Statelessness as Rhetoric: The Case for Revisioning Statelessness in Our Statist World

67 Pages Posted: 20 Jul 2020 Last revised: 12 Feb 2021

See all articles by Francis Tom Temprosa

Francis Tom Temprosa

University of Michigan at Ann Arbor, University of Michigan Law School

Date Written: June 1, 2020

Abstract

This article argues that the definition of statelessness in international law should be changed. When the international statelessness regime was instituted, the ultimate goal was the full protection of unprotected persons who are not ref- ugees. Yet, in our statist world, the definition of statelessness—as embodied in the 1954 Convention relating to the Status of Stateless Persons—has become rheto- ric. Contrary to the claim that the definition is merely declaratory of a status, this article contends that the definition lends itself to having features and facets of a discretionary design of rhetoric. It does more than accord States with discretion. It also allows them to constitute and ordain who is stateless and therefore entitled to the benefits of the statelessness regime in international law—which ensures protection and rights. Principally combining insights from critical rhetoric as the- ory, this article also posits that ideologies animate and persist in the determina- tions of statelessness: 'formalism' and 'discretionism'. The definition, instead of being an emancipatory tool of international law, entrenches and reifies State power over citizenship matters.

Drawing on an analysis of the legal definitions of statelessness all over the world and different cases of stateless status determination, this article is the first to directly question and critically engage with the definition of statelessness in international law, theorizing on the definition in rhetoric and building the case for why it should be changed. It develops the connection between the definition of statelessness to ideographs, ideologies, and categories in order to analyze state- lessness determinations. Existing literature on categories, labels, and definitions in the social sciences, refugee studies, and migration studies are incorporated in an interdisciplinary analysis.

This article thereafter proposes that the definition be 'revisioned'. A two- pronged protection framework that recalibrates the definition is suggested. The first prong turns the attention of the definition from formal protection to substan- tive and functional protection. A determiner of stateless status is allowed to look beyond mere formal protection, encouraging the piercing of the veil of citizenship in certain cases and placing nondiscrimination as a core tenet. The definition should also be tied to the right to nationality. The second prong reorients State responsibilities and duties in statelessness determinations, limiting the discretion of the State and assigning more duties to the international community as a whole. It takes into account the goal-oriented dimensions of the 1954 Convention relat- ing to the Status of Stateless Persons and recommends ways forward to reimagine the concept of statelessness. If a State is allowed to consider who its citizens are and are not, as well as who is entitled to rights under the treaty on statelessness, then the State is more than a determiner of status; it is the giver of status, rights, and even life. The definition has to respond to this reality.

Keywords: Statelessness, Stateless Persons, Citizenship, International Law, Rhetoric, Critical Rhetoric, Refugees, Refugee Law, Forced Migration, Migration, Human Rights

JEL Classification: stateless

Suggested Citation

Temprosa, Francis Tom, Statelessness as Rhetoric: The Case for Revisioning Statelessness in Our Statist World (June 1, 2020). 38 Berkeley J. Int'l L. 240 (2020), Available at SSRN: https://ssrn.com/abstract=3636654

Francis Tom Temprosa (Contact Author)

University of Michigan at Ann Arbor, University of Michigan Law School ( email )

Ann Arbor, MI
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
69
Abstract Views
279
rank
390,575
PlumX Metrics