Kitabı oku: «border and bordering», sayfa 6
The sole prime cause of statelessness globally in any given year—in the absence of large-scale situations stemming from one of the above problems—is the inheritance of statelessness (Bhabha, 2011). Many contemporary situations of statelessness have their roots at a particular moment in history, such as state succession, the first registration of citizens or the adoption of a discriminatory nationality decree stripping a whole group of nationality, as outlined above. Yet these situations endure and even grow over time because the states concerned have not put any measures in place to stop statelessness being passed from parent to child—or do not implement existing measures to that effect. Furthermore, these situations migrate to new countries along with the (often forced) migration of stateless persons abroad, as in migratory contexts too, statelessness is allowed to continue into the next generations (Rigo, 2005). This means that most new cases of statelessness affect children, from birth, such that they may never know the protection of nationality. It also means that stateless groups suffer from intergenerational marginalisation and exclusion, which affects the social fabric of entire communities always longing to have borders.
Longing to Have Borders
Borders are not only spatial locations, but are also social, political and economic expressions of belonging and exclusion (Vaughan-Williams, 2012). They are more than just a line, a divide, a single and static territorial location. Rather than treating the concept of the border as a territorially fixed, therefore, the border encompasses a series of practices. Such “reading” entails a more political and actor-oriented stance on how divisions between entities appear or are produced and sustained. The shift in focus also brings a sense of the dynamism of borders and bordering practices, for both are increasingly mobile—just as are the goods, services and people that they seek to control (Varsanyi, 2008). van Houtum & Strüver (2002) draw attention to the ways that borders are performed into being and describe this as a shift toward considering the human practices that constitute and represent differences in space. They add that this can be thought of as a shift toward understanding the border as a verb in the sense of “bordering”. Vaughan-Williams (2012) echoes this analysis, arguing that it is crucial to consider the schisms that are produced by borders and to treat borders as active structures that rely on practices of bordering. To think of the border as a verb is to think of it as something that must be done in order to come into being, and that does not exist as a noun without this active, processual, doing of the border. Borders become not spaces marked on a map, or onto territory, but instead actions that must be performed by human beings in relation to one another (Brown, 2010).
The shift toward thinking about how human practices construct borders, and about the processes that enact borders, marks a shift in the conception of borders that also makes it necessary to pay attention to the question of where borders are, but also what they are and what they do. Subsequently, this points to the need to articulate not to take for granted the concept of the border, but instead to ask what sort of concept it is. What sort of logic does a border both follow and impose? The question of what a border is, is not assumed to have a single ontological answer, but instead one that cannot be resolved without asking what borders do. Balibar (2002) addresses this interrogation with a caution: the question is absurd as he claims that a border has no essence. He explains that a border is different in each instance and in every experience of border-crossing, that to cross one border is not the same as to cross another, and that to cross with one passport is not the same as to cross with another (Balibar, 2004). With reference to the discussion proposed in this contribution, crossing a border without a passport, is even more complex for stateless children who are seeking to have borders in order to claim protection under nationality laws. This singularity of the border, or rather its differential existence, makes it nearly impossible to define the border, since there is no definition which would be capable of holding together these differences. To this caution, Balibar (2002) adds another warning: a border is the thing that defines a territory. It marks the limit of a territory; it defines the interior and exterior of a nation-state and in doing this, it inscribes identity.
