. For rights defenders like Wang and his colleagues – who any nation should be proud to have as citizens – a conviction will reaffirm that it is not.

Stand Against Gender Discrimination in Nationality Laws

This article originally appeared at the Fletcher Forum of World Affairs on 14 August 2016.

Stand Against Gender Discrimination in Nationality Laws

During its thirty-second session, which concluded last month, the United Nations Human Rights Council adopted a newresolution on women’s equal right to acquire, change, or pass on their nationality. This is a positive step for gender equality, not only for the potential benefit to women worldwide, but because it demands greater international awareness of the intersectional abuses of discrimination. Gender discrimination in nationality laws, as with all forms of gender discrimination, doesn’t only affect women and girls. It also affects men and boys. In highlighting the severity of the problem, this U.N. resolution demands greater action from diverse stakeholders – from the civil society organizations that analyze and devise best practices, to governments that must implement new and existing obligations.

The scale of the problem is vast. The New York-based Global Campaign for Equal Nationality Rights explains that over 50 countries maintain some form of gender-discriminatory nationality laws. The United Nations refugee agency (UNHCR) revealsthat 27 countries continue to deny mothers equal rights to confer citizenship to their children.

For example, although men and women confer citizenship equally to children born in Malaysia, children of Malaysian mothers born abroad only obtain citizenship at the discretion of the Malaysian government. In the Bahamas and Barbados, only fathers confer citizenship to children born abroad. In Jordan and Saudi Arabia, women who marry foreigners almost never confer nationality to their children, while mothers in Brunei, Somalia, and Lebanon have no right to confer their nationality. This denial of equal rights carries many interconnected challenges –especially among ethnic minorities and refugees – that may result in additional human rights violations.

Gender discrimination in nationality laws, says Catherine Harrington of the Global Campaign for Equal Nationality Rights, is aleading cause of statelessness, a global issue that will affect at least 10 million people in 2016. According to the UNHCR, somewhere in the world a stateless child is born every 10 minutes. Within the countries hosting the 20 largest stateless populations, meanwhile, over 70,000 stateless children are born every year.

This trend has become especially pronounced among Syrian refugees in Jordan and Lebanon. In circumstances like this with high levels of migration, the risks of statelessness are compounded by gender-based discriminatory nationality laws in home and host countries. Coupled with high levels of male labor migration, or casualties in armed conflicts, these laws almost guarantee that the children born of single mother refugees in such countries will be born stateless. Without intervention, stateless children become stateless adults who pass their lack of legal status to their children and the cycle repeats itself.

Statelessness leads to profound human rights violations and livelihood challenges. It often denies children access to health and education. It forecloses on the freedom of movement and increases the likelihood of sexual or labor exploitation by traffickers or other predators. Mothers and children in such countries are more susceptible to sexual violence or domestic abuse.  Abolishing discriminatory nationality laws is therefore crucial to the UNHCR campaign to eradicate statelessness by 2024.

Not only do gender-discriminatory nationality laws fuel statelessness, they are themselves a violation of international human rights law, which is unequivocal on discrimination against women. A 2013 report by the Office of the High Commissioner for Human Rights explains, “States are required to take all measures to remove laws and procedures and to abolish practices that directly or indirectly discriminate against women.”

Several human rights treaties elaborate on non-discrimination in the right to nationality. The Universal Declaration of Human Rights establishes the right to nationality, while the International Covenant on Civil and Political Rights specifically guaranteesevery child the right to nationality. The Convention on the Rights of the Child (CRC), Article 7, holds that children should be registered immediately after birth and should have the right to acquire nationality. Article 9 of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) provides that states “shall grant women equal rights with men with respect to the nationality of their children.”

While CRC and CEDAW are among the most ratified human rights conventions, they also contain a high degree of reservations. More than 10 states, including Brunei, Jordan, and Lebanon, have entered explicit reservations that they do not consider themselves bound by Article 9 of CEDAW, and others including Kuwait and Malaysia have issued similar reservations to CRC Article 7. This must change.

