Beyond existing theories of citizenship: towards securing the rights of stateless groups through legal self-determination

The empirical problem of statelessness takes many forms. Defined as the absence of legal recognition by any state, individual instances of statelessness can arise when a state does not support birthright claims to citizenship, or when its laws conflict with other jurisdictions. Statelessness can also occur due to discriminatory immigration policies or administrative barriers resulting from a lack of identity documentation. If left unresolved, these kinds of issues can lead to the invisibilisation of entire communities through inherited statelessness, as this lack of recognition passes from parent to child. There are also cases wherein an entire ethnic or religious group has their citizenship status withdrawn by their home state. This results not only in an initial wave of forced migration driven by persecution, but also leads to intergenerational marginalisation, exclusion, and oppression, as these communities are not afforded rights to reside in any state. While some individuals may be able to make successful claims to asylum, current international conventions on statelessness and nationality do little to secure the rights of a stateless group as a whole. Contemporary cases of group statelessness see large numbers of individuals left at risk of homelessness, destitution, and even unlimited detention. My thesis will propose that the shortcomings of international policies designed to reduce statelessness come about in part because leading theories of citizenship have generally failed to recognise the rights-bearing capacity of certain kinds of groups.

There is plenty of ongoing debate in the literature around citizenship and group rights. Indeed, the idea that groups can properly be considered right-holders is still a matter of contestation. A liberal theory of citizenship, for example, prioritises individual autonomy but does not view groups as intrinsically valuable and therefore has no capacity to resolve statelessness at a group level. That being said, many rights theorists have convincingly argued that certain kinds of groups are capable of bearing rights on the basis of shared interests or value. One such example is the right to linguistic security, which is deemed to be held by all linguistic communities and is particularly significant for minority language-speaking groups in matters such as education policy. This right is held at group level because all the members of the linguistic community find value in their language, and this value is only maintained because of the shared practice of language use. Another centre of debate relates to the duties, or responsibilities, associated with being a citizen. Republican theories of citizenship define the citizen in relation to political participation, but this approach provides little recourse for socially marginalised and politically disenfranchised persons to secure their rights in modern states. Adding to the debates around rights and duties, a third central theme in citizenship theory is that of identity. Some nationalist arguments will select arbitrary markers of identity to determine group membership. This approach can actually excuse or even reinforce the kind of exclusionary principles that often give rise to statelessness. Moreover, citizenship theories that focus on territorial claims are unable to reconcile new and existing claims to sovereignty in a world that has no unclaimed land available. Displacement is therefore inevitable under this model. In this way, existing theories of citizenship have little to offer stateless groups in terms of the relative security that citizenship provides to those hold it. However, if it can be shown that a stateless group holds a shared interest in its own existence (as a linguistic community purportedly does), this could provide the foundation for their group-based rights-bearing capacity and thus a path to legal recognition.