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STATELESSNESS AS RHETORIC
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being an emancipatory tool of international law, entrenches and reifies State
power over citizenship matters.
Drawing on an analysis of the legal definitions of statelessness all over the
world and different cases of stateless status determination, this article is the first
to directly question and critically engage with the definition of statelessness in
international law, theorizing on the definition in rhetoric and building the case
for why it should be changed. It develops the connection between the definition of
statelessness to ideographs, ideologies, and categories in order to analyze statelessness determinations. Existing literature on categories, labels, and definitions
in the social sciences, refugee studies, and migration studies are incorporated in
an interdisciplinary analysis.
This article thereafter proposes that the definition be 'revisioned'. A twopronged protection framework that recalibrates the definition is suggested. The
first prong turns the attention of the definition from formal protection to substantive and functional protection. A determiner of stateless status is allowed to look
beyond mere formal protection, encouraging the piercing of the veil of citizenship
in certain cases and placing nondiscrimination as a core tenet. The definition
should also be tied to the right to nationality. The second prong reorients State
responsibilities and duties in statelessness determinations, limiting the discretion
of the State and assigning more duties to the international community as a whole.
It takes into account the goal-oriented dimensions of the 1954 Convention relating to the Status of Stateless Persons and recommends ways forward to reimagine
the concept of statelessness. If a State is allowed to consider who its citizens are
and are not, as well as who is entitled to rights under the treaty on statelessness,
then the State is more than a determiner of status; it is the giver of status, rights,
and even life. The definition has to respond to this reality.
INTRODUCTION: CITIZENSHIP (OR THE LACK OF IT) IN OUR STATIST WORLD... 242
I. THE PRESCRIBED ORTHODOXY: THE INTERNATIONAL DEFINITION OF
STATELESSNESS .................................................................................... 249
A. An Abbreviated History of Defining Statelessness ....................... 249
B. International Law's Definition ..................................................... 253
C. Interpretations of the Definition of Statelessness ......................... 256
1. The First Approach ................................................................ 256
2. The Second Approach ............................................................ 257
3. More Alike than Different: Some Preliminary Critiques of the
Orthodoxy .............................................................................. 259
D. It's A Statist World, After All: Constituting Statelessness Within and
Without Circles of Citizenship...................................................... 261
1. Identification of Statelessness ................................................ 261
2. The Constitutive Nature of Statelessness Identification ......... 263
II. THE REALITY: STATELESSNESS AS RHETORIC .............................................. 265