Kitabı oku: «border and bordering», sayfa 5
Conclusion
Each textual journey over multiple ethnic, linguistic, cultural, national and political-economic borders has to be articulated with the historical and contemporary journey of the exile, immigrant and refugee. They are journeys of displacement, alienation, pain loss and, perhaps even in the end for some, of opportunity. The subject of address, the object of representation, unvoiced and invisible, the border crosser met and meets that hostility reserved for the stranger who comes today and the discriminatory and exclusionary legislation shaped for the stranger who stays, or might stay, tomorrow. (Hawley 1996, p. 276)
It is true that for some these journeys offer opportunity, an idea played upon in The Gurugu Pledge “… everyone had a brilliant future that awaited them in Europe” (Laurel 2017, p. 25). However, the idea of the border crosser as ’unvoiced and invisible’ can now be called into question as migration literature works to illuminate these liminal areas while elucidating the impact of such ‘discriminatory and exclusionary legislation’. If border crossers are still perceived to be ‘invisible’ it is because the viewer has refused to look, as shown through the alternative border narratives discussed in this chapter. Thus, in a re-humanisation of the migration debate, works such as these create new maps for our time, depicting the lived experiences of those who interact with the lines that cut across our world maps, while interrogating pre-conceptions of borders and border crossers. The border areas discussed above are by their nature violent, but they are also spaces in which unexpected things may happen. Sites of transition; they hover in the murky zone between life and death. The peripheries, for the very reason that they are further from the centre and the ideas of conformity associated with it, can offer potential; but current motilities (the abilities of different people to move independently through and within spaces) mean that for some they are deadly and for many others damaging.
Migration literature also exists in relation to other literatures that touch upon similar subjects and discuss other histories of movement. The late American writer Toni Cade Bambara provides a powerful example:
Stories are important. They keep us alive. In the ships, in the camps, in the quarters, field, prisons, on the road, on the run, underground, under siege, in the throes, on the verge—the storyteller snatches us back from the edge to hear the next chapter. In which we are the subjects. We, the hero of the tales. Our lives preserved. How it was, how it be. Passing it along in a relay. That is what I work to do: to produce stories that save our lives. (cited in Hawley, 1996, p. 41)
Originally published in 1985 and referring to a long history of slavery and colonisation in the USA this passage could have been written far more recently and refer to contemporary migration and migration literature. It shows the confluence of border narratives, the relationships that exist between colonial, corporeal and planetary histories and interrelations (Sheller 2018, p. 21) and the importance of understanding such texts in relation to each other, thus allowing us to better understand our current border spaces, ourselves as border crossers and the historical, cultural and political contexts which either control or privilege our mobility. The works discussed in this chapter draw maps of two contested borderscapes, they show the damage done, the lives on hold and on the move, the dance of our cultures across these liminal spaces, the choices that need to be made if mobility justice is to be achieved, and the proof that such great changes have previously be attained and are possible.
References
Anderson, B. (2006). Imagined Communities. London: Verso.
Brah, A. (2003). Cartographies of Diaspora: Contesting Identities. London: Routledge.
Carter, E., J. Donald and J. Squires (eds.) (1993). Space and Place: theories of identity and location. London: Lawrence and Wishart.
Castles, S. and M. Miller (eds.) (1998). The Age of Migration: International Population Movements in the Modern World. London: Macmillan.
Cesarani, D. and M. Fulbrook (eds.) (1996). Citizenship, Nationality and Migration in Europe. London: Routledge.
Chambers, I. (1994). migrancy, culture, identity. London: Routledge.
De León, J. (2015). The Land of Open Graves: Living and Dying on the Migrant trail, Oakland: University of California.
Dorling, D. and D. Fairbairn (1997). Mapping: Ways of Representing the World. Harlow: Pearson.
Eco, U. (2013). Inventing the Enemy: essays on everything. London: Vintage.
