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Nomads and the Struggle for a Legal Identity

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Abstract

Nomads and legal identity
NOMADS AND THE STRUGGLE FOR A LEGAL
IDENTITY
HEATHER ALEXANDER*
Over the past century, governments around the world have greatly expanded civil
registration and the issuance of identity documents of all kinds. The process of
identifying and registering individuals is sometimes called establishing their ‘legal
identity’.1 Establishing a legal identity is crucial for people to access many rights.2
It is also a basic prerequisite for establishing a nationality. A legal identity is also
important for governments to surveil their populations.
Yet, as more research is done on the legal identity of nomadic and mobile
peoples,3 it is emerging that establishing a legal identity is not easy for them, nor
is it a panacea that automatically helps them access their rights. Instead, it can lead
to their assimilation.4 This comment summarises my recent research into the
establishment of legal identity for nomadic and mobile peoples, uncovering
important and disturbing new insights into this fraught process.5
Problems with establishing the legal identity of nomads stretch back to the
colonial period.6 The end of the colonial period saw the rapid introduction of laws
creating identity documents and centralised registration around the world.
However, the short time frame in which these systems were created meant that
mass registration was in many cases never done and most rural peoples, including
many nomads, entered decolonisation with no identity documents of any kind.
Because nomads often lacked a fixed residence, colonial administrators struggled
to register them and keep them within their designated, administrative zones.
Meanwhile, colonial empires vested settled and urban rulers with enormous,
centralised powers, including the power to issue documents, while marginalising
nomadic leaders. Nomad territories, usually labelled by the colonial powers as
* Heather Alexander obtained her doctorate in law from Tilburg University in 2020. Her work
focuses on nomads, nationality and statelessness. She has several years of experience working
for the United Nations High Commissioner for Refugees in Africa, Asia and Europe. She lives
in Montreal, Canada.
1 To establish a legal identity is to be recognised as a person before the law. See ‘UN Legal
Identity Agenda’, United Nations Department of Economic and Social Affairs, Statistics
Department (Web Page) <https://unstats.un.org/legal-identity-agenda/>. See also
Transforming Our World: The 2030 Agenda for Sustainable Development, UN Doc
A/RES/70/1 (21 October 2015) Target 16.9.
2 Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, UN Doc A/810 (10
December 1948) art 6; International Covenant on Civil and Political Rights, opened for
signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) art 16
3 For a discussion of the use of the term nomad, see Heather Alexander, The Nationality and
Statelessness of Nomadic Peoples under International Law (PhD Dissertation, Tilburg
University 2020) 1721.
4 Heather Alexander, ‘The Open Sky or a Brick-and-Mortar School? Statelessness, Education
and Nomadic Children’ in The World’s Stateless Children (Report, Institution on
Statelessness and Inclusion 2017) 248.
5 ibid.
6 European colonisation was a political and economic phenomenon marked by the invasion and
domination of non-European societies by Europeans. It began in the 1500s and continued in
many parts of the world until the 1960s.
Nomads and the Struggle for a Legal Identity
339
‘remote’, were often divided by borders, calling into question the proper authority
to register nomads.
In British North Borneo, for example, few inhabitants received documents or
any official acknowledgement of their status until just before the end of the
colonial period, leaving mass civil registration, including a determination of the
status of populations in border zones, for the post-colonial period.7 In many Gulf
states, British colonial administrators vested power to issue British documents
with urban Sultans and Emirs, rather than nomadic Bedouin leaders.8 Urban rulers
could establish legal identity and even issue British identity documents to groups
over whom they arguably had no jurisdiction, like the Bedouin.9
In French West Africa, colonial administrators began registering the sedentary
population following the enactment of the 1946 Constitution of the French
Republic,10 but they administrated nomadic populations separately and struggled
to control their movements.11 While separate administration appeared to offer
nomads more autonomy, it left them out of the developing administrative state.
According to the governor of French Soudan, which would become Mali, ‘such
[registration] could be accomplished only for the sedentary part of his
population, step by step, and at high cost’.12
Colonial independence would see a continuation of problems for nomadic
communities in establishing their legal identity, including widespread
discrimination against nomads and the division of nomad territories by borders.13
Undocumented nomads risked being labelled as foreigners or as stateless persons.
Registration committees set up by the Kuwaiti government, for example, closely
interrogated Bedouin claims to Kuwaiti civil registration, even as the settled, urban
population easily qualified under the law.14 Some Bedouin with documents
showing that they owned property in Kuwait were prevented from registering.15
7 The Naturalisation Ordinance, Ordinance No 1 of 1931 (North Borneo), cited in Laurie
Fransman (ed), Fransman’s British Nationality Law (3rd edn, Bloomsbury 2011) 141, 697.
See also North Borneo Cession Order in Council (1946) (United Kingdom); Mathews
Thomas, ‘Is Malaysia’s Mykad the One Card to Rule Them All? The Urgent Need to
Develop a Proper Legal Framework for the Protection of Personal Information in Malaysia’
(2004) 28(2) Melbourne University Law Review 474.
