Statelessness From the View of Hannah Arendt to Present International Law

Abstract

UNHCR estimates that there are approximately over 12 million stateless persons in the world. Due to gaps in data collection by governments, the UN, and civil society, a full breakdown of this figure is beyond reach. The stateless are, in effect, the rightless because the loss of citizenship in the nation-state dynamic also means the loss of human rights. Stateless persons have been excluded from adequate international human rights protection as they do not have the state which would do so. Indignities inflict on the community like no access to documentation, education, services, being corralled into particular areas, and unable to travel freely. The implementation of international refugee law has one of its intended purposes of protecting the world’s most vulnerable people. Hannah Arendt was one of the most influential political philosophers of the twentieth century who was stateless for eighteen years of her life. Through her stateless experience, Hannah Arendt enlightened the conflict between universal human rights and territorial sovereignty. According to Hannah, an individual must be a member of a political community protected by the modern state to exercise their human rights, although there are limitations of a nation-state system in ever achieving justice and equality for all.

Introduction:

‘Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality, nor denied the right to change his nationality.’

– Article 15, Universal Declaration of Human Rights

International law has a dynamic aspect with a changing role in the social, political context and its incremental growth. Human rights are usually rooted in law, both domestic and international, and will not prevail until the law is respected. A comprehensive rights-based legal framework regulates International Human Rights Law since 1948 with the adoption of the Universal Declaration of Human Rights (hereinafter UDHR) and other eight-core human rights treaties from time to time with a view based on the understanding that it is primarily States that violate or protect human rights. The United Nations (hereinafter UN) is available to support member states in the enduring domestic implementation of human rights of the international standards and strengthening the institutions, processes, and conditions that ensure an effective and just national order. The UDHR is consistent with most subsequent general human rights treaties.^[1] However, Hannah Arends thought that human rights first need to be viewed as the right to membership of a political community, rather than as the mere rights of members already belonging to a political community. For her, the protection of any international mechanism depended on the willingness of the nation-states to enforce it, meaning human rights, as defined by the Declaration, can only be materialized in a political community. She wrote, “The right to have rights, or the right of every individual to belong to humanity, should be guaranteed by humanity itself,” adding, “It is by no means certain whether this is possible…[because] the present sphere of international law… still operates in terms of reciprocal agreements and treaties between sovereign states.”

Refugees, minorities, stateless and displaced persons are special categories of human beings created through the actions of the nation-state. One becomes a refugee if one is persecuted, expelled, and driven away from one’s homeland. Similarly, one is a stateless person if the state whose protection one has yet enjoyed withdraws such protection as well as nullifying the papers it has granted.^[2] One is a displaced person if, having been once rendered a refugee, or a stateless person, unable to find another polity recognizing one as its member and remains in a state of limbo, caught between territories, none of which desire one to be its resident. This article discusses international law relating to statelessness and stateless persons in line with Hannah Arendt’s view of statelessness and its applicability to the international level. Further, it would discuss the development and the ability of International Refugee Law to protect one of the most vulnerable groups, i.e. stateless people.

Statelessness in the eyes of Hannah Arendt:

Hannah Arendt was born in 1906 in a German-Jewish family. Arendt’s work on human security reflects her lifelong preoccupation with the conditions that give rise to totalitarianism and her own experience of statelessness during and after the second world war ( hereinafter WWII). Her most influential contributions in this field appear in The Origins of Totalitarianism, where Arendt develops a historical analysis of the emergence of modern statelessness, writing with piercing clarity about the vulnerability of those who find themselves legal and existential limbo outside the realm of membership in a state.^[3] In The Origins of Totalitarianism, Arendt surveyed the historical circumstances that gave rise to the calamity of statelessness in the first half of the twentieth century. In this work, Arendt proposes recognizing a universal ‘right to have rights as a means of abolishing the denuded form of existence of those who find themselves outside the pale of the law.^[4] She observes that the condition of statelessness existing outside the protective/punitive legal and political auspices of a home state was an anomaly during the first centuries of the modern European state system. It was long dealt with by sovereign states as an exceptional circumstance through the right of asylum or the process of naturalization. However, with the post-WWI Minority Treaties and the waves of postwar refugees from Russia, Armenia, Hungary, Germany, and Spain, followed by the millions who were housed in displaced person camps, internment camps, and concentration camps during WWII, it became impossible to continue to use these legal techniques to cope with the growing legion of de jure and de facto stateless persons. Their sheer numbers and the increasingly complete juridification of the geography of the planet (by both national and global legal orders) militated against this traditional response.