Evans, J. and H. Ringrow (2017). ‘Introduction: Borders in Translation and Intercultural Communication’. TranscUlturAl, 9.2, 1-12. http://ejournals.library.ualberta.ca/index.php/TC
Foucault, M. (1980). Language, Counter-memory, Practice: Selected Essays and Interviews. New York: Cornell University Press
Frank, S. (2008). Migration and Literature: Günter Grass, Milan Kundera, Salman Rushdie, and Jan Kjærstad. New York: Palgrave Macmillan US.
Garfield, S. (2012). On the Map: Why the World Looks the Way it Does. London: Profile Books.
Godlewska, A. M. C. (1999) Geography Unbound. Chicago: University of Chicago Press.
Greussing, E. and H. G. Boomgaarden (2017). ‘Shifting the refugee narrative? An automated frame analysis of Europe’s 2015 refugee crisis’. Journal of Ethnic and Migration Studies, 43(11): 1749-1774. doi: https://doi.org/10.1080/1369183X.2017.1282813
Halbwachs, M. (1992). On Collective Memory. Chicago: The University of Chicago Press.
Harmon, K. A. (2004) You are here: personal geographies and other maps of the imagination. New York: Princeton Architectural Press.
Harley, J. B. (2002). The New Nature of Maps: Essays in the History of Cartography. London: The John Hopkins University Press.
Hawley, J. C. (ed.) (1996). Cross Addressing: Resistance Literature and Cultural Borders. New York: State University of New York Press.
Herrera, Y. (2015). Signs Preceding the End of the World. London: & Other Stories.
Hobsbawm, E. and R. Terence (eds.) (1992) The Invention of Tradition, Cambridge: CUP.
Humble, A. T. (2014). The rise of trapped populations. Forced Migration Review, (45): 56-57.
Jones, R. (2017). Violent Borders: Refugees and the Right to Move. London: Verso.
King, R., J. Connell and P. White (eds.) (1995). Writing across Worlds: literature and migration. London: Routledge.
Kryza, F. T. (2006). The Race for Timbuktu: In Search of Africa’s City of Gold. New York: Harper Collins.
Lagji A. (2018). Waiting in motion: mapping postcolonial fiction, new mobilities, and migration through Mohsin Hamid’s ExitWest, Mobilities, 14 (2): 218-232. doi: https://doi.org/10.1080/17450101.2018.1533684
Laurel, J. T. Á. (2017). The Gurugu Pledge. London: & Other Stories.
Law, Jane M. (2006). Introduction: Cultural Memory, the Past and the Static of the Present. Acta Orientalia Vilnensia, 7 (1-2) 7-12 doi: 10.15388/AOV.2006.3770
Mardorossian, C. M. (2002). ‘From Literature of Exile to Migrant Literature’. Modern Language Studies, 32 (2) 15-33. doi: 10.2307/3252040
Matar, Di. (2017). ‘Media Coverage of the Migration Crisis in Europe: a Confused and Polarized Narrative’. In VA, IEMed Mediterranean Yearbook 2017 (Barcelona: IEMed, 2017) 292-295.
Moorhead, C. (2006). Human Cargo: A Journey Among Refugees. London: Vintage.
Moore, Kerry (2015). The Meaning of Migration. JOMEC Journal, (7): p. None. doi: http://dx.doi.org/10.18573/j.2015.10001
Moretti, F. (1999). Atlas of the European Novel 1800-1900. London: Verso.
Papastergiadis, N. (2000). The Turbulence of Migration. Cambridge: Polity Press.
Perec, G. (1997). Species of Spaces and Other Pieces. London: Penguin.
Pecoud, A. and P. de Guchteneire (eds.) (2007). Migration Without Borders: Essays On The Free Movement Of People. Paris: UNESCO Publishing/Berghahn Books.
Phillips, C. (2001). A New World Order. London: Random House.
Piper, K. (2002). Cartographic Fictions: Maps, Race, and Identity. London: Rutgers University Press.
Relano, F. (2002). The Shaping of Africa. Aldershot: Ashgate Publishing Ltd.
Rushdie, S. (1991). Imaginary Homelands: Essays and Criticism 1981—1991. London: Penguin.
Sheller, M. (2018). Mobility Justice: The Politics of Movement in an Age of Extremes. London: Verso.
Sibley, D. (1995). Geographies of Exclusion. London: Routledge.
