Questioning de facto Statelessness
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de facto (by fact) statelessness however is highly problematic, due to the lack of
legal framework behind it and the various uses of the concept. Much ambiguity
still surrounds the term and while some explicitly embrace this,2 most simply
state the ineffective citizenship principle as the justification for the labelling of
persons or populations as ‘stateless’.3 However, several key themes can be drawn
out as widely agreed upon within the discourse. Such as ‘a de facto stateless
person is normally regarded as a person who does possess a nationality, but
does not possess the protection of his country of nationality and who resides
outside the territory of that state, i.e. a person whose nationality is ineffective’.4
This piece challenges the concept of ineffective citizenship being situated
within the statelessness discourse, as a de facto manifestation of the legal stateless phenomena. This is done by considering the nexus, not between de jure
and de facto statelessness, but through that of de jure statelessness and de facto
citizenship. By doing so the flaws of de facto statelessness are highlighted. This
is done by extending the argument that if someone can have citizenship that is
so ineffective they are de facto stateless, then presumably one can receive such
effective ‘citizenship’ (despite de jure statelessness) that they should be considered de facto citizens, and thus not stateless.
De facto statelessness implies there is a need to broaden the definition of
statelessness as currently set out in international law, as Blitz claims, to capture the ‘(…) countless others who cannot call upon their rights to nationality
for their protection and are effectively stateless’.5 Further to this, it is argued
that the exclusionary nature of the international legal definition of statelessness is problematic as the ‘(…) definition only encompasses de jure statelessness, and its failure to treat de facto statelessness is implicitly detrimental to de
facto stateless persons’.6
What conceptualisations of ineffective citizenship do, arguably quite
rightly, is to question classical theories of citizenship, namely the citizenship
non-citizenship dualism. While I do not refute the impact of ineffective
2 Jay Milbrandt, ‘Stateless’ (2011) 20(1) Cardozo Journal of International and Comparative Law
(JICL) 75,7.
3 Carol Batchelor, ‘Statelessness and the Problem of Resolving Nationality Status’ (1998) 10
International Journal of Refugee Law 173; David Weissbrodt and Clay Collins, ‘The Human
Rights of Stateless Persons’ (2006) 28 Human Rights Quarterly 251.
4 P. Weis, ‘The Convention relating to the Status of Stateless Persons’ (1962) 10(2) The
International and Comparative Law Quarterly 255,1086.
5 B. Blitz, ‘Statelessness, protection and Equality’ (Refugee Studies Centre 2009) <www
.rsc.ox.ac.uk/publications/policy-briefings/RSCPB3-Statelessness.pdf/view> accessed 7 July
2013.
6 M. Stiller, ‘Statelessness in International Law: A Historic Overview’ (DAJV Newsletter 3, 2012) 94.
tilburg law review 19 (2014) 276-284