In the last decade some states have addressed gender discrimination in their nationality laws, such as Indonesia in 2006, Kenya in 2010, and Senegal in 2013. The Abidjan Declaration of the Economic Community of West African States in 2015 further committed to ensuring gender equality and eliminating statelessness. These reforms are encouraging but further mobilization is needed, as highlighted by the recent Human Rights Council Resolution.

The Council has called upon states to implement legislation consistent with international standards and to take immediate steps to reform discriminatory nationality laws, to ensure awareness-raising, and conduct gender-sensitive training for officials, judges, and local leaders.

Additional physical, administrative, and cultural barriers must be identified and removed. This includes addressing the role of ethnic or religious nationalism in fueling gender-based discrimination and the denial of citizenship. Policies in this area cannot overlook the paramount importance of birth registration (not only a human right but also necessary to ensure no child is denied a nationality), and the removal or lessoning of financial obstacles to such. States must ensure appropriate remedies for women and children whose rights to nationality have been arbitrarily violated, and provide accessible, safe spaces and protection mechanisms for those at risk.

The resolution calls for an expert workshop on best practices and encourages states, United Nations bodies, civil society organizations, academia, and others to play an active role in eliminating gender discrimination in nationality law and practice. Without diminishing the complexity of this project, academics and policy-makers must recognize the need for increased critical analysis of the causes of these discriminatory laws. Moreover, they must propose legal and policy changes to eliminate gender discrimination in nationality laws and identify effective measures for holding responsible governments accountable.

Campaigning for a Woman UN Secretary-General: A Conversation With Shazia Rafi

I spoke with Shazia Rafi of the The Campaign to Elect a Woman UN Secretary-General, about the selection of a woman Secretary-General to take over for Ban Ki Moon. Below is the interview, originally published at the Fletcher Forum of World Affairs on 16 May.

Before joining The Campaign Rafi served as Secretary-General of Parliamentarians for Global Action, a nonprofit organization of elected legislators in over 140 countries that works to promote peace, democracy, the rule of law, human rights, and gender equality. Rafi is a 1983 graduate of The Fletcher School.

Michael Caster: The previous process for selecting a Secretary-General came under criticism for a lack of transparency in how the Security Council made a decision in private and forwarded a single recommendation to the General Assembly for approval. How transparent do you expect the new process to be? Will it still defer to the same power players even if it’s done more in the open?

RAFI: There is a reality in the world now: everybody is constantly on social media, everyone is a known category, there are no hidden players anymore and everything else is taking place in a sort of fishbowl.

So when it comes to the UN Secretary-General, it has been the only one out of every inter-governmental institution where there haven’t been open candidates campaigning. The change to a more open process was long overdue. The push has come from everybody. Even the P5 have become increasingly uncomfortable with their role as the ones producing the candidates.

The player who has played quite a role in making this transparent has been the president of the General Assembly, former speaker of the Danish parliament [Mogens Lykketoft]. He wanted to give the General Assembly more power under something called the Revitalization of the General Assembly, a sort of rebalance of the UN power system.

He took the reins in both hands and insisted on holding hearings in April 2016 in which the candidates were forced to send in their nominations with their written vision statements and had to come to a meeting with members of the General Assembly.

I don’t know how transparent it really is. While Member States could ask questions from the floor, civil society managed was forced to put questions prerecorded by people they had preselected and it wasn’t clear half the time who these people were. I wasn’t too pleased with that because those of us with civil society are capable of asking from the floor as well. Also, each male candidate had two questions from civil society; each female candidate had three. This difference in treatment didn’t make any sense.

The decision will still be made by the Security Council and they haven’t set themselves a hard deadline. There’s a soft deadline, that by July they hope to open all dossiers that have been received, which means that those who want to be Secretary-General of the UN should have indicated their interest by July.

MC: What happens in September?

RAFI: The process itself is going to take a few months. Their deliberations will start in July, which is when Japan is president of the Security Council.

Then it goes back to the same process as has been previously used. The Security Council will do their internal straw polls as always. The P5 have different color coded-cards from the E10 [elected members of the Security Council] to indicate “encourage,” “discourage,” and “no opinion.”