Contemporary international legal theorists and policy-makers have endorsed the concept of human security to mitigate the same categories of human suffering that Arendt sought to publicize with her ‘Right to have rights’. Like Arendt, human security theorists and practitioners today focus on the plight of individual persons in distress due to the unrealizability in their human rights practice. Human security is generally agreed to refer at a minimum to the physical safety of individuals, while broader definitions encompass their economic and social well-being as well. The term ‘human security’ was coined in deliberate contrast to the traditional international relations concept of national security to highlight the significance of existential threats to the human flourishing of individuals and challenge the dominant realist paradigm concerning the purpose and conduct of states. However, the concept of human security has been left almost entirely undefined in the conventional documents and resolutions that cite it. Arendt’s notion of a right to have rights offers a powerful source of guidance to those who wish to develop the idea of human security in a way primarily serving humanitarian rather than strategic goals.^[5] Therefore, the goal of human security is an uncontroversially universal one. Nevertheless, while it is easy to imagine Arendt as an active supporter of some readings of human security, her record of critically scrutinizing the motives and beneficiaries of developments in international law suggests that it is unlikely that she would have countenanced a simplistic celebration of international law’s moralization.

Arendt develops two conceptually distinct arguments for a right to have rights. The pragmatic argument rests upon our vulnerability to domination, the ontological argument, on our need for political engagement. This dual character of Arendt’s case, coupled with her valorization of plurality, leaves space for an overlapping consensus in support of the right to have rights. At the same time, pointing to the possibility of something more substantive – a moving consensus on a set of norms that might eventually define the minimum conditions of human flourishing in positive rather than negative terms. This position helps to reveal the incompleteness of prevailing arguments favoring human security conceived in terms of freedom from fear and want.

Arendt notes human rights are theoretically independent of any institutionalized source of authority and universal in the application — become unavailable in practice to those who have no state to make good upon them. With the loss of the legal and political status that entitles individuals to government protection, stateless persons find themselves unable to make use of their human rights. Once an individual is prevented from participating in any political community through the withdrawal of her citizenship rights or the dissolution of the polity in a failing state, she is in effect expelled from the category of humanity. Her existence relegated to what Seyla Benhabib describes as ‘a a murky zone between morality and the law’.^[6] The calamity of the rightless is not that they are deprived of life, liberty, the pursuit of happiness, or equality before the law and freedom of opinion, formulas which were designed to solve problems within given communities, but that they no longer belong to any community whatsoever.

The Significance of Statelessness:

The problem of statelessness is not only a legal problem resulting in the inability to exercise rights. It is a problem of identity under the law.^[7] For Arendt, the enormous significance of statelessness does not lie in the fact that it is a condition of insecurity but that statelessness makes it impossible to become secure. As Arendt puts it, the plight of the stateless ‘is not that they are not equal before the law (in the sense that their human rights are not respected), but that no law exists for them; not that they are oppressed, but that nobody wants even to oppress them”^[8] Cut off from a law-governed condition, Arendt argues, individuals become human beings in general, defined only by the abstract nakedness of being nothing but human, thrown back on their natural givenness.^[9] Prevented from participating in a political community, they cannot come together to engage in the activities of promise-making and norm affirmation that are the indispensable bases for the exercise of human rights. In Arendt’s view, this lack of meaningful legal personhood bars the stateless from the partnership in those moral conversations about common good that are a necessary feature of a good human life. One of the pragmatic reasons why such conversations are so central to our flourishing is that they are the forum in which the norms that safeguard our daily lives are reappropriated and made our own. The political community in the form of the state accomplishes this by providing an institutional apparatus and public sphere in which the legal norms agreed upon by citizens act, not to guarantee but to promote a context of legality.

In this context, the internalization of those norms, the sense among citizens of their rightness fosters predictability, i.e. certainty of expectations regarding the distinction between the legal and the illegal. The means that most effectively promote this predictability in modern states is the recognition of human rights.

Development of International Law Relating To Statelessness:

No human being can be illegal. Despite this fact, the protection of stateless persons has long been understood as a challenge for the international community. For the past 60 years, a prioritized focus on refugees has dominated or even eclipsed the promise and protection needs of stateless persons. Guy S Goodwin-Gill noted the irony that ‘refugees and stateless persons once walked hand in hand’.^[10] After the first World War, their numbers and condition were almost coterminous, and, post-WWII, the intention had been to draft a single convention for the protection of both stateless persons and refugees. However, the consignment of a protection regime for stateless persons, first, to an annex and ultimately to excision from the Refugee Convention undoubtedly contributed to the failure to satisfactorily address the plight and protection needs of this category of ‘unprotected persons’.^[11] The subsequent formulation was the Convention on the Status of Stateless Persons in 1954^[12] and the Convention on the Reduction of Statelessness in 1961.^[13] Statelessness is a violation of the fundamental ‘right to a nationality, and stateless persons are defined as individuals who are not considered citizens or nationals under the operation of the laws of any country.^[14] Such lack of legal nationality means the denial of human dignity, of political membership, and even of the basic resources essential for survival. Nevertheless, despite the severity of this global problem, which affects at least ten million people worldwide, this issue has only recently garnered significant attention within the UN system and among a small network of advocates and scholars.