8 John Harding, ‘Matters Colonial, Consular and Curious’ in Peter Hinchcliffe, John T Ducker,
and Maria Holt (eds), Without Glory in Arabia: The British Retreat from Aden (Tauris 2013)
279, 280.
9 ibid 28183.
10 See Constitution of the French Republic, Journal Officiel 28 October 1946 (France) arts
8082.
11 ibid arts 76, 78
12 Frederick Cooper, Citizenship between Empire and Nation: Remaking France and French
Africa, 19451960 (Princeton University Press 2016) 154, citing the Governor of Sudan.
13 Kuwaiti independence was achieved by the termination of the AngloKuwaiti Agreement of
1899 by the Kuwaiti Emir and Britain over a number of years, ending in 1961. James
Crawford, The Creation of States in International Law (2nd edn, Oxford University Press
2006) 319. See also Michael Casey, The History of Kuwait (Greenwood Publishing Group
2007) 21.
14 Claire Beaugrand, Statelessness and Transnationalism in Northern Arabia: Biduns and State
Building in Kuwait, 1959
2009 (PhD dissertation, London School of Economics 2010) 81
84, 12425. See also Farah al-Nakib, ‘Revisiting Hadar and Badu in Kuwait: Citizenship,
Housing, and the Construction of a Dichotomy’ (2014) 46(1) International Journal of Middle
Eastern Studies 5, 12.
15 Beaugrand, Statelessness and Transnationalism (n 14) 124. See also Marie Lund-Johansen,
Fighting for Citizenship in Kuwait (Masters Thesis, University of Oslo 2014) 25; Al-Nakib
(n 14) 12.
2020 Statelessness
&
Citizenship Review 2(2)
340
After colonial independence, registration in what is now Sabah, Malaysia,
focused almost exclusively on settled Sama and Bajau villages, while ignoring the
nomadic Sama Dilaut (Bajau Laut) population. This created a ‘major division’ at
independence in Semporna between villagers and nomads.16 In 1972, the
government instituted registration drives in rural areas but, unlike many settled
groups, the Sama Dilaut did not have a recognised village headman who could
vouch for their residence.17 In 2008, the government issued identity documents to
some stateless persons in Sabah, but this program made no attempt to assist the
Sama Dilaut.18 Today, ID in Malaysia is critical and the introduction of biometric
ID cards has made living undocumented in Sabah increasingly difficult.19 Many
Sama Dilaut in Malaysia are treated as aliens even when using their traditional
fishing zones, meaning that they had to register as temporary workers in order to
practice their way of life.20
In some places, the question of legal identity for nomads is linked to bitter
conflicts over belonging and inclusion, leading to armed conflict. For example,
the Malian government swiftly enacted comprehensive legislation on civil
registration following independence,21 but the question of Tuareg separatism and
their inclusion in the Malian state would devolve into civil war by 1962, impeding
Tuareg registration for generations. Armed conflict continues, despite reforms to
the civil registration laws in 2006.22
The above paragraphs summarise some of the many problems nomads have had
in obtaining a legal identity and some of the negative consequences caused by their
lack of legal identity. Yet, crucially, obtaining a legal identity has not necessarily
led to the protection of the human rights of nomads. In fact, in many places, a legal
16 Clifford Sather, The Sama Dilaut: Adaptation, History, and Fate in a Maritime Fishing
Society of South-Eastern Sabah (Oxford University Press 1997) 87.
17 Tan Sri Datuk Amar Steve Shim Lip Kiong et al, Report of the Commission of Enquiry on
Immigrants in Sabah: Presented to Seri Paduka Baginda Yang Di-Pertuan Agong (Royal
Commission of Inquiry, 2012) 302.
18 Ismail Ali and Mohammad Raduan Mohd Ariff, ‘Since Birth Till Death, What is their Status?
A Case Study of the Sea Bajau in Pulau Mabul, Semporna’ (2010) 1(1) Journal of Arts,
Science and Commerce 156, 163.
19 Thomas (n 7) 474. See also Patrick Blanche, Nomades de la mer, Vezos, Bajaus, Mokens (Ibis
Press 2008) 78; James Warren, The North Borneo Chartered Company's Administration of
the Bajau, 18781909; The Pacification of a Maritime, Nomadic People (Ohio University
Press 1971) 26; Fausto Barlocco, Identity and the State in Malaysia (Routledge 2014) 78.
20 Carol Warren, ‘Consciousness in Social Transformation: The Sama Dilaut of East Malaysia’
5(3) Dialectical Anthropology 227 (1980) 88, 228.
21 In 1960, French Soudan, renamed Mali, became fully independent under the socialist Modibo
Keïta. Loi No 60-14 du 20 juin 1960: proclamant solennellement l’indépendance nationale
de la fédération du Mali [Law No 60-14 of 20 June 1960: Solemn Proclamation of the
National Independence of the Federation of Mali] (Mali) 383. See also Décret No 014/PG-
RM du 09 janvier 1988 portant institution et règlementation de la délivrance de la carte
d’identité et de la carte consulaire [Decree No 014/PG-RM of 9 January 1988 Establishing
and Regulating the Issuance of the Identity Card and the Consular Card] (Mali); Décret No
55-014/PG-RM du 9 Janvier 1988 [Decree No 55-014/PG-RM of 9 January 1988] (Mali); Loi
No 06-040 du 11 août 2006 portant institution du numéro d’identification nationale des
personnes physiques et morales [Law No 06-040 of 11 August 2006 Establishing the National
Identification Number of Natural and Legal Persons] (Mali); Loi No 11-080 portant code des
personnes et de la famille [Law No 11-080 on the Code of Persons and the Family], JORM
Spécial (31 Jan 2012) (Mali) art 84.
