by the state (refusal to register to vote, refusal of ID card, refusal of passport, for example) (Hayter, 2000). When dealing with children, it is appropriate to question if identifying them as stateless would serve any protection purpose. The starting point must be to push for them to be recognised as nationals by the country to which they have the strongest links (High, 2013). This would often require scrutiny and assessment of nationality laws and policies, their implementation and the documentation that confirms nationality. If children of undetermined nationality and/or at risk of statelessness are ultimately recognised as nationals of a particular country, without ever being deemed to be stateless, this would be the ideal outcome (Manby, 2012). However, the question of how long their status is to remain undetermined, before concluding that they are actually stateless is a difficult one, to which international law does not seem to have a complete answer (Policek, 2016).
The grey area between statelessness and nationality highlights how it can be harmful to address the one without sensitivity to the impact on the other. There are a variety of circumstances that give rise to statelessness at birth or in later life, and there is often an element of discrimination and/or arbitrariness at play, when children or even entire groups become stateless (Milbrandt, 2011). Discrimination and arbitrariness can manifest itself in an obvious, aggressive and even persecutory manner, such as when large communities are deprived of their nationality based on ethnicity or religion (Southwick & Lynch, 2009); or it can be more subtle and latent, such as the failure of states to prioritise legal reform that would plug gaps in the law which could cause statelessness (Tucker, 2014). While states do have significant freedom to set out their own membership criteria, they also have a responsibility to protect against discrimination and arbitrariness, and to uphold international standards.
Unless safeguards are in place in the law to prevent statelessness from arising, the regular operation of these states’ nationality laws can leave people stateless. While this may seem like an unlikely and marginal occurrence, the scale of international migration today is such that conflicts of nationality laws are becoming more commonplace, increasing the need for safeguards to ensure the avoidance of statelessness (ENS, 2015).
A specific context in which the risk of a conflict of nationality laws is high, and where a large number of persons may simultaneously be affected, is that of state succession (Aird et al., 2002). When part of a state secedes and becomes independent, or when a state dissolves into multiple new states, the question emerges as to what happens to the nationality of the persons affected (Ball et al., 2017). The new nationality laws of successor states may conflict and leave people without any nationality, while the re-definition of who is a national of the original state (where it continues to exist) may also render people stateless. Most often in the context of state succession, it is vulnerable minorities who are associated with either the successor or parent state who are deprived of nationality, exposing the discriminatory motivations and arbitrary nature for such exclusion. Common types of state succession which have resulted in large-scale statelessness are the dissolution of federal states into independent republics (for instance, in the countries of the former Soviet Union and Yugoslavia) (Aird et al., 2002; Shulze, 2017)) and the more recent cases of state secession (for instance, with the splitting off of Eritrea from Ethiopia and South Sudan from Sudan) (Twomey, 2012). Situations of emerging or contested statehood complicate this picture further, leading to unique challenges around nationality and statelessness, for instance, for the Palestinians and the Sahrawi (Smith, 1986).
Many of the large scale and entrenched situations of statelessness in the world were born out of the experiences of colonisation, de-colonisation and consequent nation-building (Spivak, 1999) where borders were erected for a reason: they place people on the “outside” (Torpey, 2000). In such contexts, newly independent states (many of which never had a common pre-colonial national identity) have had to deal with borders arbitrarily drawn (often dividing ethnic groups) peoples forcibly migrated (for labour) and the consequences of decades, sometimes centuries of colonial rule which successfully opposed different ethnic and religious groups against each other, privileging some and marginalising others, as part of a wider divide and rule policy (Garelli & Tazzioli, 2013). It is not surprising that many newly independent states thus struggled with nation building, national identity and the treatment of minorities. For them, borders are a reminder of their colonial past. While colonial history does not justify in any way discrimination, arbitrariness and disenfranchisement, this historical context must be understood and addressed in order to reduce statelessness.
Large-scale statelessness can also be caused by the arbitrary deprivation of nationality outside the context of state succession (Doná & Veale, 2011). Arbitrary acts can involve the collective withdrawal or denial of nationality to a whole population group, commonly singled out in a discriminatory manner on the basis of characteristics such as ethnicity, language or religion, but it can also impact individuals who are deprived of their nationality on arbitrary and discriminatory grounds. In many cases, the group concerned forms a minority in the country in which they live (Goris et al., 2009). Sometimes they are perceived as having ties to another state, where they perhaps share common characteristics or even ancestral roots with a part of the state’s population, such as in the case of the Rohingya in Myanmar (van Waas and De Chickera, 2017) and persons of Haitian descent in the Dominican Republic (Walters, 2010). In other instances, the state uses the manipulation of nationality policy as a means of asserting or constructing a particular national identity to the exclusion of those who do not fit the mould, such as in the case of the Kurds in Syria in the 1960s (Bhabha, 2011) and the black population in Mauritania in the 1980s (Blitz, 2011). Nationality law may also be designed to restrict the access of certain groups to economic power, especially the right to own property, such as in Liberia or Sierra Leone, where only those who are of African descent may be citizens from birth (Bloom et al., 2017). In some instances, individuals or groups are targeted for their political beliefs, since nationality is the gateway to political rights and its withdrawal can be a means of silencing political opponents. Deprivation of nationality on security grounds can also be arbitrary if certain criteria—including due process standards—are not met. Other forms of discrimination in nationality policy can also create, perpetuate or prolong problems of statelessness (McInerney, 2014). For instance, where a woman does not enjoy the same right to transmit nationality to her child as a man, children are put at heightened risk of statelessness (Policek, 2016). A stateless, absent or unknown father, or one who cannot or does not want to take any steps that might be required to confer his nationality to the child, can spell statelessness because the mother is powerless to pass on her nationality. This form of gender discrimination is still present in more than 25 countries around the world and many more laws contain other elements of discrimination against women—or sometimes men—in the change, retention or transmission of nationality (Milbrandt, 2011).
The sole prime cause of statelessness globally in any given year—in the absence of large-scale situations stemming from one of the above problems—is the inheritance of statelessness (Bhabha, 2011). Many contemporary situations of statelessness have their roots at a particular moment in history, such as state succession, the first registration of citizens or the adoption of a discriminatory nationality decree stripping a whole group of nationality, as outlined above. Yet these situations endure and even grow over time because the states concerned have not put any measures in place to stop statelessness being passed from parent to child—or do not implement existing measures to that effect. Furthermore, these situations migrate to new countries along with the (often forced) migration of stateless persons abroad, as in migratory contexts too, statelessness is allowed to continue into the next generations (Rigo, 2005). This means that most new cases of statelessness affect children, from birth, such that they may never know the protection of nationality. It also means that stateless groups suffer from intergenerational marginalisation and exclusion, which affects the social fabric of entire communities always longing to have borders.
Longing to Have Borders
Borders are not only spatial locations, but are also social, political and economic expressions of belonging and exclusion (Vaughan-Williams, 2012). They are more than just a line, a divide, a single and static territorial location.