Any act of definition inevitably involves the tracing of a boundary and therefore the construction of a border. The definition of the border forms a recursive loop. To construct a border is to define, and to define is to construct a border. For this reason, any theory seeking to pin a definition to the border is at risk of going around and around in circles, identifying borders by constructing still more borders. However, to think of a border as that which defines is, of course, already to give a sort of definition, and to enter into the recursive cycle of borders. Therefore, the caution reads as at least partly disingenuous. Taking a cue from Balibar’s (2002) caution, it could be claimed that to ask what a border is denotes a problem because the borders of different nation-states are different at different moments of history and in relation to different people, stateless children in particular. For such reasons, a universalizing ontology of borders per se is unfeasible. Furthermore, attempts to answer such questions would unavoidably construct a border. In this way, to answer the question is to reduce the complexity of the experiences of borders and would also participate in constructing borders (Balibar, 2002). Instead of working from a definition, a suggestion could be to look at what borders do and at what particular borders do at particular historical moments. To paraphrase Balibar (2002), it is possible to refer to what he calls the “equivocal character” of borders. Here the term “equivocal” gives not only the sense of a border as not being quite what it appears or claims to be, but also the sense of multiple voices and multiple meanings—of more than one possible existence of a border (see also De Genova, 2013). This equivocal character of the border is both a border’s multiplicity and its duplicity. Even as a border might appear as a simple, singular phenomenon, this is an illusion. A border is not what it seems, and it is not to be trusted. The word “equivocal” also contains within it the notion of divergent voices (“equi–vocal”). If a border deceives, it does so through the presence of many voices and many experiences, all singular and all different.
A border has many identities and many realities—those who live within the confinement of a border and those who long to have a border, as stateless children often do, experience a border differently. Borders therefore can be described as polysemic, meaning that borders do not have the same meaning for everyone, and indeed this differential meaning is essential to the function of the border. Borders are, nonetheless, sites of administrative control (De Genova et al., 2014). The selective controls that filter populations and control the movement of people are the function of the border (Anzaldúa, 1999). These controls are always concentrated along a geographic line that marks the territorial limit of the nation-state. However, these sites of administrative control have been dispersed throughout social space and, therefore, some borders are no longer situated at the borders at all, in the geographical, political and administrative sense of the term. They are in fact elsewhere, wherever selective controls are to be found specifically (Policek et al. 2020) where the rhetoric of danger is too often associated with the status of being a foreigner.
In another formulation of the same idea, borders become dislocated if not ubiquitous as they are replicated by other “checkpoints” within the territories of the state (Doty, 2011). Understanding the border as the site where selective controls are enacted provides an incredibly dynamic and flexible view of the border. If borders exist where they are enacted, then they can not only be in many different spaces, mapped and unmapped, but they can also move, appear and disappear (Hayter, 2000). Inevitably, this also means that as these practices of control take place throughout national space, the border also moves from a liminal geographic space to something that is enacted and experienced throughout national space. While there are the recognizable infrastructures of control (airport border control, for example, is often explicitly labelled as the border, despite being located internally within the nation), it also allows for a consideration of the less obvious sites where the border materializes. Borders can in fact become ubiquitous when they are thought of in relation to the enactment of control (van Houtum & Strüver, 2002).An example of borders appearing through their enactment is provided by the carrier sanctions administered by the United Kingdom’s government that makes carriers liable for any undocumented persons they may transport to the country, even if these people are stowaways and the carrier was unaware of their presence on the vehicle (Chacon, 2009). Due to these liability laws, carriers seeking to avoid fines for transporting undocumented passengers have introduced measures to deter and police would-be migrants. In particular, lorries arriving to the United Kingdom from Europe more and more often have been built to be securely locked, their design impenetrable to would-be stowaways. The defensive construction of the lorries is accompanied by a compulsory methodical inspection of the carriage area by the driver. It could be argued that these sanctions move the border to the very surface of the lorries crossing international boundaries and that the border moves with these lorries. Thus, the entire road transportation system becomes a kind of networked border. The border transforms into a mobile, non-contiguous zone materializing at the very surface of the lorry and every place it stops. In this manner, the border comes into being (materialises) not only when the driver stops the lorry and inspects it, but also in the very materiality of the lorry that is designed to obstruct the migrant. In other words, there is a border wherever there is a measure taken to prevent migration, and it is a border that can appear and disappear through the performance of specific practices (Diener & Hagen, 2012).