Soyinka, W. (2004). The Climate of Fear: The Reith Lectures 2004. London: Profile Books.
Turchi, P. (2004). Maps of the Imagination: writer as cartographer. San Antonio: Trinity University Press.
Walford Davies, D. (2012). Cartographies of Culture: New Geographies of Welsh Writing in English. Cardiff: University of Wales Press.
Welchman, J. C. (ed.) (1996). Rethinking Borders. London: Macmillan.
Wood, D. (1992). The Power of Maps. London: The Guilford Press.
Woods, A. (2000). The Map is not the Territory. Manchester: MUP
Volpicelli, S. (2015). Who’s Afraid of … Migration? A New European Narrative of Migration. IAI Working Papers 15/32. Rome: Istituto Affari Internazionali. doi: 978-88-98650-56-9
Statelessness and the Tensions between Open Borders and the Claims of Community
Nicoletta Policek
Introduction
Statelessness is to have no place to call home—to be unwanted and to lose a community, it is what Arendt (1958) calls superfluousness and it is tied to isolation, loneliness and uprootedness. To be stateless is to be deprived of human freedom and from rights that come with nationality. States determine who can obtain nationality and under what circumstances this is possible in their national laws (Brown, 2010). Usually, when children are born, they receive nationality either based on the place of birth (jus soli) or on the nationality of the parents (jus sanguinis) or on a combination of the two (Bloom et al., 2017). In some circumstances, a conflict between different nationality laws may mean that a child fails to obtain any nationality, therefore ending up stateless (Cody & Plan International, 2009). An, admittedly oversimplified, example is that of a child who is born to parents with a jus soli-nationality, but on the territory of a jus sanguinis state. In that case the state of birth will presume that the child obtains the nationality of the parents, but the parents cannot pass on their nationality because their state’s legal system does not foresee this (Policek, 2016).
The right to a nationality is preserved in numerous international declarations and conventions other than the 1948 Universal Declaration of Human Rights (Gibney, 2014). In particular, the 1954 Convention relating to the Status of Stateless Persons defines a stateless person as “a person who is not considered as a national by any State under the operation of its law.” Furthermore, the 1961 Convention on the Reduction of Statelessness deals specifically with statelessness. There exists a list of other workable legal instruments such as the 1957 Convention on the Nationality of Married Women, the 1963 International Convention on the Elimination of All Forms of Racial Discrimination and the 1966 International Covenant on Civil and Political Rights. Statelessness is also considered in the 1979 Convention on the Elimination of All Forms of Discrimination against Women, the 1989 Convention on the Rights of the Child, the 2003 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and the 2006 Convention on the Rights of Persons with Disabilities (van Waas & De Chickera, 2017). Nevertheless, these international instruments are not enforceable and their implementation is far from uniform around the globe. International human rights law provides that the right of states to decide who their nationals are is not absolute and, in particular, states must comply with their human rights obligations concerning the granting and loss of nationality. While they are complemented by regional treaty standards and international human rights law, the two statelessness conventions are the only global conventions of their kind (Southwick & Lynch, 2009).
The discussion that follows pieces together the essence of longing for a border as experienced by stateless children. Expressed in the dichotomy between the possible desire and necessity of having borders and the acknowledgment that for many stateless children to have borders means to enhance opportunities to be marginalised and often criminalised (Policek, 2016), this entry provides an overview of statelessness whilst simultaneously considering individuals’ needs and desires to have borders. Key hurdles associated with statelessness as experienced by children can be encapsulated in having no access to health care and in the lack of social and legal protection. Children are particularly vulnerable to negative sequelae of statelessness (van Waas & De Chickera, 2017): they cannot benefit from education (Policek, 2016), which in turn is translated into poor employment prospects, labour rights violations and ultimately poverty. Not having a national identity, makes children subjected to social stigma and discrimination. They are also vulnerable to trafficking, harassment, and violence (Policek, 2019). Stateless children, through no fault of their own, inherit circumstances that limit their potential and provide, at best, an uncertain future. They are born, live and, unless they can resolve their situation, die as almost invisible people (Policek, 2016).
