38.2 (7) TEMPROSA.DOCX38.2 (7) TEMPROSA.DOCX (DO NOT DELETE)
2020]
STATELESSNESS AS RHETORIC
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an obligation of result that is rigid. It does not fetter the reasonable discretion of
decision makers. 418 Likewise, because it is an obligation of conduct on the part
of the State, the burden of ascertaining status is shifted to the State, which has
more resources at its disposal than a potential stateless person. Moreover, it serves
as a safeguard against arbitrary and capricious decision-making. Reasonable steps
necessarily include a reason-based interpretation of law as applied to the facts of
the case. In the event that a treaty body for the 1954 Statelessness Convention is
not created, the duty is especially useful in raising the quality and credibility, as
well as the legitimacy, of the results of domestic determinations.
Second, States must also bear the duty of cooperating with one another and
with the proposed treaty body on statelessness determinations. Without this duty,
States will continue to talk past each other and avoid dealing with the ontological
issue. The definition of statelessness will either remain a siloed-off, strange cipher
that no State understands, or it will become an empty vessel that privileges State
discretion. Determinations will continue to be a monologue, rather than a dialogue
between and among concerned States for the protection of the individual. A duty
to cooperate will help yield sound determinations and promote candor between
and among States in citizenship matters. Eventually, if the treaty-body on statelessness is created, States could come before the treaty body in dialogue with one
another. They may also be persuaded to comply with existing commitments on
statelessness matters because a duty to cooperate with the treaty body exists. The
treaty body will not be as effective if States bear no duty to cooperate with it.
States will not heed its general comments and views and respond to its call for
reports, meetings, and conferences. In the end, inasmuch as the regulation of nationality is no longer within the exclusive domaine réservé of States, a duty of
cooperation will also further the development of norms of international law on
citizenship-related issues.
CONCLUSION
The Article's proposed framework revisions the definition of statelessness,
not in line with how this term was originally conceived by the framers of the 1954
Statelessness Convention, but in accordance with the purpose of the 1954 Statelessness Convention. This Article further suggests additional possibilities for reforming the definition of statelessness and the way that stateless status determinations are conducted.
Up to this point, statelessness has assumed a rhetoric-like discourse in international law. The existing definition, a product of the first half of the twentieth
century, has become an ideograph that accommodates State-privileging ideologies. States have so far used this definition as a naming and labelling device of
418. Id. at ¶ 18 (citing British Oxygen Co Ltd. v. Minister of Technology, (1970) U.K.H.L.,
(1971) A.C. 610, United Kingdom: House of Lords (Jul. 15, 1970)).
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