Statelessness and the Tensions between Open Borders and the Claims of Community
Nicoletta Policek
Introduction
Statelessness is to have no place to call home—to be unwanted and to lose a community, it is what Arendt (1958) calls superfluousness and it is tied to isolation, loneliness and uprootedness. To be stateless is to be deprived of human freedom and from rights that come with nationality. States determine who can obtain nationality and under what circumstances this is possible in their national laws (Brown, 2010). Usually, when children are born, they receive nationality either based on the place of birth (jus soli) or on the nationality of the parents (jus sanguinis) or on a combination of the two (Bloom et al., 2017). In some circumstances, a conflict between different nationality laws may mean that a child fails to obtain any nationality, therefore ending up stateless (Cody & Plan International, 2009). An, admittedly oversimplified, example is that of a child who is born to parents with a jus soli-nationality, but on the territory of a jus sanguinis state. In that case the state of birth will presume that the child obtains the nationality of the parents, but the parents cannot pass on their nationality because their state’s legal system does not foresee this (Policek, 2016).
The right to a nationality is preserved in numerous international declarations and conventions other than the 1948 Universal Declaration of Human Rights (Gibney, 2014). In particular, the 1954 Convention relating to the Status of Stateless Persons defines a stateless person as “a person who is not considered as a national by any State under the operation of its law.” Furthermore, the 1961 Convention on the Reduction of Statelessness deals specifically with statelessness. There exists a list of other workable legal instruments such as the 1957 Convention on the Nationality of Married Women, the 1963 International Convention on the Elimination of All Forms of Racial Discrimination and the 1966 International Covenant on Civil and Political Rights. Statelessness is also considered in the 1979 Convention on the Elimination of All Forms of Discrimination against Women, the 1989 Convention on the Rights of the Child, the 2003 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the 2006 Convention on the Rights of Persons with Disabilities (van Waas & De Chickera, 2017). Nevertheless, these international instruments are not enforceable and their implementation is far from uniform around the globe. International human rights law provides that the right of states to decide who their nationals are is not absolute and, in particular, states must comply with their human rights obligations concerning the granting and loss of nationality. While they are complemented by regional treaty standards and international human rights law, the two statelessness conventions are the only global conventions of their kind (Southwick & Lynch, 2009).
The discussion that follows pieces together the essence of longing for a border as experienced by stateless children. Expressed in the dichotomy between the possible desire and necessity of having borders and the acknowledgment that for many stateless children to have borders means to enhance opportunities to be marginalised and often criminalised (Policek, 2016), this entry provides an overview of statelessness whilst simultaneously considering individuals’ needs and desires to have borders. Key hurdles associated with statelessness as experienced by children can be encapsulated in having no access to health care and in the lack of social and legal protection. Children are particularly vulnerable to negative sequelae of statelessness (van Waas & De Chickera, 2017): they cannot benefit from education (Policek, 2016), which in turn is translated into poor employment prospects, labour rights violations and ultimately poverty. Not having a national identity, makes children subjected to social stigma and discrimination. They are also vulnerable to trafficking, harassment, and violence (Policek, 2019). Stateless children, through no fault of their own, inherit circumstances that limit their potential and provide, at best, an uncertain future. They are born, live and, unless they can resolve their situation, die as almost invisible people (Policek, 2016).
Subsequently, the focus is on the ways that borders are experienced, and experienced differently, for different people (Balibar, 2002), stateless children in particular. The concluding segment of this contribution evidences the aspiration to claim citizenship and community for those who would be otherwise considered a redundant surplus (Mizruchi, 1983) and their plea to having margins without living at the margin.
Being Stateless
Under international law, a stateless person is someone who is not considered as a national by any state under the operation of its law (Weissbrodt & Collins, 2006). Nationality, in this context, refers to a particular type of legal bond between an individual and a state. It is a type of formal membership that results in rights and duties on both sides. The individual, for instance, holds the right to reside in the territory and the state bears a corresponding duty of admission: the individual holds a duty of allegiance (which may include a duty to perform military and/or national service) and the state the right to exercise diplomatic protection on behalf of its nationals abroad (Aird et al., 2002). Where a person lacks any nationality, he or she does not enjoy the attached rights or duties, resulting in a lack of protection. A stateless person is seen and treated as a foreigner everywhere, as a national nowhere. Each state sets the conditions for acquisition and loss of its nationality—an act which is an expression of self-determination and a legitimate exercise of sovereignty—within the limits set by international law (including in relation to the avoidance of statelessness) (Ball et al., 2017). Whether an individual is considered to be a national by a particular state will therefore depend on that state’s domestic nationality law, including how the rules are interpreted and applied in practice (Bhabha, 2011). A person is left stateless either where he or she has failed to acquire any nationality to begin with (i.e. at birth), or where he or she has lost or been deprived of a nationality that was once held, without acquiring another. For the purposes of determining whether a person is stateless in accordance with international law, it is not relevant how or when he or she came to be without a nationality, only whether a nationality is held at the time the assessment is being made (Blitz, 2011).
Statelessness is mostly perceived as a mere technical legal issue (Doná & Veale, 2011), thus neglecting the devastating consequences to individuals, in particular children, who have no rights that naturally come with nationality. Even quantifying statelessness is a problematical task, because embedded in the definition of statelessness is the notion that a stateless person is not considered as a national under the operation of its law. This has been authoritatively interpreted as being both a question of fact and law. Consequently, there are individuals who would legally be eligible for a particular nationality, who are nonetheless not considered as nationals by the state, and whose statelessness is consequently hidden (Bhabha, 2009; 2011). Furthermore, often states may give insufficient priority to the implementation of measures to identify statelessness or accurately quantify it. Sometimes, there is even a deliberate strategy to deny the prevalence of statelessness by asserting that such persons are nationals of another country (Blitz, 2011). Even where data on statelessness can be collected, this does not always harvest comprehensive or reliable results, due to an incorrect interpretation of the definition (Bloom et al., 2017). Often, some such exercises have been limited in their scope, focusing only on one ethnic group (Chen, 2009) or geographical area of a country (Chatty & Mansour, 2011) and do not therefore produce a complete picture. To add to the complexity of collecting data on statelessness, many stateless persons do not see themselves as being stateless (Cody & Plan International, 2009). Even if they do, there is often reluctance to draw attention to this and therefore, data collection which relies on self-identification is not entirely accurate. Undocumented persons and those who are of undetermined nationality may be at risk of statelessness and indeed, some of them are likely to already be stateless (ENS, 2015). However, when such persons are in their own countries, they will almost always receive greater protection if confirmed to be nationals and consequently the stateless label can be counterproductive. Nevertheless, even in such situations, where the denial of documentation is long-lasting (even inter-generational), there would come a point when it is better to acknowledge such persons