Subsequently, the focus is on the ways that borders are experienced, and experienced differently, for different people (Balibar, 2002), stateless children in particular. The concluding segment of this contribution evidences the aspiration to claim citizenship and community for those who would be otherwise considered a redundant surplus (Mizruchi, 1983) and their plea to having margins without living at the margin.
Being Stateless
Under international law, a stateless person is someone who is not considered as a national by any state under the operation of its law (Weissbrodt & Collins, 2006). Nationality, in this context, refers to a particular type of legal bond between an individual and a state. It is a type of formal membership that results in rights and duties on both sides. The individual, for instance, holds the right to reside in the territory and the state bears a corresponding duty of admission: the individual holds a duty of allegiance (which may include a duty to perform military and/or national service) and the state the right to exercise diplomatic protection on behalf of its nationals abroad (Aird et al., 2002). Where a person lacks any nationality, he or she does not enjoy the attached rights or duties, resulting in a lack of protection. A stateless person is seen and treated as a foreigner everywhere, as a national nowhere. Each state sets the conditions for acquisition and loss of its nationality—an act which is an expression of self-determination and a legitimate exercise of sovereignty—within the limits set by international law (including in relation to the avoidance of statelessness) (Ball et al., 2017). Whether an individual is considered to be a national by a particular state will therefore depend on that state’s domestic nationality law, including how the rules are interpreted and applied in practice (Bhabha, 2011). A person is left stateless either where he or she has failed to acquire any nationality to begin with (i.e. at birth), or where he or she has lost or been deprived of a nationality that was once held, without acquiring another. For the purposes of determining whether a person is stateless in accordance with international law, it is not relevant how or when he or she came to be without a nationality, only whether a nationality is held at the time the assessment is being made (Blitz, 2011).
Statelessness is mostly perceived as a mere technical legal issue (Doná & Veale, 2011), thus neglecting the devastating consequences to individuals, in particular children, who have no rights that naturally come with nationality. Even quantifying statelessness is a problematical task, because embedded in the definition of statelessness is the notion that a stateless person is not considered as a national under the operation of its law. This has been authoritatively interpreted as being both a question of fact and law. Consequently, there are individuals who would legally be eligible for a particular nationality, who are nonetheless not considered as nationals by the state, and whose statelessness is consequently hidden (Bhabha, 2009; 2011). Furthermore, often states may give insufficient priority to the implementation of measures to identify statelessness or accurately quantify it. Sometimes, there is even a deliberate strategy to deny the prevalence of statelessness by asserting that such persons are nationals of another country (Blitz, 2011). Even where data on statelessness can be collected, this does not always harvest comprehensive or reliable results, due to an incorrect interpretation of the definition (Bloom et al., 2017). Often, some such exercises have been limited in their scope, focusing only on one ethnic group (Chen, 2009) or geographical area of a country (Chatty & Mansour, 2011) and do not therefore produce a complete picture. To add to the complexity of collecting data on statelessness, many stateless persons do not see themselves as being stateless (Cody & Plan International, 2009). Even if they do, there is often reluctance to draw attention to this and therefore, data collection which relies on self-identification is not entirely accurate. Undocumented persons and those who are of undetermined nationality may be at risk of statelessness and indeed, some of them are likely to already be stateless (ENS, 2015). However, when such persons are in their own countries, they will almost always receive greater protection if confirmed to be nationals and consequently the stateless label can be counterproductive. Nevertheless, even in such situations, where the denial of documentation is long-lasting (even inter-generational), there would come a point when it is better to acknowledge such persons as stateless (Aird et al., 2002).
Not all countries in the world are able to report data on statelessness. Figures for different countries are compiled from different data sets—that use different methodologies—and do not always reveal the full picture. The data collated by the United Nations High Commissioner for Refugees (UNHCR) is drawn from information produced by different actors, in different places, using different approaches—not all of which deliver the same level of reliability or produce readily-comparable data (ENS, 2015). Only persons exclusively under UNHCR’s statelessness protection mandate are reported in its statelessness statistics: UNHCR’s statistical reporting on statelessness excludes stateless persons who also fall within the protection mandates of other UN Agencies (at present, only the UN Relief and Works Agency—UNRWA), and those who also come under other UNHCR protection mandates (such as refugees or asylum seekers).
