The Human Right to Citizenship: A Slippery Concept 9780812291421

Table of contents :
Cover
Contents
Introduction: The Human Right to Citizenship
PART I. THE LEGAL CONTEXT
Chapter 1. Human Rights of Noncitizens
Chapter 2. Statelessness: A Matter of Human Rights
PART II. GROUP STATELESSNESS
Chapter 3. The Palestinian People: Ambiguities of Citizenship
Chapter 4. State of Stateless People: The Plight of Rohingya Refugees in Bangladesh
Chapter 5. Mobilizing Against Statelessness: The Case of Brazilian Emigrant Communities
PART III. LEGISLATED LIMBO
Chapter 6. Natives, Subjects, and Wannabes: Internal Citizenship Problems in Postcolonial Nigeria
Chapter 7. Capricious Citizenship: Identity, Identification, and Banglo-Indians
Chapter 8. Are Children’s Rights to Citizenship Slippery or Slimy?
Chapter 9. How Citizenship Laws Leave the Roma in Europe’s Hinterland
PART IV. LABOR MIGRANTS
Chapter 10. Slippery Slopes into Illegality and the Erosion of Citizenship in the United States
Chapter 11. Managed into the Margins: Examining Citizenship and Human Rights of Migrant Workers in Canada
PART V. EMERGING ISSUES AND MODELS
Chapter 12. Shapeshifting Citizenship in Germany: Expansion, Erosion, and Extension
Chapter 13. Multiple Citizenships and Slippery Statecraft
Chapter 14. Sticky Citizenship
Conclusion: Slippery Citizenship and Retrenching Rights
Notes
List of Contributors
Index
A
B
C
D
E
F
G
H
I
J
K
L
M
N
O
P
R
S
T
U
V
W
Y
Acknowledgments

Citation preview

The Human Right to Citizenship

PENNSYLVANIA STUDIES IN HUMAN RIGHTS Bert B. Lockwood, Jr., Series Editor A complete list of books in the series is available from the publisher.

The Human Right to Citizenship A Slippery Concept

Edited by

Rhoda E. Howard-Hassmann and Margaret Walton-Roberts

U N I V E R S I T Y O F P E N N S Y LVA N I A P R E S S PHIL ADELPHIA

Copyright 䉷 2015 University of Pennsylvania Press All rights reserved. Except for brief quotations used for purposes of review or scholarly citation, none of this book may be reproduced in any form by any means without written permission from the publisher. Published by University of Pennsylvania Press Philadelphia, Pennsylvania 19104-4112 www.upenn.edu/pennpress Printed in the United States of America on acid-free paper 10 9 8 7 6 5 4 3 2 1 Library of Congress Cataloging-in-Publication Data The human right to citizenship : a slippery concept / edited by Rhoda E. HowardHassmann and Margaret Walton-Roberts. pages cm.—(Pennsylvania studies in human rights) Includes bibliographical references and index. ISBN 978-0-8122-4717-6 1. Citizenship. 2. Citizenship—Political aspects. 3. Nation-building. 4. Aliens. 5. Immigrants. I. Howard-Hassmann, Rhoda E., 1948– editor, author. II. WaltonRoberts, Margaret, 1968– editor, author. III. Series: Pennsylvania studies in human rights. JF801.S546 2015 323.6—dc

232015007981

Contents

Introduction: The Human Right to Citizenship 1 Rhoda E. Howard-Hassmann

PART I. THE LEGAL CONTEXT

Chapter 1. Human Rights of Noncitizens 21 David Weissbrodt

Chapter 2. Statelessness: A Matter of Human Rights 31 Kristy A. Belton

PART II. GROUP STATELESSNESS

Chapter 3. The Palestinian People: Ambiguities of Citizenship 45 Michal Baer

Chapter 4. State of Stateless People: The Plight of Rohingya Refugees in Bangladesh 62 Nassir Uddin

Chapter 5. Mobilizing Against Statelessness: The Case of Brazilian Emigrant Communities 78 Carolina Moulin

vi Contents

PART III. LEGISLATED LIMBO

Chapter 6. Natives, Subjects, and Wannabes: Internal Citizenship Problems in Postcolonial Nigeria 97 Chidi Anselm Odinkalu

Chapter 7. Capricious Citizenship: Identity, Identification, and Banglo-Indians 115 Sujata Ramachandran

Chapter 8. Are Children’s Rights to Citizenship Slippery or Slimy?

130

Jacqueline Bhabha and Margareta Matache

Chapter 9. How Citizenship Laws Leave the Roma in Europe’s Hinterland 145 Helen O’Nions

PART IV. LABOR MIGRANTS

Chapter 10. Slippery Slopes into Illegality and the Erosion of Citizenship in the United States 161 Nancy Hiemstra and Alison Mountz

Chapter 11. Managed into the Margins: Examining Citizenship and Human Rights of Migrant Workers in Canada 176 Janet McLaughlin and Jenna Hennebry

PART V. EMERGING ISSUES AND MODELS

Chapter 12. Shapeshifting Citizenship in Germany: Expansion, Erosion, and Extension 193 Thomas Faist

Chapter 13. Multiple Citizenships and Slippery Statecraft Kim Rygiel and Margaret Walton-Roberts

209

Contents vii

Chapter 14. Sticky Citizenship 223 Audrey Macklin

Conclusion: Slippery Citizenship and Retrenching Rights 240 Margaret Walton-Roberts

Notes 255 List of Contributors 295 Index

301

Acknowledgments 315

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Introduction: The Human Right to Citizenship Rhoda E. Howard-Hassmann

Shortly after his arrival in Switzerland in 1939, Helmut Hassmann, a twenty-five-year-old refugee from Germany, wrote a short memoir of his escape via Italy and Yugoslavia, his months in prisons, and his fruitless attempts to obtain legal papers either to stay in Italy or migrate elsewhere. ‘‘Being stateless—my grandfather was Russian, as was my father, even though his country of birth was Germany—I was unable to obtain any residence or work permit abroad. . . . You’re so utterly powerless, so impotent. . . . Whatever happened to human rights? Is there such a thing anymore? Is it not a mockery of all humanity, when, today, millions are forced to wander about aimlessly, at the behest of a megalomaniacal criminal!? [Hitler] When every country spits them out again like outcasts.’’1 Helmut Hassmann had hit on a fundamental contradiction between human and citizenship rights. In order to enjoy what later in international law became universal human rights, an individual must first enjoy his right to a nationality, that is, to formal and complete nationality in at least one country. Universal human rights hinge on a prior particular and exclusivist right to citizenship. This has always been the case: the early U.S. and French declarations of rights ‘‘connected the concept of ‘human being’ with the idea of ‘citizen’. . . . Indeed, although natural rights theories granted every individual rights at birth, these rights could only be recognized and enforced in a practical way through membership in a State.’’2 There was and is a ‘‘stark dichotomy between human rights and citizens’ rights.’’3 Thus citizenship is a legal status through which the individual can access rights and goods in the state of her nationality or nationalities. Helmut Hassmann was born stateless because of the patriarchal German law of ius

2 Rhoda E. Howard-Hassmann

sanguinis: even though they were both born in Germany, he and his father were stateless because his paternal grandfather was Russian. In any event, had he not been born stateless, he would have been deprived by the 1935 anti-Jewish Nuremberg laws of his citizenship rights.4 When the GermanJewish philosopher Hannah Arendt wrote about statelessness, she had in mind people like Helmut Hassmann. ‘‘One is almost tempted to measure the degree of totalitarian infection [of a state] by the extent to which the concerned governments use their sovereign right of denationalization,’’ she wrote.5 Yet, as Arendt also noted and as Michal Baer discusses in Chapter 3, ‘‘the solution of the Jewish question [by creation of the state of Israel] merely produced a new category of refugees, the Arabs, thereby increasing the number of the stateless and rightless by another 700,000 to 800,000 people.’’6 That the problem of stateless Palestinians has still not been solved is one of the major citizenship tragedies of our time. The chapters in this collection suggest that many other such tragedies have emerged. Although citizenship is supposed to be a universal right of all human beings, it is often contingent and insecure. Nor is citizenship a simple binary entity that one either possesses or does not; citizenship can be partial, soft, obscured by political realities, or nonexistent. We use the heuristic term ‘‘slipperiness’’ to show how individuals can be denied citizenship, lose it, have only partial citizenship rights, or even—in the case of sticky citizenship, as Audrey Macklin discusses in Chapter 14—have it when they do not want it.

Universal Human Rights Versus Exclusivist Citizenship This book is concerned in the first instance with citizenship in the legal sense, that is, the individual’s status as citizen, noncitizen, or categories in between such as migrant, rather than with citizenship in its sociological sense as ‘‘that set of practices (juridical, political, economic and cultural) which define a person as a competent member of society, and which as a consequence shape the flow of resources to persons and social groups.’’7 We also engage, however, with the broader issue of how citizenship is constructed, deconstructed, revoked, or imposed and how it is manipulated by states pursuing political goals such as migration control and security. As Kim Rygiel and Margaret Walton-Roberts suggest in Chapter 13, citizenship

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is subject to the ‘‘slippery statecraft’’ of governments who manipulate it in pursuit of their own population management goals. In human rights terms, the right to citizenship is the right to a nationality, as stated in Article 15 of the Universal Declaration of Human Rights (UDHR): ‘‘1. Everyone has the right to a nationality. 2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.’’ Thus, in principle, no one should be stateless. Referring to Articles 6 and 7 of the UDHR, Jacqueline Bhabha, coauthor of Chapter 8, further notes that everyone has a ‘‘right to a legal identity.’’8 Article 6 states that ‘‘Everyone has the right to recognition everywhere as a person before the law’’; that is, every state has to recognize the personhood of every individual, even if she is a noncitizen or stateless. Article 7 states that ‘‘All are equal before the law . . . [and] are entitled to equal protection against any discrimination.’’ Bhabha interprets this to mean that discrimination against individuals on the basis of citizenship is unlawful. Yet, in practice, these nondiscrimination principles are extremely weak. In Chapter 1, setting out part of the legal context for this book, David Weissbrodt explains how international human rights law protects noncitizens. Noncitizens are disadvantaged compared to citizens in only a very few ways and only with regard to legitimate state objectives. Certain political rights such as the right to vote and hold public office are guaranteed only to citizens, and freedom of movement may be denied to undocumented immigrants. Also, migrants do not enjoy the right to consular representation by their state of residence when abroad, nor do they enjoy the right freely to leave and return to their country of residence. Otherwise, noncitizens are to be guaranteed both civil rights such as protection from torture and economic human rights such as the right to education, although developing countries with limited resources are permitted by the International Covenant on Economic, Social and Cultural Rights to favor citizens over noncitizens. Furthermore, international law prohibits collective deportations such as Myanmar’s deportation of the Rohingya, discussed in Chapter 4 by Nasir Uddin. It also protects the rights of all migrant workers (but not all migrants) regardless of their legal status, although, as Weissbrodt notes in Chapter 1, ‘‘rights granted to documented and undocumented migrant workers are not identical.’’ Nevertheless, in practice, noncitizens are often not in a position to assert their rights. Indeed, undocumented migrants are often criminalized, as if the very act of seeking to better oneself—or indeed to save one’s life—by migrating is beyond the legal pale.9

4 Rhoda E. Howard-Hassmann

Among rightless noncitizens, perhaps the most deprived are those who are stateless, that is, citizens of no state at all. As Kristy Belton explains in Chapter 2, an estimated 12 million people worldwide are stateless de jure; many others are stateless de facto, as the state of which they are formally citizens affords them no protections whatsoever. Individuals can be rendered stateless because of denationalization policies, state dissolution, state failure or incapacity, or simply because of unforeseen gaps in nationality laws, as Carolina Moulin explains in Chapter 5 regarding children born abroad of Brazilian parents. Groups of stateless people exist all over the world and are often minorities living in a state that does not want to grant their right to live where they and their ancestors were born. Without citizenship in at least one state, it is impossible to enjoy most human rights; indeed, some stateless people are even enslaved. Some collective groups suffer severe citizenship discrimination. As Baer explains in chapter 3, most Palestinians have a very precarious citizenship status. Palestinians within Israel are formally citizens but suffer from discriminatory legislation and practices especially regarding rights of residence in so-called Jewish areas and often are not permitted to sponsor as immigrants family members who reside in the Gaza Strip or the West Bank. Moreover, while Jews and those of partial Jewish ancestry are entitled to migrate to Israel and become citizens under the Law of Return, no such law applies to Palestinian exiles or their descendants. A few Palestinians who have emigrated to Western countries such as the United States or Canada enjoy full citizenship rights there, but the vast majority of Palestinian exiles suffer from various constraints on full citizenship rights in the Middle Eastern countries to which they have emigrated, where they often live in refugee camps. And those who reside in the West Bank and Gaza live in a citizenship limbo. Even when people enjoy formal citizenship, states do not all have the same capacities to respect, protect, and fulfill their human rights. Just as there are hard and soft currencies, there are ‘‘hard’’ and ‘‘soft’’ citizenships. The ‘‘heft’’ of citizenship, its actual practical meaning with regard to ‘‘elements of membership within and between all states to which the individual is connected,’’ varies.10 Citizenship in developed Western countries is much sought after: witness the migration of highly educated professionals and wealthy entrepreneurs to countries such as Canada and the United States. As Moulin shows in Chapter 5, the more developed and democratic the country, the more citizenship in it becomes a valued good. For a short

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period in the 1990s and 2000s, Brazil, an emerging economy and democracy, denied citizenship to children born abroad to Brazilian parents: some children were denied both jus soli citizenship by the countries where they were born and jus sanguinis citizenship by Brazil. At the same time, Brazilians abroad became more aware of their rights both in Brazil and in their countries of immigration: having first—and successfully—organized to protect their children’s citizenship rights, they later formed organizations that lobbied for a wide range of citizenship protections. By contrast to these active citizens from an emerging economy, migrants between poor and even poorer countries have limited opportunities to organize and enjoy no or very few protections either by their home states or the states to which they migrate. Stateless Rohingya escape from Myanmar to Bangladesh, seeking protection and citizenship rights, while Bangladeshi migrants in turn seek citizenship rights in India, revealing a hierarchy of prosperity in South Asia, as Nassir Uddin and Sujata Ramachandran discuss in Chapters 4 and 7. In many African countries, contestation over who is a citizen intensifies once the state becomes capable of delivering some valuable goods to a small proportion of its population, as Chidi Odinkalu demonstrates in Chapter 6 on Nigeria. At least a half dozen African countries had laws in 2012 restricting citizenship to members of certain ethnic groups, and half of Africa’s countries also had legal means to rescind individuals’ birth nationalities.11 The crisis in Coˆte d’Ivoire early in the 2000s was caused in part by disputes over ‘‘the status of nationals whose historical parentage is traceable to communities in neighbouring countries,’’ as well as disputes about the status of Muslims in the northern part of the country. It is significant in this regard that the African Charter of Human and Peoples’ Rights does not contain a right to a nationality.12

Slippery Citizenship Citizenship is a slippery category. At the top of the slippery slope of citizenship are those who enjoy both de jure and de facto citizenship in wealthy, democratic countries—in effect, the lucky holders of hard citizenship rights. At the bottom are those who are stateless, enjoying neither de jure nor de facto citizenship anywhere. Along the slope are documented (‘‘legal’’) migrants, undocumented (‘‘illegal’’) migrants, trafficked and smuggled individuals, recognized (‘‘legal’’) refugees, and unrecognized

6 Rhoda E. Howard-Hassmann

(‘‘illegal’’) refugees, living in various degrees of precariousness in both wealthy and less wealthy countries. Also along the slope are those whose de jure citizenship rights are undermined by de facto restrictions and those whose citizenship is in poverty-stricken and/or undemocratic countries that cannot or will not protect them. Finally, vulnerable social categories such as minority ethnic groups, women, children, and persons of minority sexual orientation enjoy fewer citizenship rights than adult heterosexual males. Citizenship is further complicated by the legal statuses of jus soli, or right of the soil, that is, citizenship by virtue of having been born in a particular place, as opposed to jus sangunis, or the right of blood, citizenship by virtue of bloodline or inheritance of a parent’s citizenship status. In countries like Canada and the United States, citizenship is granted by jus soli; you are a citizen if you are born within the country’s territory. In other countries, such as Germany, as Thomas Faist discusses in Chapter 12, citizenship is by jus sanguinis; until recently, you could not be a German citizen if your parents were not citizens, even if you were born in the country. Discriminatory citizenship criteria, or criteria used to deprive categories of people of citizenship, abound. ‘‘Race,’’ so called, is a common basis of exclusion. In the early postindependence period, Sierra Leone used racially based jus sanguinis laws and decrees to expel ethnic Lebanese, and Uganda deprived ethnic Asians of citizenship.13 Ugandan Asians were effectively rendered stateless when their passports were confiscated by the Idi Amin government.14 Along with race, ethnicity is a common basis of discrimination, as Helen O’Nions illustrates in Chapter 9 with regard to the ten to fifteen million European Roma. Even though most Roma are citizens of one or another member state of the European Union, often their state of citizenship does not protect them, while their state of residence tries to expel them. The post-Communist Czech Republic tried to deny citizenship to about 25,000 Roma, of whom perhaps half had actually been born in the Czech part of the former Czechoslovakia and the rest in the Slovak part. Similarly, in post-Communist Slovenia, some 18,305 residents—even some born in Slovenian territory—were ‘‘erased’’ from the public record and deprived of all rights, ostensibly because they were not of Slovenian ethnic ancestry; about 2,000 were thought to be Roma.15 Eventually, this rule was reversed under pressure from the EU. The situation of the Roma is so precarious that, as O’Nions notes, in 2002, the EU Network of Independent Experts on Fundamental Rights referred to them as living in an ‘‘apartheid situation.’’

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Indeed, it seems that a minority ethnic group without an ethnically based state to protect it is always in a precarious position, as Rohingya refugees have discovered in Asia. As Uddin explains, during British rule of South Asia, Muslim Rohingya migrated from what later became Bangladesh to what later became Burma (Myanmar), living in a region inhabited mostly by Buddhists. In 1982 the Burmese government denied them citizenship as a collective ethnic group.16 Since then many hundreds of thousands have fled to Bangladesh, where only a very few, perhaps 28,000, are protected in camps run by the Office of the UN High Commissioner for Refugees. The rest live precariously among the citizens of Bangladesh, competing with them for extremely scarce land and jobs. Drawing on fieldwork he conducted from 2008 to 2012, Uddin describes the often uneasy relationship between the Rohingya and their hosts, the latter often accusing the Rohingya of stealing their resources or being terrorists. Meantime, the ‘‘reforming’’ Burmese president Thein Sein was attempting to ‘‘resettle’’ almost a million Rohingya abroad, a policy that actually meant mass deportation.17 As one of Uddin’s Rohingya informants put it, ‘‘We are the people who belong to no state.’’ Gender is a common basis for citizenship discrimination. Article 9.1 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) mandates that ‘‘States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband.’’ Nevertheless, women in some countries can still lose their citizenship when they marry or divorce. A foreign-born woman who had obtained citizenship in Saudi Arabia through marriage, for example, could lose that citizenship if she is divorced but retains her original citizenship.18 Women are also at risk when ‘‘indigenous’’ or ‘‘customary’’ law is constitutionally entrenched and citizenship rights become patrilineal; in the early 1990s, South African women fought to ensure that their new democratic constitution did not permit this custom.19 In the early 2000s, some African countries still required women to provide written evidence of their spouse’s consent before they could acquire documents attesting to their nationality.20 Women can also suffer discrimination in passing their citizenship to their children: thus the African jurist Unity Dow fought and won a case against the government of Botswana when she was told she could not pass

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her Botswanan citizenship to her children, as their father was American.21 Until fairly recently, it was common for children to have rights only to their father’s, not their mother’s, citizenship; thus, there are older ‘‘lost Canadians’’ who live in Canada but never acquired citizenship because they were born to mothers, but not fathers, who were Canadian or who were born abroad out of wedlock to Canadian fathers.22 On the other hand, somewhat ironically, the incidence of dual (or even triple) citizenship has increased owing to elimination of discrimination against women. Since women as well as men can now pass their citizenship to their children, a child might have jus soli citizenship rights in the country in which he is born, as well as two sets of jus sanguinis citizenship rights inherited from parents of differing citizenship.23 Citizenship rights are very complicated in the case of same-sex relationships. A few countries recognize same-sex marriages and therefore afford immigration rights to the noncitizen partners of gay or lesbian citizens, but most countries do not. The 2013 decision by the U.S. Supreme Court to overturn the ironically named Defense of Marriage Act (1996), which did not recognize same-sex marriages, opened the door to approximately 36,000 people to apply for permanent residence and eventual U.S. citizenship, as same-sex spouses of American citizens.24 Children of gay and lesbian parents suffer disadvantages as a consequence of lack of legal recognition of parents’ partnerships, lack of genetic connection to one or both parents, and other such complications that have not been fully remedied even in countries such as Canada that recognize same-sex marriages. Article 7.1 of the Convention on the Rights of the Child (CRC) states that ‘‘The child shall be registered immediately after birth and shall have . . . the right to acquire a nationality’’ (italics mine). Significantly, this does not say the child actually has the right to have a nationality, as this might oblige countries that grant citizenship under the principle of jus sanguinis to give citizenship to children born in their territory whose parents are not citizens; this would be considered an infringement on state sovereignty, as the drafters of the UDHR recognized. Even if children have acquired a nationality, however, their right to the family is at risk if their parents’ nationality is different from theirs. In countries where jus soli prevails, as in the United States or Canada, children born within the national territory are citizens even if their parents are not. However, if the parents do not have legal citizenship or immigration status, they can be deported; this means either leaving their children in the care of others or taking them

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with them outside the children’s country of citizenship. This is constructive deportation; while the children are not legally deported, in effect, they usually accompany their parents.25 These matters can be further complicated if the countries to which the children are deported do not recognize jus sanguinis, so that the children are not citizens of their new countries of residence. As Bhabha and Matache explain in Chapter 8, children are often deprived of their economic, social, and cultural rights as well, especially if they are members of minorities that suffer discrimination. Thus, Bhabha and Matache argue, children’s citizenship rights are not only slippery but also slimy. Children suffer frequently from lack of birth registration or of documents that prove they are citizens. Aboriginal children in Australia often lack birth certificates; while registration of their birth is free of charge, there is a fee for the birth certificate, and there are often bureaucratic hurdles that Aboriginal parents find difficult to overcome, such as production of several certificates of identity.26 In 2008 the UN-sponsored Commission on Legal Empowerment estimated that four billion people lacked the protection of the rule of law, in large part because they lacked proper documents.27 Thus, the ambiguous effect of a documented world: if ‘‘you are what you carry,’’ then, without identification, you are nothing. Yet, as Ramachandran demonstrates, acquisition of documentation can be a double-edged sword. She discusses the Unique Identification Authority of India (UIDAI), a project to register every citizen of India using not only documents but also biometric identification such as iris scans. The ostensible purpose of this program is to make sure that all Indian citizens receive the benefits to which they are entitled, rather than the current situation in which many rural residents and urban poor have no documents to allow them to access benefits such as schooling. On the other hand, extensive coordinated databases will make it easier to deport irregular migrants and others in India judged not to be citizens. This will particularly affect irregular (and Muslim) migrants from Bangladesh and possibly even poorer communities of Indians—especially Indian Muslims—who have never registered for any official documents. Rising Hindu nationalism has combined with extensive fear of Muslim extremism, especially after the Mumbai terrorist attacks in 2008. Enforcement of border controls against Bangladeshi migrants used to be fairly lax, but, as citizenship in India becomes tied to more material benefits, the desire to make sure Bangladeshis do not take advantage of India’s generosity increases.

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Migrants and Rightlessness The UDHR protects mobility rights in Article 13: ‘‘1. Everyone has the right to freedom of movement and residence within the borders of each State. 2. Everyone has the right to leave any country, including his own, and to return to his country’’; yet migrants and other noncitizens do not possess the right to return to their country of residence. The twentieth century initiated formal restriction of interstate mobility via the institution of passports. The passport is a two-edged sword that facilitates the crossing of borders at the same time as it renders surveillance, state control, and restriction over individuals’ movements easier, giving the nation-state a ‘‘monopoly of the legitimate means of movement.’’28 This monopoly was strengthened in the twenty-first century by increasingly sophisticated surveillance over the identities of individuals crossing borders. In this sense, citizenship is an exclusionary device, a means of disciplining populations29 to conform to the requirements of increasingly suspicious and often racist (against Muslims/Arabs) border control agents. Migrants ‘‘find it difficult to have their human rights respected. They are regularly harassed, humiliated, pushed into an economically vulnerable position, prevented from accessing medical care and other social goods, detained and deported.’’30 Yet the UN human rights regime pays little attention to migrants, other than those who are migrant workers. A 1985 declaration of the UN General Assembly spells out the human rights of ‘‘individuals who are not nationals of the county in which they live,’’ but quite explicitly protects the rights of states to control migration31; in any event, this is merely a declaration, without legal force. An estimated 2.6 percent of the world’s population are migrants. Of these, about ten million nontourist migrants gain access to the advanced industrial societies each year, about 90 percent of them legally.32 Just as there are hard and soft citizenship statuses, there are also hard and soft migration statuses. A legally authorized migrant enjoys rights not offered to those who are not so authorized, while individuals who migrate from states where they hold hard citizenship rights enjoy more protection by their state of origin than do individuals who migrate from states where citizenship rights are soft. Social status and social class affect migrants’ rights and futures. Educated, professional, and wealthy individuals are more likely to be legal migrants, well established in their host countries, and more likely than

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uneducated, low-skilled, poor migrants eventually to obtain citizenship. Knowing this, some individuals deliberately acquire professional skills in their home countries that provide them the opportunity to migrate, as Walton-Roberts found was the case for trainee nurses in the Indian state of Kerala.33 Such professional and managerial migrants often acquire dual or even triple citizenship, leading a diasporic lifestyle that both integrates them into their new, wealthier countries and maintains family and other ties— often including financial ties of remittances and investments—in their original homeland, as among highly educated knowledge workers from Asia who migrate to the United States.34 On the other hand, low-skilled, uneducated migrants, often those who lack legal standing in their new countries or who are de facto refugees, often suffer from a ‘‘citizenship gap,’’ with no state willing or able to protect their rights effectively.35 In general, one might argue that there are ‘‘global class position[s],’’ in which white people are full citizens of developed states,36 whereas groups such as Latinos and blacks occupy a much lower class position; hence those many Mexicans who die trying to cross the desert into the United States and those many Africans who drown while traveling from their desperately poor countries to marginally better lives in Europe. Thus, there are two incipient global classes in a rather bimodal migration pattern of those who possess many advantages and those who are severely disadvantaged.37 Nevertheless, while it might be tempting to refer to the migration patterns of members of the advantaged classes as ‘‘postnational’’ citizenship, in the sense that such individuals seem to have transcended their psychological nationalism and become cultural hybrids,38 in fact, it is multi-, not postnational. Even the richest individual is in trouble if he ignores his needs for citizenships, passports, and other documents attesting to his right to exist. In some case these transnational actors have to carefully balance their multiple citizenship accumulation, for fear of disqualifying themselves from the benefits of remaining citizens of their original homeland, rather than becoming citizens of their adopted home. For example, expatriates from India and China must maintain full citizenship to retain property and business rights in their homelands. Even when migrants are authorized to live in their new country, some forms of authorization are so restricted as to leave them, in effect, rightless, as Janet McLaughlin and Jenna Hennebry show in Chapter 11. Tens of thousands of migrant farm workers in Canada are under the authority of employers who sponsor their immigration for periods of up to eight

12 Rhoda E. Howard-Hassmann

months, often year after year after year. These workers cannot bring their families to Canada and are not permitted to leave the particular employer who sponsored them, no matter how abusive he might be. Thus, migrant workers in Canada are in effect unfree labor. Like many migrant-receiving, as opposed to migrant-sending, countries, Canada as of 9 October 2013 had neither signed nor ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. Yet the migrant workers McLaughlin and Hennebry discuss at least possess the advantage of limited legal status in Canada. Completely undocumented workers without any legal status whatsoever can be reported at any time to immigration authorities. ‘‘Illegal,’’ undocumented, or unauthorized migrants are completely without rights except those formally available under international law, but protection of such rights is highly unlikely. Illegal migrants are ‘‘ ‘moral aliens’ who are to be found in the marginal matrix of citizenship.’’39 Refugees are a particular category of migrant who can no longer rely on the protection of their home state, which they have fled. Refugees are officially protected by the states to which they move only if they can prove that, as individuals, they face political persecution in their home countries, although some countries also accept refugees on new grounds such as persecution because of sexual minority status or physical abuse by family members.40 Under the 1951 Convention Relating to the Status of Refugees, an individual found to be escaping economic hardship such as starvation, rather than political persecution, has no grounds for refugee status. Thus China maintains that it is legally justified in sending refugees fleeing starvation back to North Korea,41 and the United States that it is legally justified in sending refugees fleeing extreme poverty back to Haiti. Rejected refugee claimants who are afraid of returning home but have no legal status in their hoped-for country of asylum are among the most abject of the world’s abject subjects,42 often going underground and living on the outer margins of society. Others who would like to claim refugee status are forcibly prevented from entering the sovereign territory of states that have ratified the 1951 Refugee Convention. In a new wave of hardened borders since 9/11, countries such as Australia declare that territorial waters are not part of their own country or that certain islands to which potential claimants are confined are no longer sovereign territory. Potential refugees are confined to this ‘‘carceral archipelago,’’43 where they cannot claim asylum and enjoy the rights to which they are entitled under international refugee law.

