Statelessness and the Right to Citizenship Matthew J Gibney

50 STATELESSNESS FMR32 Statelessness and the right to citizenship Matthew J Gibney

The key claim that animates most discussions of that no state recognises them as statelessness is the principle that everyone should have the a citizen. Strict jus sanguinis laws, moreover, may pass on statelessness right to citizenship somewhere. to the children of stateless people. In a world where all human beings to what might be called ‘precarious must live on the territory of one residents’, the many millions of Second, assigning citizenship by nation state or another, this is a non-citizens, such as undocumented birth also leads to huge inequalities fundamental principle of justice. migrants, who live in states in which in people’s life-chances on the basis Having a nationality is a gateway they have no right to stay. While not of luck. If one is born a citizen of to other rights; it is not without lacking in nationality altogether, the Sweden, one has won first prize in the justification that Hannah Arendt day-to-day lives of these men, women lottery of life: a life expectancy of 78 viewed the stateless as lacking the and children are often characterised with cradle-to-grave care in a stable very “right to have rights”. Without by an inability to draw upon state and prosperous state. If, by contrast, citizenship or nationality somewhere protection to guarantee even their one is born in Liberia, one is unlikely a person lacks many fundamental basic rights. The possibility of to live beyond 48 years of age, due rights, including perhaps most deportation and lack of formal status to the hazards of a society that has fundamentally the right to a place in deprive them of effective political been wracked by intense civil conflict. the world where one’s opinions are and social standing in the societies Given the restrictive immigration significant and one’s actions effective. 1 in which they work and live. controls operated by wealthy countries and limited avenues for For any individual to possess a Moral problems with citizenship through naturalisation, it genuine right to citizenship there current practice is hard to disagree with Joseph Carens must be a state with a corresponding Some 98% of the world’s population that “citizenship in the modern duty to provide it. The stateless acquired the citizenship they world is a lot like feudal status in typically are not free-floating, currently hold either by taking on the medieval world. It is assigned deracinated individuals, moving the citizenship of one or both of at birth; for the most part it is not aimlessly around the globe. They their parents or by acquiring the subject to change by the individual’s are usually people settled in citizenship of the state in which they will and efforts; and it has a major particular societies, albeit lacking were born. While almost all states also impact upon a person’s life-chances.”2 legal recognition of and appropriate have procedures – that vary widely protection for their status as residents. between states – for the acquisition Third, the principles of jus soli and The primary injustice the stateless of citizenship through naturalisation, jus sanguinis ignore other important experience, then, is not that they considered globally it is where moral claims to citizenship. Consider cannot find a state to grant them and to whom one is born that are the case of Robert Jovicic, whom citizenship but that the state which overwhelmingly the Australian should grant them citizenship will, the determinants government for various reasons, not do so. of the citizenship the plight of the stateless deported to one will hold provides powerful Serbia in 2004. On what basis should an individual for the duration Jovicic was a non- have the right to claim citizenship of one’s life. practical and moral citizen permanent in a specific state? Or, turning the reasons for asking resident of issue around, to whom are states The way states Australia who had obliged to provide citizenship? I currently searching questions over many years will approach this issue as a matter distribute about citizenship been repeatedly of morality rather than as an issue citizenship convicted of of international or municipal law. is morally crimes related to The value of a moral account is that problematic from a number of drug use. In many respects, he was it aspires to shed light on how the different angles. First and obviously, an exemplar for the government’s law might be reformed to better variations amongst states in their policy of deporting foreign citizens reflect our (sometimes implicit) use and interpretation of principles convicted of criminal offences. conceptions of what is just. for acquiring citizenship, as well as But his deportation caused a huge provisions on the loss of citizenship, public outcry, ultimately forcing the If the question of who should be can lead to statelessness. Problems in government to facilitate his return. entitled to citizenship has obvious demonstrating parentage or place of What was the source of the outcry? implications for both de facto and de birth and conflicts of laws between Jovicic had lived in Australia for some jure stateless people, it is also germane states can put people in the situation 36 years prior to his deportation. FMR32 STATELESSNESS 51

