The Legal Anomaly of Statelessness

By Joel Herrault

Did you know that with a Swedish passport you can visit 186 countries without a visa? Now compare that to if you would have had an Afghan passport (perhaps some of you do), which will allow visa-free travel to only 26 countries. Or moreover, imagine that you were not even allowed a passport, and that you were therefore unable to legally travel anywhere? On top of that, imagine that you also had no home. That is the harsh reality of millions of people around the world today, whom we call stateless.

It is estimated that there are at least 10 million stateless people around the world. It is however a difficult task, or rather impossible, to get the number correct, as they rarely appear in public records. In fact, it is said that the stateless are invisible. They can be described as being outside of society, without protection by and from authorities, and for many of them, it is like being an illegal immigrant in the very country in which they have lived their entire lives. Furthermore, they usually lack the rights of ordinary citizens, such as access to education, employment, healthcare, as well as a right to vote and to freely exit and enter the country. Naturally, individuals living under such circumstances often suffer severe social, economic, physical, and psychological consequences. Therefore, this current situation, which millions of people find themselves in, constitutes one of the most serious and upsetting issues in human rights law.

So why does statelessness exist? A stateless person is someone not considered a national by any state under the operation of its law. The issue of statelessness is therefore often perceived as a technical one. This is because statelessness derives from deficiencies in nationality law, and such legal deficiencies can be fixed by just changing the law. But it is precisely because states choose not to include all its inhabitants, or sometimes because they choose to actively exclude a part of their inhabitants from citizenship, that statelessness occurs.

A recent example of such discriminating exclusion from citizenship can be seen in the Assam state of India, where the government has made efforts to crack down on allegedly decades of illegal immigration. These efforts have included an amendment to the citizenship law and an update of what is called the National Register of Citizens. When the register was updated last year, it had left out almost two million people living in the Assam state, who since have had to prove that they are not in fact illegal immigrants. But for many a lack of documentation and slow legal processes is making it impossible or extremely difficult to disprove that they are illegal immigrants and to prove their status as citizens. Thus, legal reforms like these have de facto excluded a couple of millions of people, of whom most are Muslim, from citizenship. Stories of such discrimination are not uncommon and can be seen in other places today, not least in Myanmar where the Rohingya are suffering grave injustices. The Rohingya are stateless in virtue of the citizenship law of Myanmar that, since 1982, excludes them from the list of 135 official ethnic minority groups that have a normal path to citizenship.

These examples illustrate the absurd consequences that follow the legal deficiencies that create statelessness. This is especially true in our time, when virtually all habitable territories of the world are subjected to sovereign nation states, the phenomenon of statelessness effectively constitutes an anomaly. This way of organizing the global political system in states presumes that everyone on the planet legally belongs to at least one country and its territory. But the stateless have no state, and therefore no territory on earth where they may legally reside. That makes the creation of a home and a social context impossible and means quite literally that a stateless person has no place in the world. One of the most peculiar and astonishing illustrations of this absurd situation is the story of Mehran Karimi Nasseri. Mr Nasseri had fled from Iran and was granted asylum in Belgium. But, while transferring through the Charles de Gaulle airport in Paris, he had somehow lost his briefcase along with his documentation. The French authorities would therefore not let him leave the airport and instead wanted to expel him from the country. But Nasseri was stateless and could therefore not be deported. Stuck in this limbo, he ended up living in terminal 1 for 18 years, until he was hospitalized.

Furthermore, all human rights presume the existence of a state that is supposed to respect, protect, and promote these human rights of citizens. Citizenship signifies that you are a member of a state and protected by it, and it thus constitutes the normal link between the person and the state and between the person and international law and human rights. Therefore, a stateless person has no such link to human rights because there is no state there that is willing to respect, protect and promote human rights for these people. Citizenship as such constitutes a precondition for access to all other rights, both domestic and international, which is the reason why the stateless have tragically been described as rightless.

Lastly, one may wonder if there are remedies to this problem. Statelessness is in fact addressed in mainly two conventions from 1954 and 1961, respectively. Their purpose is to reduce the incidence of statelessness and to protect stateless people from ill treatment by states. However, less than a hundred countries are party to these conventions. And there is a decisive obstacle presented in the fact that states are sovereign, and they can therefore not be forced to grant anyone citizenship or to respect human rights. That being the case, states that value and champion human rights must continue to do so and should increase pressure on states that are responsible for statelessness to eradicate it. But as things stand today, there is unfortunately no end in sight to the tragedy of statelessness.

By Joel Herrault

Illustration: Sonia Engström

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