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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
