Degrees of Statelessness there was not a ‘thorough analysis of the problem of statelessness’ 33 during the drafting of the 1954 Convention. However, arguments that de facto statelessness should be addressed as an issue of effective protection or nationality are resisted on the basis that this conflates concepts of (international law) nationality and municipal citizenship. For example, UNHCR’s senior legal advisor Hugh Massey argued in 2010 that expanding the definition of de facto citizenship beyond lack of effective nationality 34 would run counter to the sovereign rights of states to determine membership of their communities. 35 His argument is essentially that UNHCR should only cover those persons who fit within the strict definition of de facto statelessness or lack of nationality. 36 The UN has implied that de facto statelessness should be treated similarly to that of de jure — even though the 1961 Convention on the Reduction of Statelessness (‘1961 Convention’) is only legally binding with respect to de jure: ‘persons who are stateless de facto should as far as possible be treated as stateless de jure to enable them to acquire an effective nationality’. 37 Massey’s argument thus seems to stem from this tension: if de facto statelessness is too broadly expanded, the paradigm will expand beyond the scope of what UNHCR is equipped to handle, thus rendering their mandate ineffective. 38 Another group of scholars shows the ambiguity of conflating de facto statelessness with municipal citizenship. In 2014, Jason Tucker challenged the very inclusion of the concept of ineffective citizenship within the statelessness discourse. 39 He argued that ‘[i]neffective citizenship does not make a person stateless, as a legal bond of citizenship remains’. 40 Instead, he argues controversially for this debate to be situated in relation to citizenship rather than lack thereof, through what he calls ‘de facto citizenship’. Giving the example of the de jure stateless Russians in Estonia, he discusses how de jure stateless people can enjoy rights linked to citizenship in such a way as their daily life would appear not to be impacted (‘these rights include social rights, legal protection, nearly equal political rights, passports, and consular protection’). 41 Some scholars have argued that such groups are so ‘unaffected’ by their statelessness, that they could be called ‘de facto citizens’ despite their lack of legal citizenship. 42 However, Tucker argues that although the ‘effective citizenship’ qualification is seemingly ‘met’ in the case of Russians in Estonia, there are still consequences 33 34 35 36 37 38 39 40 41 42 Batchelor (n 12) 243. Which he defined in accordance with above, n 3, and as persons who ‘have a nationality in name, but their nationality is ineffective because they are unprotected by the State of their nationality’: Massey (n 3) 26. ibid; Batchelor (n 12). Massey (n 3) 61. ibid, quoting Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989 UNTS 175 (entered into force 13 December 1975) art 1. Batchelor (n 12) 232. Jason Tucker, ‘Questioning De Facto Statelessness: By Looking at De Facto Statelessness’ (2014) 19(1–2) Tilburg Law Review 276. ibid 278 (emphasis in original). ibid 280. ibid. This argument mirrors Tendayi Bloom’s analysis of membership. She argues that citizenship is not the only form of membership linking individuals to states in that she ‘recognises noncitizenship as an often active and dynamic relationship between an individual and a State, wherever on the planet s/he is’: Tendayi Bloom, Noncitizenism: Recognising Noncitizen Capabilities in a World of Citizens (Routledge 2018) 11. 75