Guest post by Susi Foerschler, a graduate of Vanderbilt University Law School’s LL.M. program and a German lawyer with an academic focus on public international law.

Review of Citizenship in Question: Evidentiary Birthright and Statelessness by Benjamin N. Lawrence and Jacqueline Stevens (eds.), (Duke University Press, 2017).

In her seminal work The Origins of Totalitarianism, Hannah Arendt reasons that human rights become meaningless and unenforceable once the individual is no longer a citizen of a sovereign state. Arguably, human rights protections for stateless people have improved since Arendt first published her work in 1951. However, to actually access the benefits of either citizenship or human rights protection for the stateless, one has to prove they belong to either group. Those who cannot do so often fall through the cracks.

So how does one prove belonging? The collected essays Citizenship in Question: Evidentiary Birthright and Statelessness, edited by Benjamin Lawrence and Jacqueline Stevens, shed light on this question by guiding the reader through individual case studies. The expositions here successfully challenge the assumption that citizenship is self-evident and immutable. States define who is a citizen and what documents are required to prove citizenship, while being the sole curator of such documents. In other words, states place the burden of proof on the individual, but remain the only authority to ultimately accept documents as a proof of citizenship. This volume showcases the inherent potential for abuse of such power. Debates on citizenship revolving around the abstract fairness and quality of citizenship laws often neglect the fact that producing documentary evidence to prove one’s status is an insurmountable challenge to many. To highlight this, Stevens suggests that 'only after one is expected to have a piece of paper can one be judged for not having it' (p. 4).

Part One of the volume effectively demonstrates how international and regional protocols fail to prevent 'ineffective citizenship' and 'effective statelessness' (p. 27). It showcases the impacts of the citizenship principles (i) jus soli ('right of the soil'), citizenship determined by the place of birth and established through proof of birth, and (ii) jus sanguinis ('right of blood'), citizenship acquired through descent, generally necessitating more effort to prove. This segment of the book reveals that demarcation lines between citizens and non-citizens in reality are very different from where the law locates them. In the end, the key issue is not the process of proving one’s citizenship. Rather, it is the sovereign’s power to determine who they recognize as a citizen that actually matters.

In her chapter on jus soli and statelessness in the Americas, Polly Price makes a compelling argument that although international law formally acknowledges the statelessness of people who do not have citizenship, it is blind to how the supposedly 'democratically superior' (p.41) principle jus soli, in practice excludes vulnerable groups from the benefits of citizenship. Price explains how bureaucratic agents who fail to appropriately register the births of people in certain groups because of administrative errors or intentional discrimination prevent people in those groups who are not registered from proving their citizenship status. Highlighting the precarious status of the Roma in Europe, Jacqueline Bhabha argues that effective statelessness is also created on a supranational and international level. She argues that '[a]ccess to evidence is a deeply political process' (p. 45), and that European states show a resistance to providing Roma with the necessary documentation. While Bhabha is right in that European Roma are particularly vulnerable to statelessness, it is discrimination and citizenship laws in particular European countries with Roma populations that underpin their vulnerability. However compelling Bhabha’s argument is, we must not forget that the European Union as a supranational organization does not offer meaningful citizenship rights without national citizenship of a Member State and, as such, has limited means to address the issue.

The editors’ chapters focus on the individual stories in a citizenship context. Benjamin N. Lawrence draws on his experiences as an expert witness in U.K. citizenship disputes. He describes how judges substitute the narratives of petitioners with their own perspectives instead of remaining open to considering the life stories that petitioners present to the court as legitimate in themselves. Lawrence paints a dire picture of petitioners running up against a system in which the state dictates the rules. Jacqueline Stevens’ chapter starts out with her own short stories that evolve around individuals facing absurd interactions with official bodies and thereby underscore Lawrence’s assessment. Stevens’ chapter goes on to emphatically illustrate how written government records remain privileged over details of personal biographies. The editors’ chapters fuel discontent with a system that seemingly fails to recognize that citizenship is not just a legal status guided by the rationality of the written law: it is intimately tied to our personal identities and life stories. Sara Friedman furthers that sentiment to border crossings between China and Taiwan, stating that 'documents do not afford legal recognition or sovereign claim so much as they reproduce the uncertain status of contested borders' (p. 81).