The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness together form the foundation of the international legal framework to address statelessness.^[15] A stateless person is defined as ‘a person who is not considered as a national by any State under the operation of its law’; this definition being considered part of customary international law.^[16] According to the UNHCR, determining whether a person is considered a national by a State under the operation of its law requires a careful analysis of how a State applies its nationality laws in practice, in each individual case.^[17] In other words, it is the position under domestic law that is relevant.^[18] The 1954 Convention is designed to regulate and improve the status of stateless persons by an international agreement by setting out a range of rights to which stateless persons are entitled.^[19] The Convention mirrors the Refugee Convention in structure and format, although there are notable omissions in the 1954 Convention, such as the lack of protection against refoulement and penalization for illegal entry. Hence, where a de jure stateless person is a refugee, protection should also be accorded under the 1951 Convention as it provides both a better standard of protection and is far more widely ratified and implemented in practice. The purpose of the 1961 Convention is to reduce statelessness by international agreement.^[20] Unlike its predecessor (the 1930 Hague Convention), the 1961 Convention imposes a positive obligation on States to grant nationality in certain circumstances.^[21] It also addresses several specific situations, such as the nationality of foundlings and those born on board ships or aircraft. Thus, although the 1961 Convention does not recognize the general right of an individual to nationality, it attempts to reduce particular instances of statelessness and imposes obligations on States to grant nationality to stateless persons in certain cases.^[22] If all States actively applied the provisions of the 1961 Convention, there would be a decrease in the number of cases arising concerning the 1954 Convention’.^[23] Identifying stateless persons is an obligation that is implicit in the 1954 Convention, which establishes the international legal status of ‘stateless person’ and attributes a range of rights to those who enjoy this status.

The historically low rate of accession and concomitant lack of implementation and enforcement of both of these treaties, including a lack of domestic status determination procedures concerning the 1954 Convention, means that, as predicted by Goodwin-Gill, other human rights treaties have also become important in the protection of stateless persons. While traditionally understood as a technical legal problem, it is now widely appreciated that statelessness commonly occurs due to arbitrary deprivation of nationality, including based on racial and gender discrimination.^[24] Arbitrary deprivation of nationality may take the form of failure to accord nationality or withdrawal of nationality on arbitrary or discriminatory grounds. Besides, the consequences of statelessness are now increasingly conceived of in human rights terms, given that statelessness frequently results in discrimination in terms of accessing fundamental rights, such as the right to work, to health care, and education in one’s own country, and that it can lead to vulnerability to other human rights violations, such as being trafficked.^[25] Indeed, some stateless persons find that their predicament in their country of origin or habitual residence is so untenable that migration is the only option.^[26]

In this regard, increased international focus on establishing status determination procedures to identify and ensure the protection of stateless persons in a migratory context is essential, although still nascent legal development. According to the Refugee Convention, a growing body of jurisprudence recognizing arbitrary deprivation of nationality and its consequences as persecution is another significant development. However, notwithstanding such developments, which support Goodwin-Gill’s sense that concerning this issue, there is room for optimism today, with significant challenges remaining.

Conclusion:

At least 600000 people remain stateless within the borders of Europe, and new cases continue to emerge. The citizenship law of 1982 passed by the Myanmar military based on which Rohingya were excluded from citizenship in effect, making it impossible for the Rohingya to avail of the fundamental rights of citizenship. A statistical report by UNHCR currently covers only a total tally of some 3.9 million stateless persons out of more than 12 million global stateless population. A closer look at the data shows that 97.6% of the number of stateless persons reported in UNHCR statistics globally can be found in just 20 countries, which each is home to a stateless population of over 10,000 and less than 84,000 stateless persons are spread across the remaining 55 countries. Generally, states bear the primary responsibility for preventing and reducing statelessness. The states should review their national legislation in line with their international and regional instruments’ obligations to establish gaps within the national legislation. The states should ensure the adoption and use of safeguards to avoid statelessness due to renunciation, deprivation, and nationality loss. The states may also wish to undertake population profiling/census to establish nationality gaps. In order to realize the objects of the Conventions, States should accede to the Statelessness Conventions as well as relevant international/regional treaties, institute safeguards against statelessness regardless of whether they are parties to the 1961 Convention or not; review multilateral and bilateral agreements with other states to reduce statelessness related disputes. States should also undertake population profiling/census to establish nationality gaps, promote Universal Birth Registration, and establish status determination procedures granting protection status to stateless persons and facilitating their naturalization.

Author

Nabila Akter is an independent researcher, currently working as a Legal Intern at Rahman’s Chambers and Voice of International Affairs, Bangladesh. She has completed LLM in International Law from South Asian University, New Delhi, India, and LLB from Daffodil International University, Dhaka Bangladesh.

