40 By-passing state power and neutralising state bureaucracies
to race, class, gender, and religion. Different mobilities and rights were
assigned to those from the centre of power and those from the peripheries of empire, differentiating between ‘white’ and ‘native (Mamdani 1996;
Mamdani 2012; Jayal 2013; Singha 2013; Chhotray and McConnell 2018).
Nationality laws were carved out in the interests of states/colonial powers
vis-à-vis each other and were not centred on the individual as a rights bearer
(Spiro 2011). During the interwar years, where disputes regarding the nationality of individuals or groups arose, nationality was assigned by judges
and administrators in the centres of power with little analysis of other states’
nationality laws (Siegelberg 2020).
Following the break-up of empires in the interwar years (Romanov, Habsburg, Ottoman) and again during and after WWII, new understandings of
citizenship developed and emerged based on the formal equality of states and
on notions of individual rights (Kerber 2007; Siegelberg 2020). The formal
or ‘sovereign equality’ of states evolved over centuries but was consolidated
as a foundational principle of international organisation after WWII (Kelsen
1944; Ansong 2016). The Charter of the United Nations (Article 2.1) states,
‘The Organisation is based on the principle of sovereign equality of all its
Members.’ Whilst inter-state hierarchies remained, on the formal level, states
had equal status in international law, regardless of their political or economic
systems, and regardless of their size or level of development (Kelsen 1944;
Ansong 2016). This formal equality of states, as Macklin (2015) and Siegelberg (2020) argue, is the foundation on which statist approaches to citizenship were built, whereby states are deferred to in international sphere. Since
notions of ‘sovereignty’ were intrinsically tied to citizenship in the developing
international order, states were given broad discretion to determine their own
membership. Thus, on an international level, citizenship laws were given a
wide berth regardless of a state’s political system or human rights record
(Spiro 2011; Conklin 2014).
Siegelberg (2020) explored in meticulous detail how statelessness featured in negotiations relating to the Universal Declaration of Human Rights
(UDHR) and various human rights treaties during and after WWII. She evidenced how notions of sovereignty dominated discussions relating to citizenship and tempered approaches to statelessness. During the years of the
holocaust and WWII, many of Europe’s refugees were also stateless (van
Waas 2014). It was originally conceived that one international legal framework would cover both refugees and stateless persons. However, it became
clear in the negotiations preceding the 1951 Refugee Convention that the
issue of limiting state power in the area of citizenship and prevention of statelessness was too contentious and could potentially undermine agreements on
refugee protections. As a result, citizenship and statelessness were instead
negotiated and covered separately under the two Statelessness Conventions
(Siegelberg 2020). Whilst the legal framework relating to the protection
of refugees evolved as a relatively robust aspect of international law particularly from the 1960s onwards with the principles of refugee protection