Statelessness is back (not that it ever went away...)

Guy Goodwin-Gill, Professor of Law at the University of New South Wales and Emeritus Fellow of All Souls College, Oxford
/ 12 mins read

Citizenship deprivation and statelessness are very much back in fashion. States increasingly resort to such measures to deal with those returning from foreign wars, or as a sanction for those otherwise deemed undesirable and unwanted – it must certainly seem easier than living up to their obligations actually to combat terrorist activities or war crimes or crimes against humanity (see here).

States are also ‘cracking down’ on citizenship claims and on the rights of refugees and migrants rights in orchestrated, if often chaotic, policies and practices seemingly designed to cultivate discrimination and division in society, often in the hope of some electoral advantage. Former UK Home Secretary, Theresa May’s ‘really hostile environment’ had such objectives (see here), while India’s current focus on minorities conveniently identified by reference to religion (see here and here and here), is not so very far removed from Myanmar’s programme of violence and persecution against the Rohingya it claims to be stateless (see here).

To any government which, thanks to the idle musings of former UK Prime Minister Tony Blair (see here), argues that citizenship is a privilege, not a right, one may as easily answer the contrary, for many a government these days seems bent on trashing precisely those responsibilities which are its raison d’être.

On the international plane, however, the State does have responsibilities with regard to its citizens. Among others, the State must ensure that they do not violate human rights and that they do not harm other States, whether through cross-border pollution, transnational criminal activities, or even by reason of their having to seek asylum from persecution, conflict or the risk of other serious harm. What is more, these responsibilities also apply after the fact, obliging States to do what may be required, for example, through prosecution and punishment, to uphold the integrity and efficacy of internationally agreed measures – to punish torturers, or those who have engaged in internationally proscribed terrorist activities; in short, to recognize and accept responsibility for those who have been formed among us, no matter how wrong the path subsequently chosen.

When citizenship enters the picture, does international law have much to say? The ‘old’ view that everyone should have a nationality, and only one nationality, has long since had to yield to the realities of a globalised world. What’s more, it has so far proved impossible to get States formally to accept constraints on their sovereign competence in nationality matters, even though what a States does in relation to nationality is entitled to recognition by others only so far as it is consistent with international law. And international law does have something to say, recognizing the link between people and territory, between the individual and their own country, between the competence to expel and the duty to admit.

These relationships exceed discretion, and international legal obligations will have traction, when and wherever a States would seek to rid itself of, or to ‘delegitimize’, to disenfranchise and to alienate many of those within its territory and jurisdiction. From the perspective of international law, an effective nationality flows from the facts of a social, lived attachment; perhaps it is time to rehabilitate those elements of the ICJ’s judgment in Nottebohm (see here), which recognized that fundamental responsibility, even as the Court itself was unable then to deliver the justice that the facts themselves demanded.

These are pressing issues. Unless international law is brought clearly and forcefully into the picture (and no State has an interest in the citizenship deprivation antics of any other State, for guess where the burden will fall...), then the Office of the UN High Commissioner for Refugees may well miss its target of seeing statelessness abolished by 2024 (#IBelong; see here ). Yet more seriously, however, one further likely consequence will be a dramatic upsurge of asylum seekers whose claims to protection will be founded precisely in discriminatory denial or deprivation of citizenship, which makes a new book by Michelle Foster and Hélène Lambert especially timely.

In International Refugee Law and the Protection of Stateless Persons (OUP, 2019), the authors recall the historical origins of protection for the stateless, and provide compelling arguments for enhancing their status in today’s conflicted world. That history is important, nonetheless. Nearly 80 years ago, the Grotius Society was meeting at Number 2, Kings Bench Walk in the Temple, London – a late seventeenth century building designed by Sir Christopher Wren – just as the Blitz on London was beginning. The Temple itself, very much a ‘legal district’ since the fourteenth century, was often hit and much of it destroyed. Somehow, Number 2, Kings Bench Walk survived, as did much of the work of the committee meeting that Friday, 27 September 1940 – the committee on the status of stateless persons.

