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STATELESSNESS AS RHETORIC
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laws of another. If the State wants to be exhaustive in its determination, it must
look at the laws of all the States in the world. 111 Of course, the most direct piece
of evidence is a letter or statement from all States declaring that A is not their
citizen. But such a letter or statement is difficult to obtain. Moreover, not every
piece of evidence is as clear and direct in evidencing statelessness. For example,
a passport could be evidence of citizenship or a mere passport of convenience. A
person may possess a travel document but not be a citizen. A person could have a
voting document but not be actually allowed to vote. A birth certificate could explicitly state one's citizenship or merely state the citizenship of one's parents. Additionally, a State does not have the duty to cooperate with another State's determination of statelessness. The current definition of statelessness privileges State
gaze, which is the State's vicarious view of another State's perception of an individual. As I discuss more specifically in Part II.B.2, this view is fraught with danger.
More Alike than Different: Some Preliminary Critiques of the Orthodoxy
How different are the two approaches from each other? I submit that they are
more alike than different. First, unlike the first approach, the second approach
professedly attempts to broaden the number of people considered legally stateless
by emphasizing that people not considered citizens by any State under the operation of its law are stateless. The premise is that:
Applying this approach of examining an individual's position in practice may
lead to a different conclusion than a purely formalistic analysis of the application
of a country's nationality laws to an individual's case. A State may not in practice
follow the letter of the law, even going so far as to ignore its substance. The reference to "law" in the definition of statelessness in Article 1(1) therefore covers
situations where the written law is substantially modified when implemented in
practice. 112
But it does not necessarily follow that the application of the second approach
broadens the number of people considered stateless. It cannot plausibly do so because of the explicit State-centered language of the definition and is thus still like
the statist orientation of the first approach. The Hague Convention, which inspired
111. Id. at 32–33 (UNHCR provides a non-exhaustive list of the types of evidence that may be
pertinent: testimony of the applicant, responses from another State's authorities, identity documents
(ex. birth certificate, extract from the civil registrar, national identity card, voter registration), travel
documents, documents regarding applications to acquire nationality or obtain proof of nationality,
certificate of naturalization, certificate of renunciation of nationality, marriage certificate, military service record, school certificates, medical certificates/records, record of sown oral testimony of neighbors and community members, etc.).
112. Id. at 13. (To quote the UNHCR, what matters is the State's position: "Where the competent
authorities treat an individual as a non-national even though he or she would appear to meet the criteria
for automatic acquisition of nationality under the operation of a country's laws, it is their position
rather than the letter of the law that is determinative in concluding that a State does not consider such
an individual as a national.").