‘I am not an idealist’

Katja Swider on Statelessness: An Interview

The Dutch news broadcaster NOS just reported that the number of stateless persons in the Netherlands has at least doubled over the last few years, now reaching a number of 5,000 or possibly even 10,000. Legal scholar Katja Swider is currently finalising a doctoral thesis on the judicial aspects of this very issue.

You once told me that statelessness can happen to anyone. So how do you become stateless?

Statelessness is a lack of nationality. First you have to understand that if a person does have a nationality, it is simply because somewhere in the world, a state has decided to consider them a national. The rules used by states to decide whom they consider their own nationals vary tremendously. For example, in Iran, fathers pass on their nationality to their children. Another example: the US claim everyone born on their territory as their national – this is the ius soli principle. The Netherlands do not. For them, anyone with at least one Dutch parent is Dutch, based on the ius sanguinis. Most states, however, have a combination of ius soli and ius sanguinis. The Netherlands, for instance, do grant nationality to the third generation born on their territory.

Most people do not know how they have acquired their nationality. They have had it from birth and take it for granted.

Yet some people are not considered as nationals by any state. Those are the world’s stateless.

You can become stateless in a variety of ways. You may have never acquired a nationality, for instance by being born in a ius sanguinis state to parents who hold a nationality of a ius soli state – a Canadian expat couple who have a baby in Germany would run this risk. Or by having a single mum in a state where only men can pass on their nationality to their children. Such gender discrimination exists in as many as twenty-six countries.

Later on in life, you can also still lose your nationality. States can withdraw it in their persecution of unwanted minorities, as happened to stateless Dominicans of Haitian decent. Or your country simply ceases to exist – like the Soviet Union or Yugoslavia – and you do not acquire the nationality of any of the newly formed states. In the future, we may have to add ecological causes to this list, for example if small island states sink below sea level and cease to exist.

Front of west-German travel document for stateless people, 1954. From Wikimedia commons.

Front of west-German travel document for stateless people, 1954. From Wikimedia commons.

So this is an important social issue. Is that also what attracted you as a researcher?

That was not the only reason. There is a technical story to tell here, and a personal story. To begin with the personal one: I have been a foreigner most of my life. I almost always lived in countries outside my nationality. As a child, this fascinated me. Not sociologically – I would integrate very fast and feel local almost anywhere – but in its legal, bureaucratic aspects. Going to strange places to be registered and renew documents… Being ‘Polish’ meant so much more when you were outside Poland! I felt the power papers have. I was always wondering what happens if you do not have them.

Then I made a friend at UCU who used to be stateless. I wrote a paper about her for a sociology course. My professor could not believe it was true. He actually checked my footnotes to make sure I did not misunderstand the legal situation. That is when I realised the issue was not well researched. A lot of things have changed since then. Now, statelessness is a hype in the United Nations and among NGOs.

So how about the technical story?

Statelessness is a fascinating legal concept. It is the product of the interaction between the nationality laws of different countries. The laws of a single state usually align: they make sense together. But statelessness arises on the boundaries between different national legal systems. Only if no single state claims a person as its national, this person is stateless. Consequently, every single jurisdiction in the world is responsible for every instance of statelessness.

The issue relates to the sovereignty of states. States need statelessness. But they are also threatened by it. They need it because sovereignty requires the freedom to determine the composition of their own population without having to coordinate this with other states. This inevitably leads to both statelessness and multiple nationality. Yet if a state contains too many ‘unclaimed’ people – stateless people – you have a problem, as a government. You cannot deport them, nor can you control them very well. This, too, can threaten sovereignty.

Then there is the interaction with migration, and the issue of human rights… Human rights are always lurking near statelessness, but we do not know where to place them. The right to a nationality? But what nationality? Is nationality perhaps a ‘right to have rights’? [a concept from Hannah Arendt’s Origins of Totalitarianism.] But perhaps we should also consider the right to be stateless?1

A great deal more thinking has to go into statelessness. Then, we might even come to understand better what statefullness means.

You said statelessness is a hype. Many of the policy and research initiatives on statelessness that we have, seem to be only a few years old. Can we conclude that statelessness is a new problem?

No, it has been around for as long as nationalities have existed. And then again, according to people like Hobbes and Locke, statelessness is our natural state: when you go back in time far enough, you will find everyone to be stateless.

After the Second World War, the United Nations began to develop human-rights conventions, inspired by the Holocaust. In fascist Europe, Jews were both refugee and stateless. At first therefore, these two problems were not distinguished. They are merged for instance in the works of Hannah Arendt, one of the best-known thinkers on statelessness.

Then came the realisation that the two issues are actually quite distinct, from a legal point of view. It was decided that refugeehood was the more urgent issue. It was an emergency, a global disaster that had to be addressed there and then. So the Convention relating to the Status of Refugees was adopted in 1951, and a UN agency established to supervise its implementation: the Office of the United Nations High Commissioner for Refugees. The two UN statelessness conventions were adopted in 1954 and 1961, respectively, but almost nothing was done with them at that time. Statelessness was thought to be less related to the Second World War: a thing that had always been there and that should be dealt with at some point in the future. We now have a strong lobby for the rights of refugees, and solid legal mechanisms, which is very important, but the world also needs to deal with statelessness. In terms of human impact and legal complexity it is not much smaller than the refugee issue.

Sometime in the 1990s, the UNHCR also received a mandate over statelessness. I think this has created the hype. It took them about ten years to develop some expertise, to open jobs for people to work precisely on statelessness, and then the hidden problems were discovered.

So what might help stateless people in the short term?

To start with, it would help if their statelessness were recognised and documented. Having a piece of paper that says you are stateless is definitely not the end of your trouble, but it starts the conversation. It helps protect you against arbitrary deportation, for instance, and you may be better able to arrange a nationality for your children. But even this mere acknowledgement of your statelessness is not an option in most countries.

A wider awareness that statelessness is a legal issue, would also be good. Being stateless does not say anything about your social position or your political views. Still, a lot of suspicion surrounds stateless persons: that they are dangerous, or disloyal to their community. Yet stateless people often feel very much part of a nation. Their statelessness may only surface as they are trying to arrange some ‘silly’ paperwork. Even then, they often feel that a problem has to do with their ‘papers’, not their national belonging.

People know so little about statelessness, and that can really hurt affected individuals. At a conference, one stateless woman said that border crossings are hell because of the amount of explaining she needs to do. Once, when the question of nationality arose, she said she was stateless, whereupon a border guard honestly asked: ‘Where is that?’

What major legal changes or mentality shifts do you feel are needed in the long term? What would your ideal world look like?

I am not an idealist. My opinion is that the world is bad. People are bad, we cannot do anarchism, and we fail at communism. All great ideas just do not work because we cannot manage to be nice to each other. So I think that whatever we do, there will be a division between them and us; some will be rich, and others will be poor. In my ideal world, there is an awareness of this inherent injustice. People who are privileged feel guilty about that privilege. When a foreigner is denied access, this is done with the feeling ‘I need to do this in order to keep my society rich and prosperous’, and not with the feeling ‘I have a moral right to do it’.

1 Katja’s blogs for the European Network on Statelessness are heartily recommended: www.statelessness.eu/search/node/swider. In the contribution ‘States as a root cause of statelessness’, Katja explains some of the thoughts that go into her doctoral thesis to a non-specialist audience.

This interview first appeared in Post Magazine (winter 2015), 9-12.