Katja Swider
The biggest problem with contemporary policies on statelessness, including the UNHCR’s campaign to end statelessness by 2024, is the incorrect assumption that nationality is by definition something good, and statelessness is by definition something bad. I argue that a value judgment about nationality or statelessness cannot be made without considering the specific circumstances of each affected individual.
Ending statelessness and the right to a nationality
The policy goal to end statelessness implies that the best way to help the stateless is to end their statelessness. This decision is taken for all stateless persons by international policy makers. Such a policy goal does not leave much space for affected individuals to choose whether, when and how to enforce their right to a nationality. In my chapter ‘Why End Statelessness?’ in the book ‘Understanding Statelessness’ I explore the relation between the idea of ending statelessness and the concept of human rights.
I argue, for example, that the right to a nationality does not fully justify the policy goal to end statelessness. It is important to remember that access to rights is access to choices, and not the forceful imposition of something that has been externally identified as a ‘benefit’. Universal implementation of the right to a nationality does not necessitate that everyone actually becomes or remains a national. At a more basic level, the right to a nationality does not give rise to a duty to be(come) a national.
Furthermore, the right to a nationality does not justify illegalising voluntary statelessness. Voluntary statelessness is nowadays either prohibited, or highly discouraged. It is framed by international policy documents as an honest mistake at best, or a sneaky attempt to trick the system at worst.(1) By the way, voluntarily stateless persons, according to international policy documents, are not only those who refuse to be a national of any state out of ideological convictions, but also those who renounce their specific nationality for whatever (political/personal/economic) reasons, even if they wouldn’t in principle mind acquiring another nationality if it was accessible to them. Prohibiting voluntary statelessness in a policy that claims to be based on the right to a nationality is an illustration of how human rights discourse can be misleadingly invoked to justify patronising and oppressive policies.
Three stories that challenge the policy goal to end statelessness
To illustrate the practical implications of my theoretical concerns, I discuss three cases and contexts in which the one-size-fits-all solution of ending statelessness negatively influences the human rights situation of affected persons.
One case is about a young man in the Netherlands whose access to Armenian nationality is explicitly made conditional on fulfilling the duty of joining the Armenian army and participating in a violent war, risking life, freedom to travel, wellbeing and dignity. This case looks closer at the often-omitted issue of costs of a nationality, alongside with potential rights.
Nationality may, depending on the relevant state, someone’s life circumstances, age and gender, be an excessive burden. A policy that aims to end statelessness for the sake of human rights should explicitly address scenarios where the acquisition of a nationality does not lead to a better human rights situation.
Another context is that of Latvian non-citizens, a stateless population in Latvia that is relatively well-protected, albeit lacking most political rights and some property rights compared to Latvian nationals. The complex history of this stateless population is closely linked to Latvia’s statehood, and challenges the policy goal to end statelessness in a number of interesting ways. For example, if non-citizens in Latvia are not sufficiently motivated to seek Latvian citizenship, one approach could be to worsen their conditions to provide more incentive to naturalise.
Lowering the level of protection of stateless persons may in this case expedite the goal to end statelessness, but would clearly contradict general human rights values. More generally, this case raises the question whether protection of stateless persons should have a limit, so that access to a nationality still holds a human-rights appeal. A human rights based policy should not support the situation where people are blackmailed into becoming or remaining nationals through restricted access to human rights.
The third context is that of the Dutch system of registering the statelessness status. While the system has a legal category for stateless persons, it implicitly and explicitly discourages registration of cases of statelessness. Civil servants are provided misleading instructions on statelessness. For example, government issued documents repeatedly state that statelessness hardly ever occurs in practice, and that state succession cannot lead to statelessness of those who previously possessed the nationality of a predecessor state.
While such instructions clearly contradict available studies on the causes and scope of statelessness, they seem to be vaguely inspired by the legal discourse on avoiding and ending statelessness. That is not surprising, as the legal norms on eliminating statelessness are much better internalized in the Dutch legal system than norms on the protection of stateless persons. This case illustrates that over-emphasis on avoiding statelessness can lead to policies that avoid acknowledging cases of statelessness. That may be highly problematic for the affected persons. Being stateless in the Netherlands is often a serious legal and bureaucratic challenge, but being stateless and not having that fact formally recognized creates a whole different level of vulnerability.
Eradication vs empowerment in other policy areas
Statelessness is not the only example where ‘eradication’ rhetoric that vaguely invokes human rights has the potential to turn against the very people it claims to help. Studies on informal settlements (aka slums) describe disturbing policy implementations of the ‘Cities Without Slums’ slogan. The poorest of the cities were sometimes forcefully evicted from their homes, their access to healthcare and education cut off, and their social networks disrupted.(2) The UN-endorsed human-rights inspired slogans, such as ‘Cities without Slums’, were reported to appear in defense of policies that oppress slum inhabitants.(3) The language of elimination and demonisation of a problem, as opposed to the language of empowerment of the vulnerable, made this international policy discourse on slums susceptible to such gross misinterpretation and misuses.
Similar problems can be found in literature on informal labour policies. Indiscriminate repression of any form of informal labour may be harmful towards the main ‘victims’ of the phenomenon.(4) Instead, the focus should lie on empowering workers to increase their scope of choices for better quality employment. One may also think of policies that target prostitution, AIDS or drug additions. Any policy on vulnerability can become oppressive if it focuses on objective goals of disciplining everyone into the mainstream, and if it fails to prioritise the empowerment, agency and representation of affected persons.
Way forward for statelessness policies
How can statelessness policies truly embrace the empowerment of those they aim to help? The answer lies in putting rights first. It is important to ensure everyone can enforce their right to full membership in the community they are part of, as it is important to ensure everyone’s ability to enforce their other human rights. However, nationality should not be framed as a duty in the name of human rights. Where nationality still functions as a ‘gateway to human rights’, that is not something to be proud of, or to normalise. Human rights are an inherent entitlement of all humans, regardless of nationality status. Individuals’ choices as to whether, when and how invoke their human right to a nationality should be treated with respect. For statelessness policies this means that, contrary to current practices, the protection of stateless persons through rights needs to be prioritized over the goal to end statelessness. Moreover, (temporary) voluntary statelessness needs to be accepted as a valid exercise of agency over one’s human right to a nationality.
References:
(1) See, for example, art. 7(1) of the 1961 UN Convention on the Reduction of Statelessness, and art. 8(1) of the Council of Europe Convention on Nationality. See also UNHCR ‘Handbook on Protection of Stateless Persons’ (Geneva 2014), paras. 21, 158-162.
(2) Huchzermeyer, M. ‘Cities with ‘slums’: From Informal Settlement Eradication to a Right to the City in Africa’ (UCT Press, 2011).
(3) Huchzermeyer, M. “‘Slum’ Upgrading or ‘Slum’ Eradication? The Mixed Message of the MDGs” in Langford, M, Sumner, A, Yamin, A. E. (eds) ‘The Millennium Development Goals and Human Rights: Past, Present and Future’ (CUP 2013), pp. 295-315.
(4) Maloney, W. F. ‘Informality Revisited’, World Development 32, Issue 7 (2004), pp. 1159-1178.
Katja Swider is a doctoral researcher at the University of Amsterdam, writing a PhD thesis on statelessness under the supervision of prof. Leonard Besselink (University of Amsterdam) and prof. René de Groot (University of Maastricht), funded by the Netherlands Organisation for Scientific Research.
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