Different Borders for Different People
The border is designed to give different people (those from different social classes) different experiences of the law and of freedom. Border law enables some to pass national frontiers, while denying others the same opportunity; it upholds the freedom of circulation of some, while depriving others of this same freedom (Varsanyi, 2008). Following from these differential experiences, Balibar (2002) highlights how the function of the border is vigorously to differentiate between individuals in terms of social class. This is to say that the fundamental function of the border is to distinguish between people and to produce differential social placements and experiences. For the rich person from the rich country, the border becomes a symbolic reaffirmation of a surplus of rights, while for a poor person from a poor country the border is a solid barrier, one which is confronted as an obstacle and which repeatedly emerges as it marks the limits of life. For this latter figure, the border becomes omnipresent, indeed becomes the place where the migrant resides (Willen, 2010). Therefore, it could be argued, the role of the border is fundamentally to differentiate people from one another. That is, borders must be understood not only as enacting distinction, but as actively administering and producing difference. Their function is not only to separate the rich from the poor, the internationally mobile from the nationally confined, but to construct and enact the categories used to distinguish one person from the next, and then to grant passage and mobility and all of their attendant privileges to some, while denying them to others.
Borders therefore can become instruments of differentiation: this differentiation is always in the service of capital, and indeed the distinction is between those who circulate capital and those who are circulated by capital. Here Balibar’s (2002) contribution allows the opportunity to discuss borders by acknowledging a clearly articulated rationale for a shift away from thinking in terms of stable sites, as well as a defense the beginning of an articulation of what borders do that draws attention to this doing. He locates the implementation of the border as the site of the border: it exists where it is done. As a consequence, borders as operations of power become visible as different for different people (different people are done differently by the border), as implicated in instituting and producing difference, and as not situated at stable and delimited sites. Balibar (2002) encourages a shift toward thinking of borders in terms of existing where they are done, and as most importantly about practices and encounters with these practices.
Addressing the experience of being stateless, especially with reference to children, the shift in border practices leads to more diffuse internal policing and the externalization of border controls consequently defines border(s) in terms of “deterritorialization” (Andrijasevic, 2010). The deterritorialization of borders refers to the ways that borders increasingly and in a variety of ways operate at both sites that are geographically external to the nations that are represented by them, and within the internal space marked by the border. Seeing the border as one that has been “deterritorialized” is a way to look at the dislocation of controls once enacted at national border posts and now exercised in a spatially disaggregated way and via a variety of means (Andrijasevic, 2010). These means specifically including the functions that have been externalized to host countries, as well as other policing measures that are carried out internally, such as identity controls carried out by police and carrier liability legislation that makes transportation companies accountable for the people they transport (Andrijasevic, 2010). In addition to pointing to both international and external practices of bordering, speaking in terms of a deterritorialized border instead of an externalized border has the advantage of not repeating the presumption of a neat inside/outside division between national spaces. Borders for individuals who are stateless emerge from this discussion in a new form and are captured via new metaphors. Instead of being linear structures firmly located at the edges of territory, the borders of a nation can be depicted as “mobile and dispersed” (Rumford, 2012, p.159), “discontinuous and porous” (Andrijasevic, 2010, p.155), “networked” (Walters, 2006, p.195), “ephemeral and/or palpable” (Vaughan-Williams, 2012, p.583), and biopolitical (Vaughan-Williams, 2012). What these accounts have in common is that they shift from considering the border in its most obvious space—where it is resolutely, structurally instituted at the limits of a national territory—toward thinking of the border as the site where the control function of the border is performed.