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Citizenship, Connection, and Community Ayelet Shachar argues that current citizenship laws constitute a ‘‘birthright lottery’’: some people become citizens of wealthy democratic societies by right of either blood or soil, while others become citizens of much poorer, often nondemocratic societies, and yet others have no citizenship at all. She calls these citizenship rights ‘‘windfall political estates,’’44 often inherited by people who have only tenuous links or none at all to the countries whose citizenship they may have inherited from distant ancestors. She proposes instead a jus nexi right to citizenship, a right of ‘‘connection, union or linkage’’ based on actual rather than nominal ties to a country.45 Shachar’s proposal of jus nexi would help undocumented Hispanic children in the United States, whom she would consider ‘‘stakeholder residents,’’46 those who have an actual stake in the country as a consequence of their almost life-long residence, education, and socialization there. The parents of such children brought them without authorization to the United States at a very young age but were never able to acquire any legal status, let alone citizenship, for them. President Obama’s decision in 2012 to permit some of these undocumented young people to apply for work authorization demonstrated recognition of their ties to the U.S. and the fact that they are socially Americans; this is an example of a positive use of jus nexi.47 Nevertheless, as Hiemstra and Mountz show in Chapter 10, this temporary reprieve for some undocumented child immigrants does not apply to all those who are pejoratively categorized—often in a racialized manner—as ‘‘illegals.’’ At the same time as Obama recognized the need to provide a limited path to authorized permanent residence in the United States for some young migrants, border control policies had been extended a hundred miles into the U.S. interior so that, for example, undocumented immigrants could be arrested on buses in upstate New York. Many U.S. citizens were caught up in racialized targeting of potentially unauthorized residents, partly as a result of suspicion of dark-skinned residents since 9/11. Meantime, justifications for deportation have been vastly expanded in the U.S., allowing it even for minor crimes. A move to base citizenship laws on jus nexi might have the unintended effect of helping governments to institute processes of decitizenship. In 2006, there was much populist outrage in Canada when the government rescued about 14,000 of the estimated 40,000–50,000 Canadian citizens in Lebanon from war with Israel, at a final cost of $Can 94 million. Many

14 Rhoda E. Howard-Hassmann

such populists believed that these rescued individuals were merely ‘‘citizens of convenience,’’ immigrants who had returned to Lebanon as soon as they received their Canadian citizenship. There were rumors that some did not reside or pay taxes in Canada, and that some willingly returned to Lebanon as soon as the war was over.48 Jus nexi could help governments trying to overcome the so-called ‘‘anchor baby’’ problem, in which expectant mothers travel to countries with jus soli so that their babies will become citizens at birth, then take the babies back to the parents’ country. It appears that about 200 anchor babies are born in Canada each year:49 they can return as young adults, attend Canadian universities, and eventually sponsor their parents as immigrants. Similarly, in a practice known as ‘‘astronaut’’ citizenship, some wealthy male immigrants are thought to move to Canada long enough to obtain Canadian citizenship and settle their wife and children in this relatively safe country and then return to work in countries of origin such as Hong Kong (although, if this does occur, it may be because the fathers cannot find jobs in Canada). Jus nexi might also undermine the likelihood of individuals’ acquiring multiple citizenships, as states might decide that an individual acquiring a second nationality is, in effect, declaring his lack of connection to the country of his first nationality. The Dutch government seemed to take this view when it proposed measures in 2012 to make it easier to strip the 850,000 Dutch citizens living abroad of their citizenship if they acquired a second nationality.50 Multiple citizenships might be thought to be the wave of the future, a transnationalism rooted in somewhat outdated legal structures that allows global mobility and the formation of global identities. But multiple citizenships are not necessarily a protection for individuals against human rights abuses. Such protection depends on the hardness of citizenship, which state provides which goods and rights, and which state not only can but will protect the individual if she becomes a migrant, whether legal or illegal. As Rygiel and Walton-Roberts show, transnational citizenships—multiple citizenships and/or partial citizenship rights—are often manipulated to serve state interests. India, they explain, has opened up some property, investment, and travel rights to ‘‘non-resident Indians’’ (NRIs: persons of Indian origin) but, for political reasons, does not extend those rights to people who have ever been citizens of Pakistan or Bangladesh. Its primary purpose in offering partial citizenship rights to NRIs is to encourage them to invest in India. While generally open to migration and generous about

Introduction: The Human Right to Citizenship

15

dual citizenship, Canada proposed legislation in 2012 permitting it to revoke residents’ refugee status should conditions change in the country from which they fled, thus undercutting previous governments’ assumptions that most permanent residents are future citizens, although this provision was eventually removed from the legislation. Possessors of ‘‘hard’’ citizenship, with documents, capable of earning their living in their country or countries of citizenship without discrimination along race, gender, or any other lines, are in the best position, the least likely to slide down citizenship’s slippery slope. Indeed, they possess a ‘‘modern equivalent of feudal privilege—an inherited [or naturalized] status that greatly enhances one’s life chances.’’51 Those who ‘‘own’’ citizenship rights in wealthy democratic states enjoy most of their human rights most of the time; those who own citizenship rights in poor, undemocratic states frequently see their human rights violated. The undocumented, without citizenship papers and without any legal way of earning their living, are in the worst position. Soysal refers to postnational citizenship, which she views as a ‘‘decoupling of rights and identity.’’52 In such postnational space, millions of people enjoy citizenship rights in countries that do not reflect what might be considered their collective ethnic, religious, or cultural identity. But Soysal explains that she conceives of postnationalism as a sociological, not a legal, phenomenon.53 Despite economic, communication, and social globalization, we are not legally in a postnational society. There may well be a ‘‘divergence between population and territory,’’ as Walton-Roberts discovered when studying the relationship between nonresident Indians in the diaspora and the Indian government, but that divergence has not obviated the need to possess the status of citizen in at least one state.54 But while possession of citizenship in more than one country is usually an advantage for the individual concerned, sometimes the ‘‘stickiness’’ of multiple citizenships can act to an individual’s disadvantage, as Audrey Macklin shows in Chapter 14. Macklin documents Canadian, Australian, and British cases in which ‘‘states impute the citizenship of another state onto the subject without regard to the assent of either the individual or the other state’’. Both Canada and Australia have tried to send Jewish refugee claimants to Israel, where they enjoyed the right of return, even if they did not wish to go there and had no ties to that state. Britain denationalized suspected terrorists and then deported them to their states of second citizenship. And Canada refused consular assistance, protection, and passports

16 Rhoda E. Howard-Hassmann

to some Muslim citizens detained—and sometimes tortured, as in the case of Maher Arar—in their countries of second citizenship. In 2012, as Rygiel and Walton-Roberts note, the UN Committee against Torture criticized Canada for complicity in torture of three dual citizens sent to their countries of second citizenship and tortured after 9/11. To return to the warning by Arendt quoted earlier in this chapter, this sovereign right of denationalization (as long as, under international law, the individual is not thereby rendered stateless) is an indication of a trend to ‘‘totalitarian infection.’’ In the arena of citizenship, states are still sovereign. Even when and where it is implemented, the universal human right to a nationality results in particularist and exclusivist citizenship rights; only with such particular and exclusive rights can one enjoy all other human rights. Yet a borderless world might not ameliorate these problems. As Rogers Smith suggests, ‘‘it remains hard to see how a whole range of human needs can be met without some sort of bordered communities.’’55 The sense of community is important, even if it is originally only imagined.56 Over time, a sense of community develops among those who inhabit the same borders, speak the same language, enjoy freedom of movement within the same space, and share the same symbols, however artificial those symbols might originally seem.57 The ‘‘universalistic vision [of human rights] . . . tends to render morally dubious any privileging of citizenship,’’58 yet not to have any particular identities and commitments to others might well result in a kind of impotent cosmopolitan rootlessness. To exercise the freedom and autonomy that is part of what defines the ideal of universal human rights in the modern era is also to choose a community,59 or to remain in the one in which one is born; that is, to have one’s own sense of where one wants to live and with whom one wishes to interact. Yet the option to choose a community is a double-edged sword. Those already within the community often wish to keep out others who do not seem to ‘‘fit.’’ In Germany, ‘‘immigration and the social integration of migrants . . . [raises] the issue of group boundaries around (national) identity.’’60 ‘‘Ethnic’’ Germans now seem comfortable with immigrants from Eastern and Southern Europe and regard them as part of their community. Yet, despite their presence in Germany for more than fifty years, Turkish immigrants are still seen as ‘‘others,’’ especially so exemplified by their Muslim religion, who are unable to accept the German ‘‘guiding culture’’ of liberal social values. On the other hand, as Faist explains, Germany

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liberalized its citizenship law in 2000 to include a limited jus soli under which children with at least one parent who had lived legally in Germany for six years could obtain citizenship at birth; naturalization to German citizenship has also been eased. Thus, there has been a partial decoupling of ethnicity/identity and German citizenship. Dual citizenship is also easier to obtain or maintain, and ‘‘nested citizenship’’ in the EU permits some rights of residence and some protections of social rights to non-German EU citizens (though, as O’Nions notes, Roma who are EU citizens do not seem to enjoy their human rights anywhere, including in their own state of citizenship). In Faist’s view, the increasing importance of human rights protections for everyone within a state means that Arendt’s dictum that only state citizenship can guarantee human rights is now obsolete. This may be the case for liberal democracies, but is not for many developing countries such as Myanmar, Bangladesh, India, or many African countries, where legal citizenship is becoming more important and exclusivist as entitlements to social and economic rights are realizable. Indeed, in 2013 the Constitutional Tribunal of the Dominican Republic issued a ruling depriving Dominicanborn persons of Haitian descent of their Dominican citizenship, instructing officials to identify such individuals born as long ago as 1929; the ruling could render tens of thousands stateless.61 Moreover, as Hiemstra and Mountz show, not only declining social resources (or the perception that such limited resources should not be made available to foreigners) but also increasing worries about national security undermine the legal principle that noncitizens are entitled to human rights. So citizenship is slippery, even though, legally speaking, you are a citizen or you are not, either a legally authorized migrant or an unauthorized one. Citizenship rights can vary by ‘‘race,’’ ethnicity, gender, sexual orientation, stage of life, or social status. You can have one, several, or no citizenships depending on the laws of the countries where you and your parents were born; you can have hard or soft citizenship, depending on the wealth and power of the country or countries where you are legally a citizen. You may think you are a citizen when you are not; you may not realize the implications of not being a citizen, and it may not be in the government’s interests to inform you of them. You may be forced by political and/or economic circumstance to become an undocumented migrant or worse, a refugee; you may even be denationalized because of your individual actions or your group membership. And it is much easier to slide down the slippery slope

18 Rhoda E. Howard-Hassmann

of citizenship rights than to climb back up again. War, civil war, natural catastrophe, poverty, marriage, travel, work: all may send you sliding down the slope. The chapters in this collection illustrate the ongoing tension between rights and citizenship and how slipperiness is increasingly evident in both citizenship practice and law.

PA R T I

The Legal Context

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Chapter 1

Human Rights of Noncitizens David Weissbrodt

Over two hundred million individuals—3 percent of the world’s population—currently reside in a country other than the one in which they were born.1 They include migrant workers, that is, individuals who are engaged in a remunerated activity in a state of which they are not a national, as defined in the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW), art. 2(1). Noncitizens also include refugees, asylum seekers, and immigrants who have entered a new country for reasons of family reunification.2 There are also ‘‘non-immigrants,’’ that is, individuals who enter the country without the intent to remain on a permanent basis. Examples of nonimmigrants include foreign workers who have temporary permission to remain, foreign students, business visitors, tourists, and unsuccessful asylum seekers. There are also about twelve million stateless persons— individuals who either never acquired citizenship of the country of their birth or lost their citizenship and have no claim to that of another state.3 This chapter describes the rights that have been extended to noncitizens through international instruments and the problems that plague persons whose citizenship is slippery despite these protections.4

Synthesis of the Rights of Noncitizens The architecture of international human rights law is built on the premise that all persons, by virtue of their essential humanity, should enjoy all

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human rights.5 Accordingly, international human rights law generally requires the equal treatment of citizens and noncitizens.6 Exceptions may be made to this general principle only if they serve a legitimate state objective7 and are proportional to the achievement of that objective.8 With regard to civil and political rights, the Human Rights Committee —which is responsible for monitoring the implementation of the International Covenant on Civil and Political Rights (ICCPR)—explained in its General Comment 15 (11 April 1986) that almost all rights protected by the Covenant must be guaranteed without discrimination between citizens and noncitizens. Among these rights are freedom from arbitrary killing and detention; freedom from torture or cruel, inhuman, or degrading treatment or punishment; equality before courts and tribunals; and freedom of thought, conscience, and religion. Furthermore, General Comment 15 asserts that noncitizens should have the right to marry, to receive protection as minors, and to engage in peaceful association and assembly. The ICCPR (arts. 12, 25) contains a narrow exception to the general principle of equality for noncitizens with respect to two categories of rights—political rights that are explicitly guaranteed to citizens, such as the right to vote, and freedom of movement, such as the right to choose one’s place of residence, which may be denied to undocumented immigrants. The International Covenant on Economic, Social and Cultural Rights (ICESCR) establishes that states shall, in general, protect the rights of all individuals—regardless of citizenship—to work; just and favorable working conditions; an adequate standard of living; good health; education; and other economic, social, and cultural rights. Article 2(3) allows developing countries, ‘‘with due regard to human rights and their national economy,’’ to ‘‘determine to what extent they would guarantee the economic rights recognized in the [ICESCR] to non-nationals’’ (emphasis added). This exception may be made only with respect to economic rights and not to social and cultural rights.9 Furthermore, like all exceptions, those provisos must be narrowly construed so as to maintain the overall thrust of the human rights protections.10 While the ICESCR stipulates that all individuals are entitled to its enumerated rights, the Committee on Economic, Social and Cultural Rights stated in a 2007 General Comment that, when protecting the right to social security, states should give special attention to individuals and groups who traditionally face difficulties in exercising this right, in particular, women, the unemployed, workers not adequately protected by social security,

Human Rights of Noncitizens 23

persons working in the informal economy, sick or injured workers, people with disabilities, older persons, children and adult dependents, domestic workers, homeworkers, minority groups, refugees, asylum seekers, internally displaced persons, returnees, prisoners, and detainees.11 The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), which entered into force in 1987 and has been ratified by 147 countries, requires states to ensure that torture does not occur within their borders and prevents the refoulement (forcible return to a home state) of any person, regardless of citizenship or legality of presence in the host state, to a country where there are substantial grounds for believing that the person would be in danger of being subjected to torture. The Committee against Torture noted that, while some statistics have been provided by states parties, in some countries there is a lack of comprehensive and disaggregated data on complaints, investigations, prosecutions, and/or convictions in cases of torture, trafficking, and asylum seekers.12 Under Article 1(3) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) states may not discriminate against persons of any particular nationality. The Committee on the Elimination of Racial Discrimination (CERD), tasked with monitoring the implementation of this convention, has indicated that states may draw distinctions between citizens and noncitizens as long as such distinctions do not have the effect of limiting noncitizens’ enjoyment of rights enshrined in other instruments, such as the UDHR, ICCPR, and ICESCR, and as long as all noncitizens are treated equally (General Recommendation XI, 19 March 1993). CERD has also determined that differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation are inconsistent with the objectives and purposes of the convention; are not proportional to the achievement of those objectives and purposes; or do not fall within the scope of article 1(4) of the Convention relating to special measures, that is, what is popularly known as ‘‘affirmative action’’ (General Recommendation XIV, no. 8 para. 2). In 2004, CERD formulated General Recommendation 30 to further elaborate on state responsibility and comprehensively address five areas of significant implications for the rights of nonnationals: protection against hate speech; access to citizenship; administration of justice; expulsion and deportation; and economic, social, and cultural rights.13 For instance, with regard to access to citizenship, the Committee urged states to consider

24 David Weissbrodt

seriously the impact of the denial of citizenship for long-term or permanent residents, which, in the committee’s view, creates ‘‘disadvantage . . . in access to employment and social benefits, in violation of the Convention’s anti-discrimination principles’’ (para. 14). Challenges to the administration of justice that the Committee required states to mitigate include lack of effective legal remedies to punish racial violence directed at nonnationals, as well as arbitrary arrests and detentions (paras. 18, 19). More important, in relation to terrorism-related arrests of nonnationals, states should ensure they are ‘‘properly protected by domestic law that complies with international human rights, refugee and humanitarian law’’ (para. 20). Collective deportation of non-nationals has been held to be prima facie discriminatory,14 and CERD, therefore, obliged states to ‘‘ensure that noncitizens are not subject to collective expulsion in particular in situations where there are insufficient guarantees that the personal circumstances of each of the persons concerned have been taken into account’’ (General Recommendation XXX, para. 26).15 The committee specifically seeks the protection of long-term residents, whose expulsion will bear negatively on their right to family life (para. 28).16 The committee also requires that states remove structural barriers to enjoyment of economic, social, and cultural rights by nonnationals, specifically in, ‘‘education, housing, employment and health’’ (para. 29). There is a strong emphasis on the right to culture in the Recommendation, with states being required to ‘‘Take . . . necessary measures to prevent practices that deny noncitizens their cultural identity,’’ including the requirement that names be changed in order to acquire citizenship or legal recognition (para. 37). There are several major treaties specifically protecting the rights of migrant workers, including the International Convention on the Protection of All Migrant Workers and Members of Their Families (ICRMW), which came into force in July 2003 and protects all migrant workers and their families regardless of their legal status. Nonetheless, the rights granted to documented and undocumented migrant workers are not identical. The ICRMW provides for the following list of rights and liberties for all migrant workers and their families, regardless of immigration status: nondiscrimination (art. 7); freedom to leave any country and to enter their country of origin (art. 8); the right to life (art. 9); freedom from torture and ill-treatment (art. 10); freedom from slavery or forced labor (art 11); freedom of thought, conscience, and religion (art. 12); freedom of opinion and expression (art. 13); freedom from arbitrary or unlawful interference

Human Rights of Noncitizens 25

with privacy, family, home, correspondence, or other communications (art. 14); property rights (art. 15); liberty and security of person (art. 16); the right of migrants deprived of their liberty to be treated with humanity (art. 17); a fair and public hearing by a competent, independent, and impartial tribunal (art. 18); prohibition of retroactive application of criminal laws (art. 19); no imprisonment for failure to fulfill a contract (art. 20); no destruction of travel or identity documents (art. 21); no expulsion on a collective basis or without fair procedures (art. 22); the right to consular or diplomatic assistance (art. 23); the right to recognition as a person before the law (art. 24); equality of treatment between nationals and migrant workers as to work conditions and pay (art. 25); the right to participate in trade unions (art. 26); equal access to social security (art. 27); the right to emergency medical care (art. 28); the right of a child to a name, birth registration, and nationality (art. 29); and equality of access to public education (art. 30) In addition, states parties must ensure respect for migrants’ cultural identity (art. 31); the right to repatriate earnings, savings, and belongings (art. 32); and the right to information about rights under the ICRMW (art. 33). In an attempt to discourage illegal migration (Preamble, para. 15), the ICRMW provides additional rights to migrant workers who are documented or in a regular situation: the right to freedom of movement in the territory of the state of employment (art. 39); equal access to education, vocational guidance, housing, social and health services, and cultural rights (art. 43, 45); equality of treatment with nationals in respect to protection against dismissal and access to unemployment benefits (art. 54); the right to vote, be elected, and participate in the public affairs of the state of origin (art. 41); and the right to have a family (art. 44). In general, the ICRMW does not create new rights for migrants, but instead reaffirms basic human rights norms found in existing treaties and embodies them in an instrument applicable to migrant workers and their families. The ICRMW takes into account relevant international labor standards such as ILO Conventions nos. 97 (1949) (concerning migration for employment) and 143 (1978) (concerning migrations in abusive conditions and the promotion of equality of opportunity and treatment of migrant workers), as well as the Slavery Conventions.17 The ICRMW also refers to other instruments, such as the ICESCR, the ICCPR, UNESCO Convention against Discrimination in Education,18 and the Convention on the Rights of the Child (CRC).19

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The practical impact of the ICRMW has been limited by low ratification numbers and a disparity in ratifications between ‘‘sending states’’ (states that primarily send migrants) and ‘‘receiving states’’ (states that primarily receive migrants).20 With St. Vincent and the Grenadines being the most recent ratifying nation (on 29 October 2010), the ICRMW has been ratified by only forty-four countries, most of which are primarily (though not exclusively) states of migrant origin, such as Mexico, Morocco, and the Philippines.21 None of the major migrant-receiving countries, such as the United States, have ratified the ICRMW, leaving the vast majority of the world’s migrants without the Convention’s protection. In at least 144 countries, based on their accession to the Geneva Convention and/or Convention Relating to the Status of Refugees, the standards that govern the treatment of refugees and asylum seekers should be applied without distinction as to nationality.22 Eligibility for asylum should not depend on the ethnic or national origin of applicants.23 Refugees should be entitled to treatment that is at least as favorable as that accorded to citizens in areas such as freedom of religion, access to courts and legal assistance, elementary education, and public assistance, according to the Convention on Refugees. The same Convention states that they should also be accorded treatment no less favorable than that given to noncitizens generally in regard to acquisition of property, access to professions, housing, postsecondary education, and so on. Conditions in refugee shelters and conditions of detention of undocumented immigrants and asylum seekers should meet international standards.24

Freedom of Movement: Freedom of Exit and the Rights to Enter and Leave The right of an individual to leave a nation was first mentioned in the Magna Carta of 121525 and the French De´claration des Droits de l’Homme et du Citoyen of 1789 (Declaration of the Rights of Man and of the Citizen). The 1948 Universal Declaration of Human Rights states that ‘‘everyone has the right to leave any country, including his own.’’ The ICCPR contains almost identical language. An individual may leave his or her home state, only to find that the home state will not allow his or her return. Article 13(2) of the Universal

Human Rights of Noncitizens 27

Declaration, Article 12(4) of the ICCPR, the Fourth Protocol to the European Convention on Human Rights,26 article 22(5) of the American Convention on Human Rights,27 and article 12(2) of the African Charter on Human and Peoples’ Rights28 recognize the right of an individual to return to his or her home state. There is no corresponding right to enter or reside in any nation of which the individual is not a citizen.29 The ability to deny entry to noncitizens is based on the theory of sovereignty. Both Blackstone30 and Vattel31 recognized the right of every nation to exclude noncitizens or to place on their entrance whatever restrictions the nation may want. No general international right to travel between nations exists. The Universal Declaration (art. 13(1)), the ICCPR (art. 12(1)), the Fourth Protocol to the European Convention on Human Rights (art. 2(1)), the American Convention on Human Rights (art. 22(1)), and the African Charter (art. 12(1)) do not guarantee travel between nations, but they do provide certain persons the freedom of movement within a state. For example, the ICCPR grants ‘‘the right to liberty of movement’’ to persons who are ‘‘lawfully within the territory of the state.’’ While an individual has the right to leave any nation, the individual does not have a right to enter another nation. Special travel rights are, however, given to stateless persons and to refugees. (For more detailed information, on this section, see Weissbrodt and Danielson.32)

Common Problems with Regard to the Rights of Noncitizens Despite the existence of such an extensive framework for the protection of noncitizens, as well as the rights to leave and return, there remains a disjuncture between those prescribed rights and the realities that noncitizens must face. There are institutional and endemic problems facing them in many countries. Xenophobia and racism—at times reflected in a country’s legislation—serve to deny noncitizens the rights they are guaranteed by international law, leaving them subject to harassment and abuse by political parties, officials, the media, and society at large.33 It is often the case that noncitizens cannot assert their rights for fear of retribution34 and have no way of participating in the political process35 so as to assure legal protection. As a result, they are left without the effective

28 David Weissbrodt

means to challenge or have remedied violations of their human rights. An example of this phenomenon was the 2008 execution of Mexican national Jose´ Medellı´n by the state of Texas, despite an International Court of Justice (ICJ) decision directing the United States to reexamine such cases, and a directive from President George W. Bush that state courts comply with the ICJ ruling.36 A related example would be the 1998 execution of Angel Francisco Breard of Paraguay by the state of Virginia. The ICJ ruled that Breard should be granted a stay of execution because he had not been notified of his right to contact his consular representatives following his arrest, as stipulated in the Vienna Convention on Consular Relations.37 The U.S. Supreme Court ignored this request, stating that Breard was not at all prejudiced by the supposed violation of his rights under the Vienna Convention.38 Breard was subsequently executed on schedule. Two particularly vulnerable groups of noncitizens are undocumented and irregular migrants.39 Undocumented immigrants are individuals who enter without following the required immigration procedures or who enter as ‘‘non-immigrants’’ and then remain beyond the limits of their permission to remain. Irregular migrants are smuggled or trafficked into the country or otherwise enter through irregular means. Undocumented immigrants may live under substandard conditions. They also face raids on homes and workplaces, as well as interrogations in which they may be subjected to abuse, inhumane or degrading treatment, and violations of their right to privacy. Their encounters with the police may not be noticed because they have no relatives close by to raise questions about their detention or even death. Even when they suffer violations of their human rights, they may not seek judicial remedies because they fear deportation (para 3). If they can find work, they are often employed in the informal economy, in which their employers exploit their fear of being reported to the authorities and may subject them to conditions that resemble slavery.40 Without documentation, they also cannot obtain basic government services like health care and education. Persons who emigrate through irregular channels, including but not limited to smuggling and trafficking networks, risk dying of suffocation in containers or drowning when an overloaded ship sinks (para 4). There have been cases where sexual favors have been demanded of trafficked women in order to let them continue on their way, as well as cases of rape (para 4). Where they are intercepted by the authorities, irregular migrants are vulnerable to excessive use of force and cruel or degrading treatment and are at times accused of being

Human Rights of Noncitizens 29

smugglers and traffickers themselves. Unfortunately, countries of origin are often unwilling to acknowledge the nationality of their citizens who have been trafficked and then try to return home; as a result, they also refuse to represent such trafficked persons or act on their behalf.41 It is also a common practice in many countries for victims of trafficking who have been ‘‘rescued’’ to be ‘‘detained’’ in public or private shelters. Detention generally and most problematically involves restraint in closed facilities, but, in some (European) countries, the restraint limits the freedom of individuals to a lesser extent. Although this detention is sometimes prompted by concerns for the well-being of the victim, it can last for months or even years, long after the victim wishes to leave. While there is a national standard for fair treatment of detainees set in place by the Department of Homeland Security-U.S. Immigration and Customs Enforcement, many immigration attorneys have noted that even the most minimal standards are often not met.42 According to a report by the Social Science Research Network, routine detention of victims or suspected victims of trafficking into public or private shelters violates a number of fundamental principles of international law and should, therefore, be considered prima facie unlawful.43 This situation has worsened since 2001, as several countries have invoked antiterrorism measures to justify indefinite detention or otherwise violate the rights of noncitizens, on the basis of unspecified allegations related to terrorism or national security.44 The government of the United States detained and summarily deported thousands of immigrants and nonimmigrants from certain Middle Eastern and Asian nations. Detainees often have little legal recourse, as state officials are able to invoke the doctrine of qualified immunity to avoid a lawsuit.45 Another area of concern in the post-2001 landscape is the use of secret evidence in immigration hearings. Although the U.S. government has presented such evidence for over fifty years, the practice has been subject to greater scrutiny in the wake of the attack of September 11, 2001. Also, when faced with a lawsuit for a violation of civil rights, the government has been able successfully to invoke the ‘‘state secrets doctrine’’ as a shield to get the lawsuit dismissed: ‘‘even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.’’46 For example, foreign nationals who were abducted, flown to other countries, and tortured by the CIA were not able to sue the company who organized the flights because there were state secrets involved.47

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Where noncitizens face expulsion orders, they are frequently denied the right to challenge those orders in court.48 They may also be faced with refoulement49 —expulsion to countries of origin where they may be subjected to persecution or abuse.50

Conclusion In theory, human rights of noncitizens and those persons with slippery citizenship are expanding. An increasing number of states have ratified human rights agreements that do not distinguish between citizens and noncitizens. Human rights conventions and committees charged with monitoring and encouraging compliance with these agreements have generally interpreted them broadly, offering (or at least urging) increased protection for noncitizens. Also, courts in several countries have applied international human rights laws to particular categories of noncitizens, such as asylum seekers. Serious obstacles to the universal and indivisible application of human rights, however, remain. Noncitizens in various parts of the world are subject to discrimination, physical and emotional abuse, arbitrary detention, and limited access to justice, among other human rights violations. And even in those countries where court decisions or other official pronouncements purport to offer increased human rights protections to noncitizens, it remains to be seen whether such protections ‘‘on the books’’ are translated into actual improvements in the lives of noncitizens. Accordingly, although international human rights law offers needed protection for noncitizens, much remains to be done to narrow the gap between the goal and the reality of human rights protection. Such narrowing requires better detection and enforcement mechanisms to ensure that all states parties to human rights treaties abide by these treaties. Further, human rights activists must continue to work toward dismantling normative prejudices that animate domestic immigration laws and policies. As state borders become increasingly porous, international human rights law must find ways not only to establish legal principles that recognize the realities of current emigration and immigration trends but also to ensure the implementation of such principles in order to better protect the growing population of persons whose citizenship is slippery.

Chapter 2

Statelessness: A Matter of Human Rights Kristy A. Belton

Statelessness is a human rights problem that most people do not know exists. To be stateless means that a person is not recognized as a citizen1 of any state. Approximately 12 million people are stateless globally, yet ‘‘statelessness is one of the most neglected areas of the global human rights agenda.’’2 While statelessness is a clear violation of the right to a nationality, as stated in the Universal Declaration of Human Rights (art. 15), this chapter shows that its repercussions reach far beyond lack of a legal bond to a state. Statelessness jeopardizes—or makes slippery—many other rights, freedoms, and protections proclaimed in the Universal Declaration of Human Rights (UDHR). The first section of this chapter defines what it means to be stateless, differentiates the stateless from refugees, and describes the global extent of statelessness. The second section explains the principal causes of statelessness, while the third details how other rights in the UDHR are infringed on when one is stateless. The final section concludes with a synopsis of UN efforts to prevent and reduce statelessness when the human right to a nationality cannot be enforced.

Concepts and Prevalence The term ‘‘stateless’’ is itself slippery as it is used in many different contexts and applied to diverse people, not all of whom are stateless from an international legal perspective. Some authors use the term to refer to people who

32 Kristy A. Belton

evade or threaten the state, while others use it to describe people who seek a state of their own. In more recent climate change talks, ‘‘stateless’’ has been used to refer to those who might lose the physical territory of their state. This chapter uses the term ‘‘stateless’’ to refer to an individual who does not have citizenship anywhere. According to international law, a de jure stateless person is one ‘‘who is not considered as a national by any State under the operation of its law.’’3 A second category of stateless persons includes those who are stateless de facto. De facto stateless people are nationals of some state by law but are not treated as citizens. No agreed upon definition of de facto statelessness exists, however. It is sometimes described as the condition of being unable to prove one’s nationality. In other cases, it is used to refer to a lack of ‘‘effective’’ citizenship, which can refer to a lack of government protection or the inability to enjoy rights. In international policy circles, de facto statelessness is understood to refer to those who are ‘‘outside the country of their nationality who are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country.’’4 While scholars and policymakers alike debate the usefulness of distinguishing between de jure and de facto statelessness,5 the UN Conference on the Elimination or Reduction of Future Statelessness, which drafted the 1961 Convention on the Reduction of Statelessness, recommended that ‘‘persons who are stateless de facto should as far as possible be treated as stateless de jure to enable them to acquire an effective nationality.’’6 The UN Office of the High Commissioner for Refugees (UNHCR), the international body mandated to protect both refugees and stateless persons, has generally followed suit and ‘‘tended to assume that it has a mandate for de facto stateless persons who are not refugees just as much as it has a mandate for de jure stateless persons who are not refugees.’’7 Concerns around statelessness have often surfaced in relation to refugees. Refugees are sometimes considered de facto stateless because they do not enjoy the protection of their state or any of the concomitant rights and freedoms associated with citizenship. Stateless people and refugees are distinct, however. Refugees have a particular international framework of protection and are defined as persons who have a well-founded fear of persecution in their countries of nationality based on certain ascriptive criteria or political beliefs they hold. They flee across an international border to seek safety from such persecution. They are still largely recognized as nationals according to their states’ laws, however, despite their flight. A

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stateless person, on the other hand, is not recognized as a national of any state and does not necessarily cross an international border to escape persecution. In fact, many stateless people grow up in the state where they were born, while others belong to communities that have lived for generations as stateless people. The UNHCR admits, however, that it has a ‘‘tough task determining the true number of stateless people.’’8 This is because most states do not have statelessness status determination procedures to identify who is and who is not de jure stateless. Additionally, many stateless people are hesitant to be identified as such for fear of detention, deportation, or discrimination. Add to these constraints the possibility that ‘‘de jure statelessness is overshadowed by an even greater crisis of de facto statelessness,’’9 and the number of stateless persons may be very high. Although the exact number of stateless persons is unknown, nearly all regions of the world have stateless populations. The UNHCR Statistical Online Population Database (SOPD) has data on just over 3.47 million10 stateless people in 64 states. Although regions like Western Europe and the African Great Lakes contain stateless populations, more stateless people live in Eastern Europe, the Middle East, and South and Southeast Asia than anywhere else. The number of known stateless populations in these latter regions ranges from hundreds of thousands to millions. Among the recognized stateless groups are individuals of Russian descent in Estonia and Latvia, certain national minorities in the Russian Federation, Bidoon in Kuwait,11 Palestinians in Syria and Lebanon, highland tribes in Thailand, Rohingya in Burma, and Lhotshampas in Nepal.12 While most of these stateless populations belong to minority groups, minority status is not the only cause of statelessness.

Causes of Statelessness Statelessness occurs for many reasons, including denationalization policies, gaps in nationality laws, administrative failure or state incapacity, and state dissolution. Sometimes statelessness is the result of citizenship denial—a child is born and refused citizenship, for example, while at other times it is due to citizenship deprivation—a person who holds citizenship is stripped of that status. Statelessness is not, therefore, a condition acquired at a particular age.