22 Loi No 06-024 du 28 juin 2006 régissant l’État civil [Law No 06-024 of 28 June 2006
Governing Civil Status] (Mali). See also Michael Offermann, Les risques d'apatridie au Mali
et pour les Maliens vivant à l’étranger en application des législations et pratiques relatives à
la nationalité, au Mali et dans les pays d’accueil de Maliens (Report, UNHCR 2020) 14,
2829, 33.
Nomads and the Struggle for a Legal Identity
341
identity for nomads has gone hand in hand with settlement and assimilation or
with statelessness and exclusion.23 Between 1960 and 1987, the descendants of
nomadic Bedouin in Kuwait who had no nationality papers were issued identity
documents with the official status of bidoon jinsiyya, or ‘without nationality’,
under a special administrative process.24 In 1965, the Kuwaiti government made
issuance of a birth certificate compulsory, yet this only entrenched bidoon status
for many former Bedouin.25 Other Bedouin were naturalised by the Kuwaiti
government, but given an inferior nationality status in exchange for settlement in
urban areas and service in the military or jobs at oil fields.26 The steady erosion of
human rights for many former Bedouin and their descendants soon followed,
accompanied by a rapid collapse of nomadism.27
As this comment has shown, obtaining a legal identity remains a serious
problem for nomads in many countries. Solutions may include, for example,
mobile registration clinics and other programs to ease registration for nomads28
and eliminating bias against nomadism from civil registration laws, policies and
procedures. Yet, as my recent research has also uncovered, establishing a legal
identity has also negatively impacted many nomads, leading to their assimilation
and raising serious questions of how legal identity and human rights intersect for
nomads.
23 See generally Alexander, ‘The Open Sky or a Brick-and-Mortar School?’ (n 4).
24 Ang Nga Longva, ‘Citizenship in the Gulf States: Conceptualization and Practice’ in Nils
August Butenschøn, Manuel Sarkis Hassassian and Uri Davis (eds), Citizenship and the State
in the Middle East (Syracuse 2000) 187. See also Al-Nakib (n 14) 12.
25 Claire Beaugrand, Stateless in the Gulf: Migration, Nationality and Society in Kuwait (Tauris
2018) 88. See also Beaugrand, Statelessness and Transnationalism (n 14) 129.
26 Longva (n 24) 187. See also Gianluca Parolin, Citizenship in the Arab World (Amsterdam
University Press 2009) 116; Shaul Yanai, The Political Transformation of Gulf Tribal States:
Elitism and the Social Contract in Kuwait, Bahrain and Dubai: 1918–1970s (Sussex
Academic Press 2014) 22325; Greg Power, ‘The Difficult Development of Parliamentary
Politics in the Gulf’ in David Held and Kristian Ulrichsen, The Transformation of the Gulf:
Politics, Economics and the Global Order (Routledge 2012) 33. See also Jacqueline Ismael,
Kuwait: Dependency and Class in a Rentier State (Florida University Press 1993) 125; Osman
Salih, ‘Kuwait Primary (Tribal) Elections 19752008: An Evaluative Study’ (2011) 38(2)
British Journal of Middle Eastern Studies 141, 144.
27 Jill Crystal, ‘Public Order and Authority: Policing Kuwait’ in Paul Dresch and James P
Piscatori (eds), Monarchies and Nations: Globalisation and Identity in the Arab States of the
Gulf (Bloomsbury Academic 2005) 176; Longva (n 24) 185; Lund-Johansen (n 15) 2, 32, 37
38; Beaugrand, Statelessness in the Gulf (n 25) 12425; Beaugrand, Statelessness and
Transnationalism (n 14) 149; Abbas Shiblak, ‘Arabia’s Bidoon’ in Brad Blitz and Maureen
Lynch, Statelessness and the Benefits of Citizenship: A Comparative Study (Geneva Academy
of International Humanitarian Law and Human Rights and International Observatory on
Statelessness 2009) 89; Jill Crystal, ‘Public Order and Authority: Policing Kuwait’ in Paul
Dresch and James P Piscatori (eds), Monarchies and Nations: Globalisation and Identity in
the Arab States of the Gulf (Bloomsbury Academic 2005) 176, 178.
28 Jérémie Gilbert, ‘Nomadic Territories: A Human Rights Approach to Nomadic PeoplesLand
Rights’ (2007) 7(4) Human Rights Law Review 681, 681716.
ResearchGate has not been able to resolve any citations for this publication.
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See generally Alexander, 'The Open Sky or a Brick-and-Mortar School?' (n 4).
Citizenship in the Gulf States: Conceptualization and Practice
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