The identification of stateless persons and the collation of statistical information on statelessness, is relevant not only to assess states’ compliance with the statelessness treaties, but also with the more widely ratified human rights treaties. It is important to point out that in finding a person to be stateless, it is not relevant where in the world that person is. A child can be stateless in the country in which he or she was born, has always lived and has all family ties (Policek, 2016). Equally, a child can be stateless in a migratory context—for instance, losing nationality prior to, as a consequence of or at some point after crossing an international border (Blitz & Lynch, 2011). Statelessness rests on the fact of lacking any nationality, nothing more. Most stateless children have not moved from their homes and live in what can be described as their own country. Yet, due to the added vulnerability of stateless persons to discrimination, human rights abuse and even persecution, statelessness can also prompt forced displacement. Some stateless children, then, become internally displaced persons (IDPs), asylum seekers and refugees. Where a person who is not considered as a national by any state under the operation of its law also falls within the scope of the 1951 UN Convention relating to the Status of Refugees, he or she is a stateless refugee. That someone can simultaneously be both stateless and a refugee, asylum seeker or IDP does not lessen their experience of statelessness, which should be taken into consideration when protecting and finding durable solutions for them.
With regard to the identification of stateless children, for the purposes of statistical reporting or otherwise, it is also important to note the distinction between statelessness and the situation of being undocumented, of undetermined nationality and/or at risk of statelessness. Universal birth registration and the provision of other life documents remains a significant challenge in many parts of the world (Cai, 2013). The lack of such documentation can mean that the child is stateless (e.g. where denied documentation because the state does not consider the person to be a national), but more often, such lack of documentation does not mean a lack of nationality, despite it being a significant barrier to proving nationality (De Genova, 2013). Indeed, children without documentation are at heightened risk of statelessness when compared with those who do have adequate documents, and some may become stateless in the future (e.g. where unable to establish or prove links to the state of nationality such that this state no longer considers the person as a national) (Goris et al., 2009).
In some countries, there is no commonly held definitive proof of nationality, therefore evidence of statelessness may be built up over multiple rejections for documentation by the state (refusal to register to vote, refusal of ID card, refusal of passport, for example) (Hayter, 2000). When dealing with children, it is appropriate to question if identifying them as stateless would serve any protection purpose. The starting point must be to push for them to be recognised as nationals by the country to which they have the strongest links (High, 2013). This would often require scrutiny and assessment of nationality laws and policies, their implementation and the documentation that confirms nationality. If children of undetermined nationality and/or at risk of statelessness are ultimately recognised as nationals of a particular country, without ever being deemed to be stateless, this would be the ideal outcome (Manby, 2012). However, the question of how long their status is to remain undetermined, before concluding that they are actually stateless is a difficult one, to which international law does not seem to have a complete answer (Policek, 2016).
The grey area between statelessness and nationality highlights how it can be harmful to address the one without sensitivity to the impact on the other. There are a variety of circumstances that give rise to statelessness at birth or in later life, and there is often an element of discrimination and/or arbitrariness at play, when children or even entire groups become stateless (Milbrandt, 2011). Discrimination and arbitrariness can manifest itself in an obvious, aggressive and even persecutory manner, such as when large communities are deprived of their nationality based on ethnicity or religion (Southwick & Lynch, 2009); or it can be more subtle and latent, such as the failure of states to prioritise legal reform that would plug gaps in the law which could cause statelessness (Tucker, 2014). While states do have significant freedom to set out their own membership criteria, they also have a responsibility to protect against discrimination and arbitrariness, and to uphold international standards.
Unless safeguards are in place in the law to prevent statelessness from arising, the regular operation of these states’ nationality laws can leave people stateless. While this may seem like an unlikely and marginal occurrence, the scale of international migration today is such that conflicts of nationality laws are becoming more commonplace, increasing the need for safeguards to ensure the avoidance of statelessness (ENS, 2015).
