56 By-passing state power and neutralising state bureaucracies
1954 Statelessness Convention was negotiated and established in the wake
of the holocaust and the Second World War (WWII), when the vast majority of stateless persons were also refugees. As such, the definition contained
in the 1954 Stateless Convention was largely conceived of as filling the gaps
that were not covered by the 1951 Refugee Convention (van Waas 2014;
Siegelberg 2020). At the time it was incorrectly understood that all de facto
stateless persons would be outside their countries of origin and fall under the
protections of the Refugee Convention (Goldston 2006:60; Weissbrodt and
Collins 2006:262; Weissbrodt and Divine 2015).
Debate continued within the statelessness field regarding the scope of the
term de facto statelessness.39 There was no single definition of de facto statelessness and the term was ‘mobilised inconsistently’ (Lawrance and Stevens
2017:22). It was sometimes used to describe a situation in which people may
be entitled to citizenship status but were unable to prove that entitlement. In
other situations, it described a situation in which a person had no ‘effective
nationality,’ and so was unable to access rights as a citizen or be protected
by their government (Massey 2010; Belton 2015). The boundaries between
de jure and de facto statelessness in the 1954 Convention lacked clarity. For
example, it remained unclear whether people who had the right under the
law to citizenship status, but were, in fact, denied citizenship documents in
administrative processes, should be regarded as de jure stateless or not. In
2014, UNHCR published further guidance on the wording ‘under the operation of its law.’ According to this guidance, whether a person is considered
not to be a national was described as a ‘mixed question of fact and law’
(UNHCR 2014:Article 23). So, any person who is ‘in fact’ not recognised by
any state as a national is considered stateless, regardless of whether they may
be entitled to citizenship under national laws. This angle on the definition of
statelessness has further consolidated the focus on citizenship status as state
recognition and the lack of provision of ID cards as a factor in determining
statelessness.
Concurrently, many Rohingya participants in this research claimed that
they were citizens of Myanmar who had been denied proof of their citizenship by a criminal regime. For example, ‘We are not stateless! We are already a state! We have built our nation. We also have all our documents.
Why are they calling us stateless?’40 Rohingya objections to the term stateless were sometimes rendered irrelevant by international policymakers and
largely dismissed as Rohingya not understanding their own legal condition.41
This was because statelessness as an evolving discursive concept had reduced
citizenship to state-issued evidence of a formal status—in material terms,
citizenship had been reduced to particular documents issued by a state—in
this case, a criminal state.42 Rohingya objections to the term stateless were
based on understandings that this discursive concept could undermine belonging and simultaneously have a profoundly negative impact on policy approaches.43 Even as the genocide unfolded, international bodies promoted
more state-issued documents and registration as pathways to a lower tier
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