2020
Statelessness & Citizenship Review
2(2)
Dominican Republic. 7 An emerging situation of potential mass statelessness is the
Muslim minority in the state of Assam in India. 8 Causes of statelessness include
racial and religious discrimination, armed conflict, gender discriminatory
nationality laws, arbitrary deprivation of citizenship, state succession, lack of birth
registration and inter-generational statelessness. The consequences of
statelessness can include deportation, forced displacement, trafficking, inability to
access government-funded services such as health and education, and an inability
to own property, get government jobs, or work in certain professions. 9 Or, to put
it within a constitutional citizenship framework, statelessness means a lack of
membership in a political community and a consequent lack of equality before the
law. As famously described by Hannah Arendt, it is the absence of the ‘right to
have rights’. 10
This review offers three observations on Shaw’s work and its linkages to the
problem of statelessness. The first observation concerns the ways in which
constitutions currently regulate (or do not regulate) those who are stateless. The
second is on the pivotal impact of discrimination (racial, religious and gender) on
both citizenship and statelessness. Finally, and more optimistically, this review
considers whether the fragmented nature of citizenship governance identified by
Shaw may open discursive spaces for progress on statelessness as well as
citizenship.
CONSTITUTIONAL REGULATION OF STATELESSNESS
Shaw points out that detailed constitutional regulation of citizenship is relatively
rare, 11 despite it being such a significant element of a constitutional framework.
The lack of constitutional regulation is also true — even more so — for stateless
persons. Around 30 constitutions mention statelessness or stateless persons in
some way. 12 These references typically fall into one of four categories. 13 Some
constitutions provide that citizenship will be granted if someone would otherwise
be stateless, or that there will be no deprivation of citizenship if the consequence
would be to leave a person stateless. This type of provision aimed at preventing
statelessness, and reflecting the Convention on the Reduction of Statelessness
(‘1961 Convention’), 14 arises especially in regions of the world that are post-
7
8
9
10
11
12
13
14
For more perspectives on each of these situations of statelessness, see generally Katalin
Berényi, ‘Mapping Minorities’ Vulnerability to Hate Speech and Denationalisation with a
Focus on East and Southeast Asia’ (2020) 2(1) Statelessness & Citizenship Review 5, 14–23;
Nicoletta Enria, ‘Resisting Erasure: the Politics of Reckoning with Statelessness in the Arts’
(2019) 1(2) Statelessness & Citizenship Review 315; José-María Arraiza, Phyu Zin Aye,
Marina Arraiza Shakirova, ‘Fighting Imagined Invasions with Administrative Violence:
Racism, Xenophobia and Nativism as a Cause of Statelessness in Myanmar, the Dominican
Republic and Assam (India)’ (2020) 2(2) Statelessness & Citizenship Review 194.
See Talha Abdul Rahman, ‘Identifying the ‘Outsider’: An Assessment of Foreigner Tribunals
in the Indian State of Assam’ (2020) 2(1) Statelessness & Citizenship Review 112.
Shaw (n 1) 245.
Hannah Arendt, The Origins of Totalitarianism (Harcourt, Brace and World 1968) 296.
Shaw (n 1) 37.
Natalie Baird, ‘Stateless Person’ in Rainer Grote, Frauke Lachenmann and Rüdiger Wolfrum
(eds), Max Planck Encyclopedia of Comparative Constitutional Law (Oxford University
Press 2019) [12].
ibid [13]−[16].
Convention on the Reduction of Statelessness, opened for signature 30 August 1961, 989
UNTS 185 (entered into force 13 December 1975) (‘1961 Convention’).
378