The right to a nationality implies the right of each individual to acquire change and retain a nationality. The right to a nationality remains a fundamental human right as afforded by article 15 of the 1948 Universal Declaration of Human Rights (UDHR) providing that “[e]everyone has the right to a nationality” and that “[n]o one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” In this way, article 15, enshrining citizenship and the right to be free from arbitrary deprivation of citizenship as human rights in and of themselves, establishes the bedrock legal relationship between individuals and states. While all states are bound to respect the human rights of all individuals without distinction, an individual’s legal bond to a particular state through citizenship (Wastl-Walter, 2011; see also Weiss Brodt & Collins, 2006) is in practice an essential prerequisite to the enjoyment and protection of the full range of human rights. The proliferation of human rights norms in international and regional instruments has fostered substantive limitations on state sovereignty over citizenship regulation that gives meaning to that provision. In particular, the universal anti-discrimination norm and the principle that statelessness should be avoided have emerged to constrain state discretion on citizenship (Salter, 2008; 2010).
Some significant gaps in the international legal framework on nationality persist considering, for instance, that few normative principles prescribe conditions for granting citizenship (Salter, 2012). Furthermore, there is a lack of consensus on what constitutes statelessness arising from ineffective citizenship which in turn perpetuate the experience of different borders for different people. While human rights developments over the years have made great strides in giving content and meaning to article 15 of the UDHR, further normative and practical developments remain essential to fulfil the valuable promise of that provision. Because states have the sovereign right to determine the procedures and conditions for acquisition and loss of citizenship, statelessness and disputed nationality must ultimately be resolved by governments so that borders mean exactly the same of all citizens (Popescu, 2012).
The right to retain a nationality corresponds to the prohibition of arbitrary deprivation of nationality (Rigo, 2005). Arbitrary deprivation of nationality, therefore, effectively places the affected persons in a more disadvantaged situation concerning the enjoyment of their human rights because some of these rights may be subjected to lawful limitations that otherwise would not apply (Ramalo, 2011), but also because these persons are placed in a situation of increased vulnerability to human rights violations (Reed, 2006).
Having Margins without Living at the Margin
The notion of control at the border relies on a presumption of a precise separation between internal territory and the external borders of the space (Paasi, 2011). This conception reproduces an inside/outside dichotomy which reinforces the challenges faced by stateless individuals almost suspended between the need to belong to a community and the acknowledgment that belonging entails a legal and emotional shift to their status.
Longing to belong and have borders is an aspiration rather than a choice. Mizruchi (1983) argues that societies create abeyance structures to regulate the impact of surplus populations in the city by holding potentially dissident, marginal people under surveillance in control situations, until status vacancies open elsewhere. Stateless people are treated as a surplus population, despite their claim to community and entitlement to citizenship. Many stateless people are eligible for a residence permit on different grounds other than statelessness, and they are often not aware of the existing procedure for the recognition of the stateless status (Nguyen & Sperfeldt, 2012). Even though those people may have a regular permit of stay, they face difficulties due to their lack of nationality at the moment they have to enjoy some specific rights, such as the right to marry. For those people, as well as for the organizations they get in touch with (for instance, NGOs, hospitals, National Registrar), many problems could be solved through campaigns spreading information on statelessness (Gibney, 2014). Stateless people could also find themselves in need of applying for refugee status or a form of subsidiary protection (George, 2013). Even in case they are recognised as having the right to refugee status or subsidiary protection, they can however be prevented from fully enjoying the exercise of their rights because of their lack of nationality. Moreover, many of the people entitled to refugee status or a form of subsidiary protection, albeit being stateless, are not aware of the procedure for accessing the relevant legislations which could offer protection (Howard, 2017). Different routes are, in fact, set out in order to reduce and to prevent childhood statelessness. The Human Right Council has addressed the enjoyment of the right to a nationality and the avoidance of statelessness in several resolutions on “Human rights and arbitrary deprivation of nationality”: in particular, Resolution 7/10 (2008), Resolution 10/13 (2009), Resolution 13/2 (2010), Resolution 20/4 on the Right to a Nationality: Women and Children (2012), Resolution 20/5 (2012) and Resolution 26/14 (2014). Mostly, statelessness may be the result of factors such as political change (McInerney, 2014), expulsion of people from a territory (Ihrda, 2011), discrimination, nationality based solely on descent, and laws regulating marriage and birth registration (Milbrandt, 2011).