34 Kristy A. Belton

When Hannah Arendt,13 a philosopher who was stateless for many years, first wrote about statelessness in the aftermath of World War II, she described people14 who had lost all human rights because they had lost their citizenship. Arendt’s stateless people were denaturalized or denationalized individuals—they became stateless because they were stripped of their citizenship due to their ethnicity or minority status. Today, states retain the right to denationalize their citizens. Depending on the laws of the state concerned, people may be denationalized for converting to another religion, failing to renew their passport, or not adapting to a state’s customs. Denationalization may also occur if a person resides abroad without permission, commits a crime, or engages in an act deemed ‘‘threatening’’ or ‘‘disloyal’’ to the state. Some states denationalize their citizens when they discover that they have acquired citizenship in another state or when they realize that a naturalized citizen has disinvested from the state. Although states retain the right to denationalize their citizens on these and other grounds, international law is clear that denationalization should not be carried out in an arbitrary fashion15 and should not take place unless the person is able to acquire another nationality first.16 Despite the UN position, as in Arendt’s time denationalization sometimes still results from blatant discrimination. In fact, ‘‘Deprivation or denial of nationality based on discriminatory practices, particularly against racial, ethnic or religious minorities . . . is perhaps the most important cause of statelessness worldwide.’’17 From Coˆte d’Ivoire and Cameroon to Zambia and Zimbabwe, people have been turned into ‘‘foreigners’’ in their own country because they are not deemed ‘‘autochthonous’’ to the state.18 Similar cases exist in Europe, where ethnic non-Slovenians were ‘‘erased’’ as citizens shortly after postCommunist Slovenian independence and where Serbs, Roma, and ethnic Albanians were excluded from citizenship in Croatia and Macedonia.19 In Latin America, individuals of Haitian parentage born in the Dominican Republic are allegedly denationalized or denied citizenship because of their race.20 Deprivation and denial of citizenship exhibit a decidedly gendered and discriminatory aspect in the nationality laws of certain states. In some cases, mothers cannot pass on their citizenship to their children as can fathers. For example, the Bahamas, Bahrain, Brunei Darussalam, North and South Korea, Iraq, Jordan, Kuwait, Lebanon, Morocco, Oman, Qatar, Saudi Arabia, Syria, Tunisia and the United Arab Emiratesa permit restrictions on

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the jus sanguinis (citizenship acquired through descent) transmission of nationality to children born of citizen mothers, but not of citizen fathers. That is, in many of these countries, a citizen woman who gives birth to her child while overseas cannot automatically pass on her citizenship to her child. This can result in statelessness when the country where the child is born does not grant automatic citizenship through jus soli (citizenship acquired through birth on a state’s territory) or if the child’s father is stateless. In other cases, the marriage and divorce laws of some states stipulate that a woman will lose her birth citizenship and acquire the citizenship of her husband on marriage. If the marriage dissolves, the woman may be rendered stateless if the state of her former husband’s citizenship no longer recognizes her as a national. Nationality laws may also result in statelessness even if they are not discriminatory. Although states employ a combination of jus soli and jus sanguinis measures when granting citizenship at birth, they qualify these measures in different ways, and this may result in conflicts of nationality laws or gaps in protection.21 For instance, some states permit citizenship acquisition through jus soli as long as one of the parents is a citizen or a legal resident, while others do not have such requirements. In the first case, if neither parent is a citizen and the child is born in a state that requires one parent to be a national, the child is at risk of statelessness if he or she is born to stateless parents or parents who cannot pass on their citizenship automatically due to residency or marriage restrictions from their state of citizenship, or if the parents lack documents proving they are citizens of a particular state. Numerous examples exist of people becoming stateless owing to gaps in nationality laws.22 Nationality laws are not the only areas where potential gaps exist in citizenship acquisition and where someone can slip into statelessness. Statelessness can also result from deliberate administrative failures and state incapacity. In the case of the Dominican Republic, civil registry officers allegedly refuse to provide Dominican citizens of Haitian descent with copies of their birth certificates. Without a birth certificate, a person cannot register for school, open a bank account, get a passport or obtain a ce´dula, the national ID card needed for voting. Many Dominicans of Haitian descent are thus rendered effectively stateless via administrative fiat—they can no longer prove Dominican citizenship.23 In other cases, it is not always possible to register births or provide copies of birth certificates to all who would be recognized as a national under the operation of a given state’s

36 Kristy A. Belton

law, placing them at risk of de facto statelessness. For instance, some states simply do not have the resources to establish civil registries in remote locations. Others have endured serious political and/or environmental events that destroy extant registries. In still other cases, parents fail to register the birth of their child in the appropriate institution or do not have the means to pay for transportation or administrative costs to obtain a certificate. People may also become stateless when their state of citizenship dissolves. The former Yugoslavia, Czechoslovakia, and Union of Soviet Socialist Republics are all states that dissolved. In several of their successor states, certain minority people were denied their right to a nationality; even today, many thousands remain stateless. The UNHCR has official figures on stateless people in Azerbaijan, Belarus, Bosnia and Herzegovina, Estonia, Georgia, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Moldova, Russia, Serbia, Turkmenistan, Tajikistan, and Ukraine. These populations range from 1,741 known stateless people in Azerbaijan to 312,362 in Latvia.24 Regardless of the cause of a person or group’s statelessness or where they are located, however, the effects of statelessness can be troubling.

Human Rights of Stateless Persons Although the contemporary international human rights regime has come a long way since Arendt equated loss of citizenship with the loss of all human rights, many of the rights and freedoms enunciated in the UDHR and human rights conventions continue to be difficult to access, or slippery, when a person does not possess citizenship in any state. Reports issued by various organizations, such as UNHCR, Refugees International, Human Rights Watch, and local nongovernmental organizations, as well as studies by scholars of statelessness, show that statelessness often places people at risk of a wide array of human rights violations. The first and most obvious human right violated when one is stateless is the right to a nationality and not to be arbitrarily deprived of this status (art. 15, UDHR). Eleanor Roosevelt, chair of the Human Rights Commission that drafted the UDHR, considered this right of ‘‘vital importance’’ for the achievement of human rights.25 The UN today continues to assert that the right to a nationality is ‘‘a fundamental aspect of the system for human rights protection’’26 and incorporates this right into several other human rights conventions.27

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Despite recognition of the human right to a nationality, millions continue to be stateless and susceptible to various other rights violations. Article 1 of the UDHR declares that everyone is ‘‘equal in dignity and rights’’ to everyone else, while article 2 asserts that ‘‘Everyone is entitled to all the rights and freedoms set forth in this Declaration’’ regardless of their national origin, ‘‘birth or other status.’’ However, the following overview of potential civil, political, and socioeconomic rights violations shows that ‘‘equality in dignity and rights’’ is often difficult to achieve when one is stateless. Articles 3 and 4 of the UDHR state that all people should be physically secure in their person and without fear of enslavement or indentured servitude, yet numerous reports exist of forced labor, and even enslavement, among stateless people.28 Stateless women and children are especially susceptible to trafficking for sex and nonsex work alike.29 Article 5, which prohibits torture and cruel, inhuman, and degrading punishment, is also sometimes violated. The government of Kuwait, for example, allegedly tortured those repatriated Bidoon who had attempted to seek refuge elsewhere,30 while the Syrian government purportedly tortured stateless Kurds31 who attempted to demonstrate for their recognition and rights within Syria.32 According to some reports, some Rohingya in Burma have been tortured and raped,33 while, in a well-publicized example of cruel, inhuman, and degrading punishment, the government of Thailand in 2009 forcibly expelled Burmese Rohingya from its territory and into international waters with insufficient food, water, or other supplies.34 Although ‘‘Everyone has the right to recognition everywhere as a person before the law’’ (UDHR, art. 6), it is precisely lack of such recognition that generates many of the problems the stateless face. Without legal recognition, it is very difficult to make claims to property, open a bank account, obtain credit, secure social security and other forms of public assistance, acquire marriage licenses and birth certificates, or travel. It is also very difficult to enjoy basic civil rights such as equal protection before the law, a fair and public hearing when charged with a crime, the presumption of innocence until proven guilty, and freedom from arbitrary arrest and detention (arts. 7–11). The Inter-American Court of Human Rights, in Yean and Bosico Children v. the Dominican Republic, for example, found that, among other rights violations, the Dominican government had denied children of Haitian descent equal protection before the law, while the Estonian Ministry of Justice made a similar observation regarding the stateless

38 Kristy A. Belton

in Estonia.35 The stateless are often detained indefinitely without access to family or a lawyer and without being charged or brought before a judge.36 Article 13 of the UDHR declares that ‘‘Everyone has the right to freedom of movement and residence within the borders of each State,’’ yet it is quite difficult for stateless people to move about freely. Thai hill tribes, for instance, are confined to movement within their villages. If they want to work outside their village, they must seek special permission to leave; when they are unable to obtain it, they ‘‘face the risk of arrest’’ when traveling.37 Rohingya in Burma are likewise confined to their villages: ‘‘They need to apply for a travel pass even to visit a neighbouring village—and they have to pay for the pass. Travel is strictly limited to North Arakan.’’38 Stateless Karana in Madagascar,39 Bidoon in the United Arab Emirates and Kuwait, Palestinians in Libya, and other stateless groups face similar limits on their movement.40 Stateless people often find their right to marry infringed on as well (art. 16). They are often unable to obtain marriage licenses or have their marriage recognized by the authorities,41 or, if the marriage is recognized, it is first contingent on the stateless’ renunciation of a right to a nationality.42 Sometimes the right to marry and found a family is indirectly influenced by the nationality laws of a particular state. For example, when the ‘‘rights of citizenship are restricted to the children of male nationals, female citizens are discouraged from marrying men of a distinct race or nationality because their children would be denied citizenship.’’43 Regarding the right to own property and not be arbitrarily deprived of it (art. 17), the stateless are again in a precarious position.44 Some individuals’ property is arbitrarily seized, while others find themselves unable to ‘‘acquire property, register a car or business, or liquidate their investments.’’45 Articles 18–20, which detail the rights to freedom of expression, assembly, and association, are also limited for stateless people. Kurds in Syria used to find it almost impossible to exercise freedom of speech or assembly without the threat of indeterminate detention, and stateless people generally ‘‘cannot organize into unions or enter into collective bargaining with their employers.’’46 Sometimes, when the stateless try to protest against their status, they are mistreated in return. Bidoon were tear-gassed and water-hosed, and a few were even beaten by Kuwaiti authorities for peacefully protesting early in 2012. The fact that the stateless lack a nationality and that their rights to freedom of expression and association are often curtailed makes it difficult

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39

to achieve article 21. This article states that everyone has the right to ‘‘take part’’ in the government of their country indirectly or directly through standing for office and voting. This right simply does not exist for the stateless because they do not have their own state in which to participate. The rights to social security (art. 22), work (art. 23), and an adequate standard of living (art. 25) are also frequently infringed. Some stateless people face difficulties in achieving any form of social security without a legal identity, while others who manage to find work in the formal sector are denied pensions. Regarding the right to work for equal pay under just and favorable conditions like their citizen counterparts, the stateless are typically confined to work in the nonformal sector where rights and protections of workers are generally absent. They are, thus, susceptible to having their pay withheld, being paid in nonmonetary forms, and, as noted earlier, being forced to work without pay. Moreover, the conditions under which they labor are often unsafe. Their employment often falls under the ‘‘3-D’’ designation of jobs—those that are dirty, dangerous, or degrading. Additionally, many states forbid noncitizens from holding certain public sector jobs, such as teachers or medical professionals. Owing to their inability to secure well-paying employment, the stateless often find it difficult to secure an adequate standard of living: ‘‘food, clothing, housing and medical care and necessary social services and the right to security in the event of unemployment’’ (art. 25) are necessities that the stateless do not always enjoy. Reports exist of stateless communities, like the Rohingya, living in camps where they routinely go hungry and face illnesses caused by unclean water and unsanitary living conditions. Medical care, when it is subsidized by the state, is generally not available for the stateless. Many must, consequently, rely on the generosity of private charities and individuals to assist them with their health-related problems, which can range from chronic ailments such as asthma and diarrhea to malnutrition, skin infections, and drug abuse, among other conditions. Lack of citizenship also inhibits the stateless’ ability to enjoy their right to free primary education (art. 26). Several states do not honor their commitment to provide free primary education to all children regardless of their legal or nationality status. Bidoon children in Kuwait and stateless children in Jordan and parts of Malaysia have been denied access to primary school, while others, such as Roma in Serbia, are provided a substandard primary education.47 Moreover, article 26’s assertion that ‘‘Technical and professional education shall be made generally available and higher

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education shall be equally accessible to all on the basis of merit’’ is not always fulfilled. Rohingya face great difficulties in traveling to parts of Burma where tertiary education institutions exist because of a travel ban on their movement, and Dominicans of Haitian descent are often denied access to tertiary education in the Dominican Republic. While the stateless are often ignored, in some cases they are actively discriminated against as a cultural group. Beside the often-cited example of the Rohingyas as a religious minority in Burma and Thailand, the Lhotshampas are a culturally distinct group in Bhutan who often find their right ‘‘freely to participate in the cultural life of the community’’ (art. 27) undermined. A mandatory code of conduct, known as Driglam Mamzha, mandates how the Bhutanese should eat, drink, speak, and dress. It is decidedly biased toward the Ngalop majority culture, and anyone found not abiding by the code may be fined or imprisoned. According to some reports, this policy, along with the banning of Nepali as a medium of instruction in schools, has been particularly hard on the Lhotshampas. Thus, although ‘‘International human rights law applies to stateless persons irrespective of their legal status in the country in which they find themselves,’’48 this section demonstrates how lack of a nationality in any state leads to slippage in an individual’s ability to enjoy many of the other rights promulgated in the UDHR. The international community is aware of this predicament, however, and has made concerted efforts to ameliorate the situation of the stateless.

UN Activity Regarding Statelessness When international concern around statelessness surfaced in the aftermath of World War II, it was primarily tied to refugee protection. UNHCR, the body created for the protection of refugees in 1950, did not acquire its second mandate over stateless persons until more than twenty years later through General Assembly Resolution 3274 [XXIX] of 1974. Since that time, the UNHCR mandate on statelessness has expanded through a series of other resolutions. Prior to the establishment of the agency’s second mandate, however, the UN had already produced two conventions on statelessness. The first was the Convention relating to the Status of Stateless Persons, which delineates the rights and duties of stateless persons in their states of

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residence. It asks signatory states to treat the stateless as well as ‘‘aliens generally in the same circumstances’’ regarding the rights of property, association, gainful employment, housing, and freedom of movement and to treat them as well as nationals regarding artistic and scientific rights, access to the courts, elementary education, public relief, and labor legislation. The Convention on the Reduction of Statelessness followed a few years later and asks signatory states to provide an expedited naturalization procedure to stateless people, to avoid denationalizing a person arbitrarily, and to ensure that an individual has access to another nationality before being denationalized, among other stipulations. Although more than a half a century has passed since these conventions were issued, they are among the most poorly ratified of the UN system. Of the 193 UN member states, as of 2012, 74 (38 percent) were party to the 1954 convention and 46 (24 percent) to the 1961 convention. Although more than 30 states ‘‘pledged to accede, or to take steps to accede, to one or both of the Statelessness Conventions’’ at the Ministerial Meeting on Refugees and Stateless Persons in 2011,49 only four of the 22 (18 percent) that pledged to ratify the 1954 convention had done so and only four of the 32 (13 percent) that pledged to ratify the 1961 convention had done so by 2012. Lack of political will, misinformation, and resource limitations and the jealously guarded sovereign right of states to determine who are the citizens of their polities all play a role in hampering the fulfilment of the human right to a nationality and in garnering more accessions to the statelessness conventions. Additionally, ‘‘No state can be made to give these people citizenship,’’50 as no international or regional body exists to enforce the human right to a nationality, thus making it difficult to apply the relevant laws to the stateless when their rights are infringed upon. While states continue to hesitate to become party to the statelessness conventions, Anto´nio Guterres, UNHCR, believes there has been ‘‘a real breakthrough, a quantum leap . . . in relation to the protection of stateless people’’51 over the last few years. In 2010 and 2011, three international expert meetings were held on statelessness. They addressed de jure and de facto statelessness, statelessness status determination procedures, and the prevention of statelessness, respectively. From this series of meetings and other work, the UNHCR was able to issue three guidelines on statelessness: one on the definition of a stateless person under the 1954 convention,52 another on statelessness status determination procedures,53 and a third on

42 Kristy A. Belton

the rights and status of stateless persons under international law.54 These guidelines are meant to assist a wide array of actors in addressing the needs of the stateless. Additionally, whereas the UNHCR previously admitted that it was ‘‘not doing enough’’ to address statelessness,55 ‘‘The number of UNHCR operations planning statelessness activities more than doubled between 2009 and 2011, from 28 to 60.’’56 The activities carried out by UNHCR teams centered on the agency’s four areas of responsibility, including identification and protection of stateless persons and prevention and reduction of statelessness. As such, the UNHCR has provided technical assistance to states, such as Nepal, Sri Lanka, and Bangladesh, so that their nationality laws may be modified to prevent and reduce statelessness. It has carried out campaigns, conducted workshops and education programs, and provided mobile birth registration units as well.57 The UN as an organization has also become more interested in statelessness with Secretary-General Ban Ki Moon asserting that the UN ‘‘should tackle both the causes and consequences of statelessness as a key priority within the Organization’s broader efforts to strengthen the rule of law.’’58 Statelessness is more than just a matter of law, however: it is a matter of human rights. The Secretary-General realizes this when he adds that ‘‘Enabling stateless persons to acquire a nationality is a foundational step towards legal empowerment to pave the way for their full enjoyment of all civil, political, economic, and social rights.’’59 While legal empowerment is not the only step necessary for the resolution of statelessness globally, the denial or deprivation of nationality jeopardizes a person’s ability to enjoy many of the other rights and freedoms set forth in the UDHR. Stateless people should, therefore, be provided a nationality. Even if lack of political will among states continues to stymie progress in this area, as the UN becomes more engaged in the subject and as human rights and citizenship studies scholars begin to address statelessness more thoroughly, it is unlikely that statelessness will remain a human rights problem that few people know exists.

PA R T I I

Group Statelessness

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Chapter 3

The Palestinian People: Ambiguities of Citizenship Michal Baer

In a 1969 interview for the London Sunday Times, Israeli Prime Minister Golda Meir was quoted as saying, There was no such thing as Palestinians. When was there an independent Palestinian people with a Palestinian state? . . . It was not as though there was a Palestinian people in Palestine considering itself as a Palestinian people and we came and threw them out and took their country from them. They did not exist.1 Her claim is simple—the Palestinian people did not exist, nor did they have a state. This is one of the iconic illustrations of the complexities before us. Meir was not concerned about Palestinians citizenship: rather, she asserted that the Palestinians could not have been forced into exile by the state of Israel. Discussing the Palestinian people in terms of citizenship is a challenge first and foremost because there is no state, no legal entity, that is at present capable of prescribing and conferring ‘‘Palestinian’’ citizenship on anyone. The history of the Palestinian people is fraught with transformations of power and place, characterized by the burden of foreign occupational powers or conflicted internal powers, but emanating from and addressed to one specific geographical location. On the grid of global geography, one can ascertain widening circles of Palestinian constituencies: within the state of

46 Michal Baer

Israel, that is, the state as internationally recognized since the armistice lines (usually referred to as ‘‘the green line’’) of 1949; within the British Mandate-governed Palestine (1922–48), that is, Israel, Gaza and the West Bank; and outside both. Each of these circles houses a different, though interrelated, story of ‘‘citizenship.’’ Consequently, we find several different civic statuses: a questionable citizenship status in Israel, refugee-inhabitant status in refugee camps, potential citizenship status in the Occupied Palestinian Territories (OPT), and exiled refugees/citizens elsewhere. Current political circumstances in and among these localities guarantee that this examination must be the beginning of a much longer (and much needed) conversation regarding the Palestinian people and their variable status in the international landscape. Changes in rule and control over the land of Palestine have been a constant historical theme. A brief overview of such developments in Palestine is crucial for understanding the ruler versus ruled mood and mentality in which we find the Palestinian people today. During the Ottoman rule over Palestine, circa 1515–1917, control was accompanied by self-rule and political participation by the local population. During their Mandate, 1917– 1948, the British granted Palestinian citizenship papers to both Jews and Arabs. While these did not convey ‘‘citizenship’’ in its full sense, they were meant to be a first step toward the independence of the local people. In the late nineteenth century, Jewish influence on Palestine strengthened in the form of immigration, settlements, and a national movement (Zionism). The 1947–1948 war between the Jews and surrounding Arab armies, known to Israelis as the War of Independence but dubbed al-Nakba (catastrophe) by Palestinians, is, to this day, perceived as ‘‘the loss of the homeland, the disintegration of society, the frustration of national aspirations, and the beginning of a hasty process of destruction of their culture.’’2 Finally, the war of 1967, resulting in the Israeli occupation of East Jerusalem, the Gaza Strip, and the West Bank (all three loci of Palestinian populations—the latter two consisting of many al-Nakba refugees), acted as a catalyst for Palestinian nationalism. Importantly, the notion of ‘‘Palestinian citizenship’’ is not foreign to past residents of Palestine, as various rulers employed it for their own political reasons. The British regulated the citizenship of the inhabitants of Palestine in order to meet mandate objectives of future local independence. The Jordanians attempted to create a common citizenship—‘‘Jordanians’’—for residents of both the East Bank and the West Bank, envisioning a broadening of

Figure 3.1. Israel and the Occupied Palestinian Territories. Cartography courtesy of Pam Schaus, Wilfrid Laurier University.

48 Michal Baer

the Transjordan kingdom beyond the Jordan River to the west. The Egyptians, ruling over the Gaza Strip, avoided giving Gazans Egyptian citizenship in order to preserve their local identity as Palestinians in an attempt to support and promote the Palestinian cause. Further complicating understanding of a possible Palestinian citizenship is the fact that, in its occupation of the West Bank and the Gaza Strip, Israel distinguished between Palestinians holding IDs issued by Israel (allowing them to travel, depending on security concerns and other arbitrary military decisions, into Israel and throughout the OPT) and those who did not, in effect creating two classes of residents in the OPT, none of whom are Israeli citizens, some of whom are OPT ‘‘citizens,’’ and some of whom are in effect completely stateless. These and several other aspects of the idea of Palestinian citizenship are the objects of our investigation, from Palestinian refugees outside Israel-Palestine, to Palestinian citizens of Israel, to the Palestinians of the OPT.

Diaspora Discussing the Palestinian ‘‘diaspora’’ raises questions about the cause of the Palestinian dispersal. Suffice it to say that most people in the Palestinian diaspora, or their ancestors before them, did not freely choose to emigrate to whatever location they now inhabit. While international law provides clear legal definitions of refugees and their rights, the legal status and empirical reality of these refugees depend greatly on their geographical location. Palestinian refugee groups are divided by both geographical location and legal status. Those under protection of the United Nations Relief and Works Agency for Palestinian Refugees (UNRWA) are located both in the OPT and in other Arab countries, while others in these locations do not fall under UNRWA’s purview; still others emigrated to the West, that is, Europe, Canada, and the United States.

Arab Countries The League of Arab states adopted the 1965 Casablanca Protocol, according to which ‘‘Palestinian refugees shall be granted full citizenship rights without being naturalized by host Arab states [and] Palestinian refugees shall be granted Refugee Travel Documents (RTD) in order to maintain their refugee status.’’3 In other words, Palestinian refugees were granted rights akin to citizens’ rights without obtaining formal citizenship. This points to

The Palestinian People 49

an understanding that the Palestinian refugees were a common concern and that their situation required attention, while respecting the sovereignty of the individual states. Care of the Palestinian refugees in Jordan, Lebanon, Syria, and the OPT was entrusted in December 1949 to UNRWA, which maintains Palestinian refugee camps in those locations. The services provided by UNRWA cover education, health, relief and social services, microfinance, infrastructure and camp improvement, and emergency programs. UNRWA’s operational definition of Palestinian refugees is ‘‘people whose normal place of residence was Palestine between June 1946 and May 1948, who lost both their homes and means of livelihood as a result of the 1948 Arab-Israeli conflict.’’4 Additionally, UNRWA extends its services to descendants of the original refugees, so, in 1950, ‘‘it was responding to the needs of about 750,000 Palestine refugees. Today, 5 million Palestine refugees are eligible for UNRWA services.’’5 Palestinian refugees who reside outside the geographical scope of UNRWA operations are eligible for assistance from the Office of the UN High Commission for Refugees (UNHCR). Still, the data regarding numbers of Palestinians in refugee camps are dry. Palestinians’ lives are dependent on the functioning of those international organizations that deal with refugees, but, until such time as the refugee issue is resolved, their international legal status is that of refugees, while their de facto status depends on their treatment by their host country. As of 2013, 499,189 refugees lived in nine camps in Syria6 (many of whom fled during the 2011–15 Syrian civil war); 436,154 lived in 12 camps in Lebanon,7 and about 2 million in 10 camps in Jordan.8 Syria passed four laws and decrees between 1957 and 1999 to regulate Palestinian refugee status. These state, first, that Palestinians have the same rights and duties as Syrian citizens, except actual citizenship and political participation. Second, they are granted Palestinian Travel Documents. Third, Syrian travel documents were granted to those who registered with the General Administration for Palestine Arab Refugees and held Syrian provisional identity cards. Finally, in 1999, they were allowed to travel to Lebanon using their identity cards.9 Nevertheless, these refugees still lag behind the host population and live in constant uncertainty regarding their future. The Lebanese government has employed various policies regarding areas of dense Palestinian population so as to ‘‘thin out’’ the concentration of refugees. More than half of the refugees live in UNRWA camps. Despite the Casablanca Protocol, Lebanon treats these refugees as foreigners, limiting their employment, travel, and residency rights.

Figure 3.2. Location of Palestinian Refugee camps 2012 based on United Nations Relief and Works Agency for Palestine Refugees (UNRWA) data. Cartography courtesy of Pam Schaus, Wilfrid Laurier University.

The Palestinian People 51

The history of the treatment of Palestinian refugees by the Jordanian authorities is less straightforward and warrants a more detailed view. During the 1920s and 1930s, some Palestinians migrated to Jordan for economic reasons. Following the 1948 war, approximately 450,000 Palestinian refugees crossed the border into Jordan. At this point, King Abdullah, intending to incorporate the West Bank (‘‘West Bank’’ refers to the West Bank of the Jordan River, that is, that part of mandatory Palestine that remained outside the state of Israel) into the realm, granted citizenship to the Palestinians now under his rule. Nevertheless, Jordanian policies showed clear preference for the economic development and welfare of the earlier, established Jordan on the East Bank. Following the war of 1967, 265,000 Palestinian refugees in the West Bank were further uprooted into Jordan proper. Since both banks of the Jordan River had been under Jordanian rule, these refugees, moving from one bank to the other, did not cross an international border and were referred to as ‘‘displaced persons.’’ This dense concentration of refugees led to the emergence of Palestinian guerrilla organizations, as well as several civil-society institutions. In 1970, once its economy and army had recovered from the war, the Jordanian state moved against these guerillas in bloody battles known as Black September, leading to the expulsion of many Palestinians to Syria and Lebanon. Nevertheless, Jordan is the only Arab country that has granted Palestinians citizenship en masse. The situation in Egypt is unique, as the Palestinian diaspora there is not governed by UNRWA. An estimated 11,600 Palestinian refugees entered Egypt following the 1948 war. Moreover, some Palestinians ‘‘fled to Egypt following the wars of 1948 and 1967 and were put in temporary camps in Egypt before being asked to either leave to Gaza—when possible—or to settle in Egypt,’’10 while others, for socioeconomic reasons, worked and were educated in Egypt but, due to the 1967 war, were unable to return to Gaza. Though fairly assimilated, it is reported that Palestinians’ decent treatment by the Egyptian authorities took a turn for the worse following the 1978 Camp David Peace Accords. Additionally, as of 2003 most Palestinians in Egypt still lived below the poverty line; their residency depended on paying a fee and proving sufficient reason for living in Egypt, such as school, employment, or family ties; and their travel out of the country was conditional and limited.11 Thus, even though the international community does not perceive the Palestinians in Egypt as ‘‘refugees,’’ their Egyptian

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civic status and their rights as members of the Egyptian society are all but defunct. The UNHCR estimates that 43,000 Palestinian refugees lived in Iraq before the 2003 U.S. invasion. By 2010, only 11,544 registered refugees remained, as most Palestinians were Sunni and therefore targeted and killed by militant groups for allegedly supporting Saddam Hussein. Most sought refuge in Syria and Jordan.12 Kuwait was the largest recipient of Palestinian migrants in the Gulf and was reported to have 400,000 Palestinian residents in 1990. Finding mutual benefit as the Palestinians needed a new home and the Gulf countries needed labor, these Palestinians were thought to be the wealthiest in the diaspora. Additionally, though they could not receive citizenship, their mere residency allowed them to prosper from the social-welfare system.13 Following the 1991 Gulf War and as a result of the alliance between Saddam Hussein and Yasser Arafat, most of the Palestinians were expelled from Kuwait.14

The West Many Palestinian professionals, entrepreneurs, and businesspeople facing persecution in their host Arab countries—for example, the military confrontations in Jordan in 1970 and the civil war in Lebanon—migrated to Europe. For the second time in their lives, these refugees sought a country that would grant them rights they had not had for decades. Having arrived from earlier host countries, these refugees are not always listed as Palestinians, and it is difficult to ascertain their exact number. It is, however, estimated that there are around 186,000 Palestinians or people of Palestinian descent residing in Europe. Most live in Germany and the Scandinavian countries, followed by Britain, Spain, France, Greece, and other countries.15 Palestinian migration to the Americas is seen as not directly related to the Nakba but as instigated by family-related chain migration. Sizeable Palestinian communities can be found in Chile, Brazil, Argentina, Uruguay, and Honduras, most of which are Christian. 81,823 U.S. citizens and residents reported their first ancestry to be Palestinian in 2010. Studies have extrapolated, however, that there are 200,000 Palestinians in the United States. Most of the Palestinian migration to the U.S. took place following the war of 1967, though some arrived after 1936 and 1948. Additionally, some arrived from Lebanon following its civil war, and some come for

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study purposes and choose to remain. Those Palestinians who have been naturalized enjoy full citizenship under the law. According to the 2006 Canadian Census 23,975 Canadians define their ethnic origin as either solely or jointly Palestinian.16 The common denominator of all these accounts of the Palestinian diaspora is their original refugee status. Their self-definition as Palestinians seems to point to their acknowledgment of the historical event that placed them, geographically, where they are. Even when granted citizenship, even where rights and benefits are granted by the host country, even in those cases where their status is preferable to that of other Palestinians—at the end of the day, these are all self-identified Palestinians whose current state and status were determined by the Nakba and the absence of a Palestinian state.

Israel-Palestine For those Palestinians who remained within the borders of erstwhile mandatory Palestine, the transition between the British Mandate and the founding of the state of Israel was a cruel initiation into physical displacement and loss of power. It introduced some to a new reality of being a minority in the land of Palestine under Israeli rule and others to being refugees under foreign rule—Egyptian or Jordanian. Following and adopting the 1945 British Defense (Emergency) Regulations, Israel instituted military administration over areas in which the Palestinians were a majority. This situation not only separated the Palestinian Citizens of Israel (PCI) geographically from other citizens of the state, it also severed their connections with Palestinians living outside the state. Military rule was lifted in 1966, at which point the PCI became ‘‘regular citizens,’’ placing them in a new political and social situation that had, and still has, tremendous implications for their status, power, and influence— never equal to that of the Jewish population—within the state of Israel. Although formally equal and supposedly allowed access to residence and employment in the entire territory of Israel, the PCI were, and still mostly are, spatially constrained to their home villages and towns. In contrast, Palestinians under Jordanian or Egyptian rule were either refugees from areas within the newly founded state of Israel or people who had remained in these territories throughout the 1948 war. Annexed onto

54 Michal Baer

Jordan, the West Bank was now populated by both prewar Palestinians and newly arrived refugees. The Jordanian approach to this population resembled its approach to any other population that would contribute to ‘‘Jordanization.’’ The fate of those in the Gaza Strip at the end of the 1948 war was different. Though under Egyptian rule, the area was never officially annexed to Egypt; consequently, the inhabitants’ refugee status and sense of temporariness were greatly exacerbated. Fearing a Palestinian influx into Egypt, the Egyptians sealed the border (with the exception of opening universities to Palestinians) and the strip quickly became an economic and social disaster. The 1967 war introduced yet additional changes in status for this group.