He had arrived in Australia with admitted non-citizens) may move principle demands an alignment his parents when he was two years freely around the country and yet between the reality of people’s social old; he did not speak or understand the country’s 50 states have residency existence and their legal status. Serbian or have any social network in requirements that must be met before Serbia. In the words of the opposition an individual can access certain local Each of these accounts of membership immigration spokesperson, “Even benefits. It is possible to imagine a takes us beyond the principles of though … [Jovicic] has not been a similar arrangement at the global nationality based on birthright and good member of our community, he is level. Free movement internationally discretionary naturalisation. But in undeniably Australia’s responsibility.” could exist alongside a requirement of some respects, these principles also residency in a particular state in order offer competing answers. The idea of This suggests that our conceptions to claim the full rights of citizenship, subjection, for example, seems more of who is morally a ‘member’ including the right to vote. inclusive than societal membership, of a state may not be exhausted as its basis for inclusion seems to by birthright and discretionary A second principle is that of apply the moment a non-citizen sets naturalisation principles. The view subjection. In this account, common foot in the territory of the state. that Jovicic was morally Australian to both traditional liberal and radical seemed to derive from his years of democratic approaches, all people Outstanding questions continuous residence in Australia living under – or subject to – the Other issues remain outstanding. and therefore, notwithstanding his laws of a particular state should be If non-citizens have an entitlement official nationality, Serbia could not members of that state. The key idea to citizenship, what are their really be considered his state. These here is that any state that rules over obligations? Should the fact of years of residence even overrode a group of people is legitimate only unlawful entry to a state make any his being a pretty lousy member of if the people consent to its rule, and difference to the state’s duty to grant the Australian community. Jovicic, decisions are only legitimate if those citizenship? Finally, if citizenship is one might say, was an Australian affected by them are consulted and determined by societal membership citizen by jus domicili, by virtue involved in the decision-making or subjection, should lack of of the reality of residence. process. This idea has long been a residence in the state, for example feature of liberal and democratic an extended period spent in another The case of Jovicic is far from an thought. A state that refuses to offer state, result in the loss of citizenship? isolated one. Many states accept rights of political participation to that different standards of treatment all those under its rule is thus not a In practice, the responses of states to and rights are owed to long-term democracy but a tyranny. Everyone citizenship questions will be shaped resident non-citizens. The states of the living in the territorial boundaries as much (if not more) by the dynamics European Union, for example, have of the state should be able to access of politics, understandings of national recently agreed a Directive outlining citizenship and its corresponding interest and concerns about migration a special status for such people. rights. In a legitimate democratic control as by conceptions of justice. regime, membership should follow But by demonstrating the problems State obligations to the contours of power rather than with current arrangements, the plight grant citizenship the happenstance of birth. of the stateless provides powerful How can we make sense of this practical and moral reasons for asking principle of jus domicili? Recent A third and final principle is that searching questions about citizenship. political thought offers three of societal membership. State These questions are likely to grow different ways of understanding membership should, in this view, held in importance in the years ahead. its moral basis. by some communitarians, include everyone with a significant stake Matthew Gibney (matthew.gibney@ In a view which emphasises the in the development and direction qeh.ox.ac.uk) is University Reader idea of choice, like cosmopolitan of a particular state. The societal in Politics and Forced Migration at liberalism, membership should be membership principle tends to the Refugee Studies Centre (http:// available to anyone who chooses highlight men and women’s roles www.rsc.ox.ac.uk) of the Oxford to live in a particular state. This as social and economic agents. The Department of International approach would recognise the moral test of membership is the depth of Development, University of Oxford. right of people to reside wherever one’s social and economic roots into 1. Hannah Arendt, The Origins of Totalitarianism, p296-297 a particular political community, they wish. On the face of it, the 2. Joseph H Carens ‘Migration and Morality’ in B principle of choice seems destructive tying an individual’s well-being Barry and R Goodin (eds.), Free Movement (Harvester of the very idea of citizenship: open to the common good.3 The idea of Wheatsheaf, 1992), p26. 3. Bauböck, Rainer (2005) ‘Changing Meanings and borders globally would appear to societal membership is implicit in Practices of Citizenship’, PS: Political Science and Politics, take away from citizenship its legal most practical calls to regularise Vol 28, No. 4, pp. 667-669 role as the basis for differentiating unlawfully resident immigrants or between the rights of people. But this long-term asylum seekers: many is deceptive. The principle of choice is amnesty programmes are informed consistent with forms of cosmopolitan by the idea that the state should federalism that attempt to retain recognise that migrants settled in the different rights for citizens and non- state over a period of years deserve citizens. In the US, for example, as formal status, particularly if they a federal state, citizens (and legally have not committed crimes. This