Part Two focuses on bureaucratic interventions that enforce citizenship policies and produce what Price earlier calls 'ineffective citizenship' (p. 27). The chapters in this part of the book examine decision-making processes of different administrators and convincingly show that they are repeatedly subjective, inherently sexist, racially motivated, and not grounded in law. The decisive factor is what Beatrice McKenzie calls “the importance of being found deserving of citizenship” (p. 129) on the basis merely of whether state officials want someone to be a citizen because they 'fit in' or not. Rachel Rosenbloom finds that Mexican-Americans born in the borderlands of South Texas face discriminatory challenges and struggle to acquire passports. Officials occasionally challenge the validity of their birth records without reason, rendering jus soli meaningless. Amanda Flaim and Kamal Sadiq point out that ineffective citizenship is even more prominent in the Global South. Both make a compelling case showing that administratively introducing paper documents to recognize citizenship, which Sadiq aptly calls 'administrative citizenship' (p. 169), disenfranchises the illiterate, poor, homeless, and nomadic. Sadiq analyses the introduction of certain paper documents in India and Malaysia. He compellingly argues that although paper citizenship documents – a Western invention - were introduced to create an administrative system that prevents statelessness, document requirements can actually exacerbate or create statelessness where the administrative system is so poorly implemented that citizens never get access to or do not even know about the documents they need to prove their citizenship. Without these documents, they are suddenly formally excluded from executing their rights as citizens to get a passport, vote, or have access to the welfare system. In Flaim’s study of the highland minority population in Thailand, one of the largest stateless populations worldwide, she too finds that many people do not even adequately grasp the importance of identity documents provided by the Thai state.

Part Three reviews the impact of political campaigns that use citizenship to discredit political opponents. Alfred Babo outlines how Côte d’Ivoire’s policy of 'Ivorité' – a 'pure' Ivorian identity – was introduced in a presidential race to prevent the opponent from accessing a political office. That law, however, affects both political elites and other Ivoirians who were suddenly requested to prove their Ivoirian citizenship which led to tensions. This case study underscores that citizenship cannot just be exploited by states or politicians as means to a political end, but is tightly interwoven with people’s identities. Margaret D. Stock’s chapter shows that citizenship is also a tool in Western political debate. She outlines the ongoing discussion on changing US birthright citizenship, sparked by President Obama’s alleged 'non-American-ness' – the false allegation that he was born outside of the U.S. and is not a citizen.

The narratives presented in the book are not well known, yet they are shared by millions. As a lawyer, I ask myself how to address this lack of access to basic human rights. Do citizenship regimes as we know them today still have a place in a post-Westphalian era? Should we not stop sorting people into the legalistic but ultimately unruly categories of citizen, non-citizen, stateless, migrant, or refugee, that provide varying sets of rights, all the while rendering vulnerable many groups just because it is convenient for states? In the afterword, Daniel Kanstroom draws upon the still highly relevant work of Hanna Arendt to find an encouraging way forward. Arendt held that practical realities render stateless aliens devoid of enforceable protections. Following Arendt, Kanstroom insists that we need 'more meaningful human rights protection for all people, regardless of status or location' (p. 245), so that no individual is left 'questioning the law for its betrayed promise of peace, dignity and justice' – an endeavor we should all get behind.

This volume gathers scholars from a range of disciplines such as law, anthropology, journalism, history, gender studies, political science and sociology. It is therefore an essential reading for academics in citizenship law, but also a broader audience grappling with what citizenship and belonging mean in a modern world. As such, it would also be useful reading for practitioners who are tasked with implementing fair citizenship policies. 

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How to cite this blog post (Harvard style) 

Foerschler, S. (2019) Book Review: Citizenship in Question: Evidentiary Birthright and Statelessness. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2019/10/book-review (Accessed [date])