Within the Green Line Current discourses of citizenship acknowledge the reciprocal connection between individuals and regime types and point to diverse types of citizenship. Only the civic-republican (stressing the obligations end of the political negotiation spectrum) and democratic-liberal (emphasizing individuals and their rights) notions of citizenship continuously appear in Israeli discourse and practice of citizenship. The constant tension between these two discourses positions the Palestinian citizenry in a civic vacuum. Unable to attain their liberal-democratic expectations, though supposedly allowed to have them—in both rights and obligations—their lives are in constant limbo. Palestinian citizens are a national minority in a state that by definition caters to another specific nationality. Israel defines itself as a ‘‘Jewish Democratic state’’: though it provides other religions with considerable freedom, it caters to Jews. Israel’s self-proclaimed democracy, moreover, is complicated by the fact that the Palestinians are affiliated by national and ethnic linkages both to the Palestinians occupied by Israel and to other Arab nations. There is no question that this state of affairs is peculiar to Israel and rests on its specific political, historical, geographical, and regional circumstances. Israeli legal documents show the official discrimination and inequality that characterize the Palestinian reality in Israel. These exemplify the constant tension between the purported liberal-democratic nature of the state and its self-designated responsibilities as the Jewish homeland. This ongoing struggle leads to preferential treatment of the Jewish population, while at the same time attempting to maintain a fac¸ade of equality and democracy. Even though, ‘‘in principle, the Arabs in Israel have the same rights as

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Jewish citizens,’’17 in practice, Israeli legislation is anything but equitable toward its Palestinian citizenry. Moreover, ‘‘[although] Israel declared its commitment to civil-democratic principles, its self-defined character as a Jewish state poses a serious qualification to the state’s democratic nature.’’18 The conjunction of the Jewish and the democratic in defining and prescribing the nature of the state is at the heart of the existential limbo in which the Palestinian population in Israel finds itself. Three main considerations go into Israeli legislation and policymaking: the ‘‘security’’ consideration—viewing the Arabs as a security threat, immediate or potential, to the state of Israel . . . the ‘‘Jewish-Zionist’’ consideration—viewing the state as first and foremost a ‘‘JewishZionist’’ state and even ‘‘the state of the Jewish people,’’ . . . the ‘‘democratic-liberal’’ one—viewing Israel as a democratic state that must see to the welfare of its citizens, including the Arabs, with full equality and without discrimination.19 All three have a bearing on the status of Palestinian citizens. The definition of Israel as a Jewish democratic state is not merely a statement made during its establishment. While this notion is included in the Declaration of Independence, it is explicitly stated in two Basic Laws. The purpose of both Basic Law: Human Dignity and Liberty, of 1992, and Basic Law: Freedom of Occupation, of 1994, is ‘‘[to establish] the values of the State of Israel as a Jewish and democratic state.’’ The state of Israel has created a special normative category—‘‘Jewish and democratic values.’’

The Law of Return The first legislative act by the provisional government of Israel was to abolish the restrictions on immigration set by the British Mandate and to ‘‘define retroactively ‘illegal’ Jewish immigrants as legal residents of the country.’’20 This was a direct consequence of the standard set in the Declaration of Independence for the state of Israel to be ‘‘open to Jewish immigration and the Ingathering of Exiles.’’ This is not surprising, as immigration to Palestine as a ‘‘major strategy of nation building’’ had been a mainstay of the Zionist movement since the nineteenth century.21 This set the tone for the ‘‘demographic struggle’’ between Jews and Palestinians in Israel, which is evident to this day. The law grants the right, to any Jew, anywhere in the world, to come to Israel as an Oleh22 and automatically

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become an Israeli citizen. Not surprisingly, this law has received volumes of criticism both in Israel and abroad for being discriminatory and undemocratic.

Nationality Law In 1952, the Israeli Parliament, the Knesset, passed the Israeli Nationality Law, which specifies ways to acquire Israeli citizenship. The fine line between citizenship, nationality, and religion is crucial in Israel where, until 2002, ‘‘Jewish’’ was marked under the rubric of ‘‘nationality’’ on identification cards.23 To this day, the civil status of citizens is defined by the category of leum24 (nationality) under which all Palestinians are listed as ‘‘Arab’’ and Jews as ‘‘Jewish.’’25 Of the four possible ways to be a citizen listed under article 1 of the Nationality Law—return, residence, birth, and naturalization—the option to become a citizen by return is only open to Jews. Those Palestinians who remained in the territory of Israel after the 1948 war acquired Israeli citizenship based on residence.26 Citizenship by birth is granted to those born to at least one Israeli parent, regardless of place of birth and ‘‘the manner in which the parent acquired Israeli citizenship.’’27 Naturalization in Israel is subject to the discretion of the minister of the interior and is dependent on six prerequisites to be met by the individual applying for citizenship: (1) he is in Israel; (2) he has been in Israel for three years out of five proceeding the day of submission of his application; (3) he is entitled to reside in Israel permanently; (4) he has settled, or intends to settle, in Israel; (5) he has some knowledge of the Hebrew language; and (6) he has renounced his prior nationality or has proved that he will cease to be a foreign national upon becoming an Israel national.28 The requirement to renounce one’s prior nationality is only made of those who are not Jewish. By becoming Israeli citizens, Jews aid in the demographic struggle, and the state rewards them by not requiring that they give up their already existing nationality. Both the Law of Return and the Nationality Law guarantee, to this day, that immigration quotas in Israel are ‘‘exclusively allocated to the Jewish majority community.’’29

Laws of Citizenship and Entry into Israel The demographic issue, which is a leitmotif in these laws and in any policy that deals with citizenship and nationality, along with security, surfaced

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once again in 2003. The focus was family reunification between citizens of Israel and residents of the areas controlled by the Palestinian Authority (PA). A temporary provision overrides all previous legislation on citizenship and naturalization and, in effect, prohibits the granting of Israeli citizenship and residency permits to anyone previously residing in either the ‘‘Judea and Samaria’’ area (that is, the West Bank) or the Gaza Strip.30 This is despite the fact that a right of relocation used to be granted to the Palestinian minority for the purpose only of family reunification.31 This means that those who wish to reunite with their families across the border in Israel proper—PCI who marry Palestinians—cannot do so. The ‘‘temporary provision’’ has been reenacted continuously and, on 11 January 2012, was upheld by Israel’s high court as constitutional.32

Active Participation The Defense Service Law of 1950 is another discriminatory measure passed by Knesset in the guise of a universal law. Establishing a mandatory military draft, the law is indeed neutral with respect to gender and ethnicity and imposes conscription to the army on the entire citizenry of the state of Israel. However, it includes a provision under which the minister of defense can grant exemptions based on his or her own discretion.33 To this day, the Palestinian citizens of Israel have never been drafted into the Israeli Defense Forces (IDF), having been continuously ‘‘exempt’’ from service by discretion of ministers of defense.34 This law results in several detrimental social, political, and economic outcomes. The economic and social benefits acquired during and after one’s military service place those who do not serve at a social and economic disadvantage, both regarding state benefits (housing, education, and such) for veterans and preferential treatment—sometimes even requirements—in employment. And these consequences do, in turn, influence citizenship and citizenship discourse in general.35

The Occupied Palestinian Territories Of all the Palestinians so far discussed, the ones currently residing in the OPT are especially important. They are the ones who, at least in potential, might one day become actual, de facto and de jure Palestinian citizens.

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This, of course, makes their position tragic—their current de facto and de jure situation is as far removed from citizenship as one can imagine. The 1967 war and Israel’s occupation of the Gaza Strip and the West Bank placed all the Palestinians residing within the borders of (previously mandatory) Palestine under Israeli rule. While the residents of the OPT have remained, grosso modo, in two general physical locations (the West Bank and the Gaza Strip), changes in Israeli policies regarding their entrance into Israel, or travel restrictions within and outside the OPT, have varied over the years. Moreover, residing in the OPT has affected the Palestinians deeply, not only making them vulnerable to Israeli military attacks and Jewish settler violence but also resulting in involuntary additional movement and re/displacement. Palestinians under occupation were devoid of self-rule and control for the first two decades after 1967. In 1987, their first attempt to gain independence and end the occupation resulted in an uprising—the first Intifada— that led to what was perceived as the beginning of a real peace process, the Oslo Accords of the 1990s. Oslo may be seen as an interesting hiatus in the historical narrative. Gaining partial authority and control over the OPT in the form of the PA, the Palestinians were, for the first time in their history, granted self-rule. Yet, in retrospect, one can clearly identify even the Oslo Accords as an instance of Israeli (and American) control over the Palestinians: the Accords demarcated Palestinians’ physical space and determined and dictated the type and scope of their political rule. The consequent ‘‘citizenship’’ is thereby elusive and convoluted. Palestinians in the West Bank and the Gaza Strip are themselves divided between those who live in UNRWA-administered refugee camps and those who live in Arab villages and towns. The population of the West Bank is estimated at 2.4 million, of which a quarter, 688,700 individuals, are registered refugees living in 19 refugee camps. The population of the Gaza Strip is estimated at 1.5 million, out of which 1.1 million are registered refugees living in eight refugee camps.36 Following the Oslo Accords, the PA has security and civilian control over many Palestinian areas of the West Bank, while Hamas has control over the Gaza Strip—following a democratic election in 2006 and a violent split with the PA in 2007. It is important to keep in mind the different legal systems to which both these territories were subjected. Following the war of 1948, the West Bank was under Jordanian rule, though upon the decision of the Jordanian military governor it remained ruled by ‘‘laws and legislation that had been

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operative in Palestine . . . to the extent with which they do not contradict the Law on the Defence of the Trans-Jordan of 1935.’’37 This state of affairs continued until 1967, while in the interim the Jordanian Parliament, composed of deputies from both the West and East Banks, saw vigorous legislative activity ‘‘leading to a transformation of the legal system prevalent in the West Bank from the Anglo-Saxon system (the Common Law) into the Latin system.’’ The history of the administration of the Gaza Strip is a different case of rule over the Palestinian people. After the 1948 war, the Gaza Strip was administered by Egypt but not annexed to it, thus rendering it under Egyptian military rule. In 1957, following the establishment of the Legislative Council of Gaza, Egyptian rule became a civil authority. Continuing on the path to independence, in 1962 the Legislative Council appointed its first Palestinian president; this move ‘‘[complemented] the transference of the legal authority from the Egyptians to the Palestinian control.’’38 Following the war of 1967 and the occupation of both the West Bank (including East Jerusalem) and the Gaza Strip by Israel, the administration of both converged. Military order no. 2 of 1967, which initiated the Israeli occupation, made void ‘‘any effective laws in OPT in the event they contradicted military orders issued by the Administration of the Israeli Occupation.’’39 Approximately 2,500 military orders have been issued by Israel in both the West Bank and the Gaza Strip, enabling Israel to have total control over all aspects of life in the OPT. Following the Oslo Accords of 1993, Palestinians living in the OPT were subjected to yet another form of administration and rule—this time, at least in part, their own. The OPT was divided between Area A in which the PA controls both civilian and security issues, Area B in which it has only civilian control, and Area C which remains under exclusive Israeli control. The first decision made by the president of the PA was to reinstate in the West Bank and the Gaza Strip the laws and regulations that were in effect before the 1967 war. By 2000, the Palestinian Legislative Council had issued an estimated 48 laws and 200 other legislative documents that effectively annulled many Israeli military orders. This legislation ‘‘focuses on administrative, regulatory, commercial and financial matters; issues pertaining to lands and services, including health and education; and political issues.’’40 Moreover, the Declaration of Principles signed by the PLO and Israel further divided the Palestinian people, as it only partially included the Palestinians of East Jerusalem, left the refugee problem for later final settlement

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negotiations, ‘‘and completely excluded Palestinians with Israeli citizenship from any PLO/Israeli negotiations.’’41 Palestinians in the OPT are entitled to receive PA passports, but these do not confer citizenship, as citizenship depends on the existence of a state. Thus, these passports are seen as de facto travel documents and nothing more. Be that as it may, although Oslo seemed to herald the beginnings of Palestinian control and self-rule, and although several of these formal/legal tools are still in place, the 2000–2005 second Intifada—with Israel’s reinstatement of its full military control in the West Bank—laid waste to these glimmerings of autonomy. The situation in the Gaza Strip changed yet again when in 2005 Israel completed its ‘‘Gaza Disengagement Plan,’’ dismantling Israeli settlements there, evacuating the settlers to Israel proper, and withdrawing its armed forces. Though officially declaring the end of military government in the Gaza Strip, Israel continued its control of the crossing from Gaza into Israel and the air and sea spaces of the Gaza Strip. Israel also controls the crossing of goods, the population registry, and the tax system, making its own argument of ‘‘disengagement’’ highly suspect. By controlling entry and exit to and from the Gaza Strip of both people and goods by land, air, and sea, Israel in effect decides what basic goods the Gazans can and cannot have access to. While the population registry of both the Gaza Strip and the West Bank was transferred to the Palestinians in 1995, Israel still maintains certain veto powers regarding Palestinians’ residency status and controls movement of Palestinians between the Gaza Strip and the West Bank. Finally, Israel is in charge of the tax system of the Gaza Strip—setting the tax rate and collecting taxes for the PA—thus enabling it to use the money as leverage against the PA.42 In other words, Israel can be considered (and is by several legal authorities) as having ‘‘effective control’’ over the Gaza Strip. This intensified in 2006 after the abduction by Hamas of the Israeli soldier Gilad Shalit and then again in 2007 after Hamas took exclusive control of the strip. In the years following the disengagement, Israel conducted several ground forces operations in the Gaza Strip, resulting in the deaths of more than 1,600 Palestinian civilians. Palestinian self-rule in the Gaza Strip has become, therefore, a convoluted paradox: Palestinians’ ability to travel, work, and even survive is a function of Israeli control. It has been called ‘‘One Big Prison.’’43 An additional issue of utmost significance, now mostly relevant to the West Bank, is that of Israeli settlers. From 1967 to mid-2010, Israel established 121 settlements in the West Bank, 16 settlements in the Gaza Strip

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and a few settler enclaves in the heart of Palestinian neighborhoods in East Jerusalem. The Israeli Interior Ministry defines these as ‘‘communities,’’ and they are under the control of Israeli domestic law.44 This situation is not only morally troubling, it is also illegal under international law. Article 49, section III, of the Fourth Geneva Convention (1949) prohibits an occupying power from transferring and settling citizens from its own territory to occupied territory. The Hague Convention Respecting the Laws and Customs of War on Land, 1910, section III, limits the changes an occupying power may make in an occupied territory to those necessitated by military needs or performed for the benefit of the local population. Thus, the settlements in and of themselves are illegal. The existence of the settlements on Palestinian territory (the OPT has never been officially annexed to Israel) infringes on the Palestinians’ rights of self-determination, equality, property, an adequate standard of living, and freedom of movement, to name a few.45 During all these years of Israeli occupation, even while the PA could occasionally be seen as gaining control and self-rule, the Israeli settlers physically residing in the OPT were not subject to the PA’s authority. The result is that of one territory and two populations divided not just by ethnicity, religion, and nationality but also by legal rule. Article 7 of the 1998 Rome Statute of the International Criminal Court defines ‘‘apartheid’’ as ‘‘inhumane acts . . . committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.’’ One cannot help but see the resemblance between the regime instituted by Israel in the West Bank and this definition. Palestinians residing in the West Bank and the Gaza Strip hold the greatest potential of one day becoming citizens of Palestine. Those who are in Israel, for better or worse, have a (mostly) legally defined civic status, which provides them (again, mostly) with protection, employment, rights, and obligations, but both outright and indirect discrimination. The difficulties facing the creation of a potential Palestinian state that will grant Palestinian citizenship are beyond the scope of this chapter. The Palestinian residents of the OPT will, no doubt, continue to endure much hardship— some of which I have described, some of which has probably not even materialized yet—before they become the first internationally recognized Palestinian citizens.

Chapter 4

State of Stateless People: The Plight of Rohingya Refugees in Bangladesh Nasir Uddin

Though the Universal Declaration of Human Rights (1948) ascertains that ‘‘everyone has the right to a nationality’’ (art. 15(1)), globally there are millions of people who can be defined as noncitizens. These are people who are stateless, not recognized as nationals by any state (see Belton this volume).1 In fact, citizenship is a reciprocal relationship of rights and duties between individuals and states; therefore, stateless people cannot claim any rights from any state. In some cases international human rights law confers equal rights on both citizens and noncitizens.2 However, since many countries do not comply with international conventions such as the International Refugee Convention (1951), the Convention related to Status of Stateless People (1954), and the International Covenant on Civil and Political Rights (1966), the rights of stateless people are not ensured everywhere in the world. Refugees and asylum seekers are also considered as noncitizens in host countries and frequently are also deprived of rights conferred by international human rights law. Therefore, the life of a noncitizen refugee or asylum seeker can become critical, due to the lack of food, water, shelter, education, means of livelihood, medical support, sanitation, and any social, political, and civil rights. Such individuals can become objects of exploitation, oppression, torture, and sexual harassment and are even subject to death due to their statelessness. They are dealt with as if they were less than human beings, on the slippery citizenship spectrum; many

State of Stateless People 63

stateless people have slid almost as far as they possibly can. Stateless people’s condition of vulnerability experienced in everyday life is reproduced by the state’s discourse of noncitizenship. In fact, the framework of modern nation-states produces the legal categories of citizen/noncitizen, which reproduces and confirms the status of statelessness, making some people more vulnerable than others. Lack of citizenship and refugeehood are components of this heuristic notion of slippery citizenship. Margaret WaltonRoberts (in this volume) argues that the ‘‘slipperiness of citizenship is fast becoming the norm for already vulnerable subjects, and in some cases is also generating further vulnerability.’’3 This chapter examines one empirical example of such a context through the plight of a group of stateless people known as the Rohingya. The Rohingyas are an ethnolinguistic and religious minority currently belonging to no state. They have been residents of Myanmar for the last two centuries, but now a large number of them live in Bangladesh and other neighboring countries, as both refugees and illegal migrants. The flight of the Rohingyas from Myanmar to Bangladesh commenced in the late 1970s, but mass migration started in the early 1990s. Oppression, discrimination, and forced labor imposed by the Myanmar authorities triggered an exodus across the border of about 300,000 Rohingya Muslims in 1978 and another 250,000 in 1991/1992.4 Over the years, Rohingyas who moved into Bangladesh were officially repatriated to Myanmar under the supervision of the United Nations High Commissioner for Refugees (UNHCR). However, many repatriated refugees returned to Bangladesh since their situation in Myanmar remained unchanged. They became undocumented migrants and thereby started living as unregistered Rohingyas. A riot in June 2012 between Rakhine Buddhists and Rohingya Muslims in the Rakhine state of Myanmar triggered the influx of about 50,000 Rohingyas to Bangladesh.5 Currently the number of unregistered Rohingyas, living mainly in southeastern Bangladesh, is estimated at 350,000.6 In addition 30,000 Rohingyas are officially recognized as refugees by the Government of Bangladesh (GoB). They live in two official camps—Kutupalong of Ukhia and Nayapara of Teknaf—under the supervision of the UNHCR and with the help of many NGOs.7 Two makeshift camps—Taal in Ukhia and Leda in Teknaf—accommodate about 45,000 unregistered Rohingyas. Unregistered Rohingyas are forced to lead an inhuman life, since they are illicit residents with no status. Therefore, they are largely unemployed, vulnerable to ill health, random exploitation, and abuse. They do not even

Figure 4.1. Location of official and unofficial Rohingya refugee camps in Bangladesh. Cartography courtesy of Pam Schaus, Wilfrid Laurier University.

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enjoy the basic and minimum standard of life to which the registered refugees in the UNHCR camps are entitled. The UNHCR is mandated to protect refugees worldwide, but makes no significant protests against the injustices committed against the unregistered Rohingyas who live outside the camps. Even national media, rights activists, and civil society actors in Bangladesh have been reluctant to raise the Rohingya issue. Local Bangladeshis do not welcome the presence of the Rohingya, since the local communities of Ukhia and Teknaf that host the unregistered Rohingyas are themselves overcrowded and resource poor. Consequently, thousands of self-settled Rohingyas are perceived as a burden and competitors for already scant resources. Their vulnerable position makes them an easy punching bag for unscrupulous local politicians wishing to score political points. They are treated by both locals and state institutions—civil administration, law enforcement agencies, and local government bodies—as illegal migrants, unwelcome outsiders, and socially disordered settlers. This chapter explains the plight of Rohingyas in Bangladesh and details their treatment and lack of access to basic rights, all of which are contrary to the internationally endorsed law of human rights and the individual right to citizenship.

Entering the Field: Methodology This chapter is the outcome of ethnographic research on both Rohingya refugees and unregistered Rohingyas who live in Bangladesh. The data discussed are comprehensive, descriptive, and qualitative in nature. I undertook fieldwork in the communities of Teknaf and Ukhia for a period of ten months—two months each in 2008, 2009, and 2010, three months in 2011, and one month in 2012. Of the many villages cohabited by unregistered Rohingyas and local Bengalis in Teknaf and Ukhia, I selected two, ‘‘Vasan Para’’ (pseudonym) of Teknaf and ‘‘Pasan Para’’ (pseudonym) of Ukhia.8 These two villages often appeared in newspaper reports on violent clashes between Bengalis and Rohingyas.9 Vasan Para has 330 households (population about 1,650), and Pasan Para has 410 households (population about 2,050).10 In Vasan Para, the ratio of Bengalis to Rohingyas is 72 percent to 28 percent, whereas in Pasan Para, the ratio is 69 percent to 31 percent. I conducted unstructured interviews with 100 informants, 40 Bengalis and

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60 Rohingyas of both sexes from each village. I also conducted 20 key informant interviews, 10 with Bengalis, 10 with Rohingyas, and five focus group discussions (FGDs) in each village. In addition, I recorded 30 case studies and documented 20 life histories of both Bengalis and Rohingyas in each village. I also visited the Kutupalong and Nayapara refugee camps and the Taal and Leda makeshift camps many times between 2008 and 2012.

State of the Rohingyas: Traveling Through History The Rohingyas inhabit the northern part of Rakhine State (Arakan) in current-day Myanmar.11 They comprise 25 percent of the state’s total population of 800,000.12 Arakan was an independent kingdom until 1784, when it encompassed the Chittagong region in the southern part of today’s Bangladesh. The Arakanese had their first contact with Muslims in the ninth century, when Arab merchants docked at an Arakan port on their way to China. ‘‘The Rohingyas are [claimed to be] the descendants of [this first group of Muslims] Moorish, Arab and Persian Traders, including Mughal, Turk, Pathan and Bengali soldiers cum migrants, who arrived between the 9th and 15th centuries, married local women, and settled in the region.’’13 The Burmese king Bodawpaya conquered and annexed Arakan in 1784, triggering a long guerrilla war in which the Burmese allegedly killed more than 200,000 Arakanese. A failed attempt was made in 1796 to overthrow Burmese rule, resulting in the exodus of two-thirds of the Muslim Arakanese into the neighboring Chittagong area.14 This marked the start of an influx of Arakanese Muslim refugees into Bengal. When the British incorporated Arakan into its empire in 1885, many refugees returned. For centuries, the Buddhist Rakhine15 and Arakanese Muslims lived together in the territory until World War II. However, the advance of the Japanese army in 1942 sparked both the exodus of thousands of Muslims and the evacuation of the British from Arakan, creating a political void; ‘‘Communal riots between the Rakhine Buddhists and Rohingyas erupted, and some 22,000 Muslims fled to adjoining British Indian territories [now Chittagong].’’16 Shortly after Burma became independent in 1948, some Muslims carried out an armed rebellion, demanding an independent Muslim state within the Union of Burma. Though the rebellion was quashed in 1954, Muslim distrust of the Burmese administration remained, and a backlash ensued that echoes today. For example, ‘‘Muslims were removed and barred

State of Stateless People 67

from civil posts, restrictions on movement were imposed, and property and land were confiscated.’’17 Even so, the Rohingyas, as Muslims, were close to having their separate ethnic identity and autonomy formally recognized in the 1950s under the democratic government of U Nu, but these plans were thwarted by the military coup of General Ne Win in 1962.

Shift of Status: From Statelessness to Refugeehood Since 1962, the history of the Rohingyas has been rife with exploitation, persecution, and discrimination. General Ne Win (1962–1988) and his revolutionary council adopted a policy to suppress and oust the Rohingya Muslims from the country by banning all Rohingya activities and sociocultural organizations. In 1978, he launched ‘‘Operation Dragon’’, which forced 300,000 Rohingyas to enter Bangladesh, causing tremendous economic and political problems. Though most Rohingyas returned to Myanmar in 1979 under an agreement between the two countries, returnee Rohingyas became outsiders, despite living in their homeland. Finally, they were rendered stateless by the Myanmar Citizenship Law of 1982, which conferred the right of citizenship on members of 135 nationalities listed by the government of Myanmar (GoM), which excluded the Rohingyas. Thus we can see how the laws of the modern nation-state are implicated in the condition of Rohingyas today: ‘‘Denial of citizenship is the key mechanism of exclusion, institutionalizing discrimination and arbitrary treatment against this group.’’18 The Rohingyas fled Myanmar for a number of reasons, including atrocious living conditions, forced labor by military junta, unexplainable persecution, confiscation of land and material resources, restrictions on movement that virtually confined them, restrictions on marriage and education, frequent communal riots by Rakhine Buddhists against them, and various other restrictions on their freedom of choice and liberty. The distinction between a refugee fleeing persecution and one seeking a better life does not mean much to the Rohingyas, since both are true.19 Hundreds of thousands of stateless Rohingyas fled brutal oppression in Myanmar and migrated to Bangladesh, the neighboring state, where linguistic (Chittagonian language)20 and religious homogeneity (Islam) exist with the people of the Chittagong region. How many Rohingyas live in Bangladesh is unknown because the exodus has never stopped and new

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arrivals have no access to the refugee camps; therefore, there is no official record of unregistered Rohingyas.

State of Stateless People: The Plight of Rohingyas in Bangladesh The plight of Rohingyas in Bangladesh can be understood by analyzing how the state and host society deal with them. Institutional engagement, at both national and international levels, is also imperative to understanding the condition of Rohingyas in Bangladesh. I will discuss the plight of the Rohingya refugees in Bangladesh in two separate sections: relations with the state and relations with the local people.

Relations with the State In the late 1970s and early 1990s, Bangladesh took every emergency measure to assist Rohingyas entering Bangladesh, to ensure their minimum standard of living. Therefore it can be stated that the ‘‘commitment undertaken by the GoB to assist these refugees, despite the fact that the state was not a signatory to the UN convention, was notable.’’21 Soon after the Rohingyas migrated, four Bangladeshi ministries—Home Affairs, Health and Family Welfare, Foreign Affairs, and Food and Disaster Management—became actively involved in providing their basic human needs and monitoring the refugee situation. Bangladesh established 20 refugee camps for the Rohingyas along the road to Teknaf. While Bangladesh was providing administrative support for monitoring the refugee situation and camp management, UN agencies—UNHCR, WFP, UNICEF, WHO— were providing financial support. The GoB coordinated this massive refugee settlement and gradual repatriation to Myanmar with the help of the UN and UNHCR. The remaining registered Rohingyas live in two official camps in Cox’s Bazar, but their living conditions are little better than those of the unregistered Rohingya.22 Crabtree explains that ‘‘the refugee camps have been ranked among the world’s worst; there have been reports of rape and corporal punishment by the local population, and shelters are shoddily maintained by random pieces of tarp, plastic, and bamboo.’’23 Concern

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regarding the state of these camps is further highlighted by the number of spontaneous and makeshift camps established in Teknaf and Ukhia. Despite the GoB’s efforts to assist the refugees, from the very beginning the Rohingyas were regarded as a burden that created additional pressure on local resources. Therefore, from the beginning, the GoB tried to repatriate them to Myanmar. In fact, ‘‘voluntary repatriation is the only durable solution available to refugee: ruling out the possibility of local integration.’’24 Nevertheless, Rohingyas have gradually become more reluctant to be repatriated because the situation in Rakhine State remains unchanged. Hopes of obtaining citizenship rights in Myanmar have been officially ruled out, and many Rohingya families intend to integrate with the local society either by establishing affinal relations or through bilateral trade and employment agreements. With the help of UNHCR and its partner agencies, the GoB is attempting to secure food and daily essentials only for those who are officially registered in the two camps, thereby leaving huge numbers of unregistered refugees without support. Law enforcement agencies, border security, local government, and civil administration function only to catch unregistered Rohingyas as illegal migrants, who are then subject to detention and forced repatriation, which is aimed at long-settled as well as new migrants, as Lewa explains: unregistered Rohingya refugees have settled among the local population . . . eking out a hand-to-mouth existence without any humanitarian assistance, vulnerable to exploitation and arrest. . . . Bangladesh has generally tolerated their presence, but anti-Rohingya sentiments have steadily grown among the local population, manipulated by the local political elite and the media. . . . In parallel, at the end of 2007, the Bangladesh law enforcement agencies started arresting and pushing back Rohingya across the border to Burma [Myanmar]. Initially, only new arrivals were targeted, but since mid2009, self-settled refugees have also been deported.25 As with the unregistered, the registered refugees also suffer from forced repatriation. There are many examples of resistance against forced repatriation demonstrated by registered refugees in both Kutupalong and Nayapara camps. Sometimes, security forces physically torture refugees in order to force them to cross the border. At Nayapura camp some 12,000 refugees refused food rations provided by the authorities in 1997 as a form of protest

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against forcible repatriation; ‘‘Apparently this was in reaction to earlier incidents in which women and children were allegedly hit with batons and forced into boats by Bangladeshi officials prior to making the Naaf River crossing into Arakan.’’26 Similar resistance was observed in 2004, 2009, and 2011. Even after two decades, Rohingyas are still denied freedom of movement, the right to work, and the right to education, and thus are denied the chance for self-reliance and self-determination. This creates the conditions that drive the Rohingya into marginal activities, as Phiri explains: ‘‘Rohingya refugees of Bangladesh are forced to engage in clandestine activity, working illegally and for low wages.’’27 Many unregistered Rohingyas live in the makeshift camps, in crude huts thrown together with bin liners, sticks, and mud. Sanitation is minimal. Sewage facilities, hugely inadequate in the monsoon season, run alongside the housing. A 2009 survey conducted by MSF found that 40 percent of deaths in this unregistered camps were due to diarrhea.28 I have recorded many cases during my fieldwork where Rohingya children died of diarrhea and malaria due to the lack of healthy sanitation, drinkable water, and limited access to minimum medical facilities. One of my key informants, Johir Uddin29 (54), a Rohingya, explained to me: Since we are considered as illegal residents, we can’t seek help from law enforcing agencies, local administration, government-hospital, and even from UNHCR. We even can’t go to a private clinic for an emergency case as doctors refuse us saying ‘‘you are Rohingyas. You are illegal. You are destroying our lives here. We should not help you survive. You better go back to Myanmar.’’ While we are dying, they are thinking of Rohingya or non-Rohingya. Police, security forces, BGB, para-military and RAB30 quite often raid and arrest to push us back to Myanmar. I was arrested in January 2009 and thrown into the Naf River31 to swim to cross the border. When I refused to do so, BGB personnel kicked me on my hip, and I suddenly fell into the Naf. My elder son was shot dead on the spot there while I was swimming to cross the border. On Myanmar side, Nasaka32 arrested us in a group and tortured in unexplainable ways and again pushed us back to Bangladesh. Swimming hours to cross the Naf and walking three days through the jungle, we again came back to Bangladesh. This is the life we lead. To whom we will complain? To whom we will appeal? To whom we will seek

State of Stateless People 71

a minimum space for living? We are the people who belong to no state. These comments reveal how these stateless people experience the cruel, brutal, and inhuman behavior committed by state forces because of their statelessness. Their identity as noncitizens permits them to be seen as less than human. All this happens to Rohingya only because of their status as noncitizens in either Bangladesh or Myanmar. In addition, the violence committed against stateless subjects includes cases of rape of Rohingya girls by local Bengalis and security forces. The victims cannot seek justice from any agency of the state as they are noncitizens; thus their precariousness makes them into objects of the worst exploitation. As Gibney reminds us, citizenship ‘‘is a gateway to other rights . . . the stateless are lacking the very right to have rights.’’33 The Rohingyas cannot even file a case with the police, since they are not eligible to do so as illegal migrants and unregistered Rohingyas. Local people, police, and security forces use this space of vulnerability to their own advantage and are frequently reported as raping Rohingya girls during raids and forced repatriations. I recorded one case where a father explained to me: It is a great shame for me to say that my daughter (19), while I was living in the borderland of Bangladesh and Myanmar with my family, was regularly raped by couple of security personnel in the threat that, if we do otherwise, they would shoot us dead on the spot. Staying for a couple of months, one dark night we left the place and came into Ukhia. Here we started living from 2004. Unfortunately, we had the similar experience here by a local stupid, politically powerful one, who was using the same space in the threat of eviction. We couldn’t go to police station, seek justice from the local leader, and lodge a complaint with any law-enforcing agency because we were in fear that they would do the same the local stupid was doing. This is the sad story which many Rohingya girls living in Bangladesh experience in their life-time. The state’s denial to recognize the Rohingya produces extreme vulnerabilities, which are then exploited by locals and local agents of the state. The vulnerability of Rohingya life is a demonstration of how ‘‘Citizenship is central to the space in which a person is empowered to exercise rights, and

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this geographical framing of citizenship is central to the differential rights various subjects can access in all areas of life.’’34 Since the Rohingya do not have any space within the geographical framing of citizenship in either Bangladesh or Myanmar, they are a people without rights, and their life is rendered miserable and inhuman.