A specific context in which the risk of a conflict of nationality laws is high, and where a large number of persons may simultaneously be affected, is that of state succession (Aird et al., 2002). When part of a state secedes and becomes independent, or when a state dissolves into multiple new states, the question emerges as to what happens to the nationality of the persons affected (Ball et al., 2017). The new nationality laws of successor states may conflict and leave people without any nationality, while the re-definition of who is a national of the original state (where it continues to exist) may also render people stateless. Most often in the context of state succession, it is vulnerable minorities who are associated with either the successor or parent state who are deprived of nationality, exposing the discriminatory motivations and arbitrary nature for such exclusion. Common types of state succession which have resulted in large-scale statelessness are the dissolution of federal states into independent republics (for instance, in the countries of the former Soviet Union and Yugoslavia) (Aird et al., 2002; Shulze, 2017)) and the more recent cases of state secession (for instance, with the splitting off of Eritrea from Ethiopia and South Sudan from Sudan) (Twomey, 2012). Situations of emerging or contested statehood complicate this picture further, leading to unique challenges around nationality and statelessness, for instance, for the Palestinians and the Sahrawi (Smith, 1986).
Many of the large scale and entrenched situations of statelessness in the world were born out of the experiences of colonisation, de-colonisation and consequent nation-building (Spivak, 1999) where borders were erected for a reason: they place people on the “outside” (Torpey, 2000). In such contexts, newly independent states (many of which never had a common pre-colonial national identity) have had to deal with borders arbitrarily drawn (often dividing ethnic groups) peoples forcibly migrated (for labour) and the consequences of decades, sometimes centuries of colonial rule which successfully opposed different ethnic and religious groups against each other, privileging some and marginalising others, as part of a wider divide and rule policy (Garelli & Tazzioli, 2013). It is not surprising that many newly independent states thus struggled with nation building, national identity and the treatment of minorities. For them, borders are a reminder of their colonial past. While colonial history does not justify in any way discrimination, arbitrariness and disenfranchisement, this historical context must be understood and addressed in order to reduce statelessness.
Large-scale statelessness can also be caused by the arbitrary deprivation of nationality outside the context of state succession (Doná & Veale, 2011). Arbitrary acts can involve the collective withdrawal or denial of nationality to a whole population group, commonly singled out in a discriminatory manner on the basis of characteristics such as ethnicity, language or religion, but it can also impact individuals who are deprived of their nationality on arbitrary and discriminatory grounds. In many cases, the group concerned forms a minority in the country in which they live (Goris et al., 2009). Sometimes they are perceived as having ties to another state, where they perhaps share common characteristics or even ancestral roots with a part of the state’s population, such as in the case of the Rohingya in Myanmar (van Waas and De Chickera, 2017) and persons of Haitian descent in the Dominican Republic (Walters, 2010). In other instances, the state uses the manipulation of nationality policy as a means of asserting or constructing a particular national identity to the exclusion of those who do not fit the mould, such as in the case of the Kurds in Syria in the 1960s (Bhabha, 2011) and the black population in Mauritania in the 1980s (Blitz, 2011). Nationality law may also be designed to restrict the access of certain groups to economic power, especially the right to own property, such as in Liberia or Sierra Leone, where only those who are of African descent may be citizens from birth (Bloom et al., 2017). In some instances, individuals or groups are targeted for their political beliefs, since nationality is the gateway to political rights and its withdrawal can be a means of silencing political opponents. Deprivation of nationality on security grounds can also be arbitrary if certain criteria—including due process standards—are not met. Other forms of discrimination in nationality policy can also create, perpetuate or prolong problems of statelessness (McInerney, 2014). For instance, where a woman does not enjoy the same right to transmit nationality to her child as a man, children are put at heightened risk of statelessness (Policek, 2016). A stateless, absent or unknown father, or one who cannot or does not want to take any steps that might be required to confer his nationality to the child, can spell statelessness because the mother is powerless to pass on her nationality. This form of gender discrimination is still present in more than 25 countries around the world and many more laws contain other elements of discrimination against women—or sometimes men—in the change, retention or transmission of nationality (Milbrandt, 2011).