The winning candidate has to have at least no “discourage” votes from the P5 meaning that they have not vetoed the final candidate. They need four to five of the rest because it still has to be a majority of the Council that agrees with the candidate and sends that name to the General Assembly. Even though there’s a push to try and get two names, so far the Council has said they will send one name.

New Zealand has the presidency of the Security Council in September and then Russia in October. Russians want to see the decision done in October.

MC: With Ban Ki-moon’s selection, when it was Asia’s turn in the regional rotation, most of the negotiations took place between the United States and China. Now with Eastern Europe under review, is it likely to boil down to negotiations between the U.S. and Russia?

RAFI: The region that is up this time is the Western European and Others Group (WEOG), but within that Eastern Europe has never had a Secretary-General. They have made it very clear that this time it’s their turn, which is why you see so many Eastern Europeans among the candidates.

Yes, this time it will be between the U.S. and Russia. I would not read too much into [the current Russia-U.S. relationship in terms of how much it will affect the process]. Countries are capable of having different compartments for their dialogues with each other. So they may not be on good terms related to some part of the world in which they are clashing right now but there are other things they can talk to each other about. These negotiations are a lot about, “If I agree with you on X, what am I going to get on Y?”

MC: How much resistance would you expect from Russia if the regional rotation system were abandoned?

RAFI: I don’t know what the final position of the Russians will be but so far it is very clear that they are still pushing for it to continue to be an Eastern European. The problem with the Eastern Europe group is that unlike the African Union Group or the Asian Group they are a region that is both within the European Union and not, which confuses the matter for the Russians. They may cherry-pick within the Eastern European region which countries they are willing to go for and which countries they are not. I think there’s a lot of fine negotiation that will take place on that basis.

MC: What about the so-called Group of Four (G4)? How have Brazil, India, Germany, and Japan weighed in on the process as part of Security Council reform and other structural issues in the UN?

RAFI: If you listen to the hearings, the question did come from the G4 to every candidate as to whether the candidates were willing to take up Security Council reform, which has kind of been a dead elephant. Candidates were very cagey, all of them, in terms of answering this one because obviously none of the P5 want to give up their power. This is unlikely to go very far.

MC: Your organization has held events and done a lot of advocacy. What have been some of the most valuable or results-oriented activities so far?

RAFI: I think the most important thing that we’ve achieved is that when we started out last year in the spring people were still referring to the next Secretary-General as he and then they started saying he or she and now they are saying she or he. So there is quite an expectation that, all things being equal, the Council will go for a woman. And we intend to continue to push that.

MC: Women in positions of power, either in the private sector or in political roles, are generally burdened with gendered double standards in which the same qualities that are seen as positive attributes in their male colleagues earn them negative perceptions and scorn. How do you see this playing out with a female head of the United Nations?

RAFI: These negative perceptions are the hurdles that we have. If we are strong, we are seen as, pardon me, bitches. If we are not, we are seen as too weak. I think this race is one where the women who are currently going for the job are already at the head of the agencies, foreign ministries, or whatever. They’ve already crossed certain parts of these burdens where their mettle has been tested. The issue here is going to be much more for Member States as to whether they can cross that mental hurdle when finally there are two candidates at the end that meet all criteria. Can they bring themselves to say this time they will weigh in favor of the woman? Because in an institution that’s never had a woman in the job you need that mindset.

It doesn’t mean the woman is less qualified. It means you have to cross that hurdle in an affirmative action mindset as an institution. And that requires a cross-regional coalition. Now there is a coalition of 56 countries, lead by Columbia, that is a General Assembly group of friends in favor of a woman Secretary-General. Some of them are from the Council but none of the P5 are members because they don’t want to commit one way or another yet.

If it turns out that the final short list is a woman and a man, then it will require that gentle push, and our organization intends to push.

MC: What do you think about the influence of having a woman as the Secretary-General on global gender inequality and women’s rights?