It was chaired by Norman Bentwich, a former Attorney General of Palestine, whose zionism had caused problems for the local Arab population and whose support for Arab-Jewish rapprochement led to difficulties from other quarters (including from one Avraham Stern...). But now, with Bentwich in the chair, the Committee set to work. Erwin Loewenfeld, formerly a lawyer in Berlin now requalified in Britain, was charged with completing a study on the issues, which was duly published in 1941 in the Transactions of the Grotius Society; it remains a seminal article, with many valuable insights into the nature of statelessness and the quality of protection and lack of protection.

The Committee and other members of the Grotius Society worked on through the Blitz, and were soon joined by Paul Weis, an Austrian refugee. Born in 1907 in Vienna into an ‘integrated’ or ‘assimilated’ Jewish family, or so they believed, Paul Weis might have ended up managing the family vinegar distillery, had not the law called, and particularly ‘social legislation’. Not surprisingly, the 1938 Anschluss with Nazi Germany and his own social democratic leanings promptly led to incarceration in Dachau – a concentration camp for political prisoners, communists, trade unionists and others of that ilk.

But Paul Weis had three formidable sisters and they somehow got him out and back to Vienna where he tried his best, without success, to get a visa for the US. Then one day in August 1939 a friendly police officer said to him, ‘Dr Weis, I think you had better leave now...’ And somehow, again, he got to Britain, just before war broke out. After a short period of internment as a nominally ‘enemy alien’, he was employed translating the conversations of Luftwaffe aircrews. His interest in legal matters had not disappeared, however, and he began to write, particularly on nationality and on the plight of the stateless and the refugee.

In a short book on the legal status of German and Austrian refugees in Britain, he noted how the conception of nationality had been undermined by Nazi race laws which, even when they fell short of outright denationalization, nevertheless contradicted ‘the fundamentals of international law’ and the notion of ‘effective’ nationality. A detailed analysis of Nazi citizenship legislation soon followed for the Association of Jewish Refugees in Great Britain, and then a set of rules on nationality and the prevention of statelessness for the Grotius Society.

Paul Weis was naturalized in 1947, just in time for a move to Geneva to work for the International Refugee Organization. He attended some sessions of the Commission on Human Rights as it drafted the Universal Declaration, worked with Manley Hudson at Harvard on nationality issues, and then with the setting up of the Office of the United Nations High Commissioner for Refugees (UNHCR) in 1951, he became legal adviser there and later chief of the legal department, remaining until his retirement in 1967. In the interim, as it were, he completed a doctorate at the University of London and published the first edition of his principal work, Nationality and Statelessness in International Law (London: Stevens & Sons, 1956).

All of this is but to situate Foster and Lambert in a long line of practice and scholarship. Once, the stateless person and the refugee were treated more or less identically, sharing in common the fact that neither of them enjoyed the protection of any State or government. That perception, which was the foundation of international action in the 1920s and 1930s, lasted briefly into the post-war period – the UN’s first report on displacement in 1949 was entitled A Study of Statelessness – but at some point the relationship was bifurcated, and States decided that the refugee and the stateless person should go their separate ways, under different treaty regimes (see here). It was expected that they would be complementary and overlapping, for a stateless person might be a refugee, and a refugee might also be a stateless person, but not necessarily so. In practice, however, as the authors point out, protection for the stateless, as refugees, has lagged behind; and those who should have been protected, as refugees and in light of their statelessness, have not received their due. This book aims to correct that imbalance, to expand the capacity of the 1951 Convention/1967 Protocol relating to the Status of Refugees to accommodate those in flight largely or partly because of their lack of nationality, and to bring refugee protection to those to whom it has previously been denied.

Foster and Lambert show that it has not always been understood how the denial or deprivation of nationality are themselves to be seen as juridically relevant facts in the identification of persecution or well-founded fear. Some of this has changed with developments in our understanding of human rights, and in our appreciation of how, from the perspective of international law, the individual stands in his or her relation to the State, and of how the foundation of statelessness (whether arising from the denial or deprivation of citizenship) lies often in the always questionable realm of discrimination – ethnic, religious, gender, political, and so forth. A number of practical and theoretical obstacles nevertheless remain.