Relations with the Local People The relationship between Rohingyas and the local people has changed over the years. In the early years, migrant Rohingyas were received warmly by the local people for humanitarian reasons, as a symbol of sympathy for their neighbors and feelings of Muslim brotherhood. One of my Bengali informants, Jalil Mian (78) of Vasan Para, explained to me; When they first came, we felt it was our duty to stand beside them since they were oppressed and tortured by the military government of Burma and forced to leave their homeland. We gave them shelter because we thought it was our duty as they were our neighbors and Muslim brothers. As human beings, it was our moral duty to help others in crises, and we did it for the time being, but not for life long. We even didn’t think that those people would become the crucial factors of our boundless miseries. Analyzing the information I accumulated, I found six principal reasons why the brotherly relationship between Rohingyas and local Bengalis became confrontational. These were the sharing of scare resources; interethnic marriage between Rohingyas and Bengalis; Rohingyas’ intervention in a limited local job market; pressures on the local environment; domestic and international security issues; and criminal offenses reportedly committed by Rohingyas. The local people have to share already insufficient resources with the Rohingyas, including agricultural crops, farm goods, vegetation, poultry, and fishing. Rohingyas are considered an added burden and competitors for these limited resources. Whenever local people fall into crises, the presence of Rohingyas is perceived as the main cause. It is indeed a huge burden, as many Bengali informants explained to me, to feed more than 400,000 additional people with the same scarce local resources.

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Interethnic marriage between Rohingyas and Bengalis are another factor. Interethnic emotional affairs, premarital sexual relations, elopement, and marriage regularly take place. Younger Rohingyas become romantically involved with Bengali youths. Some interpret this as an effort to gain legitimacy among the locals. As Moriam Khatun (32), a Rohingya woman, explained to me, ‘‘I fell in love with Kabir [a Bengali], got married, and gave birth to three children. I am now well settled and treated as a Bengali family member, unlike the treatment prior to marriage. Before marriage, I was living without any status, but now I have my own identity, husband, and family.’’ She is happy because, by marriage, she has gained identity and status as human being that belongs to a household, even though, as she also explained to me, ‘‘My parents in law quite often don’t forget to remind me that I am a Rohingya, meaning a bad girl.’’ However, inter-ethnic marriage is still not accepted by all the locals. They consider it emotional exploitation and sexual blackmail by Rohingya women. Golam Kuddus (51), a local Bengali, expressed his feelings about this matter: Rohingya girls are very cunning. They sexually exploit Bengali youths to serve their purpose. They don’t have any character even. One girl has a couple of boyfriends and maintains regular sexual relations with more than one. She convinces one of them . . . [to] elope and marry. As parents, after marriage we have nothing to do but to accept them. My eldest son married a Rohingya girl who became our family member. But she couldn’t finally live with us. She got out of my house taking my elder son away. Now they live in a separate household. The Rohingya girls are breaking our family ties and kinship bondage. Golam Kuddus’s narrative reveals the common attitude of locals toward Rohingyas. These kinds of events—love, elopement, and marriage— challenge the distance between Rohingyas and local Bengalis, and thus are subject to deep resentment by many locals. Unemployment among the locals has also become an acute issue of contention since Rohingyas have entered an already limited job-market. Day labor, construction, agriculture, carpentry, weaving, handicrafts, the dry-fish business, fishing at the seashore, boat fishing, making fishing nets, small-scale cottage industry, rickshaw pulling, working in brick fields, and wood chopping are the sectors where local people of Teknaf and Ukhia are

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employed. In these sectors, the Rohingyas sell their labor at a cheaper rate than the locals do, so are preferred by employers. Kabir Mian (47), a Rohingya, told me: ‘‘If we don’t sell our labor cheaper than the locals, why will other people, who themselves are locals, employ us? We indeed get what we are paid off, since we don’t bargain. In fact, whether we are getting a job is more important than how much we are earning because we have to survive with our family members at any cost. We just can’t let our family members die of starvation.’’ Another important issue is the environmental pollution allegedly committed by the Rohingyas. The allegations are that the Rohingyas are involved in illegal wood logging and trafficking; destroy the forest resources by using firewood for cooking; use open space for urination and defecation; building temporary shelters by cutting forests; and are ‘‘living on forest resources which they use unsustainably by damaging the natural resources for the near future.’’35 Against these accusations, Rohingyas have their own explanation. Mr. Kalimulla (50), a Rohingya, told me: What can I do for our survival other than using the natural resources that surround us? Where will I go with family members, having a wife, three daughters, and two sons, without making a little space for living in this jungle? The GoB is not recognizing us as refugees. Therefore, UNHCR is not providing us with food and any other assistance. Even no NGOs are providing us with any assistance. We can’t go back to Myanmar since the junta doesn’t recognize us as Myanmar’s citizens. Myanmar’s Rakhine Buddhists are always ready to kill us there. Where will we go? How will we survive? Is our fault that we were born in this world? He explained in detail how miserable he is, leading his life with seven family members. This is not a unique story but a common plight of Rohingyas in Bangladesh. In fact, statelessness has created these vulnerabilities and uncertainties in the life of Rohingyas, since neither Bangladesh nor Myanmar accepts them as citizens, thereby denying them their basic human rights of food, clothing, shelter, medical care, and education. The Rohingya are allegedly involved in different militant activities in Bangladesh. Many Arakanese rival groups—namely Rohingya Solidarity Organization (RSO), Arakan Liberation Party (ALP), and National United Party of Arakan (NUPA)—are said to be now established in Bangladesh.

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They are said to have established their training camps in Teknaf and Ukhia and the nearby region, the Chittagong Hill Tracts, and to use this region for safe passage of arms trafficking. Many Rohingyas are allegedly members of Islamic militant groups in this region, which are regarded as a serious security threat by the GoB. Meanwhile, Bangladesh intelligence forces have arrested and detained many Rohingyas, claiming that they are actively involved with militant Islamist groups. Involvement of Rohingyas in militant activism is instrumental in shaping the structure of relations between the state of Bangladesh, Rohingyas and the locals. Their lack of citizenship and their sense of deprivation as stateless people are part of the reason some Rohingyas may be involved in militant activities. Amartya Sen argues that citizenship is integrally connected with the enhancement of human capabilities and, therefore, the granting of citizenship removes some of the ‘‘unfreedoms’’ that place people at risk from want and fear.36 Without such basic rights, it is understandable how some Rohingya may become involved in militant activities that proclaim that they seek alternative futures. Finally, the Rohingyas are accused of various criminal offenses at the local level—mainly hijacking, snatching, robbery, and stealing. Different local and national dailies regularly publish news of offenses allegedly committed by Rohingyas. Police records also justify this allegation as an increasing number of criminal offenses have occurred in Ukhia and Teknaf that seem to be connected with Rohingyas.37 Rohingyas also admit to such allegations against them, since many told me that they do so for their survival. Sometimes they may starve for a few days, and, finding no other alternative, they feel compelled to steal goods and property to survive. Such admissions can be contextualized by the theoretical premise of Jacobsen38 and Loescher39 who acknowledge that poor living conditions and lack of access to basic supports often compel refugees to commit social crimes. Since unregistered Rohingyas are not supported or aided by any governmental organizations or NGOs, they have to provide for their own survival.

Conclusion Based on this discussion and analysis of the structure of relations between the state, local people, and the Rohingya, we can conclude that the role of the Bangladesh state in handling the Rohingyas in its territory is influenced

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by four factors. First, as a nonsignatory state of the 1951 Refugee Convention, Bangladesh is not legally obliged to host refugees in its territory. Therefore, the Rohingyas cannot claim any refugee rights from Bangladesh and cannot lodge any complains with any authority for any sort of mistreatment. Second, Bangladesh itself is a resource-poor country and is struggling to feed its own population of 160 million; therefore more than 400,000 Rohingyas are regarded as an added burden on its limited resources. Third, Bangladesh does not have good diplomatic, bilateral, or trade relations with Myanmar. Instead, Bangladesh’s border is frequently used for illegal trade, smuggling, and human trafficking by Myanmar-based groups. Fourth, many Myanmar so-called terrorists groups are said to have been active inside Bangladesh territory and to use it as a safe passage for arms trafficking. It is also widely discussed that such practices promote militant activities inside Bangladesh, regarded as a serious security threat for the country.40 Therefore, Myanmar is regarded as a security threat to Bangladesh, and the Rohingyas are thus seen as an extension of this threat. Despite this picture of the relationship between the two countries, the Rohingyas deserve to be treated as human beings who have every right to lead a life of dignity. Myanmar’s policies first rendered them stateless and later forced them to flee their homeland, the Myanmar state created these refugees. When they were compelled to cross the border, Bangladesh regarded them as illegal migrants and an economic burden. Where will they go? How will they survive? As human beings they also have the right to citizenship, one of the most basic human rights endorsed by Universal Declaration of Human Rights. The Rohingya issue must therefore be reckoned with as a question of basic deprivation of rights, especially the individual right to citizenship endorsed by international law and jurisprudence. In that context, serious human rights violations are taking place, atrocities are being committed, basic human needs are left unfulfilled, and essential human necessities are unmet for the Rohingyas, particularly for unregistered Rohingyas in Bangladesh. Bangladesh is now serving the in-camp Rohingya refugees through the active support of UNHCR and its local and international partners, while the larger number of out-camp Rohingyas are left unassisted, unsupported, and uncounted in the state’s policy, projects, and planning for rehabilitation or lawful repatriation through bilateral contact with Myanmar. These unregistered Rohingyas try to integrate with the local population, which creates tensions and conflict in local societal dynamism, for example, crisis in the local job market, a burden on scare

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resources, inter-ethnic marriage, and threats to law and order in the locality. Consequently, the social distance between the local people and the Rohingyas is gradually increasing. Therefore, the Rohingya refugee issue demands the urgent attention of the international community to resolve it through the framework of international jurisprudence ratified by the United Nations. As member countries of the UN, Bangladesh and Myanmar could also be brought under a legal obligation of the UN Charter in an attempt to save the Rohingyas as human beings from inhuman sufferings and to uphold the spirit of humanity.

Chapter 5

Mobilizing Against Statelessness: The Case of Brazilian Emigrant Communities Carolina Moulin

According to Article 15 of the 1948 Universal Declaration of Human Rights, everyone has the right to a nationality, and no one shall be arbitrarily deprived of nationality nor denied the right to change it. Nationality can be generally understood as a political and legal status that recognizes an individual as part of one of the constitutive dimensions of the state, the people. Nationality provides a platform for claiming rights in relation to the state and to fellow members of the community, as well as defining certain standards of behavior and obligations. Nationality, therefore, defines much of what we can do within and expect from our political communities. Nationality is central to the operation of the law, as it provides one of the fundamental criteria of membership in modern political societies. More than that, contemporary history has shown that nationality is a necessary element for effective citizenship, that is, for the ability of individuals to participate as political subjects in their respective communities. Nevertheless, nationality has recurrently been used, instrumentalized, and mobilized by nationalist discourses at the expense of basic individual rights. As such, rather than reflecting the social, cultural, and political nature of national ties, nationality has been used as a means for the construction and implementation of national bonds. Nationality is, thus, a major component of practices of statecraft1 and can transform citizenship into a rather slippery condition. As a general rule, the right to nationality belongs to the

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Table 5.1: Brazilian Ratification of International Conventions

1954 Convention 1961 Convention CNMW ICCPR CEDAW CRC

States parties as of 2005

States parties as of 2012

Brazil (signature)

Brazil (ratification)

58 30 73 154 180 192

74 45 74 167 187 19

28 September 1954 — 26 July 1966 — 31 March 1981 24 January 1990

13 August 1996 25 October 2007 4 December 1968 24 January 1992 1 February 1984 24 September 1990

Ratification information for 1954 Convention Relating to the Status of Stateless Persons, 1961 Convention on the Reduction of Statelessness, Convention on the Nationality of Married Women (CNMW), International Convention on Civil and Political Rights (ICCPR), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and Convention on the Rights of the Child (CRC). Source: David Weissbrodt and Clay Collins, ‘‘The Human Rights of Stateless Persons,’’ Human Rights Quarterly 28, 1 (2006): 273 and UN Treaty Collection, http:// treaties.un.org/pages/ParticipationStatus.aspx.

individual, but the right to grant nationality belongs to the state, thus subordinating this basic human right to the whims of national governments. To regulate the topic internationally and to reduce and prevent statelessness worldwide, the United Nations approved two major conventions: the 1954 Convention Relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness.2 As stated by Belton (this volume), given the fact that many of the provisions, particularly of the 1961 convention, impinge on states’ ability to define and implement their nationality laws freely, the conventions have been greeted with a lukewarm reception. As of August 2012, the 1954 Convention had 74 states parties and the 1961 Convention only 45. The number of ratifications has increased since 2010, as seen in Table 5.1, as a result of the UNHCR’s campaign to commemorate the fiftieth anniversary of the 1961 Convention. But the low level of adherence to both conventions by UN member states attests to the fact that the problem of statelessness is one of the most sensitive in the current international agenda, specifically as it is perceived to impose restrictions on states’ autonomy to devise and implement their own nationality laws. Many cases of statelessness are the direct result of the increasing mobility of populations. As Torpey argues, (national) citizenship was devised, first and foremost, as a means through which states could monopolize ‘‘the

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authority to restrict movement vis-a`-vis other potential claimants, such as private economic or religious entities.’’3 As globalization processes advance and large numbers of people migrate and circulate internationally for various reasons, one finds increasing tensions between nationality laws and generally intentional loopholes in legislation and practice that lead statelessness to become a pervasively recalcitrant global condition and citizenship to acquire an increasingly slippery status. The monopoly of authority over mobility versus the inability of sovereign states to actually and effectively restrict and control the movement of people across borders has created profound anxieties in government officials and in certain societies. This has led, in many circumstances, to changes toward more restrictive nationality laws and preventing mobile populations from acceding to basic rights, despite increasing normative standards in international law. These changes are felt both in receiving and sending countries. In the former, the newly arrived are perceived as a threat to the country’s economic welfare and to public order, as evinced in recurrent anti-immigrant xenophobic discourses. In the latter, emigrants are either instrumentalized for the purposes of developmental policies and praised as a solution to economic problems or deemed disloyal and therefore turned into objects of suspicion. The Brazilian case provides an interesting example of the connection between migration and statelessness, between restrictive nationality laws and their human consequences. But it also illustrates the ability of territorially dispersed populations to organize and mobilize for rights in transnational contexts and to promote changes in state nationality policies. Considered by UNHCR as a success in the protection and prevention of statelessness, the plight of over 200,000 children of Brazilian origin in the course of over a decade is also illustrative of the paradoxes of an order based on nationally and territorially circumscribed criteria of political belonging and the increasingly complex web of relations people establish with multiple and often overlapping territories of citizenship. Brazil is party to a growing number of treaties and conventions that now regulate the right to nationality internationally—an evolving regime already adequately described in this volume by Belton. Table 5.1 shows the current status of accession of the Brazilian state to the main human rights instruments regarding the right to nationality and the reduction and prevention of statelessness. The following sections examine the case of young stateless Brazilians in its legal and political dimensions, highlighting the institutional aspects that

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produced a condition of future statelessness and the social mobilization that ensued. It then describes the legal solutions devised and the resulting changes in the relationship between expatriate Brazilians and the Brazilian government. Finally, the chapter indicates some recent trends that might jeopardize the achievements of the Movement of Young Stateless Brazilians, in particular, and the mobilization of Brazilian communities abroad in general.4

Creating ‘‘Stateless Brazilian People’’ People are not born stateless; they are made stateless. One might argue that statelessness is the consequence of citizenship regimes’ increasing flexibility and slipperiness. In the Brazilian case, the production of statelessness was the consequence of a sudden and profound transformation in immigration patterns and of poorly made and badly planned constitutional changes. Historically regarded as an immigration country, in the early 1980s, Brazil’s emigration overtook immigration. From 1985 to 1987, about 1.25 million Brazilians, almost 1 percent of the population, left the country with no intentions to return.5 The total number of Brazilians registered abroad was 1,419,440 in 1996, growing to 1,887,895 in 2000 and 2,041,098 in 2002, with a slight decrease to 1,805,436 in 2003.6 This number reached 2.6 million in 2005. In 2009, official numbers indicated that 3 million Brazilians lived abroad, with the following distribution: North America (43.57 percent), Central America (0.16 percent), South America (16.89 percent), Europe (26.84 percent), Asia (9.52 percent), Oceania (0.73 percent), Africa (1.21 percent), and Middle East (1.04 percent). Brazilian communities were concentrated in the United States, Paraguay, Japan, the UK, Portugal, and Spain.7 Successive crises and economic recessions in Brazil in the 1980s (known as the ‘‘lost decade’’) led to high unemployment rates, deepening social inequality, poor provision of public services, and growing dissatisfaction with the country’s prospects, despite major political changes brought about with the democratic transition. According to the final report of the Parliamentary Commission of Inquiry (CPMI) regarding Brazilian emigration, most Brazilian emigrants are from urban areas in the southeast region. They are men and women eighteen to thirty-five (men comprise more than 70 percent of the total). The report highlights that the vast majority of

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Brazilian emigrants working abroad send money to their families in Brazil and that many of these emigrants plan on returning to the country. The CPMI was established in 2005 to investigate numerous reports of abuse and violation of rights of Brazilians residing abroad. There was substantial evidence of grave violations of basic rights, from labor exploitation to human trafficking and sexual abuse of Brazilian nationals, in various countries, both by state authorities and by transnational networks of organized crime. Some cases gained notoriety, such as the shooting of Jean Charles de Menezes by the London police in 2005, the recurring deaths of Brazilians on the border between Mexico and the United States, and the growing number of detentions and deportations of Brazilian nationals in North America and Europe. During the 2000s, several cases of what seemed unlawful and abusive treatment of Brazilians by immigration authorities were reported by the Brazilian media and gained enormous public attention, from university professors and students traveling for conferences and detained for days without consular assistance and access to food and water to surprisingly high numbers of deportation of Brazilians from countries like Spain and the UK (surpassing deportation rates of nationals of conflictridden countries like Iraq and Afghanistan). These episodes brought emigration into the national agenda, increasing public awareness of the problems faced by Brazilian emigrants and highlighting the need for institutional changes in the relationship between the Brazilian state and its nationals abroad. Hence, two interrelated processes marked the Brazilian context. On one hand, the economic and political conditions of the country led to a dramatic increase in the number of emigrants and, later on, to a largely transnational network of Brazilian communities abroad. The experience of moving abroad became part of the social landscape and imaginary of many Brazilians after the 1980s. This trend was also facilitated by the opening up of Brazilian markets and political structures in the early 1990s, which reduced the costs of traveling, made it easier to access information about foreign countries and expanded public perceptions of better opportunities in advanced economies. On the other hand, living conditions in countries of reception were remarkably difficult for many Brazilian expatriates, given increasingly restrictive immigration policies, barriers to local integration, and lack of institutional and diplomatic support, to name but a few. The ‘‘golden dream’’ of many emigrants soon became a daily struggle for survival and recognition, leading to more collective strategies of political

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pressure and important changes in the institutional design of Brazil’s relationship with its nationals abroad. It is within this background that a seemingly minor change in the 1988 Constitution would create a massive group of stateless people. The Constitution of the Federative Republic of Brazil8 (FC/88) provides the normative structure for the conferral of Brazilian nationality. At the time of its promulgation, FC/88 granted nationality to all individuals born on Brazilian territory. Those born abroad could acquire Brazilian nationality if two requisites were met: first, children had to be born to a Brazilian father or mother, and, second, they had to be registered at a competent Brazilian service abroad. If not registered, children had to have a fixed residence in Brazil before age eighteen: after they turned eighteen, they could opt at any time to acquire Brazilian nationality. In its original drafting, FC/88 protected children of Brazilian nationals, when registered in a Brazilian consulate, even if they had never resided in Brazilian territory. Children of foreign parents would also be protected when born in Brazilian territory, except when parents worked for foreign governments (as for children of diplomatic and consular officials). It was, therefore, a dual system based both on strong ius solis provisions combined with ius sanguinis rules for individuals born outside Brazilian territory (in the first degree). Article 12 stated that individuals were Brazilian: I—by birth: a) those born in the Federative Republic of Brazil, even if of foreign parents, provided that they are not at the service of their country; b) those born abroad, of a Brazilian father or a Brazilian mother, provided that either of them is at the service of the Federative Republic of Brazil; c) those born abroad, to a Brazilian father or a Brazilian mother, provided that they are registered with a competent Brazilian authority, or come to reside in the Federative Republic of Brazil, and opt for the Brazilian nationality at any time after reaching majority; In 1994, a Revision Constitutional Amendment (RCA 3/94) approved by the National Congress changed the nationality clause established in article 12. RCA 3/94 suppressed the possibility that children born abroad of Brazilian parents could acquire Brazilian nationality through registration. The revised article stated:

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Article 12—The following are Brazilian I—by birth: a) [unaltered]; b) [unaltered]; c) those born abroad, of a Brazilian father or a Brazilian mother, provided that they come to reside in the Federative Republic of Brazil and opt for the Brazilian nationality at any time; The ius sanguinis provision had been part of Brazilian nationality law since the 1967 Constitution—a constitution approved at the height of the military dictatorship. It was surprising for many that the 1988 Constitution, the first democratic Constitution after twenty years of autocratic rule, would be changed in order to prevent, and therefore reduce the scope of, the conferral of nationality. The removal of the provision meant that children born in foreign soil of Brazilian parents could only provisionally be registered with a notary if the minor resided in Brazil. In these cases, the option for Brazilian nationality could only become permanent after a judicial process, according to the interpretation given by the Brazilian Supreme Court.9 This amendment put an end to the automatic granting of Brazilian nationality to children of Brazilian nationals abroad, requiring them to reside in Brazil after reaching legal age and to have their option recognized judicially, taking, in some cases, over seven years to process.10 The sudden change had dramatic consequences for many Brazilian families living all over the world, especially in countries where nationality laws prioritized the ius sanguinis principle. This was the case of Switzerland, Germany, and, most important, Japan, where a large number of Brazilians had been residing and working since the early 1980s. From June 1994 until September 2007, it is estimated that more than 200,000 children born of Brazilian parents abroad became stateless, although they could receive a temporary Brazilian passport and were entitled to diplomatic protection until they reached legal majority. The coverage and analysis of RCA 3/94 usually interpret its approval as a lapse of judgment by legislators with unforeseen and unintentional consequences. In 2007, one of the leaders of the fight against young Brazilian statelessness, Rui Martins, claimed that the amendment was actually intended to prevent the grant of nationality to individuals who would not share important cultural traits because they had grown up and resided all

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their lives abroad.11 The issue was seen as highly problematic by some politicians, given the increasing number of children born of Brazilian parents in foreign countries, especially Japan. The early 1990s, at which time the amendment was approved, coincided with a period of massive emigration of Brazilians. The United States and Japan have historically been leading destinations for Brazilian emigrants, although Japan lost its place to Portugal and Spain in the late 2000s as a favored emigration destination. Nevertheless, the estimates in 2009 totaled over 300,000 Brazilians in Japan alone, with Brazilians comprising the third largest contingent of foreigners in that country after Chinese and Koreans. Therefore, at the time of the amendment, it is reasonable to suppose the vast majority of children born from Brazilian parents abroad were in the United States and Japan. The selective, racist, and ‘‘orientalist’’ bias against the Japanese has marked the history of immigration to Brazil. For example, in 1890, a presidential decree forbade entry of Japanese nationals onto Brazilian soil, arguing that miscegenation with people of oriental traits would have a negative ‘‘racial’’ impact in the constitution of the Brazilian population.12 In the 1940s, similar arguments were advanced and persecutory policies leveled against several groups of immigrants, particularly Germans and Japanese. Whether RCA 3/94 was an instrument of political will or political naı¨vete´, its human consequences fostered social mobilization by Brazilian nationals abroad that would have long and far-reaching results.

The Movement of Young Stateless Brazilians The constitutional amendment affected a large and diverse group of emigrants, from foreign correspondents and high-income families in European countries to blue-collar Brazilian workers in Japan’s auto industry. Realizing the long-term consequences of the legal change in the lives of their children, many parents started circulating information over the Internet. They started to organize meetings, publish press releases, give interviews, set up websites and blogs, and articulate strategic conversations with diplomatic officials and congressional representatives back in Brazil. Some parents protested in front of Brazilian diplomatic consulates and embassies in various cities, as well as in front of the UN headquarters in Geneva.13 They wrote letters to the Brazilian president and garnered support from highprofile individuals, from journalists to football players. They named their

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initiative the Movement of Young Stateless Brazilians (Movimento dos Brasileirinhos Apa´tridas/MYSB) and adopted the image created by Enio Lins (Baby without a Homeland/Beˆbe sem Pa´tria) as their logo. Several clusters were set up in different countries and cities, and the Movement was soon able to gain support from influential politicians and give visibility to an issue that, up until then, had been poorly known by Brazilians. The lack of information also affected many Brazilians expatriates who were unaware that the Brazilian passport granted to their children was provisional. In 2000, a group of Congress representatives submitted a proposal for a constitutional amendment, known as PEC 272, after negotiations with the MYSB. PEC 272 restored the right to automatic nationality if children born abroad were registered in Brazilian consulates, reinstating the original provisions devised in the 1988 Federal Constitution. Despite general public support, given that the situation created juridical insecurity and affected vulnerable populations (children), it took seven years for PEC 272 to be approved. The movement maintained ongoing protests throughout this period, and the amendment officially entered into force in September 2007. Constitutional Amendment 54 altered article 12 of the Federal Constitution and also extended the right to nationality to children born after RCA 3/94. Article 95 of the Temporary Constitutional Provisions was added to the constitution to the effect that ‘‘persons born abroad between June 7, 1994, and the date of enactment of this constitutional amendment, to a Brazilian father or a Brazilian mother, may be registered with a Brazilian diplomatic or consular authority, or with an official registry if they come to reside in the federative republic of Brazil.’’ The successful mobilization of Brazilian emigrants in relation to the situation of stateless children had a large and long-lasting impact on the relationship of emigrants and the Brazilian state. The experience created a sense of community among Brazilian nationals in foreign territories and highlighted the fact that, despite their different social classes, life circumstances, and countries of residence, many of the problems and restrictions they faced were the same. They realized that, as a collective, they were able to establish strong channels of communication with high-level officials and were, in time, able to change the institutions and policies that affected their lives. The movement showed, consequently, the ability of territorially dispersed nationals to enact, collectively, a form of transnational citizenship that served their own interests and agendas.

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The Brazilian state did not respond to these pressures solely for altruistic reasons. The fact that the government associated the discussion on im/ emigration with a human rights agenda was a direct result of the new profile of Brazil as an emigration country, the growing pressure of domestic public opinion in relation to the abusive treatment of Brazilians abroad (including tourists), and the political power of a growing community of voters that resided in foreign countries.14 Between December 2007 and July 2010, the Electoral Court registered an increase of 91.46 percent in the Brazilian electorate abroad. The number of Brazilian emigrants able to vote jumped from 104,660 in 2006 to 200,392 in 2010, representing about 0.15 percent of the total national electorate. In 2010, all presidential candidates included in their electoral agendas campaign visits to countries and cities where Brazilian emigrants were concentrated. Many, including president Luiz Ina´cio Lula da Silva, had specific proposals targeting Brazilians abroad in their campaign programs. Besides its increasing political relevance, the Brazilian community abroad had an important impact in economic terms. In 2009, Brazil received about US$4.7 billion in remittances from Brazilians living abroad, second only to Mexico as the biggest receiver of international remittances within Latin America and the Caribbean that year. In 2006, Brazil broke a record in volume of remittances, approximately US$7.3 billion; close to half this money came from the United States, 31 percent from Europe, and 19 percent from Japan. More than half the receivers of remittances in Brazil affirmed they received the money through a bank, 29 percent used international money transfer companies, and 10 percent used postal remittances.15 In recent years, these numbers have been dwindling. In 2011, a study by the Inter-American Development Bank showed that Brazil received US$4.6 in international transfers from Brazilians abroad. This 2011 study used a more restrictive concept of remittances to encompass only workers’ transfers defined as ‘‘money transfers conducted by individuals who change their residence, in other words, who move to another country, usually for more than a year, and send money home from there.’’ Adopting this definition, of the US$4.6 billion, only US$2 billion were actual remittances, ‘‘whereas migrant transfers to Brazil in 2011 totaled US$2.052 million, surpassing the volume received as remittances for the first time.’’16 Migrant transfers were defined as money sent to migrants’ own bank accounts back home, indicating that they are returning to their country of origin. Since

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2010, there are important signs indicating an increase in return migration and in immigration flows with a trend to the reversal of net out-migration. Many of the initiatives of the MYSB resulted in broader meetings of the emigrant communities, articulating proposals and plans of action with the Brazilian government. Brazilian emigrants ‘‘managed to organize themselves in various places, in different ways, and in a more or less structured way, with the objective of improving their own situation and reducing the spaces of vulnerability in which they found themselves.’’17 Through the 2000s, meetings were held in Europe and North America among Brazilian expatriates. Many of these encounters resulted in written and negotiated agreements between Brazilian Communities Abroad (BCA) and the Brazilian government, from specific public policies targeting emigrated nationals (professional training, legal aid, social assistance, and such) to increased political representation of BCAs in institutional structures and decisionmaking processes. Along these lines, in 2009 increasing efforts were made by Brazilian communities abroad and the Brazilian government to formalize the activism of the Brazilian diaspora. One of the proposals, formulated by sectors of the Movement Against Young Stateless Brazilians, advocated the amalgamation of Brazilian emigrants into a politically recognized entity, called the ‘‘Emigrant State.’’ According to this proposal, the Emigrant State would be part of the Federation of Brazil, with provincial status and elected representatives. Representation would be based on the creation of specific constituencies from the BCAs, based on the values of self-determination, autonomy, and participation. The initiative was inspired by similar experiences of political articulation and electoral representation of emigrant communities in countries such as Italy, France, Portugal, Croatia, and Colombia. In 1978, for example, Portugal established electoral circles for Portuguese nationals residing in Europe and the rest of the world. Portuguese emigrants vote periodically and are entitled to two representatives in their parliamentary assembly. A mechanism of elected representation for Brazilian communities abroad was negotiated and implemented in 2010. The Council of Representatives, responsible to articulate and negotiate the demands of BCAs with the federal government (particularly to the Ministry of Foreign Affairs) is composed of members elected by BCAs in five continents, through an electronic voting process. The effectiveness of the council has been questioned (as of 2012, the new board had not yet been

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elected), and the institutionalization of a formal federal ministry or provincial government faced many drawbacks. Among the problems were disputes within the emigrant community, difficulties in restricting the overall authority of the Ministry of Foreign Affairs in the definition and implementation of policies related to Brazilian nationals abroad, and lack of political interest within several circles in relation to the demands of nonresident nationals. Changes in recent migration patterns also diverted attention to a reframing of national immigration policies, reducing the focus on the problems of Brazilian expatriates. Given the current panorama, a constitutional amendment establishing the right of Brazilian expatriates to elect congressional representatives (PEC 05) was submitted to Congress in March 2005, but with limited hope of an expedited approval. Nevertheless, the mobilization of Brazilians abroad had a lasting impact on the institutionalization of a collective identity and of national and transnational policies for emigrants. The Ministry of Foreign Relations has identified 356 associations and independent organizations of Brazilians abroad and 216 media outlets devoted to Brazilian emigrants in forty-five countries.18 These numbers prove the strong sense of community and intense levels of articulation among nonresident Brazilians. Articulated around a socially constructed and transnational form of belonging, Brazilian emigrants have been able to advance an important political agenda, centered on the principles enshrined in international human rights instruments, leveled against their country of origin as the basic provider of rights. The ability to mobilize against the situation of thousands of stateless children—and to overturn, democratically, a constitutional change—resulted in an unprecedented institutionalization of emigrant activism, with a political agenda that, over the past fifteen years, expanded to economic, cultural, and political rights.