RAFI: The UN is the global institution of peace and security and the bulk of the victims of peace and security are women and children. Women are not a minority. They are almost 51 percent of the world’s population. If you adjust for the fact that China and India take steps to mess with the natural gender balance by aborting female fetuses, the majority of the world’s population is women. They are not reflected in economics. They are not reflected in the positions of power in the same way. But having this job in the hands of a woman I think would be a very strong message to the rest of the world.

MC: There are quite a few countries that have demonstrated their lack of willingness to address discrimination against women. Do you anticipate pushback from countries with bad records on women’s rights?

RAFI: No, I don’t think this will be reflected. For example, the United States is one country that has not ratified Convention on the Elimination of All Forms of Discrimination Against Women. It’s the only Organization for Economic Cooperation and Development country that hasn’t. I don’t think that will affect the U.S. vote. The two are not connected. This is part of their diplomacy, not part of what they do in their own countries.

MC: In terms of the escalating challenges that will confront the UN in the future, what would you like to see as the priority for the new Secretary-General?

RAFI: I want to see preventive peace making as the focus of the UN. That is an area which has been neglected in the past. I want to see the mediation role of the UN expanded because that is where we should have been putting our efforts and our funds and our best people in all of these crises that we are now scrambling to deal with.

MC: Do you have any advice for people at Fletcher who want to get involved at any level of this campaign?

RAFI: Fletcher is a leading think tank on a global basis. It’s also one that has enormous connections within the U.S. administration, State Department, and President’s office. There are Fletcher students in almost all the countries that are on the Security Council. I used the Fletcher directory when I was working in every country around the world. It led me to the right people. I think you have within both your current student body and within the alumni people who can be very influential on their government’s decisions on this. I would particularly say the ones from the countries on the Security Council should push in whatever interaction they have for there to be transparency in the process, even within the Security Council, and I would like them to push for there to be a woman.

Eliminating Statelessness in Southeast Asia

This piece was originally published at The Diplomat on 24 May 2016. Available here.

The government of Myanmar has come under fire this month following Aung San Suu Kyi’s rebuke of U.S. Ambassador Scot Marciel’s reference to the Rohingya, the estimated one million stateless Muslim inhabitants of Myanmar’s Western Rakhine State. Aung San Suu Kyi’s government refuses to fully confront the issue of the Rohingya, who have been denied equal access to citizenship since the passage of the 1982 Citizenship Law. The denial of citizenship has compounded human rights abuses, rising to the crime of genocide, according to an October study by Fortify Rights. The persecution of the Rohingya has deservedly captured increasing international attention in recent years, although greater awareness and mobilization is needed. The plight of statelessness remains a universal challenge.

Around the world, there are an estimated 15 million stateless people. According to the UNHCR, somewhere a stateless child is born every 10 minutes and within the countries hosting the 20 largest stateless populations some 70,000 stateless children are born every year. In 2014, the UNHCR announced its Campaign to end Statelessness in ten years. The same year, the Institute on Statelessness and Inclusion reported that more people in Asia and the Pacific are affected by statelessness than in any other region of the world. How ASEAN addresses this challenge will be key to achieving the UN’s objective of eradicating statelessness by 2024.

The Right to Have Rights

Hannah Arendt, in The Origins of Totalitarianism, calls citizenship the right to have rights, a sentiment which entered jurisprudence in 1958 through U.S. Supreme Court Justice Earl Warren, who wrote that the denial of citizenship is the denial of all claims to protection from any nation.

Modern notions of nationality emerged following World War I through a series of League of Nations treaties, which granted States total freedom to determine how individuals obtained or lost nationality. Such absolutism of State sovereignty changed following World War II with the realization of the degree of harm caused by discriminatory nationality laws, such as the Nuremburg Laws. This realization gave rise to Article 15 of the 1948 Universal Declaration of Human Rights, granting everyone the right to nationality.

Also in 1948, the United Nations commissioned the Study on Statelessness, released a year later. The Study affirmed that eradicating statelessness requires that, “Every child must receive a nationality at birth” and “No person throughout his life should lose his nationality until he has acquired a new one.”