As is often the case, the principal ‘problem’ remains the sovereign State – the State which considers itself, and is considered by others, as being solely competent to determine its own membership and the conditions of citizenship. The sense remains, at times, of unbridled discretion, of a competence unconfined by law, and yet this discourse is already taking place within the framework of law, in which international lawyers will be ready to find the necessary and inherent limits of a power conferred and confined by law. As Hersch Lauterpacht remarked at one meeting of the Grotius Society, ‘... if States claim the right to be the only link between the individual and international law, then they must not be permitted to render that link non-existent.’

Fortunately, international law has a dynamic aspect, a changing role in social and political context, growing, moving along, not necessarily in a linear sense, but incrementally. So it is that the limits to sovereign competence are often found in peripheral fields – in the prohibition of discrimination on grounds of race; in the development of protection for those subject to particular treaty regimes, irrespective of or despite citizenship; in the prohibition of arbitrariness in the implementation of human rights; in the duty to recognize the individual as a person before the law and as equal under the law.

In the course of their comprehensive survey, Foster and Lambert pull up and dispose of some old nuggets – the case of the semi-colon, for example, and whether a stateless person seeking protection under the 1951 Convention needs also to establish a well-founded fear of being persecuted; or whether a stateless person can ever be a refugee because, not being ‘returnable’, he or she is never in danger of refoulement (an odd, ‘academic’ point, quite divorced from life and history and experience).

Necessarily, they also grapple with the definition of the stateless, most usually put in terms of someone who is, ‘not considered as a national by any State under the operation of its law...’ This is one of the accidents of history and hardly the easiest definition to apply in a decision-making context. It began life in the mid-1930s, incidental to work then being done in the Institut de Droit International; Manley O. Hudson modified it a bit and dropped it into the nationality debates in the International Law Commission in 1952 (see here), and from there it was swept up into the 1954 Stateless Persons Convention and so into the lexicon of legal classification. That same International Law Commission now tells us that this ‘definition’ is part of customary international law... and so it goes (see paragraph (3) of the commentary to Article 8 of the ILC’s Draft Articles on Diplomatic Protection in Chapter IV of its 2006 Report).

Be that as it may, the authors show, with copious references to practice and decision-making across multiple jurisdictions, how the stateless person seeking the status of a refugee has many hurdles before them – the burden and standard of proof, and of demonstrating ‘sufficiently’ that you are without nationality; the need to show (because systems regularly throw curveballs), that your statelessness is not, as Lemony Snicket might put it, the result of a series of unfortunate events, but rather an incident of persecution; and that denial or deprivation of citizenship is not just something that happens incidentally, without malice aforethought, in a world of sovereign States adopting necessarily imperfect laws of general application.

This not to say that issues of principle are absent. On the contrary, there is plenty of room for further inquiry, thought and analysis on why exactly the condition of statelessness may amount to persecution (compare living under a system of apartheid...); and/or why the right to work should not be treated similarly. Fortunately, Foster and Lambert have done much of the groundwork for these future debates, all of which will be necessary if the stateless are to find protection from ill-treatment at home and abroad; if statelessness is to be eliminated; and if, somehow or other, the right to a nationality, so often proclaimed, is to be attached with certainty to one or another State.

Good books provoke the reader to further thought, to some re-thinking, or to questioning their own assumptions, reasoning or conclusions – the baggage and professional deformation picked up over the years. This one does that, opening up new lines of reasoning for the challenges ahead, new arguments for another agenda. There are points of difference, naturally; I think it is incorrect, as a matter of international law, history and intent, to seek to force Palestine refugees through the sieve of status determination from which, always having been considered refugees by the international community, they were to be spared (see here).

Leaving that aside, the authors have nevertheless succeeded in revealing a broader understanding of the refugee definition, and hence of the scope and range of protection available and due under the 1951 Convention, and they have clarified several issues that have been unnecessarily complexified by rather pointless, through doubtless well-meaning, over-thinking. The path to refugee status for those displaced or exiled by governments abandoning their citizenship responsibilities may be easier now, thanks to Foster and Lambert. There is still much for international lawyers to do, however, across the broad field of State responsibility and obligation and in a legal and political environment in which protection will be key; but these are questions for another day...

Thanks EJIL:Talk for their permission to repost this blog.

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