Tuesday, February 23, 2021

Immigration Article of the Day: Statelessness as Rhetoric: The Case for Revisioning Statelessness in Our Statist World by Francis Tom Temprosa

Temprosa-Francis_temprosa

Statelessness as Rhetoric: The Case for Revisioning Statelessness in Our Statist World by Francis Tom Temprosa, 38 Berkeley J. Int'l L. 240 (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 refugees. Yet, in our statist world, the definition of statelessness—as embodied in the 1954 Convention relating to the Status of Stateless Persons—has become rhetoric. 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 theory, this article also posits that ideologies animate and persist in the determinations 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 statelessness 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 substantive 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 relating 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.

KJ

https://lawprofessors.typepad.com/immigration/2021/02/immigration-article-of-the-day-statelessness-as-rhetoric-the-case-for-revisioning-statelessness-in-o.html

Current Affairs, Law Review Articles & Essays | Permalink

Comments

Post a comment