To Belong Or Not To Belong
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That would suggest that it is natural and hence normal for man to belong to
groups. It also suggests that law is very likely to reflect man’s social nature.
It finally suggests that those to whom this does not apply form a miserable and
unnatural exception. The a-historicity of human nature, claimed by Aristotle,
would then mean that ‘statelessness’ is problematic throughout human history. However, one is not led to believe that this is the case. Human history, also
in relation to people’s political and legal status, is abound with change, and
thus renders writing an historical introduction to a volume on statelessness an
enduring challenge.
Both as a concept and as an actual problem to real people, statelessness
presupposes the state and the nation-state’s connection between state and
collective identity. It also presupposes the overpowering significance of the
dichotomy citizen/non-citizen that carries Laura van Waas’ statement that
‘nationality matters.’2 The process of going back into time, looking for people
that were not citizens of the state they resided in, or of any other one, and
then analysing their situation, soon comes to a halt because statelessness presupposes a political and legal framework that was not yet in place in most
periods of time. There was a time that simply everyone was stateless stricto
senso, purely because there were no states as we conceive them. Some might
even argue that this was the case up until the 19th century.3 Since time immemorial, the political and legal status of people has nonetheless been crucial to
the political and civil rights they have, and can exercise, to their role in public
affairs, to their legal standing, to access to courts and to determine what law
applies to them. Public authorities - especially those of polity types that
define politics in terms of a community of people instead of using territorial
terms or from the perspective of a ruler or divinity4 - tend to differentiate
between people on the basis of their collective identity, resulting in a different treatment of ‘foreigners.’5 This is not reserved to the nation-state. However,
the distinction between aliens holding citizenship of another state and stateless aliens is a modern one, as these categories, with their current meanings,
were formulated against the backdrop of the modern state, the modern conception of the world as divided into states and the global expansion of the
state. Its strong focus on the state disregards internal social differentiation as
2 Laura van Waas, Nationality Matters. Statelessness under International Law (Antwerp 2008).
3 E.g. Andreas Osiander, Before the State. Systemic Political Change in the West from the Greeks to
the French Revolution (Oxford 2007).
4 For a typology of polities, see Samuel Finer, The History of Government. vol. I Ancient
Monarchies and Empires (Oxford UP 1999) 1-4 and 34-58.
5 ‘Foreigner’ is used here in the very general meaning of anyone who does not belong to the
relevant community and/or is considered to be an outsider.
tilburg law review 19 (2014) 136-152