The Convention Relating to the Status of Stateless Persons, adopted in 1954, provides the legal definition of statelessness as “a person who is not considered a national by any state under the operation of its law.” The 1961 Convention on the Reduction of Statelessness followed with more guidance. However, both Conventions remain poorly ratified with only 86 and 65 state parties respectively. The Philippines is the only ASEAN country to have ratified the 1954 Convention.

The right to nationality was further codified in the International Covenant on Civil and Political Rights (ICCPR). However, Brunei, Malaysia, Myanmar, and Singapore are not State parties. On the other hand, all ASEAN member states are parties to the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) and the Convention on the Rights of the Child (CRC). Together they prohibit gender discrimination in matters of nationality, require immediate birth registration, and place an obligation on states to respect the right of the child to preserve identity and nationality.

Statelessness in ASEAN

The 2009 ASEAN Intergovernmental Commission on Human rights (AICHR) and 2010 ASEAN Commission on the Promotion and Protection of the Rights of Women and Children (ACWC) are both mandated with developing strategies for the promotion and protection of human rights. ACWC is furthermore empowered “to advocate on behalf of women and children, especially the most vulnerable and marginalized, and encourage ASEAN member states to improve their situation” and “to propose and promote appropriate measures…for the prevention and elimination of all forms of violation of the rights of women and children.”

Stateless people are indisputably among the most vulnerable and marginalized and international norms make explicit reference to women and children’s equal right to nationality. As such, AICHR and ACWC appear to have a mandated obligation to play a leading role in the elimination of statelessness in ASEAN, especially in ensuring birth registration and the elimination of gender discrimination in nationality laws.

One of the challenges to a regional approach is the lack of a unified definition of statelessness in domestic laws. The 1954 Convention provides the legal definition but the failure to ratify or implement in domestic laws provides countries with maneuverability. The Philippines offers the best example, having enacted the Convention and definition into domestic law in 2012. Vietnam and Laos provide a definition for stateless persons but do not go as far as the Philippines in implementing protections. The refusal to implement the accepted international definition in Myanmar, for example, has contributed to the State narrative that Rohingya do not qualify for protection as stateless because they are migrants from Bangladesh.

Birth registration, a human right vital for protecting against stateless, is not equally guaranteed throughout ASEAN. Cambodia provides a best practice in birth registration campaigning. In 2000, only around 5 percent of Cambodian births were registered. The Ministry of Interior, with support from UNICEF and others, initiated a pilot program involving more than 13,000 people who had received specialized training in birth registration. Within the first ten months of the program over 7 million adults and children were registered. Subsequently birth certificates were issued free of charge within 30 days of birth and only a small fee was incurred for late registration.

However, the 1996 Nationality Law offers no definition for statelessness and ambiguity in language implies that Khmer ethnicity may be a prerequisite for citizenship. Despite birth registration campaigning, several thousand stateless people remain in Cambodia.

Prohibitive costs for birth registration, requirements for documents that are sometimes unavailable or nonexistent, and associated costs of transportation or hospital fees, contribute to statelessness as well. Such obstacles often remain even after well-meaning policies have been adopted.

In Thailand, the 2005 National Strategy on Administration of Legal Status and Rights of Persons and 2008 changes in the Nationality Law ostensibly provided undocumented and migrant children, including stateless children, the right to attend primary and elementary school. Unfortunately, transportation or uniform costs continue to make education prohibitively expensive. Similarly, according to Children of the Forest, a child protection organization that works with stateless children and trafficking victims at the Thai-Myanmar border, among the common ways that children there become stateless is that parents will leave the hospital before registration because they couldn’t afford hospital services. Failure to register at the time of birth significantly increases the burden of registration at a later date. In 2015, the Thai government reported that over 18,000 previously stateless people had been given Thai nationality over the preceding three years. However, concerns over remaining obstacles in Thailand and elsewhere remain.

Gender discrimination in nationality laws is a significant contributor to statelessness. In Malaysia, although men and women confer nationality equally, children of Malaysian mothers born abroad only obtain citizenship at the discretion of the Malaysian Government. Mothers in Brunei have no right to pass nationality to their children. In a positive move, Singapore, in 2004, and Indonesia, in 2006, amended their nationality laws to permit mothers to pass citizenship to their children.