Concluding Remarks Bhabha suggests the need to pay more ‘‘attention to the range of different migration situations that render children effectively stateless.’’19 The Brazilian case indicates that equally important is the need to shed light onto how civil society movements respond to and pressure governments to address

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and prevent the problem of statelessness, particularly in relation to children. It also highlights the strategies used by these organizations to circumvent the effects of restrictive and slippery citizenship regimes. Such political efforts have had important consequences regarding adherence to international instruments, increasing awareness of statelessness and developing appropriate policy for protection and promotion of human rights. The case of young stateless Brazilians relates primarily to a situation of legal statelessness, generated by emigration processes. However, it has produced a wave of results that extended far beyond the solution of the problem of these nearly 200,000 children. Three main policy and institutional advances have occurred, promoted by the experience of Brazilian emigrants, in general, and the Movement of Young Stateless Brazilians, in particular. The visibility granted to statelessness provided the political pressure needed to effect Brazil’s accession to important instruments of protection of stateless people. In 2007, Brazil finally ratified the 1961 Convention on Statelessness. Although Brazil had ratified the 1954 convention in 1996, well before the Movement for Stateless Children began, there are fundamental differences in state’s responsibilities in the two UN conventions. As Belton points out, the 1954 convention requires states to provide minimal protection to stateless persons residing in their territory. The 1961 convention is far more demanding, asking states to avoid denaturalization policies and provide expedited naturalization to stateless people. This is the reason the number of states parties to the 1961 convention has historically been far below those of the 1954 convention. In 2007, Brazil also made a public proposal for specific legislation granting protection and documentation to stateless persons residing in Brazil. In 2012, the UNHCR estimated that Brazil hosted three thousand stateless persons, and the Ministry of Justice is putting together a piece of legislation that not only grants easy access to Brazilian documentation to stateless persons but also grants permanent status after four years of residence (an important step toward possible naturalization).20 Brazil has developed a closer relationship with the UNHCR, increasing its financial contributions to the agency and its participation in protection programs for refugees and stateless people. The case of stateless children prompted innovations in the normative framework of related themes, emphasizing the complementary nature of the right to nationality and the right of international mobility. One important consequence was the new law regarding foreigners’ rights, proposed in 2009 and awaiting Senate approval. Finally, there is also increasing pressure

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and political willingness to ratify the 1990 Convention on the Rights of Migrant Workers and Their Families. The collective effort and mobilization of Brazilian emigrants toward a human rights based platform also forced institutional changes in areas where decision-making procedures were highly centralized. For example, the complaints and testimonies provided by emigrant associations showed important deficiencies in consular services, from issuance of documents to access to basic information regarding rights abroad. These problems created situations of de facto statelessness, since many Brazilian emigrants live undocumented in their countries of residence. As previously noted, many Brazilian emigrants did not even know that their children would become stateless on achieving legal majority, given lack of information and transparency regarding rights and duties. Many of their complaints were formalized in the final documents of the meetings and encounters of Brazilian emigrant communities (BECs). As a result, in consultation with the associations, the Ministry of Foreign Affairs established itinerant consulates; fostered and fomented the creation of the Council of Representatives of BECs (elected in 2010); organized a website (brasileirosnomundo.itamaraty .gov.br) with a rich database of information and contacts for Brazilians abroad; and published, with the help of BECs and other ministries, a handbook for Brazilians abroad. In 2008, 2009, and 2010, meetings were held in Brasilia and Rio de Janeiro with Brazilian emigrant communities to discuss demands and the implementation of actions negotiated in previous years. The council has a two-year mandate, and the first election was held in 2010. The representatives are elected through a process of democratic consultation open to Brazilian voters abroad. The council’s mission is to assist the Ministry of Foreign Affairs in devising and implementing policies targeting Brazilian emigrants and to be a focal point for the BECs’ demands and problems.21 Many of the current representatives were active participants in the global campaign for young stateless Brazilians. Though restricted in its functional design, as the council does not have a proper budget or autonomy for decisions, the initiative has the potential to propel a more incisive participation of Brazilian emigrants in national and provincial legislative and executive fora. Finally, the large number of Brazilian emigrants had never been seen as a cohesive and politically organized community. The case of young stateless Brazilians was a pivotal experience in fostering the emergence of a diasporic consciousness, required for political mobilization. The self-definition of

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expatriates, particularly those involved in the statelessness campaign, as ‘‘Brazilian Communities Abroad’’—not immigrants, not foreigners, but communities—indicates this sense of collective identity. But it also indicates a strategic component of their political agenda, refuting the terms through which governmental agencies traditionally defined their presence, regulating and more often than not restricting their access to basic rights and services. The notion of ‘‘Brazilians abroad’’ allows the group to produce empathy with Brazilian national residents and include in their advocacy network individuals and families with varying immigration statuses, undocumented or not. It is no easy task to find and sustain a common platform of interests and political action among such diverse and territorially dispersed groups. The condition of statelessness, in this case directly connected to one of the most fundamental institutions, the family, provided the primary impetus to forge an original and durable social movement. Sharing cultural and linguistic values, fostered by a common (though not necessarily exclusive) nationality, can be important for family unity in largely multicultural settings.22 The effort of Brazilian families has been not only to assure the conferral of Brazilian nationality to their children but also to create spaces where language and cultural aspects of belonging can be transmitted to future generations. In Switzerland, for instance, Brazilian and Portuguese immigrants have been pressuring for Portuguese-language instruction in public schools.23 This should be perceived not as a parochial measure aimed at rescuing an essential ‘‘Brazilian way of being,’’ but rather as a practice necessary for a generation of transnational subjects who will have to dwell and navigate multiple and often contradictory territories of citizenship. Despite these important improvements in the protection and promotion of the rights of emigrants and stateless people, produced by bottomup mobilization and governmental political willingness, many challenges still remain. The past decade and a half has seen the rise of Brazil as an important global player, with economic stability, low levels of unemployment, and progressive policies of social inclusion and poverty reduction. In a context in which developed economies are facing significant drawbacks, Brazil is now seen as an attractive destination for new flows of immigrants, mostly from South and Central America, but increasingly from European countries.24 These recent changes have revived a discursive moral economy demanding restrictive policies toward immigrants and ostentatious patrolling of borders and points of entry. For example, in 2012, approximately

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six thousand Haitians arrived at Brasile´ia, Acre (on the border with Peru). Media outlets and government representatives, including the minister for human rights, Maria do Rosa´rio,25 favored granting temporary status to Haitians already in Brazilian territory and restricting access and protection for future arrivals. As a consequence, a resolution by the National Council on Immigration (CNIg), approved in January 2012,26 established that Haitians must apply for a worker’s visa in the Brazilian Consulate in Port-auPrince, limited to one hundred permissions per month. This quota system was deemed an appropriate and necessary response to curtail the arrival of unwanted migrant workers and to signal a more incisive position of the Brazilian government regarding immigration control.27 As the trend toward Brazil once again becoming an immigration country gains momentum, it is important to keep in mind the almost three decades of political and social struggles of Brazilian emigrants. Restrictive policies in countries of reception and origin created situations of legal and de facto statelessness among Brazilian communities abroad. Brazilian communities and government faced a long, hard path to minimize the human consequences of emigration in relation to the promotion and protection of human rights. The lessons learned regarding normative and institutional changes and recognizing the intrinsic bond between immigration and emigration as the ‘‘twin concepts’’28 that they are must not fall into oblivion. The MYSB successes must be incorporated into a democratic repertoire that keeps human rights on the horizon, in order to avoid the adoption of policies and strategies of contention and control that violate the basic right to international mobility and the road to more cosmo-political forms of belonging.

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PA R T I I I

Legislated Limbo

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Chapter 6

Natives, Subjects, and Wannabes: Internal Citizenship Problems in Postcolonial Nigeria Chidi Anselm Odinkalu

The African citizen is a relatively recent creation, dating back to the end of colonial occupation and the onset of independence. Citizenship is the only human right defined with reference to a sovereign territory. Despite or perhaps because of the arrival of independence, African countries are beset with quite substantial citizenship problems. The end of imperial rule unleashed new territories and new national identities based on them. But the arbitrary territorializations created by the previous empires left problems that were reinforced and exacerbated by independence. Ultimately, the value of political independence is in what citizens are able to make of their country’s liberation. The reasons for the struggles for internal citizenship in postcolonial Africa are both political and intrinsic. In a political sense, citizenship is constitutive of the republican state. The basis for belonging in a state as a civic proposition is the equal citizenship of all who constitute it or are entitled to its protection. If this proposition is undermined by discriminatory and irrational hierarchies, the bases for statehood are also called into question, resulting in potential political instability. Intrinsically, citizenship is also a human right. If the right to life is founded on our shared existence as a species, the right to citizenship embodies the necessities of our existence as socialized beings in a territorialized world. Citizenship is, therefore, territorialized, political, and social. Yet these constituent elements are often

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also defined or operationalized in exclusionary terms and sometimes characterized by arbitrariness, competition, abuse, and conflict. Human rights as a universal proposition and citizenship as a territorialized entitlement may, thus, seem to be at odds. At the end of colonialism, formerly amalgamated territories were divided to produce new countries, each supposedly with its own citizens. Yet prior to independence, there had been a uniform absence of nationality status. For example, people who lived under a common sovereign before independence suddenly found themselves on different sides of an international border. Coherent ethnic groups were sliced up, sometimes across several international boundaries. Under the pressure of competitive politics, postcolonial politicians elevated interethnic differences into predatory interethnic rivalry, sometimes resulting in war and internal armed conflict. Additionally, filial, marital, racial, ethnic, and other ties that had existed before independence were broken up on different sides of new postcolonial borders. Following independence, these historical ties were conscripted into postcolonial battles. The history of the crises of citizenship in Africa began during colonization as increasing ‘‘tribalization’’ of the colonized ‘‘native’’ occurred through measures designed to ensure territorial, normative, and institutional segregation of the ‘‘native’’ from ‘‘civilization.’’ In the aftermath of colonialism, this history of multiple segregation now confronts the consequences of liberation, including migration and new territorial arrangements, unleashing contests for scarce resources and the intensification of plural electoral politics in which new identity forms undermine citizenships and threaten state fragmentation. In different parts of the continent, the capacity of the postcolonial ‘‘native’’ to appropriate the promise of liberation has been uneven, mediated by unequal access to social goods. The encounter of fossilized colonial nativization with civic dynamism promised by independence has given rise to an explosion of internal citizenship contests summed up in the distinction between the ‘‘indigene’’ and the ‘‘settler.’’ Although citizens of the same country, the latter is one who has achieved transactional and social mobility by relocating from one part of his or her country to another, while the former often belongs to the host community of the ‘‘settler.’’ In the community of the ‘‘indigene,’’ the ‘‘settler’’ is often a minority, but, in the country in which they are both citizens, the indigene often belongs to a minority community.1 In this context, routine questions can be and have become dangerous.

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Deprived of the benefits of citizenship promised by independence, the colonial ‘‘native’’ has mutated into a postcolonial ‘‘indigene,’’ appropriating the familiar surroundings of nativity as an instrument of both protection and exclusion in a context in which the postcolonial state has failed to fulfill its original promise or even most basic roles. This chapter argues that the indigene-settler contest permeates all aspects of Africa’s legal systems and is underwritten by the dualism between customary and statutory law, including a myth of an immutable personal law. To address this properly requires both transformation of political leadership and reform of the laws. Absent such transformations, the indigene-settler dichotomy is likely to deepen and become more murderous. It is also likely to render any idea of equal citizenship unrealizable, with deeply troubling consequences for both political stability and the realization of human rights in Africa. It is impossible to itemize or address all the isolated locations of these explosive encounters of postcolonial civics with the consequences of colonial nativization entrenched in laws and practices that have survived and become reinforced after independence, in spite of postcolonial constitutions and regional human rights instruments that clearly provide for the contrary. This chapter sketches the broad patterns of the contest over citizenship in Africa as a continuum of a dualism dating back to the colonial project between a centralized state and a localized nativity, reflecting the failure of the postcolonial leadership to construct a vision of national development to which the ‘‘native’’ can subscribe. Inherent in this dualism is a contest between the notional civic equality of constitutional citizenship and the lived inequality caused by the uneven transactional mobility between the ‘‘native’’ and ‘‘settler.’’ The chapter will illustrate this pattern with the case of the city of Jos in Plateau State, north-central Nigeria. Jos illustrates a postcolonial pathology that is widespread throughout Africa, well beyond Nigeria.

Citizenship and Territorialization Citizenship is the one human right whose meaning is bounded by territory and is thus tied invariably to claims of sovereignty. In Africa as elsewhere, it is one area in which countries generally assert optimal domestic jurisdiction —that is, a prerogative to determine with finality who is or is not a citizen. Article 1 of the Hague Convention on Certain Questions relating to the

Figure 6.1. Location of Jos in Nigeria. Cartography courtesy of Pam Schaus, Wilfrid Laurier University.

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Conflict of Nationality Laws recognizes that ‘‘It is for each State to determine under its own laws who are its nationals.’’ However, the same Convention adds that ‘‘this law shall be recognized by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognized with regard to nationality.’’2 The requirement of consistency with international conventions, customs, and general principles of law constrains the arbitrariness that governments may exercise in the grant or denial of nationality. Thus, ‘‘although the determination of who is a national of a particular state continues to fall within the ambit of state sovereignty, . . . states are particularly limited in their discretion to grant nationality by their obligations to guarantee equal protection before the law and to prevent, avoid, and reduce statelessness.’’3 With this background, the significance of the omission of a right to nationality from the African Charter on Human and Peoples’ Rights is far reaching. The Charter missed an opportunity to provide a firm regional framework for the resolution of problems of citizenship in postcolonial Africa. In its jurisprudence under the African Charter, the African Commission on Human and Peoples’ Rights has clarified that the Charter in fact prohibits arbitrary and discriminatory interference with citizenship.4 In other words, the Charter protects rights in citizenship but probably stops short of firmly guaranteeing a right to citizenship.5 This gap in the continental human rights regime reflects a similar omission in the legal systems of the states that constitute it, which, in turn, has its origins in the early African state.6 Above all, citizenship is territorialized. Territories are established by human society through migration, settlement, laws, negotiation, and acts of recognition. Far from being facts of nature, the physical boundaries of statehood and other forms of political territory often change over time, thus also changing the scope of sovereignty and the identities dependent on them. The end of colonialism in Africa was a major moment of territorial transition. Such changes in international law raise issues of state succession and in turn affect the nationality of people living in these territories. The history of state succession in the aftermath of colonialism has defined Africa’s contemporary citizenship landscape.

The Continental Origins of a Local Problem The colonial enterprise in Africa was premised on spatial, normative, and institutional segregation of the colonized from the colonialists and the

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subordination of the former to the latter through varying forms of paternalism or egregiousness. The colonized peoples lacked entitlements or rights. Indeed, they were considered to be subhuman. In Re Southern Rhodesia, Lord Sumner, writing for the Judicial Committee of the Privy Council, observed about African communities that they were so low in the scale of social organization that their usages and conceptions of rights and duties are not to be reconciled with the institutions or legal ideas of civilized society. . . . Such a gulf cannot be bridged. It would be idle to impute to such people some shadow of the rights known to our law and then to transmute it into the substance of transferable rights of property as we know them.7 Similarly, Article 22 of the League of Nations Covenant referred to ‘‘colonies and territories . . . inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world.’’ For such peoples, ‘‘there should be applied the principle that their well-being and development . . . form a sacred trust of civilization,’’ so that ‘‘the tutelage of such peoples should be entrusted to advanced nations who by reason of their resources, their experience or their geographical position can best undertake this responsibility, and who are willing to accept it.’’ The colonial sovereigns all implemented this principle through variants of indirect rule pioneered in the Cape (South Africa) and perfected by Lord Lugard in Equatorial (west) Africa.8 In British-ruled Africa, the colonized were known as ‘‘natives.’’ At independence, for instance, Nigeria’s Interpretation Act defined the ‘‘native’’ as including both the native Nigerian (indigene) and native foreigner (settler), with the latter being described as ‘‘any person (not being a native of Nigeria), whose parents are members of a tribe or tribes indigenous to some parts of Africa and the descendants of such person, and shall include any person any of whose parents is a member of such tribe.’’9 Initially, the distinction between the ‘‘primitive’’ native and the ‘‘civilized’’ European was racial. Overwhelmingly outnumbered, however, the European administrative and settler cadres tribalized this distinction through the strict territorialization of the native. The segregation of ‘‘natives’’ from the European and from one another was achieved through normative and institutional duality between the African and the European underwritten by the native authority system and by customary law underpinned by the strict regulation of free movement.10

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The distinction between the ‘‘native’’ and the European was characterized by three kinds of inequality: civic, racial, and transactional. In time, the emergence of an educated African cadre created a limited breach in transactional inequality, but not in the civic or racial. Thus, most uneducated natives had neighborhood legitimacy without transactional or economic mobility. In reality, this was a distinction between ‘‘natives’’ and ‘‘nonnatives’’ or between natives and recent ‘‘settlers.’’ Nativity was a racially sourced but locally administered identity governed by customary law, which was inapplicable to non-natives whose rights were determined by civic law. Since customary law varied from place to place, this meant that the native had no uniform rights as such. Whatever protections she or he enjoyed were actually privileges based on neighborhood or filial, affinity, or marriage-based propinquity. Such rights changed with location or territory. Thus, in the postcolonial state, internal reterritorialization arrangements became combustible because they were, historically, opportunities to renegotiate access to rights and power. This rendition of citizenship premises it on a nonexistent clarity of dating of original migration or on what one writer has described as a journey into ‘‘the nebulous, immemorial regions of time.’’11 The organic linkage of citizenship with indigeneship sustains the notion of ‘‘settler’’ communities which are then regarded both as existing at the sufferance of the indigenes and, in times of trouble or limited resources, as ultimately expendable. Wherever the native traveled, she was always subject to the personal law of the tribe or locality from whence she came. The tyranny of personal law was the ultimate proof of the normative subordination and segregation of the native from ‘‘civilization.’’ The native could never shake off customary law. However, on the Silver Jubilee of Nigeria’s independence in 1985, the Supreme Court decided in the case of Olowu v. Olowu12 that personal law was indeed both changeable and expendable and that through the exercise of individual agency in migration, a person could relocate personal law and indigeneship. Over a quarter of a century later, the implications of this jurisprudence continue to be resisted by bad politics and incapable institutions.

Indigene, Settler, and Citizen in Nigeria: A Conceptual Check on an Identity Crisis All over Nigeria, the various conflicts and associated atrocities over the citizenship rights of the indigene and settler are characterized by conceptual

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ambiguity and constitutionalized confusion that emanate from the legacy of the native-colonizer dichotomy. The 1999 Constitution consecrates the Federal Character in Sections 14(3)–(4) as a Fundamental Objective and Directive Principle of State Policy, directing that the conduct of government at all levels—federal, State and local—should be carried out ‘‘in such manner as to recognise the diversity of the people within its area of authority and the need to promote a sense of belonging and loyalty among all the people of the Federation.’’ Since 1979, Chapter III of Nigeria’s constitution has recognized both national citizenship that may be founded on descent from grandparents who belong ‘‘or belonged to a community indigenous to Nigeria’’13 and, rather curiously, state indigeneship, requiring the president to appoint at least one federal minister from each state ‘‘who shall be an indigene of such state.’’14 The constitution does not define the word indigene but contains a definition for ‘‘belong to or its grammatical expression,’’ which, ‘‘when used with reference to a person in a State, refers to a person, either of whose parents or any of whose grand-parents was a member of a community indigenous to that State.’’15 Yet, the same constitution guarantees that ‘‘every citizen of Nigeria is entitled to move freely throughout Nigeria and to reside in any part thereof,’’16 and prohibits discrimination in the following terms17: A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person: (a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions are not made subject; or (b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religion or political opinions. Thus, having set up a conflict between the citizen and the indigene, Nigeria’s constitution offers no sensible framework for resolving this tension and sets the country on course to violate its international obligations

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on nationality rights. In the absence of clear constitutional guidance, several interpretations have naturally mushroomed serving narrow interests. 1n 1993, Olusegun Obasanjo, then retired as Nigeria’s military ruler, warned that The concept of ‘‘settler’’ or ‘‘non-native’’ syndrome has of recent hardened into a theory of ethnic exclusiveness and has been moulded and propagated to foist a pejorative meaning to advance economic and political control among competing elite groups for interests during democratic regimes.18 In its 2004 report, the Plateau Peace Conference defined indigenes as ‘‘People who are the first to have settled permanently in a particular area and who are considered traditional natives. . . . Such people have rights to their lands, traditions and culture.’’19 In particular, the conference determined that ‘‘Indigene Certificates should only be issued to Afizere, Anaguta, and Berom in Jos North Local Government Area in line with the definition of indigeneship.’’20 These conclusions relied heavily on the earlier work of the Justice Aribiton Fiberesima Commission of Inquiry, which argued in its 1994 report that An Indigene of Jos is one whose ancestors were natives of Jos, beyond living memory. This does not include any person who may not remember from where his father or grandfather left his native home for Jos as a fixed home, domiciled there as of choice for life; or who is ignorant about from where his family moved to Jos permanently in quest of better living or in the process of his business. . . . In the light of the above consideration or careful thought, we concede to the claim of the Afizere, Anaguta and Berom tribes, and to declare that they are ‘‘indigenes’’ of Jos. But as to the HausaFulani people’s assumption, we make bold, on the evidence at our disposal, to advice them that they can qualify only as ‘‘citizens’’ of Jos.21 These attempts at definition polarize the relationships between indigene and settler, underpinning them in inequality and insecurity, and, simultaneously, diminish the idea of common citizenship. As a result, they transform these into politically explosive concepts. Particularly, the latter

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formulation suggests that ‘‘indigene’’ is a bounded or territorialized identity marked by supposedly defining characteristics and not a racial category. Implicitly, the indigenes lose their status as such if they step out of the recognized territorial markers of this identity grouping into a zone of lesser or no protection. Indigeneship is posited as an exclusive, once-and-for-all-time occurrence that can only be asserted by one group or set of groups and their descendants. It is also bequeathed on a group, not individuals. Thus, a person not recognized as from an indigene group cannot be recognized as an indigene irrespective of how long they or their ancestors or descendants have lived in the location and even if their proof of contact or settlement in the land predates that of members of a group recognized as indigenous. One clear consequence of this is that naturalized Nigerians and their descendants would be ineligible to access federal appointments as they can never qualify to claim indigeneship of any place. There are several flaws with the Fiberesima formulation. First, its suggestion that there can be citizenship of a city of Nigeria has no legal or constitutional bases because Nigeria’s constitution only recognizes citizenship of one country and not of any constituent thereof. Second, this definition of indigeneship privileges sedentary over pastoralist communities in an asymmetrical competition of lifestyles that does not account for the transitory character of pastoralist communities who do not establish themselves in a place by building sedentary populations. Taken to its logical conclusion, this could be a basis for excluding pastoralist communities from citizenship of any territory in Nigeria or beyond, especially those in which they are minorities. Third, it destroys the constitutional guarantee of free movement and freedom from discrimination. Finally, most claims of indigeneship in Nigeria are founded on records of settlement and occupation that were made by colonialist settlers who established what Jules Harmand described as ‘‘colonies of domination’’ over indigenous populations, which involved the convenient manufacture of historical memory.22 Such colonial domination was based on the dubious notion that the settlements established were both unowned and unoccupied. It bears recalling that most of the cities in Nigeria were relatively recently settled. Claims of indigeneship privilege recent settlement activity backed by settler-colonial records and often amount to no more than ‘‘the concoctions of the mind of a not-so-clever diviner.’’23

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In reality, settlements and the establishment of communities based on them predate the contemporary cartography of Nigeria’s geopolitics. It is not always possible to date historical patterns of migration with certainty. Based largely on claims founded on the flawed Fiberesima formulation, the tendency has, thus, emerged of subordinating Nigerian citizenship to local indigeneship. The situation is now such that ‘‘to be accepted as an indigene, one is expected to be a native; and to be accepted as a citizen, one is expected to be an indigene.’’24 In its 2009 report, the Bola Ajibola Commission of Inquiry asserts that ‘‘One is a Nigerian in the first place because he or she belongs to a community indigenous to Nigeria. See Section 147 of the Constitution of the Federal Republic of Nigeria 1999. It is the application of indigeneship that makes us know who is a Nigerian and who is not.’’25 This conclusion is patently mistaken on many grounds. Although membership of a community indigenous to Nigeria is one of the grounds for citizenship, it is not the only ground. Others include descent from a citizen of Nigeria or naturalization.26 Contrary to the claim by the commission, s.147 of Nigeria’s constitution does not provide bases for any such claim, limited as it is to the question of sourcing nominees for ministerial appointments. In the argument over supremacy of indigeneship and citizenship, Nigeria’s Court of Appeal has, in fact, held that sections 25(1)(a)–(b) are a ‘‘binding guide’’ in the determination of who is an indigene of Nigeria,27 suggesting somewhat (but without resolving the problem) that citizenship has primacy over indigeneship. In reality, the problem here is threefold. First, the real scope of the indigene-settler dichotomy is situational. It is, therefore, both dubiously ambulatory and elusive, mutating and adapting depending on the communities confronting one another. The concepts of ‘‘indigene’’ and ‘‘settler’’ appear to be epithets of convenience deployed freely in proxy elite political wars. Second, the dichotomy reflects the demographics of political control of territories within the Nigerian federation: While the indigenes seek exclusive control of existing social and political rights . . . settlers seek to resist their exclusion. The consequence is that millions of Nigerians who live outside the sociopolitical space within which they can affirm their indigeneity suffer exclusion and are exposed to all kinds of humiliation. While some

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have endured deprivations in passivity, others have contested their exclusion, leading to a spate of communal conflicts. In many instances, this has assumed the dimension of violent conflicts with dire consequence for development, national unity and the resolution of the National Question.28 This dichotomy relies on poorly documented and largely unverified historical narratives to construct claims of exclusive ownership of settlements in changed contexts where even recognition of such claims of original settlement would not necessarily preclude recognition of other such claims. As such, it is a fertile site for myths. Third, the site of contestation, though very real, is, as a normative proposition, manufactured in an extraconstitutional zone, for, while Nigeria’s constitution contemplates the indigeneship of Nigeria and, for limited purposes, indigeneship of a state, it does not provide for indigeneship of a settlement, community, local government, or city. To understand how this has evolved, it is necessary to return to the historiography of postcolonial Nigeria and its territorialization.

