Eradicating statelessness is high on the agenda. It is under this banner that the statelessness movement is expected to gather steam over the next decade, as we build a campaign to mainstream the issue and galvanise commitment from all actors to make statelessness a thing of the past.
I am fully behind this campaign, I think it is a great idea – the kind of unachievable, crazy objective which is big and noble enough to capture our collective imagination and really make a sizeable difference. It has the potential to do for statelessness what the Millennium Development Goals have done for development (i.e. it is unlikely to be achieved, it is very likely to be subject to legitimate criticism and even more likely to be exploited and abused by world powers; but, on the balance of things, it is likely to have a largely positive impact on many of the most vulnerable).
However, I think that this addresses only part of the problem.
This may seem like a contradiction in terms, but I hope that if you read through to the end of this piece, agree with me or not, you will see that there is a point there, somewhere. Be warned though, the route I take isn’t as direct as it could be. I prefer the scenic path which is so much more interesting and may provide answers to unasked questions and questions to which we don’t have answers.
Why have I written this piece?
As I mentioned above, I am supportive of the campaign to eradicate statelessness, and in writing this piece I certainly don’t intend to undermine it in any way. Rather, my aim is to reflect on a set of issues which may be more fundamental, and which I believe can also be addressed by such a campaign.
Is there such a thing? Is it the opposite of statelessness? I would rather be mindful than mindless, but am I really interested in being ‘stateful’? What does this look like and how does it feel?
Perhaps if I were the nationalistic sort, ‘statefulness’ would be an important concept to me. But would I want statefulness imposed on me? How closely would I want to be associated with a national identity and what impact would that have on my own? How dependent would my rights be on my membership to a particular country... indeed, if I possess particular characteristics, how detrimental to my rights is membership likely to be?
This seems like a scenario out of the absurd – more Beckett than Chekov – but it does raise interesting questions about the dangers of exclusively pushing for the eradication of statelessness. Does such an exercise unwittingly serve as an endorsement of the centrality of the nation-state as the key source of identity and rights? If so, does it ultimately undermine the very basis of international human rights law?
Let us investigate...
What is so bad about statelessness?
We speak often of the vulnerabilities of the stateless. They cannot access education, healthcare and employment; they cannot open bank accounts or get driving licences and are likely to have no documentation. The stateless are vulnerable to arbitrary arrest, indefinite detention and illegal deportation and are more likely to suffer persecution than most. They are side-lined by development programmes, have no electoral voice and are denied the protection they are entitled to under international law. These are all very serious human rights issues and it is very telling that they so disproportionately impact on this particular category of people.
But aren’t these purely matters of discrimination? Is the treatment of the stateless visibly differentiable from the sometimes deplorable treatment of other vulnerable groups? Can the impact of gender discrimination not be as bad as that of statelessness? Isn’t the silencing of a political minority as serious as the silence of the stateless? Isn’t the disenfranchisement of prisoners every bit as significant as that of stateless persons?
If so, why is the campaign around statelessness centred on eliminating the characteristic that could be protected, whereas efforts against discrimination are centred on protecting such characteristics? After all, the stateless, like the disabled, the ethnic and religious minorities, women and those with particular political opinions are ultimately human beings who we all agree are equal and entitled to equal protection and basic human rights.
When looked at in terms of the discrimination faced by the stateless, it becomes evident that very little differentiates the stateless from other vulnerable groups. Discriminating against stateless persons and violating their human rights is every bit as illegal and unjust as discriminating against women, sexual minorities, ethnic groups and those who hold particular political opinions.
But there is another way to look at it. And this is that discrimination also causes statelessness. Ethnic and religious minorities, women and their children and naturalised citizens are often made stateless as the ultimate act of discrimination. Statelessness therefore is neither inevitable (like gender or ethnicity) nor the choice of the individual (like political opinion) – it is created by the state, and used as a basis (and excuse) for further exclusion, discrimination and abuse.
This is why it is important to push for the eradication of statelessness, or at least, arbitrarily imposed statelessness. However, this is why it is equally important to ensure that statelessness be seen as a protected characteristic (whether explicitly named or not), so as to ensure that no disadvantage flows from it.
The human rights challenge
This is the very challenge that international human rights law poses in the context of statelessness; that of ensuring that everyone has a right to a nationality (including to change it) while also ensuring that the lack of a nationality does not disadvantage the individual in any way. This is why the overwhelming majority of rights enshrined under international law are not conditional on citizenship or nationality, but simply on our common humanity.
The identity crisis of the nation-state
The advent of justiciable human rights has irreversibly changed the position of the individual under international law. Previously, international law was an exclusive forum for states to manage relations and settle disputes with other states. The individual did not count. The all-powerful state that had a contract with its own citizens would negotiate – sometimes on their behalf – with other states. Under the principle of reciprocity, states would protect the citizens of other states in lieu of the same courtesy being afforded to their own citizens abroad. Under this paradigm the stateless had no place. They truly were an anomaly, which is why the 1954 Convention Relating to the Status of Stateless Persons was so ground-breaking. It obligated states to protect stateless persons, in return for which they would get nothing, for there was no ‘statelessland’ to reciprocate.
The nation-state no longer has monopoly in terms of access to international law. The aggrieved individual, denied protection by the state can now escalate the fight for her rights internationally. The nation-state also has less of a hold over identity. In an increasingly globalised world, international travel and work, multi-national families and supra-national entities are increasingly becoming the norm. National identity matters less, and along with it, the nation-state.
Statelessness as a weapon
States are essentially power structures, and as with all forms of power, they are likely to be abusive and corrupt. In a push – perhaps to remain as relevant as before – states are finding new ways to demonstrate the benefits of membership, and increasingly, it is the stick and not the carrot that is being used. If the treatment of non-members (be they refugees, migrant workers or irregular migrants) is anything to go by, the message is loud and clear; those who do not belong will be pushed out (unless they have money, in which case they do belong).
The ultimate weapon that states possess in this regard is the power to make someone stateless. Statelessness can be viewed as a weapon of exclusion for the purpose of maintaining unjust power structures, including those based on patriarchy and ethno-religious supremacy. Gender discriminatory laws, the arbitrary deprivation of nationality of minorities and of those suspected of terrorism related activities are all acts of states imposing the ultimate penalty (in their eyes) on those who have transgressed in some way and must be punished.
Statelessness is a weapon, but only because despite the development of international human rights law and globalisation, states are still allowed to act unlawfully towards the stateless.
If statelessness did not disadvantage the individual in any way, if the stateless had access to rights and justice, had documentation and were treated equally, I believe that two things would happen:
- Statelessness would cease to be an unjust weapon wielded by abusive states. If statelessness ceased to be a source of disadvantage, the arbitrary deprivation of nationality would no longer be an attractive option for dealing with unwanted minorities.
- Increasingly more people, disillusioned with the nation-state, with what is done and supposedly done in their name and to them, would opt out of membership and choose to be stateless instead.
Campaigning to eradicate the arbitrary deprivation of nationality
In a pre-justiciable human rights world, the goal of eradicating statelessness would have been the only one worth pursuing, for the link between nationality and rights was absolute and irrefutable. But when the individual is also the subject of international law, and when we are all entitled to basic human rights, perhaps there are other goals worth considering as well.
In this context, perhaps the ultimate objective should be the eradication of enforced statelessness – the arbitrary deprivation of nationality – while enhancing the democratic choice of citizens to participate, including through the ultimate form of protest, denouncing their nationality, becoming stateless and not being disadvantaged as a result.
Ultimately, we should have the right to a nationality, to not be arbitrarily deprived of our nationality, to choose our nationality, and equally, to choose not to have a nationality.