[1] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 UNTS 171; European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 UNTS 222; American Convention on Human Rights, Nov. 22, 1969, 1144 UNTS 123; African [Banjul] Charter on Human and Peoples’ Rights, June 27, 1981, 21 ILM 58.

[2]Suhani Pandey [August 2, 2020] Hannah Arendt and the Stateless <https://theinquisitivecircle.wordpress.com/2020/08/02/hannah-arendt-and-the-stateless/>

[3] Hannah Arendt [1994] The Origins of Totalitarianism (New York, Harcourt Books) p. 292

[4] Natalie Oman [July 2010] Hannah Arendt’s ‘Right to Have Rights’: A Philosophical Context for Human Security. Journal of Human Rights, Volume 9 Issue 3 <http://dx.doi.org/10.1080/14754835.2010.501262>

[5] ibid

[6] BENHABIB Seyla (2004) Kantian questions, Arendtian answers. In Pragmatism, critique, judgment, S. Benhabib and N. Fraser (eds.) (Cambridge, MA: MIT Press).

[7] Carol A Batchelor (1998) ‘Statelessness and the Problem of Resolving Nationality Status’ 10 International Journal of Refugee Law 156, 181–2.

[8] Hannah Arendt,(1968) The Origins of Totalitarianism (San Diego, CA: Harcourt, Inc.).

[9] Ibid, 300, 297, 302

[10] Michelle Foster, Hélène Lambert [1 December 2016] Statelessness as a Human Rights Issue: A Concept Whose Time Has Come, International Journal of Refugee Law, Volume 28, Issue 4 <https://doi.org/10.1093/ijrl/eew044>

[11] This was the terminology preferred by P Weis, as cited by Goodwin-Gill

[12] Convention relating to the Status of Stateless Persons (adopted 28 Sept 1954, entered into force 6 June 1960) 189 UNTS 117 (‘1954 Convention’).

[13] Convention on the Reduction of Statelessness (adopted 30 Aug 1961, entered into force 13 Dec 1975) 989 UNTS 175 (‘1961 Convention’).

[14] (n 11) Article 1

[15] For a historical account of these treaties, GS Goodwin-Gill [2010] ‘Convention relating to the Status of Stateless Persons’ (UN Audiovisual Library of International Law) <http://legal.un.org/ avl/pdf/ha/cssp/cssp_e.pdf>; GS Goodwin-Gill [2011] ‘Convention on the Reduction of Statelessness’ (UN Audiovisual Library of International Law) <http://legal. un.org/avl/pdf/ha/crs/crs_e.pdf>.

[16] International Law Commission (ILC), Draft Articles on Diplomatic Protection with Commentaries, as contained in ‘Report of the International Law Commission: Fifty-Eighth Session’ [1 Oct 2006] UN doc A/61/10, 48–49.

[17] UNHCR, (30 June 2014)‘Handbook on Protection of Stateless Persons’ paras 23–24 <http://www.unhcr.org/53b698ab9.html>

[18] UNHCR, ‘Commemorating the Refugee and Statelessness Conventions: A Compilation of Summary Conclusions from UNHCR’s Expert Meetings’ (May 2012) 16 <http://www.unhcr. org/4fe31cff9.pdf>. The UK Supreme Court supports this interpretation in concreto, i.e. a government’s statement that a person is not a national does not override his or her position under domestic law: Pham v Secretary of State for the Home Department [2015] UKSC 19, [2015] 1 WLR 1591. So does the Italian Supreme Court, Supreme Court of Cassation, Judgment No 28873/2008, 9 Dec 2008; Supreme Court of Cassation, Judgment No 7614/2011, 4 Apr 2011.

[19] 1954 Convention , preamble

[20] 1961 Convention, preamble.

[21] on the basis of jus soli, commonly referred to as birthright citizenship, is the right of anyone born in the territory of a state to nationality or citizenship.

[22] Hall, (1999)‘The European Convention on Nationality and the Right to Have Rights’ 24 European Law Review 586, 592.

[23] C Batchelor (1995) ‘Stateless Persons: Some Gaps in International Protection’ 7 IJRL 232, 235

[24] Michelle Foster and Hélène Lambert [2016] Statelessness as a Human Rights Issue: A Concept Whose Time Has Come, International Journal of Refugee Law,, Vol. 28, No. 4, 564–584

[25] UN Human Rights Council (UNHRC) [16 July 2012.], ‘Resolution 20/4: The Right to a Nationality: Women and Children’, UN doc A/HRC/RES/20/4,

[26] Nonnenmacher and R Cholewinski [2014] ‘The Nexus between Statelessness and Migration’ in A Edwards and L van Waas (eds), Nationality and Statelessness under International Law (CUP) 247, 249.

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