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BERKELEY JOURNAL OF INTERNATIONAL LAW
1/16/2021 12:59 PM
[Vol. 38:2
international law in the midst of competing policy concerns during statelessness
determinations. Aside from these concerns, the definition has stressed formalism
and entrenched the absence of rights protection in the discourse of status determinations. Instead of only protecting the unprotected, as originally envisioned, the
definition of statelessness can and has been used in other, often competing, ways.
It may be argued that the description of rhetoric does not fit statelessness because
international law is indeterminate in general and it is only a matter of interpretation and application. However, I respond to this by stressing that not all concepts
in international law assume a rhetoric-like discourse. The definition is an ideograph contributing to a discourse around the ideologies of formalism and discretionism. As I have emphasized, the paradox of statelessness is that States decide
on statelessness, based on laws that States themselves create and choose to implement.
Statelessness, therefore, should be revisioned. While arguing that the current
definition of statelessness should not be entirely discarded but reformed, I have
laid down a two-pronged framework. First, this framework makes the definition
of statelessness more functional and substantive, allowing the piercing of State
declarations of status. Second, it limits State discretionism through the creation of
a treaty body on statelessness, the ethical development of the State duty to
properly inquire on statelessness, and the State duty to cooperate with each other
and the proposed treaty body on statelessness matters. I admit that this proposed
framework will not completely insulate determinations of statelessness from the
vestiges of the politics between and among States. But any reform agenda—for
that matter—will not fully insulate law from politics. It is just impossible—politics is a fact of life. However, a clearer conceptual framework of statelessness will
reduce room for uncertainty and promote the legitimacy and credibility of the process of identifying statelessness.
Inevitably, the revisioning process is a multi-actor effort. It will be a long
and arduous process, although some components of the framework could be carried out more easily ahead of others and may even be done outside of a formal
revisioning process. But if the formal revisioning process is engaged, at least one
State party to the 1954 Statelessness Convention is required to start it by revisioning to the current treaty. Once a State suggests to revision the concept of statelessness, the UN General Assembly is needed to carry it into motion. The UNHCR
and other UN bodies and specialized UN agencies have a role to play in supporting and providing technical support to the process. Stateless persons are a boundless source of information for States and other actors as the process unfolds.
NGOs could triangulate information and provide pressure points for advocacy.
But while no State initiates the process, these other actors could promote and advocate for the revisioning process. In the meantime, States could also change domestic laws to customarily form a more functional and protection-oriented definition of statelessness.
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