Internal Citizenship Crises in Jos Since independence, the unitarization of Nigeria’s federalism, especially under nearly thirty years of postcolonial military rule, simultaneous with the microterritorialization of the federating units following the Nigerian Civil War (1967–1970), has emerged as arguably the source of the most serious threats to citizenship in Nigeria. At independence in 1960, Nigeria comprised three regions, namely, eastern, northern, and western regions. In 1963, a fourth, midwestern region was created. To head off the ultimately unsuccessful secession of Biafra in May 1967, the four regions were further split into twelve states. Currently, Nigeria comprises 36 states, 774 local government areas (LGAs), and one federal capital territory. The last exercise in ‘‘state creation’’ was in 1996. All exercises in the ‘‘creation’’ of states were undertaken by military regimes. Communal identities and boundaries mutated and evolved as states were created, uncreated, and re-created. The balance of the relationship between the center and the states as federating units also shifted in

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favor of the center. The result is stiff, elite competition for access to federal goods, including appointments, access to and preferment in positions in the security agencies such as the police and the armed forces, access to federal educational institutions and allocations of federally collectible revenue. In this competition, the territory of the state and belonging to it are mobilized for narrow gain. Jos illustrates the citizenship crisis created in the intersection between recent territorialization, stiff competition for limited federal resources, and the absence of any effective framework of minority protection. These structural causes combust at their point of contact with cleavages of identity, sect, livelihood, traditional institutions, access to land, markets and natural resources, and territorialization and boundary adjustments for access to power (including location of administrative headquarters for new administrative units). The consequences of this contact and abject failure or co-optation into conflict of institutions designed to prevent, mediate, or contain them are dramatized in different ways in Nigeria. The Jos crises and the atrocities associated with them are symptomatic of national problems; thus, nationally applicable principles underpinned by shared citizenship values must be applied to any resulting solution. The Jos situation is the best known largely because of a sense of nostalgia for what it represented before the onset of this brutal spiral. A city of stunning natural and locational endowments, Jos is the capital of Plateau State, a state comprising over 54 ethnic and national groups but whose description as the ‘‘Home of Peace and Tourism’’ now has a ring of cruel irony. ‘‘Jos is one of the most cosmopolitan cities in Nigeria on account of the mass migration into the area during the tin mining boom at the turn of the twentieth century,’’29 yet, since the last decade of the twentieth century, a murderous spiral of cyclic violence has pitted presumed ‘‘owners’’ or indigenes of Jos against presumed ‘‘settlers,’’ resulting in the killing of thousands, displacement of possibly hundreds of thousands, and destruction of property valued in millions. The lines of conflict in Jos, which centered over the control of the city and access to federal patronage and goods, were crystallized sharply with the creation of Jos North Local Government Area in 1991 and boiled over into violence on 12 April 1994 when a counterdemonstration by members of the Hausa-Fulani community against the refusal of the Berom, Anaguta, and Afizere to allow the installation of Alhaji Aminu Mato, a Hausa-Fulani,

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as the chairperson of the Caretaker Committee for Jos North LGA turned violent, leading to large-scale destruction of property and loss of lives. According to the 1994 report of the Fiberesima Commission of Inquiry, The Berom, Anaguta, and Afizere claim that they are the indisputable indigenous people of Jos, that the Hausa-Fulani are settlers, strangers, who migrated into Jos for various reasons which include commerce, employment and repair of fortune. But the HausaFulani contend that they, as owners of Jos, had the privilege of producing the rulers of the town since way back in 1902. . . . This feeling of one having supremacy over the other simmered for years, only to break out into open confrontation and riot on 12th April, 1994.30 In 1991, Nigeria’s then Federal Military Government (FMG) created 89 new LGAs. Until then, the metropolitan area of Jos was one LGA. The major ethnic groups in Jos were the Afizere, Anaguta and Berom (sedentary) and the Hausa-Fulani (with a significant pastoralist population). The sedentary and pastoral groups respectively petitioned the then FMG for the creation of new LGAs from the then Jos metropolitan area. Both groups had requested that Jos be split into two. However, the sedentary populations sought the creation of a new LGA, which they suggested would be called ‘‘Federe,’’ while the Hausa and Fulani communities petitioned for the creation of a Jos North LGA. In 1991, the FMG split Jos into two, creating Jos North LGA with Jos Metropolis as its headquarters and Jos South with its headquarters in Bukuru. According to the Aribiton Fiberesima Commission of Inquiry report, ‘‘The former communities saw this arrangement as a grand plan by the Hausa-Fulani to seize Jos town from them.’’31 In April 1994, the military administrator of Plateau State appointed Alhaji Aminu Mato, a Hausa-Fulani, chairperson of Jos North LGA Caretaker Management Committee. The Anaguta, Afizere, and Berom rejected this, and, on 5 April, the day before the scheduled swearing in of the new committee, they organized protest marches to both the military administrator and the Palace of the Paramount Chief of Jos, known as Gbom Gwom Jos, ostensibly threatening to prevent Alhaji Mato from assuming office. On 8 April, when the new committee was to assume office, the Plateau State Cabinet Office, apparently responding to a public show of force by

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Afizere, Anaguta, and Berom youths threatening physically to prevent Alhaji Mato and his team from assuming office, issued a letter requesting the director of personnel management in the LGA to assume management of its affairs temporarily. In a counterprotest on 11 April 1994, some Hausa-Fulani butchers slaughtered cows and other animals on the highway near the abattoir in Jos to protest the government’s suspension of Alhaji Aminu Mato’s assumption of office, vowing that they would continue their protests until he was allowed to assume office.32 A protest demonstration by Hausa youths in Jos North led to what the Fiberesima Commission described as ‘‘chaos,’’ in which many lives were lost and property running into millions of dollars was destroyed. Since then, Jos has experienced several other situations of mass violence, each one more serious than before. The 2002 report of the Niki Tobi Commission of Inquiry contained 63 pages on the killing and destruction, including the names of 904 persons killed in the crisis of 2001 and an itemization of destroyed property valued at millions of dollars, excluding forced displacement.33 Other researchers claim that ‘‘initial estimates compiled by local human rights groups, religious communities and other organizations indicate that more than one thousand people were killed in the six days that the violence lasted.’’34 The response to these cycles of atrocities and reprisals included enhanced security-sector presence, curfews, and a state of emergency. Following another cycle of killings and reprisals in Yelwa, Plateau State, in 2004, President Olusegun Obasanjo declared a state of emergency in Jos and appointed a former chief of army staff, Chris Alli, as the administrator of Plateau State for six months. General Alli organized a statewide peace conference, which issued a consensus document, Plateau Resolves, that he assented to as administrator, outlining measures to be implemented to restore normalcy to the state. Far from restoring normalcy, however, things appeared to degenerate in Jos. In 2009, the Ajibola Commission report identified over 323 persons killed in the November 2008 crisis.35 In 2010 alone, there were three major incidents of mass killing and arson in Jos and several other lesser known ones. The casualty count from these incidents is not yet fully known. However, the attacks associated with the conflicts in and around Jos ‘‘according to estimates from the UN Committee on the Elimination of Racial Discrimination, [have] killed 13,500 in Plateau State since 1999.’’36

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Jos is not the only place where the creation of new administrative units has crystallized identity-based crises in Nigeria founded on conflicting ideologies of rootedness, belonging, and alienage. In the three-year period between 1999 and 2002, two nongovernmental organizations, the Organisation Mondial Contre la Torture (OMCT) and CLEEN Foundation, documented over ‘‘50 outbreaks of targeted violence’’ in Nigeria associated with local citizenship issues of the indigene-settler variant.37 These outbreaks were usually characterized by ‘‘extrajudicial killings, rape, torture, maiming and destruction of property and livelihood.’’38 The geopolitical spread of these crises indicates clearly that Nigeria confronts a national pathology. These situations are often a contest over context and varying claims of historically sourced superiority of territorial entitlement. In Jos, the contest is between the claims to ownership of the city; exclusive indigeneship of the Anaguta, Afizere. and Berom; and the competing claims of the Fulani and Hausa communities also to be recognized as indigenous to the city. This conflict has a history in the organization and territorialization of northern Nigeria that predates its more recent descent into mass killings. Politically and demographically, the Anaguta, Afizere, and Berom of the Plateau are minorities in a part of northern Nigeria known as the Middle Belt. In the twilight of colonialism in 1957–58, the United Middle Belt Conference (UMBC) took its fears of domination in a postcolonial Nigeria to the Willink Commission, established by the colonial government to ‘‘enquire into the fears of the minorities and the means of allaying them.’’39 The Willink Commission described the communities represented by the UMBC as ‘‘both ethnic and religious minorities and it is the claim of some of them that their best hope for the future lies in the carving out from the Northern Region of a Middle Belt state.’’40 Until May 1967, Jos was an administrative division within the Northern Region and all ethnic groups in the region were indigenous to it. The deepening of the indigene-settler problem is thus one of the consequences of reterritorialization through the creation of new administrative units like states and local government areas. In May 1967, Jos became the administrative capital of the newly created Benue-Plateau State (the forebear of the current Benue, Nassarawa, and Plateau States), before becoming in 1975 the capital of Plateau State, following the creation of Benue State from Benue-Plateau State. Rather than resolve the tensions between the various ethnicities of the Middle Belt, reterritorialization through state and local government creation deepened them. Ironically, the ethnic groups that

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were minorities in the unified territory of precolonial and early postcolonial Nigeria became majorities in the newly created states. By contrast, the Hausa and Fulani who were a majority in the old Northern Region are now a minority in and around Plateau State. This changed architecture of the demographics underlying the indigene-settler division is an important one. The response of government—both state and federal—to the cycle of violence that has characterized the crises in Jos and other parts of Plateau State has been to establish commissions of inquiry. Since the beginning of these crises in 1994, there have been over twelve such commissions. Thus the reports of these commissions have themselves become part of the contest over both context and history in Jos, illustrating a pattern of leadership failure and a deepening of internal citizenship crisis. A review by Nigeria’s national security adviser in 2011 concluded that ‘‘With this record, the commissions of inquiry appear to have become part of the problem instead of being part of the solution to the crises in Jos.’’41

Conclusion The end of colonialism in Africa simultaneously deracialized mobility but retribalized power. The African political, educated, and urban elite emerged as a new class ripe with economic and social mobility, while uneducated, rural peoples remained locked in extended postcolonial exclusion. The colonial-era distinction between the native and the European transformed into a postcolonial one of status and class among Africans that is dependant on economic mobility. However, access to power, defined by local concerns, was shaped with reference to local identity, essentially excluding the migrant population of the nouveau postcolonial elite as the price of their newfound material comforts. What emerged as the postcolonial contest between indigenes and settlers reflects a rough symmetry in distinction between African economics and politics—the dynamization of economics and the tribalization of politics. The indigene-settler divide forces the ‘‘settler’’ to renounce political participation in return for economic prosperity. This bifurcation of political and economic life in the postindependence context diminishes society, denudes governance, and eviscerates rights, without enriching economics. It continually looks back to where people come from, rather than forward to what they have contributed to the societies to which they relocate or in which they choose to live. Furthermore, it endangers state formation.

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Ultimately, however, the persistence of the indigene-settler crises announces a clear failure of postcolonial political leadership to expand the frontiers of opportunity, transform the normative architectures they inherited, or ensure compliance with the international norms that they have ratified. For places like Jos, peace-building initiatives without reform of the structures of both political governance and economic and human development will not be enough. Security-based responses to what is essentially a failure of political leadership, laws, and institutions will probably also not work. A far reaching remodeling of the architecture leadership, participation, and inclusion is needed. For the moment, the promise of postcolonial citizenship is still just that, a promise. Most of the continent’s people will continue to aspire to equal citizenship—‘‘wannabes’’ at best in the only countries that they can call theirs. The victims of Africa’s many citizenship crises are victims of a failure of leadership at all levels—federal, state, and local. Over fifty years after independence, these avoidable tragedies should inspire the continent’s current leadership to prioritize citizenship as the project of Africa’s next halfcentury. The consequences of not doing so may be too difficult to imagine.

Chapter 7

Capricious Citizenship: Identity, Identification, and Banglo-Indians Sujata Ramachandran

The absolute value of citizenship status to people’s lives and their daily existence does not need to be underscored. When the citizenship of individuals or groups is questioned, certain rights and obligations granted to them are automatically weakened, undermining their social position. When these rights are routinely violated, they may find their existence degraded and invisible. Several chapters in this book have documented the many hardships particular groups and individuals face when they are not accepted as citizens (Baer; O’Nions), do not hold formal citizenship of a state where they ordinarily and extraordinarily reside (Hiemstra and Mountz; McLaughlin and Hennebry; Uddin), or when these rights are not extended to them (Bhabha and Matache). Although generally associated with inclusion, of ‘‘defining personhood’’ through rights and agency, the old and new histories of citizenship are as much about exclusion as about inclusion.1 Two related aspects of citizenship come into play here: citizenship as status and citizenship as identity.2 To access the entitlements of citizenship and have legal standing, official documents provided by the state are key. The formal identification of individuals through these documents—their citizenship status—establishes their belonging to a national collectivity—their citizenship identity. Citizenship is therefore not only about passive affiliation with a particular state: it is inextricably tied to political projects of belonging in which nationstates are crucially implicated.3 The identification of legitimate citizens and

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Others is essential to upholding the myth that a unified national identity exists, and identity documents confirm membership in this imaginary national community.4 The processes of citizenship identity and identification both inevitably involve the regular demarcation of ‘‘Us,’’ those who belong, and ‘‘Them,’’ those who do not. But what happens when borders of citizenship identity and identification are indistinct, and are combined in an unstable manner with unchecked unease over the presence of undesirable Others? Through the example of ‘‘Banglo-Indians,’’ transnational migrants who unsettle limits of national identity and Indian citizenship, I provide a case study of the Indian state’s efforts to manage these tensions through the contemporary transformation of citizenship governance in India. In so doing, I follow Bigo’s analysis of ‘‘governmentality of unease.’’5 I begin by outlining the contours of what I characterize as ‘‘capricious citizenship’’ and its significance for Banglo-Indians and other marginal Indian residents whose citizenship status is at stake in these emerging processes. The next section briefly highlights broad aspects of these insecurities, especially new anxieties over terrorism and national security with its uncritical links to cross-border migration. I also analyze some latest attempts at managing these anxieties through new modes of citizenship and security mechanisms. These include the unfolding of integrated national identification systems and identity cards in which a central registry of citizens and residents actually entails multiple forms of surveillance of resident populations. With the help of examples, I identify some tendencies associated with these latest modes of citizenship, namely, enclosure, expulsion, classification, and exclusion.

Irregular Migrants and Citizenship Slippages On 23 July 1998, a small group of individuals, apprehended by Mumbai6 police as ‘‘illegal Bangladeshi’’ migrants and being transported by train to the Paschimbanga (erstwhile West Bengal) border for deportation, were liberated in an unusual set of circumstances.7 A large crowd led by a Forward Bloc politician (then part of the Left Front coalition government in the state of Paschimbanga) halted the train at Uluberia (outside Kolkata/ Calcutta), demanding release of the deportees, asserting they were Bengalispeaking Muslims and, more important, citizens of India.8 The deportees,

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six women and twenty-eight men, were indigent migrants from Paschimbanga employed in Mumbai’s textile industry. They complained that the Maharashtra police had arrested and labeled them ‘‘infiltrators’’ because they spoke Bengali (also spoken in Bangladesh) and were Muslims.9 The district administration reportedly later confirmed that the deportees were really Indian citizens who had migrated from various districts of Paschimbanga.10 The conflict only deepened when the Paschimbanga government described the deportations as ‘‘inhuman and barbaric,’’ accusing the anti-Muslim, xenophobic BJP-Shiv Sena parties then ruling Maharashtra of harassing genuine citizens, blocking further deportations.11 A few days later, several major parties staged a walkout from the Lok Sabha12 protesting forcible expulsion of Indian citizens.13 This extraordinary episode is illustrative of long-standing uncertainties surrounding the identity and identification of irregular Bangladeshi migrants in India. Although generally perceived to be a homogeneous group on the basis of what is characterized as ‘‘illegal’’ entry and unsanctioned residence within the national territory of India, it remains a fuzzy, intricate category due to a variety of factors and circumstances. I have tried to convey these nuances in previous writings through the concepts of ‘‘capricious citizenship’’ and ‘‘Banglo-Indians.’’14 At the center of the strident debate on citizenship and enclosure in India are transmigrants, the ‘‘Banglo-Indians,’’ whose status, existence, and future are linked to two neighboring states and who are rejected by both of them. One can well say the same about transmigrants in other geographical and national contexts, especially where marginal groups such as irregular migrants and refugees are concerned. Here, Bangladesh’s steady denial of migrant flows into India and India’s deepening anti-immigrant stance have fatefully organized this duality. So has the fact that, for an extended period, India accepted these migrants, albeit in varying degrees depending on location. They were treated as citizens and liberally granted entitlements ordinarily meant for citizens, including state subsidies (such as food rations) and voting rights. The categorical difference between the ‘‘citizen’’ and ‘‘resident’’ was dissolved: in effect, the two categories became identical. Border enforcement and deportations were weakly exercised. Poorly demarcated, and largely open, borders between the two countries, woven with lengthy histories of large-scale migrations tied to colonial and postcolonial nation-building processes, have lent enormous density to irregular migration in this region. Bangladeshi migrants’ sociocultural integration

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and ethnocultural similarities with Indians have fundamentally challenged the state’s ability to differentiate legitimate residents or ‘‘citizens.’’ In his work on irregular migration in Malaysia and India, Sadiq discusses ‘‘blurred membership’’ in developing countries, where efforts to differentiate between ‘‘citizen’’ and ‘‘foreigner’’ are undermined by the absence of standardized documentation for citizenship confirmation and where many ‘‘illegal’’ migrants have ‘‘fraudulently’’ acquired multiple documents reserved for citizens.15 He characterizes them as ‘‘paper citizens’’ and the process of claiming nationality through these documents as ‘‘documentary citizenship.’’16 He implies that these migrants are not really legitimate citizens of India because they were not entitled to these documents in the first place. While it is true that documents may sometimes be acquired through unorthodox means, including bribery, I argue that they were not obtained unlawfully. Before the Indian state began to discriminate against them, migrants received documents through the same mechanisms as other residents. One can perhaps even go so far as to claim that, by permitting them to acquire these documents, the Indian state actually naturalized the migrants, turning them into de facto citizens. Unsurprisingly, transmigrants also claim Indian citizens’ identity for themselves. I invoke the term ‘‘slippery citizenship’’ here to evoke the ambiguities, unpredictability, and lack of consistency attached to the citizenship status of residents of India, at least some of whom are now perceived to be noncitizens and unwanted residents, yet hold official documents that can only be issued to citizens. The concept of ‘‘capricious citizenship’’ denotes this dynamic and outlines how it comes into play for irregular Bangladeshis. The demarcation lines between citizens and noncitizens, particularly those who are now seen as a threat to the nation-state’s well-being, are highly indistinguishable. After the Delhi High Court rejected the Indian government plea in mid2005 to revise the prescribed ‘‘Action Plan’’ of deporting one hundred irregular Bangladeshis per day from the capital city under a Public Interest Litigation/PIL judgment, an unidentified official complained about these identification difficulties: It is virtually impossible to separate Bangladeshis from the lot belonging to Bengal, Bihar and Assam. Most of them have changed their identities. They have Hindu names and have even got ration cards. Many of them have picked up Bihari and dialects of West

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Bengal and some of them do not even speak their language at all. Finding them is like finding a needle in a haystack.17 The PIL had proposed a substantial increase in migrant deportations on the grounds that migrants were depriving legitimate citizens of public services.18 The official’s statement laments the physical and cultural resemblances of transmigrants and Indians, and migrants’ assimilation into areas where they settle. It is also not clear whether these migrants were ‘‘documented’’ in Bangladesh, and thus whether any records even exist of their birth and residence there. So, the category ‘‘Indian citizen’’ is not stable, and slippages with the ‘‘illegal’’ Bangladeshi migrant are pronounced. They are particularly acute for indigent urban migrants who do not carry many forms of identification, and especially for those who share cultural affinities with Bangladeshis (such as religion and language). Class-based preferences attached to uneven, often arbitrary processes of identity confirmation mean that many poor Indians own few official documents that can conclusively substantiate their nationality. Documents that confirm identity, origin, and history of residence or domicile (like Permanent Account Number (PAN) cards (for income tax payers), driving licenses, credit cards, land registration deeds, telephone bills, electricity bills, employee ID cards, student ID cards, bank accounts, and passports) are all stacked unfavorably against vulnerable populations. Feeble birth registration systems augment this uncertainty. Close to half of all children in urban areas in South Asia are unregistered.19 Rural rates are even lower, due to poor registration facilities.20 Studies have revealed the dismal rates of official credentials held by poor urban households and weak access to documents that give legitimacy to their residence.21 Yet, at the same time, two commonly held documents, ration cards and voter cards, have been liberally issued to transmigrants. As the episode recounted earlier demonstrates, in such contexts the risk of falsely characterizing actual Indian citizens as ‘‘illegal’’ migrants remains extremely high.

Transmigrants and Politics of (In)Security In the last few years, the easy relationship between territory, residence, and rights has become unsettled. The belief that the presence of large numbers

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of migrants inside national boundaries signifies the weakness of the Indian nation-state is now even more firmly entrenched in the public imagination. The Indian Supreme Court’s repeal of the Illegal Migrants Determination by Tribunals (IMDT) Act, which had addressed the ambiguities of citizen versus noncitizen status through autonomous courts in the state of Assam, operates from this restrictive logic.22 Recent connections indiscriminately drawn between terrorism and Bangladeshis after the high-profile attacks in Mumbai in November 2008 and more recent explosions in New Delhi and Jaipur have also shored up such xenophobic and anti-Muslim antipathies.23 India is in a current state of high anxiety over migrant flows across its eastern border. A quote from the Ministry of Home Affairs Annual Report for 2004–5 illustrates these worries: ‘‘The problem of illegal migration is more acute [with] respect [to] Bangladeshi nationals. Such migrants not only tax the civic and other services available to Indian citizens but also pose a security threat as foreign agencies inimical to the interest of India may use such elements for anti-India activities.’’24 Because these unchallenged fears have continued to heighten, they have amplified pressures on the Indian state to identify and categorize ‘‘residents’’ on the basis of those attributes that relate to belonging. Nevertheless, it would be naive to assume that the raison d’eˆtre of these new modes of citizenship is no more than the latest forms of insecurity based on terrorism, the latest ‘‘state of unease.’’25 Hiemstra and Mountz’s chapter on undocumented migrants in the United States reveals how historical projects of exclusion such as those rooted in racism continue to structure current dynamics and their pervasive effects on citizenship rights. In India, a long history of xenophobia shapes these insecurities and marginal populations acutely feel its cumulative effects.26 Moodie’s analysis of bomb blasts in Jaipur documents the manner in which previous ‘‘demographic anxieties’’ over these flows and their insertion into the politics of the Hindu Right have converged with newer concerns over safety and security.27Jones demonstrates how new border enforcement practices have reinscribed religious conflicts through the global war on terror.28 Elements of Bigo’s perceptive analysis of ‘‘(in)security’’ are useful here. He argues that the Banopticon dispotif, an assemblage of practices and mechanisms for management of unease, has transformed security concerns to ‘‘in(security).’’ In(security) has at least three meanings here: production of fear to justify such practices, renewed vulnerability of marginal populations subjected to its surveillance, and an eroded concept of security. With

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its myopic fixation on ‘‘coercion acting,’’ security becomes a void, detached from legitimate concerns of ‘‘human, legal and social guarantees and protection of individuals.’’29 The discourse on ‘‘insecurity’’ has an added poignant dimension: the absolute insecurity of survival that compels transmigrants to enter India.30 Brown provides a different perspective on this ‘‘state of unease.’’31 She argues that the waning of state sovereignty through intensifying transnational processes like migration has led to the emergence of ‘‘walled states,’’ where fortification of geographical boundaries also symbolizes the production of reactionary national imaginaries. These hypervisible walls (she confines her analysis to border fences) function theatrically to convey the fantasy of an absolute, enforceable distinction between inside and outside, as an effort to counteract the ‘‘slippery sovereignty’’ exercised by it. She refers to the ‘‘crude’’ emerging fence at the Indo-Bangladesh border as one such wall.32 Though Brown deems the decline in state sovereignty to be global, the contextual specificities of the Indian case must be highlighted. I use the term ‘‘slippery sovereignty’’ to convey the lack of absolute control exerted over its territory by the Indian nation-state, of which incomplete information about its subjects is a formative aspect. ‘‘Waning sovereignty’’ in the context of border and interior enforcement does not imply that the Indian state ever exerted total control. Rather, this control is seen to be increasingly slippery, sliding farther away from the state. Nevertheless, this does not mean that the state ceases to exert a durable influence on residents’ lives. Also, the Indian state is centrally involved in perpetuation of irregular migration that it renders ‘‘illegal’’ or unlawful, and subsequently produces risk in manifold ways, through what Lyon terms ‘‘categorical suspicion.’’33 More important, the insecurity associated with these informal flows does not end with ‘‘securitization of borders.’’34 These real and symbolic walls are not only created at the nation-state’s blurred geographical edges; they are also maintained in other far-reaching and often less noticeable ways. Needless to say, many of these new mechanisms have and will affect, in momentous ways, the construction of citizenship and its boundaries. The acceleration of fence construction at the Bangladesh border is the most conspicuous element, though it is not the only ‘‘walls’’ and other divides operating here.35 Other examples are less visible. Besides the fortification and enclosure of geographical boundaries and, concomitantly, of nationhood, separation, expulsion, sorting, and exclusion are other tendencies. The

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normalization of surveillance through tagging and labeling, along with policing of populations at several levels, from ordinary residents in marginal locations where migrants reside and through sophisticated systems using the latest technologies, are defining traits of governance defined by security imperatives.

Enclosure and Separation An unusual manifestation of nationalist hyper-anxiety and its reaction to slippery sovereignty is identity documents for Indian cows near border areas. Introduced in 2007 to limit cattle ‘‘smuggling’’ to Bangladesh, it was seen as a novel solution to check the migration of cattle across the border. Residents of Paschimbanga’s Murshidabad, Nadia, and South 24 Parganas districts were told by the Indian Border Security Force (BSF) to have their cows photographed in order to obtain special cattle cards, conveying, incredibly, that even ‘‘cows have nationalities.’’36 Since cow slaughter is illegal in many parts of India due to the cultural practices of Hindus, aging cattle are traded to Bangladesh, where such restrictions do not apply.37 Valid for two years, these photo cards displayed the animal and its owner’s picture, along with information such as color, height, sex, length of horns, and identifying features like ‘‘horn missing’’ or ‘‘half tail lost.’’38 In Murshidabad alone, more than 5,000 such cards were distributed. Variations of the program were apparently being considered as early as 2001.39 The ‘‘cattle ID card’’ exercise may appear absurd, but it is an effective illustration of how the state amplifies border anxieties to justify its governance methods, however costly and ineffective such bureaucratic schemes may be. It heightens the vulnerability of Indian space to ‘‘intrusion’’ while exaggerating the differences, especially cultural ones, between the two countries. The demarcation of national identity linked to religion and religious practices lends special significance to this sharp emphasis on cattle trading.

Surveillance and Expulsion Elsewhere, the Indian state has sought to manage these anxieties and indistinctness through surveillance and expulsion. In early 2008, Razia Begum and her family challenged a deportation order to send them to Bangladesh

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by producing documentation validating their citizenship status.40 They supplied ration cards and voter identity cards, asserting that, as entitlements tied to citizenship, they confirmed their Indian nationality. Razia also held an Indian passport. The Foreigners’ Regional Registration Offices (FRROs), the primary Indian agency regulating entry, movement, and length of residence of noncitizens, refuted their claim. It maintained that Razia and her husband had migrated ‘‘illegally’’ during the 1990s and at some point managed to obtain these documents. Court transcripts indicate that Razia was not able to provide any other evidence backing her claim of having being born in India or having resided in south Delhi. She had also been unable to furnish proof of birth for her children. There are crucial aspects of this case. Local authorities had relied on ‘‘secret information’’ that her family had entered India ‘‘illegally,’’ for which the Deportation Cell had detained her.41 (The ‘‘Deportation Cell’’ refers to the latest specialized police units, ‘‘Bangladeshi Cells,’’ whose main task is to locate, detain, and deport migrants.42) The details of this information and its reliability were neither divulged nor questioned. Given the modus operandi through which they would have been identified in Delhi, Razia and her family had very likely been detained after being branded ‘‘illegal Bangladeshi’’ migrants by mukhbars (informants) tied to the police.43 Here, surveillance operates as a panopticon where other slum residents, often transmigrants themselves, collude with police and local-level powerbrokers in migrants’ identification.44 The judge upheld the deportation order, ruling that, because the available documents were obtained through ‘‘fraudulent means’’ and other evidence was absent, Razia and her family had ‘‘miserably failed’’ to prove that they were citizens of India.45 Legal counsel for the Indian state had argued that she had obtained the passport through deceptive means in three separate attempts (with varying dates of birth, mother’s name, and addresses), even though, at the final attempt, she was actually issued a passport. Razia’s grandchildren, born after the new citizenship rules came into effect (eliminating jus soli rights for migrants’ progeny), were also to be treated as ‘‘foreign nationals.’’46 Reaffirming the dominant narrative, Judge Bhayana concluded predictably that the ‘‘influx of Bangladeshi nationals who have illegally migrated poses a threat to the integrity and security of India,’’ underscoring the need for stringent controls.47 He added, ‘‘the order of deportation is not punishment but a method of ensuring return to his own country of an alien who has not complied with the conditions’’ of state entry and residence.

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Even knowing the details of her case, it is not possible to determine conclusively if Razia Begum had actually migrated from Bangladesh and if, originally from there, she had lived in India for at least ten years before being singled out for expulsion. Remarkably, hardening citizenship limits, particularly exclusion of birth-based rights for transmigrants’ children, were endorsed under the same set of rules that provided greater entre´e to overseas Indians and descendants of Indian emigrants (see Rygiel and Walton-Roberts in this volume). The shifting boundaries of citizenship inclusion and exclusion have operated simultaneously, with a growing focus on ethnicity and descent.48 Of course these are highly disputed concepts in the Indian subcontinent, given its common history, and conveniently overlooks that such affinities also extend to the transmigrants.

National Identification Systems and Social Sorting Identification systems, surveillance experts have argued, should be treated as a form of governance, for identity cards issued through such structures are often the only obvious evidence of complicated and covert forms of identification with strong social consequences attached to them.49 Lyon asserts that, although ID cards are seen as ‘‘identity cards,’’ it would be more accurate to characterize them as ‘‘identification cards.’’50 The propensity for ‘‘social sorting’’ based on selected qualities is strongly present in these seemingly benign systems.51 The rapid proliferation of such systems suggests that identification and citizenship function as aggregated entities in these ‘‘times of insecurity.’’52 New citizenship practices are, therefore, really about the ‘‘exclusion of undesirable elements,’’ contrasting sharply with the welfare function of previous systems.53 New aspects associated with these systems, such as biometrics, enable officials to make these ‘‘discriminatory judgments’’ with much less recourse to flexibility and bureaucratic discretion.54 Despite their popularity, it is not clear how effective these systems are in addressing the concerns that justify their existence and high costs.55 I briefly examine two national-level identification systems currently in process in India that address aspects of ‘‘capricious citizenship.’’ While a detailed assessment of these systems is not possible, what is noteworthy is their commonality in terms of function and structure. These include their reliance on biometric information, sharing of data, their unstated mutual

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overlaps, their similar historical origins and continuities, and the powerful implications they hold for resident populations. The first of these latest mechanisms that attempts to address ambiguous citizenship identities is the Unique Identification Project and Aadhaar. This highly publicized undertaking by the Unique Identification Authority of India/UIDAI, initiated in February 2009, aims to assign every ‘‘resident’’ of India a twelve-digit individual identification number on behalf of the Indian state.56 Aadhaar (meaning foundation or support in Hindi) numbers will be assigned to persons after they submit their demographic (name, age, gender, address, name of parent/guardian for children below five years) and biometric information (picture, fingerprints, iris scan) to any Aadhaar enrollment center. Collected information will be integrated into a centralized database containing the numbers with corresponding demographic and biometric information. So far, over 254 million residents of India have enrolled and some 400 million are expected to do so during the second phase.57 Aadhaar’s primary purpose is to create ‘‘a universal identity infrastructure’’ that will serve as the foundation for issuing identity-based official documentation like ration cards and passports. It will also support public or private programs or services that depend on unique identification, provide secure access, and, equally important, reduce existing mismanagement in programs such as food subsidies.58 Accordingly, it would allow residents to prove their identity and service providers to confirm to which residents they have to provide benefits. The socially inclusive dimensions of Aadhaar, namely, its value to vulnerable residents, have been repeatedly emphasized. The UIDAI highlights the ‘‘debilitating exclusion’’ of the poor from resources such as bank accounts. In a supporting paper, the deputy director-general of Aadhaar explains that, for many people, absence of documentation to confirm identity ‘‘condemns them to remain in a vicious circle of poverty’’ because it acts as a formidable barrier to accessing public benefits and subsidies.59 He adds, ‘‘inclusion of vulnerable groups [is] the summum bonum [highest good] and metaphorically speaking the heart and soul of the Aadhaar project.’’60 The UIDAI stresses that its mandate is to take special measures to ensure that Aadhaar is available to poor and marginalized sections of society.61 During the first phase of enrollment, the principle of inclusiveness appeared to be at play. Large numbers of documents were accepted as proof

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of address or identity, and, even when supporting documentation was not available, enrollees were generously allowed to make use of multiple ‘‘introducers’’ (guarantors for identity confirmation).62 After complaints from many quarters over the easy inclusion of ‘‘illegal residents,’’ including a Parliamentary Standing Committee review, the second phase is more stringent, with stronger document checks.63 The introducer system has been scaled back substantially, undermining the supposed goal of the scheme, that is, enrollment of poor residents with weak or negligible proof of identity and address.64 While Aadhaar registration is voluntary, public and private structures are being aggressively linked to the UID card, without which access to services, including education, will be adversely affected.65 So, Aadhaar already functions as a de facto identity card.66 Remarkably, Aadhaar’s development has paralleled the gradual emergence of another, markedly similar structure for systematic enumeration and identification of Indian ‘‘citizens.’’ While less hyped or conspicuous than Aadhaar, the National Population Register (NPR), a database of ‘‘usual residents’’ above age five, is being created through the census.67 Changes to the Citizenship Act under the Hindu nationalist BJP-led coalition government in 2003 inserted mandatory provisions (termed Citizenship Rules, 2003) for the NPR of all Indian citizens and the distribution of National Identity Cards (NICs).68 Like Aadhaar, this edifice relies on biometric information, and, for some time, such details were being documented twice, by NPR and Aadhaar. Now, NPR biometric information is being linked to Aadhaar, and individuals’ UID numbers are being attached to various existing databases. Each individual must provide supporting evidence to confirm his or her citizenship status for the NPR, which is examined by a verification team.69 Citizenship will be deemed suspect unless proved otherwise. For documented residents, lists containing their biographic information, photograph, and UID/Aadhaar number will be ‘‘printed and displayed in the local area’’ to ‘‘invite claims and objections from the public at large.’’70 The dubious role of local residents in identifying ‘‘illegal’’ residents and helping organize the NPR through residents’ classification is a strategic element here. Monahan’s observation that the social construction of fear helps people shape their identities and locate themselves in relation to others, through acts and discourses of exclusion, becomes palpable here.71 Available information suggests that the Unique Identification Project emerged from a smaller exercise in 2006 to provide identity documents to

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households eligible for the ‘‘Below the Poverty Line’’ program.72 Later, the government decided to ‘‘collate’’ the Aadhaar/UID project and the NPR. Even though broadly addressing crucial aspects of identity and identification, the tensions apparent in divergent objectives of these two colossal exercises, the one inclusive (to broaden access to resources through identity confirmation) and the other exclusive (identification and categorization by citizenship status), have not been adequately resolved. It is also not yet clear how these two parallel systems will eventually integrate and function jointly. Former Intelligence Bureau AK Doval has highlighted the UID project’s less benevolent objectives: ‘‘It was intended to wash out the aliens and unauthorized people! But the focus seems to be shifting. Now, it is being projected as more development-oriented lest it ruffle any feathers!’’73 Critics like economist Jean Dre`ze, who has worked extensively on poverty and social access, describe Aadhaar as a ‘‘national security project in the garb of a social policy initiative.’’74 Other comments correspondingly attach it to the Indian state’s new defense agendas, characterizing Aadhaar and proposed NIDAI measures as mammoth surveillance projects, with extensive and yet unacknowledged implications for ‘‘tracking’’ and ‘‘tagging’’ residents and their activities.75 Special provisions such as use of Aadhaar data for ‘‘national security’’ purposes outlined in the NIDAI bill and its integration with other emerging measures such as NATGRID (national intelligence information-sharing network, developed after the Mumbai attacks) have been identified as areas of grave concern.76 With transmigrants featuring intensely in this ‘‘state of insecurity,’’ these systems will function through ‘‘marginalizing surveillance,’’77 likely applied excessively to track the activities of weaker residents, those who appear to be ‘‘illegal’’ Bangladeshi migrants, and others who become undesirable or dangerous in the eyes of the state. Since these measures are in their formative stages, just how those who possess limited documents and are unable to prove their citizenship will be treated under these two systems remains to be seen. Mehmood’s captivating account of the preliminary stages of NPR enrollment suggests the creation of a continuum of residents, from those who are deemed ‘‘very Indian’’ to those seen as ‘‘less Indian.’’78 I argue that the long-term implications of these national identification systems, as currently organized, are dangerous for those who are unable to secure their citizenship identity through the NPR or Aadhaar. At best, they will become invisible to the state, unacknowledged, deprived of dwindling social welfare programs, and ultimately

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neglected. Equally disturbing, and further along the spectrum of social inequality and segregation, they will face constant scrutiny and risk expulsion as ‘‘illegal’’ migrants. A different, albeit alarming, scenario is that, armed with biometric information on all residents, legitimate or otherwise, the state will be able to track them and permanently disable access to rights and services for suspected residents. This will achieve a long-standing goal in which migrants are allowed to remain in India, but with all rights eliminated. With few measures at present to address the dilemma of unreliable documentation, there are sound reasons to assume that a very large number of residents will eventually be facing unpleasant realities. The social exclusion of marginal residents on a number of fronts is an inescapable feature of these new systems. The slipperiness attached to citizenship rights therefore is likely to intensify in the future. In an extreme situation, those excluded by these systems or flagged for being ‘‘illegal’’ may find themselves stateless, existing in the shadows of two states, but devoid of citizenship in either.