Three Approaches for the Elimination of Statelessness

The UNHCR acknowledges that some of the safeguards within the 1961 Convention have been enacted by ASEAN Member States. Still, accession to the two Conventions would provide the clearest framework for adapting national laws and policies to identifying, protecting, and eradicating statelessness within ASEAN. Although this is unlikely any time soon, there are three arguably more achievable measures that would strengthen the efforts to eradicate statelessness: empowering regional human rights bodies; emphasizing birth registration; and eliminating gender discriminatory nationality laws.

ASEAN created and empowered the AICHR and ACWC with a relatively robust mandate but they suffer from the lack of independence and weak enforcement capabilities. ASEAN’s Commitment to human rights, as expressed through the 2004 Vientiane Action Program and subsequent treaties, calls for strengthening such mechanisms.

This includes encouraging and working with States to withdraw reservations and amend laws that violate the right to nationality and birth registration, and localizing the legal definition of statelessness.

While civil society organizations are sometimes invited to regional consultations, the AICHR and ACWC remain under government authority. State representatives are largely coordinated by respective ministries of foreign affairs and not by national human rights institutions. Of course, national human rights institutions are not necessarily independent, as demonstrated in Myanmar and Thailand. However, AICHR and ACWC representatives from Indonesia, Thailand, and the Philippines have attempted to work around certain political obstacles by involving civil society and individual human rights defenders in the drafting or evaluation process, at times, and should be encouraged to do more so in terms of nationality issues.

Empowering regional human rights bodies to take a more active role in the identification and elimination of statelessness may also require the improvement of complaints mechanisms. Specifically, regional human rights bodies with a mandate over CEDAW and CRC should have specialized training and procedures for hearing complaints of arbitrary denaturalization, denial of nationality at birth or obstacles to birth registration.

The establishment of a regional human rights court would provide another forum for investigating and prosecuting the widespread or systematic arbitrary denial of nationality or grave human rights violations arising from the denial of nationality.

Registration at birth is of paramount importance. The ACWC mandate implies a role for the organization in birth registration campaigning and, in cooperation with child protection and gender experts, it should arguably take a more active role in harmonizing birth registration laws and advising campaigns throughout the region.

Drawing from Cambodia, efforts at raising awareness through television and radio should be maintained while other channels should be investigated and utilized. Public education during popular holidays would likely reach larger audiences. Because of challenges of birth registration campaigns reaching hill tribes or remote regions of Thailand, for example, efforts should be made to identify new strategies for locations or times of greatest community congregation. Registration campaigners should also concentrate around markets, where women may be likely to congregate. Campaigning should be increased around holidays when people from more remote areas are most likely to be present or when weather is more amenable to travel.

In order to address financial and administrative obstacles, a regional funding mechanism could be piloted to offset the costs of birth registration, including associated transportation costs. A period should be designated when birth registration is free, and after that waivers should be made available for the extremely poor.

There is also a role for innovative technology. Digital birth registration programs point to innovation in improving registration and archiving records.

A robust regional investigation into gender-based discrimination in nationality laws is a fundamental component of addressing statelessness. A widespread gender-based assessment of equal access to nationality should be conducted throughout ASEAN. Member states, especially Singapore and Indonesia, should work with Malaysia and Brunei to amend their Nationality Laws to abolish gender discrimination. Based on their mandates, this presents a strong opening for AICHR and ACWC involvement.

Admittedly there remain serious social and political obstacles to eradicating statelessness. Such obstacles have been reproduced through decades of structural violence and historical narratives of exclusion. The involvement of United Nations experts or foreign governments is not always greeted with fanfare. But ASEAN has made specific commitments and empowered regional bodies with a mandate to promote and protect human rights. Identifying and eradicating statelessness in ASEAN cannot be seen as a foreign imposition, as the government of Myanmar claims, but as an obligation inherent in the ASEAN Charter and within the mandate of regional bodies for the full realization of human rights for all.