Conclusion This chapter has called attention to the contemporary governance of citizenship in India and predicaments of citizenship identity and recognition of residents’ citizenship status. The former generous accommodation of transmigrants as de facto citizens, coupled with weak access to official documents for indigent residents, creates the conditions for ‘‘capricious citizenship,’’ which now results in distorting citizens and residents’ dissimilarities. A key attribute of this form of slippery citizenship, where citizenship is blurred through erratic endorsements of citizens’ identity, is the presence of transmigrants, or Banglo-Indians. Comfortably assimilated into the social fabric of areas where they settled and ‘‘Indianized,’’ they maintain Indian citizenship identity for themselves. New discourses of insecurity that incorporate previous concerns about migrants’ growing numbers and religious differences have fused with contemporary anxieties over terrorism. This transforms the Banglo-Indian into a figure of fear in India. The remarkable irony is that the smooth incorporation of Banglo-Indians into Indian society has become a principal source of discomfort, which sits in marked contrast to debates over limited migrant integration in Western Europe.79 In this securitized vision of sovereign territoriality, the existential

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insecurity of deprivation that drives Bangladeshis to India is completely obscured, as are their deep cultural and religious commonalities with Indians. With partial knowledge about its own residents blending ‘‘precariously’’ with Banglo-Indians, the slippery sovereignty exercised by the Indian state combines detection of transmigrants with their isolation from its ‘‘real’’ citizenry. With some 1.3 billion or more residents to account for within its territories, the mammoth task of sorting out citizens and noncitizen residents is a formidable and perhaps nearly impossible undertaking. The slippery sovereignty rationalizes this securitized insecurity through new modes of citizenship, some of which are in early stages of inception. Several manifestations of this management are identified, where citizens’ identification works simultaneously to redraw boundaries of citizenship identity and national inclusiveness. The unexpected use of ‘‘cattle ID cards’’ to magnify the borders of geographical-national-religious belonging are a indicator, however peculiar, of insecurity-driven governance, as is the escalating border fence emblematically enclosing national territories. The barring of jus soli rights for migrants’ progeny and the use of ‘‘community’’ surveillance to detect migrants feature as its other troubling modes. Surveillance figures strongly too in the emerging national-level methods of citizens’ identification through Aadhaar and NPR. In these expanding systems, Sadiq’s notion of ‘‘documentary citizenship’’ acquires a completely different meaning.80 These new developments show how much importance official documents carry for lives of insignificant residents, as without them they may find themselves not only bereft of citizenship rights and access to services but also vulnerable to deportation and possibly statelessness, the final act of exclusion from national belonging. Perhaps the most striking incongruity is that these systems do not really address the problem of uneven documentation; rather, they magnify its insidious effects by focusing disproportionately on exclusion of the Banglo-Indian. With the Aadhaar and NPR enrollment proceeding uninterrupted at the time of writing, the future acceptance of transmigrants in India appears rather bleak, but their insecurity will likely extend to many Indian residents as well.

Chapter 8

Are Children’s Rights to Citizenship Slippery or Slimy? Jacqueline Bhabha and Margareta Matache

On 26 August 2012, Gabor Vona, chairman and a founding member of the extreme nationalist Jobbik Party in Hungary, addressed a rally in the following terms: ‘‘We need to roll back these hundreds of thousands of Roma outlaws. We must show zero tolerance towards Roma crime and parasitism. . . . If they do not want to go, we will seek help from Brussels. . . . We must ask them to adopt several hundred thousand of our citizens for a few years and try to educate them in European culture. Once they have succeeded, we can welcome them back.’’1 Vona’s statement denied the Roma, both adults and children, their citizenship rights in Hungary. Yet, as the report of a conference convened by President Herbert Hoover stated in 1930, ‘‘The rights of the child [are] the first rights of citizenship.’’2 More than a unitary status, citizenship is a reciprocal relationship of rights and duties, as the leading international case on the topic made clear years ago.3 The relationship denotes a special legal bond between the individual and the state, with bilateral responsibilities allocated to each party. States have a responsibility to protect their citizens and provide them with a range of services and with proof of their legal identity. They are expected to represent their citizens and, if appropriate, come to their assistance in foreign fora, and they are required to allow citizens unreservedly to reenter their territory after sojourns abroad. In return for the enjoyment of these rights, citizens assume responsibilities over and beyond those also demanded of other residents (such as paying

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taxes and educating their children). Citizens contribute to the construction of a democratic polity by serving on juries, standing for public office, and voting. In its pure, we might say Platonic form, the relationship creates a bedrock for democratic agency, inclusion, security, and solidarity. Often however, the Platonic ideal is elusive. Sometimes the relationship is fractured; sometimes it is partial, even liminal. And sometimes it is slippery— ‘‘difficult to hold firmly . . . wet, slimy, evasive, unpredictable, not to be relied on,’’4 to cite a dictionary definition. Slimy is a particularly interesting synonym because (in its nonphysical context) it implies an element of deceit and moral censure, as where something or someone is not what manifests at first sight. As demands for access to citizenship rights increase globally under the pressure of accelerating international migration5 —for residents, for dual nationals, for descendants of migrants6 —so the challenge of translating demand into reality grows and the slipperiness of citizenship as a guarantee of fundamental aspects of individual security becomes more apparent. Over the years, states have introduced numerous restrictions to citizenship access, progressively distancing themselves from the simple one-toone mapping of people on place that used to (more or less) characterize social membership in a more sedentary age: even if it ever was the case, today not everyone living in France is French, and not all Italians live in Italy. But in one remarkable aspect there is no restriction. The human right to citizenship does not require coming of age. It does not depend on passing a threshold of physical or mental maturity, on demonstrating the ability to reason.7 Article 15 of the Universal Declaration of Human Rights is unequivocal: ‘‘everyone has the right to a nationality.’’8 In some ways this is surprising. Citizenship can be thought of as a twoway status in the public sphere akin to marriage in the private sphere, a dyadic contract with reciprocal ties. Yet marriage, in international law, is age limited. Recognizing the challenges and responsibilities inherent in the status, Article 16 of the Universal Declaration of Human Rights restricts the right to marry to ‘‘men and women of full age.’’ Why is citizenship not similarly limited? The question appears justified because none of the responsibilities just listed—formal political participation, the exercise of judgment over the culpability of accused peers—is open to children: children cannot vote or participate in juries or hold elected office. This suggests that in international law children’s right to citizenship is not a function of

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their participation in but rather their need for protection by the state. Indeed, when the Universal Declaration of Human Rights was translated into binding law, the previously unlimited right to nationality articulated in Article 15 was scaled back and limited to the right to acquire a nationality, but only for children.9 The International Covenant on Civil and Political Rights does not grant ‘‘everyone’’ the right to citizenship. Rather Article 24 states only that ‘‘Every child has the right to acquire a nationality.’’ What then are the attributes of legal citizenship for children? And what human rights flow from these attributes? If protection rather than participation is at the core of the international human rights conception of children’s citizenship, then what are the protections that child citizens derive from their privileged relationship to a particular polity? The answer seems unclear, contested, and variable, judging by current global practice. Consider the following three contemporary situations. Hungarian neo-fascist Gabor Vona suggests in the statement cited at the beginning of this chapter that some child citizens are inchoate parcels that can be moved around until they have secured a minimum threshold of civic competence. His emphasis is on protecting Hungary from uncivilized children, not on protecting vulnerable children from a potentially predatory society. Second, over a range of countries, immigration courts contemplating family deportation have sanctioned the de facto deportation of citizen children with their noncitizen parents. Their argument has been that child citizens are less tied to the place of residence than their adult counterparts because their track record, their accumulated life span, is shorter, less dense, and thus more fungible and compatible with relocation elsewhere.10 Citizenship again fails to provide child protection. Rather, in the mixed citizenship family, the child’s security, private life, and future prospects are subordinated to the enforcement of border control rules applied to the noncitizen parents. Third, states continue to implicitly justify dereliction of their responsibilities to fulfill marginalized children’s fundamental economic and social rights (to education and health care, for example) by invoking deference to the social and gender roles intergenerationally transmitted to these children by their elders. For children compelled to work by destitute parents or for girls from traditional rural families withdrawn from school for marriage shortly after puberty, the fundamental right to education as a central incidence of childhood citizenship remains willfully unenforced.11 These three examples suggest that, for those children who need to rely on it for protection, citizenship is slippery, hard to catch hold of, and often

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rather slimy. In what follows, we will suggest that two attributes of legal citizenship for children are critical and that clear but widely violated human rights entitlements flow from those attributes.

The Right to be Protected from Family Deportation Contradicting the already cited view expressed by President Hoover that ‘‘the rights of the child [are] the first rights of citizenship,’’ political scientist Elizabeth Cohen states that ‘‘children cannot be transformed into full citizens.’’12 She argues that they ‘‘inhabit an uncertain political space between non-citizenship and full citizenship . . . a second order semi-citizenship.’’ In this space, she suggests, they enjoy robust forms of ‘‘autonomous rights . . . to legal nationality . . . [and] basic social welfare provision that secure them education and health care.’’ But she continues, ‘‘the strength of children’s autonomous rights belies their weak to non-existent sets of relative rights,’’ by which she means their rights to political participation.13 Many commentators would agree with this characterization of children’s citizenship rights, suggesting that, in keeping with international law principles, child citizens benefit from state protection but lack rights to participation and political agency. We have a different view. Child citizens’ access to a basic autonomous right and a cardinal aspect of citizenship, the fundamental right not to be deported or forced out of one’s country, continues to be severely compromised. Not only is nondeportability a central aspect of citizenship; arguably, for children, who do not exercise the political attributes of citizenship, it is the central attribute, and with good reason. The ties and influences that result from belonging to a particular territory are critical, even for very young children. The place of residence has pervasive impacts and lifelong consequences: it affects children’s life expectancy, their physical and psychological development, their material prospects, their general standard of living. The fact of belonging to a particular country determines the type, quality, and extent of education the child receives; the expectations regarding familial obligations, employment opportunities, gender roles, and consumption patterns. It determines linguistic competence, social mores, vulnerability to discrimination, persecution, and war. It exposes children to disease, to potentially oppressive social and cultural practices, to lifeenhancing kinship, and social and occupational networks. In short, the fact

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of belonging to a country fundamentally affects the manner of exercise of a child’s family and private life, during childhood and well beyond. Instead of securing to citizen children the privileges that citizen adults have to live indefinitely and enjoy family life with their immediate kin in their home territory, many democratic states discriminatorily interfere with this basic attribute of citizenship. They do so by denying child citizens the ability to bring or keep noncitizen parents or other caregivers into their country to live with and care for them. Relying on the argument that children should follow parents rather than vice versa (mirroring the analogous and only recently discredited argument that women should follow men rather than vice versa) and that children, particularly young children, are malleable and can adapt to a changed environment without undue hardship, decision makers on the immigration frontlines, as much as in the courts, continue to enforce decisions that force noncitizen parents to leave their children’s country. Unless they make the excruciatingly difficult decision to place their children into care or to foster them with others, parents are then constrained to ‘‘constructively deport’’ the children from their homes to live with them in a new country, usually at a substantially lower socioeconomic level. Between 1998 and 2007, the U.S. Immigration and Customs Enforcement Agency (ICE) deported over 100,000 noncitizen parents of U.S. citizen children.14 In the first six months of 2011 alone, the first Obama administration through ICE deported another 46,486 parents,15 and thousands more may be affected in the future.16 Precise data are unavailable, but it is likely that very few noncitizen parents manage to secure ‘‘cancellation of removal’’ under the very high hardship standard set for remaining with their children in the United States.17 Moreover, some have questioned whether a recently announced policy of ‘‘prosecutorial discretion’’ will be effective in practice. Despite a 2011 official memo issued by ICE, urging immigration officials to refrain from prosecuting aliens who are ‘‘primary caretakers of children,’’18 immigrants undergoing removal are rarely asked if they have children.19 Faced with bleak alternatives, some parents succumb to despair. Consider two stories concerning citizen children and their noncitizen parents. The first concerns a Mexican mother, Erica Delgado, living in a trailer in Wyoming with her eleven-year-old U.S. citizen daughter, Miriam. Her violent husband had left for Mexico some years earlier (whether deported or voluntarily is not clear); an irregular migrant, she worked to support her daughter until her trailer was raided by ICE. Erica was questioned about

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the false social security identity number she used and taunted about a return visit by ICE officers. A week later, on 3 February 2012, Erica set fire to her trailer, killing Miriam and herself.20 Another family of irregular Mexican migrants was raided on the same day as Erica and Miriam. Two sisters, Irma Meija and Irma Avina, were living with their five children. Here is an eyewitness account by one of the children: ‘‘When imagration (sic) got to my home they started to kick the door. My sister and I got up really scared; my sister was crying a lot she is only five . . . they all came in and they did not tell us anything . . . they were screaming at my mom a lot . . . they told [my mom] to get ready because she was going to go with them.’’ A month later, the children involved had not seen their mothers since the night of the arrests.21 Many families take their U.S. citizen children with them when they are forced to leave the United States, but others leave the children behind,22 to finish their education and to benefit from the security and familiarity of the environment in which they have grown up. In a recent Seventh Circuit case, a Mexican national challenging his removal described the untenable situation his three citizen children would face: poverty, educational exclusion, and threats of violence in Mexico, or economic hardship if forced to rely on the single income of their mother in the United States. His challenge was unsuccessful.23 Advocates of immigration restriction polemicize that ‘‘Mexico is not Auschwitz’’24 but a middle-income country with infrastructure and employment opportunities, suggesting that deportation should occasion little real hardship. Accounts provided by deportees contradict this glib argument.25 American children ripped out of the only home they have known endure traumatic experiences that can create lifelong scars: in the words of a Texan child moved to Mexico to join his deported father, ‘‘it’s all a little strange, I feel like uncomfortable.’’26 Much evidence demonstrates that removal decimates family earnings and jeopardizes human security at many levels. For children who have lived their whole life in one place, family deportation destroys the bedrock of belonging and a sense of home that are known to contribute critically to psychological well-being and adolescent thriving. Citizenship in these cases is a slimy conceit that fails to deliver basic protection. As these stories show, some parents are so despairing at the prospect of family separation or survival back home that they commit suicide. Yet others lose all contact with their children, because sudden arrest and removal prevent them from making care arrangements or following up on their

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location.27 Tragically, deportation may even result in loss of parental rights altogether. This arises because state child protection authorities are required by law to seek termination if a child has been out of parental custody for fifteen of the last twenty-two months.28 One organization estimates that at least 5,100 children with a deported parent are currently in foster care, and the numbers are likely to grow. 29 The emotional and psychosocial toll placed on children affected by a parent’s deportation is equally catastrophic.30 Not all Western legal systems apply these draconian standards. After years of contestation on the issue within European member states, the European Union’s Court of Justice [ECJ] has started developing an encouraging alternative approach. In several recent cases,31 the court has fleshed out a non-slimy but robust and protective role for citizenship as it relates to children. Adopting a child-centered perspective on the meaning of citizenship, it has done this by insisting that children’s citizenship rights entitle them to enjoy the continued presence of their primary caregivers in their home country. Stressing the importance of a prospective rather than a retrospective view of children’s citizenship acquis, ECJ Advocate-General Sharpston noted, ‘‘If [the father of the citizen child] were to be deported, then so, too, would his wife. The effect of such steps on the children would be radical. Given their age, the children would no longer be able to live an independent life in Belgium. The lesser evil would therefore, presumably, be for them to leave Belgium with their parents. That would, however, involve uprooting them from the society and culture in which they were born and have become integrated.’’32 This court used child citizenship, not parental culpability, as the lens to view the suitability of future living arrangements. Nevertheless, even within the European sphere, troubling issues concerning children’s citizenship rights continue to arise. They affect children whose citizenship status is more slimy than those just discussed, children who, despite birth or prolonged residence within a European Union state, are unable to assert a strong claim to the protections that other European children with noncitizen parents are beginning to enjoy. Centrally affected are Roma children, many of them the descendants of refugees from late twentieth-century wars, who face ‘‘removal’’ to the parents’ countries of origin in accordance with readmission agreements entered into between those countries and the European Union. According to the Serbian Ministry for Human and Minority Rights, for example, approximately 25,000

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Serbs have been forcibly returned from, and about double that number have ‘‘voluntarily’’ left, the EU countries they had been living in, mainly Germany, France, and Sweden. Approximately 70 percent of the returnees are Roma, many of them children who have known no other life, because they were born in the EU or taken there at a very young age. Despite the fact that these children were settled in school, had no knowledge of any language but the local language, and were living in stable accommodations, the authorities have executed large-scale removals, often resulting in homelessness, nonattendance at school or complete school dropout, and radical family destitution. A survey conducted by 484, a Serbian NGO, on sixtytwo returnee families found that over 90 percent of the returnee children had been attending school in the EU former country of residence but that 62 percent of those children discontinued their schooling on returning to Serbia. They noted the high incidence of drug abuse, child prostitution, begging, and the high risk of trafficking among this population.33 This would seem to be the antithesis of child protection, an extraordinary result for European-born children living in twenty-first-century Europe. The following case illustrates the problem. L.S., an eight-year-old Roma boy born in Germany, was found begging and living as a street child in Belgrade’s city center two years after he was deported from Germany together with his whole family. With no identity documents, L.S. was never enrolled in the education system in Serbia or given a health card. His family lacks a permanent home and moves between barracks and abandoned buildings, often living without electricity, water, or sanitation. L.S. contributes to the family income by begging. Since leaving Germany (where he was enrolled in a local school and lived with his parents in an apartment), he has never had a stable home or attended school.34 The legal limbo in which this child has been placed by the EU country in which he was born and spent his whole life demonstrates the slimy fragility of the protective mantle that child citizenship is supposed to deliver.

Children’s Economic and Social Rights A second critical aspect of children’s right to citizenship is the protection of fundamental economic and social rights that ensure access to basic services such as education, health care, and shelter, considered to be building blocks for a human rights-endowed life. It is not only children affected by

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migration who risk being deprived of these rights. Citizen children from settled minority communities are frequently relegated to partial access to fundamental economic and social rights. In many cases, this partial or fractured right to the benefits of citizenship occurs despite an uncontested legal claim to that citizenship, corroborated by birth certificates or other identifying documents. Child citizenship here is slimy because it is deceptive, Janus-faced: it endows some children with a panoply of benefits, while others struggle for a fraction of the advantages. It is slimy because the appearance of uniform entitlement is belied by deeply embedded discrimination, supported by tacit acceptance or self-serving justification. In other cases, child citizens confront persistent obstacles to realization of their legal citizenship rights because their status is contested: they lack proof of their legal identity, or they are undocumented and lack a legal immigration status. Though not de jure stateless, these children can also be considered stateless35 —effectively stateless in the case of children whose birth has never been registered or who, like the Serbian eight-year-old described above, are unable to proved their legal identity; and de facto stateless in the case of children who are irregular or undocumented migrants. All these groups of children are stateless in Hannah Arendt’s sense of the word because they are radically unprotected by the authorities where they live—they lack a state they can call their own. States frequently excuse their dereliction of duty to citizen or stateless children by, implicitly or explicitly, blaming the parents or caregivers for their failure to secure their children’s fundamental rights, noting the ethnic or gendered practices inherent in the targeted communities that purportedly inhibit access. Widely disparate situations exhibit similarities in this strategy of radical denial of children’s citizenship rights. The two examples described here take as their starting point the uncontroversial claim that a central aspect of a child’s legal right to citizenship includes nondiscrimination in the access provided for all child citizens, including those marginalized by ethnicity or gender, to the building blocks of future effective citizenship: namely, primary, secondary, and tertiary education and comprehensive mental and physical health care. The first example relates to the situation of Roma children and adolescents in Europe. Among the estimated 10–12 million36 Roma population in Europe, more than a quarter are children and adolescents. Many of them are citizens, but some of them stateless for one of the reasons just mentioned. While trying to exercise their legal citizenship, a significant number

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of Roma children in Europe confront structural discrimination within educational institutions.37 Protection against segregation, bullying, and discrimination by local and national bodies is largely inadequate, sometimes nonexistent. Despite years of litigation and public censure, the segregation of Roma children in schools continues as an atrocious form of institutional discrimination in the Czech Republic, Romania, Croatia, Hungary, Slovakia, and Bulgaria. The European Court of Human Rights (ECtHR) has issued critical judgments against the Czech Republic,38 Croatia,39 and Greece,40 decrying placement of Romani children in segregated schools. In these schools, academic expectations are low and social stigma is high. In the Ostrava case, in the Czech Republic, the ECtHR concluded that placing Roma children into ‘‘special schools’’ on account of their ethnic origin was discriminatory and that the differential treatment they received as a result had no objective or reasonable justification.41 In response to this decision, the Czech government simply renamed the schools. No longer called ‘‘special schools,’’ they became ‘‘practical elementary schools.’’ But the actual problems targeted by the court decision—the separation of children on the basis of ethnicity and the poor quality of education offered through the schools’ limited curriculum—were not tackled. As a result, ‘‘Five years on, very little progress has been made to guarantee equal access to education for Romani children. Instead of making systemic changes, the Czech government opted for a piecemeal approach that failed to address the root of this injustice. The system continues to channel Romani children into ‘‘practical’’ and/or segregated schools. It has devastating consequences for their future.’’42 Despite three judgments from the court confirming the illegality of educational segregation of Roma children, pervasive patterns of segregation persist. These patterns include ‘‘Romani ghettos schools’’ usually located in Roma settlements or neighborhoods. These schools generally lack nonRoma children and provide low-level teaching, resulting in very limited educational opportunity. The infrastructure reflects the degraded status of the education and the discriminatory access afforded by the state. Ghetto schools are uniformly of very poor infrastructure and produce low educational achievement. Not surprisingly, these schools also record lower rates of school retention and far higher rates of grade repetition and dropout than non-Roma schools. Slovakia has the dubious distinction of having the highest percentage of Roma children segregated in primary and secondary education in Eastern Europe, a staggering 52 percent.43 Initiatives to

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encourage greater insertion of Roma students into mainstream schools regularly meet with majoritarian protest and disapproval. Another denial of non-discrimination rights of children arises from the widespread practice of placing of Roma children in schools and classes reserved for children with mental disabilities. Roma children are allocated to these schools because of their ethnic background rather than their mental health status. In Slovakia, 60 percent of the children enrolled in special education in 2008–2009 were Roma.44 In Romania, too, a high proportion of the students in special schools are Roma. For instance, a study by the prominent Roma rights NGO Romani CRISS revealed that, at the Dumbraveni special school in Sibiu, over 90 percent of children were Roma. Though perfectly normal, the Roma children had been classified as having mild mental disabilities after tests administered by a specialized commission established by the Sibiu County school inspectorate. In response to a complaint filed by Romani CRISS, the National Equality Body confirmed that the children’s placement in the special school was discriminatory and abusive. It issued a recommendation urging desegregation, but no sanctions were imposed, and the recommendation was never put into practice by the school.45 A 2007 study by the Open Society Institute found additional evidence that European schools deliberately encourage Roma parents to enroll their children in special schools for children with mental disabilities or place their children in separate classes in mainstream schools.46 Placement in special classes within mainstream schools is a third instance of pervasive anti-Roma discrimination practiced by European states. The criteria for ‘‘grouping’’ children in classes are subjective, reflecting widespread attitudes to ethnic diversity and pervasive pressure from non-Roma parents to separate their children from the Roma minority children. A recent survey found that two-thirds of a sample of Hungarian parents interviewed had forbidden their children from befriending a Roma child.47 Amnesty International reports that, in Slovakia, ‘‘Sometimes, Romani children are literally locked into separate classrooms, corridors or buildings to stop them from mingling with non-Roma students.’’48 These blunt forms of structural discrimination deny children basic citizenship rights long considered constitutive of democratic statehood. The segregation and stigmatization generate enduring emotional and social consequences that embed a sense of disenfranchisement and inferiority antithetical to the avowed goals of a rights respecting and inclusive European Union. Another serious consequence of deficient access to quality primary

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education for Roma children in European schools is the lamentable proportion of Roma adolescents who graduate from secondary or tertiary education. In Romania, for example, the EU country with the highest number of Roma citizens (estimated at 1.5 to 2 million), only 61 percent of Roma adolescents over age eleven are enrolled in school, compared to 91 percent of their non-Roma counterparts. The figures for high school and university attendance are even more skewed: only 9 percent of Roma adolescents compared to 41 percent of non-Roma in high school, and only 2 percent of Roma compared to 27 percent of non-Roma young people in university. Add to this the unsurprising fact that teenage pregnancy is much higher among Roma girls (55 versus 14 percent for non-Roma49) and one sees a picture of pervasive denial of access to a fundamental component of the tool kit needed for a young person to survive and flourish in today’s competitive and globalized economy. More specifically, educational deprivation produces children who are de-skilled, disengaged from the educational project, and prone to pervasive and persistent illiteracy despite years of school attendance. In an era of technological globalization, these deficits preclude access to good employment opportunities in the formal economy and, consequently, perpetuate poverty and marginalization. No wonder, then, that Roma adolescents experience far higher rates of unemployment (a staggering 60 percent of Roma Romanian families live in poverty), of morbidity, and of a gamut of other indicators of social deprivation than the majority population. For young people, this pervasive and structural exclusion from the benefits of citizenship triggers, in addition to the direct harms just enumerated, an alarming catalogue of indirect rights violations: stigma, violence, lack of agency over the shape of one’s life, lack of access to effective political participation, lack of enjoyment of respect for one’s family or private life, to mention just some. Throughout Europe, Roma children and adolescents confront these grave insults to their personhood and citizenship. As noted at the beginning of this chapter, in Hungary, the Jobbik party leader Gabor Vona proposed that all Roma children should be segregated and sent to boarding schools ‘‘as a better way to educate them.’’50 In France, former president Nicolas Sarkozy promised to investigate ‘‘problems created by the behavior of certain travelers and Roma’’ and to deport them as needed, as discussed in this volume by Helen O’Nions. In Italy, former prime minister Silvio Berlusconi insisted on the fingerprinting of all Roma children and warned that Italy’s commercial capital, Milan, was turning into a ‘‘gypsyopolis.’’ Like the

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citizen children facing constructive deportation described above, these young people lack the fundamental planks of a rights-endowed existence. Instead, they confront the predictable prospect of pervasive exploitation in employment and denial of civic rights. The scars of educational deprivation, of exclusion from a fundamental attribute of their citizenship, are likely to be largely irreversible for this population of European children. It is hard to envisage a more significant violation of the legal attributes of child citizenship than this, in the heart of the richest area of the world. What makes the pervasive and enduring denial of child citizenship to Roma populations most concerning is its impervious proliferation despite explicit legal mandates prohibiting it. In this sense, the Roma situation differs from the structural exclusion and segregation of the African American community in the United States before the decision in Brown v. Board of Education.51 In the latter case, segregation was legal, sanctioned by a constitutional system that justified its continuance; it needed a radical and successful challenge to the legal system to begin the process of overturning entrenched discrimination. In the Roma case, by contrast, discrimination violates both domestic and regional human rights prohibitions on differential treatment of this sort, and it also violates the explicit findings of the highest human rights court in Europe, the European Court of Human Rights. This means that building child citizenship, and with it the ability of children and adolescents in the Roma community to assume agency, leadership, and their right to voice, is an urgent priority; top-down measures, including litigation and European legislative intervention, are unlikely to yield significant gains in the absence of implementation of polices, legislation, and measures at the community and school level. A similar conclusion applies to the other, very different, example of child citizenship denial that we present: the gender-based discriminatory exclusion of Indian girls, particularly rural and low-caste girls, from access to fundamental economic and social rights protected by the Indian constitution.52 As with the Roma youth population, so for Indian girls, the persistence of pervasive inequality in the enjoyment of education and health rights continues over half a century after the enactment of stringent nondiscrimination provisions in the postcolonial Indian constitution, impervious, it seems, to legislative proclamations or to a host of government-sponsored interventions. In recent years, governments across the developing world, including India, have made considerable progress in increasing primary school access.

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The same progress has not, however, been made at the secondary level, where enrollment rates remain uneven. India alone is home to almost onethird (40.4 million or 32.2 percent) of all the young illiterate people in the world (UNESCO 2010), two-thirds of whom are female. Many factors have prevented marginalized children, particularly girls, from poor, low-caste backgrounds from acquiring a competitive education. These factors include underfunding of the educational system, acute familial economic insecurity, and restrictive gender norms that discourage postpuberty female education. According to government data, despite a 90 percent female enrollment rate at primary level, net female attendance rate at tertiary level in 2009 was only 10 percent, falling to 6 percent for girls from rural areas. By contrast 20 percent of urban males make it to college. Secondary school is the critical stumbling block to educational advancement, particularly for marginalized girls living in rural communities and in low-caste families. Entrenched discrimination, coupled with deep-seated cultural assumptions about appropriate gender norms and roles, militate against swift reversal of this skewed educational picture, even when scholarships, bicycle-sharing schemes, female toilets, tuition programs, girls-only transportation, and precollege hostels are slowly being developed. The reality is that radical change in the way legal citizenship and its attributes are distributed will only come gradually and incrementally, as the complex social, economic, and emotional ecology in which Indian girls are situated is transformed. Simply providing educational incentives and other ‘‘supply side’’ supports has not sufficed. Girls, young women, and their families face a herculean task in transforming the family dynamics that consign females to housework and reproduction and in substituting instead an active, nondiscriminatory conception of youth citizenship. The Indian government has a major responsibility in this: not only to enforce the social and economic nondiscrimination rights that it has enacted by aggressively prosecuting gender-based violence and promoting equal opportunity, but by more creatively addressing stigma, fear, and insecurity through proactive citizenship enhancement. Fostering youth participation, girls’ opportunities for training, work, the option of combining familial and occupational achievements are a critical challenge that is not even a work in progress: it is an aspirational opportunity waiting to be grasped. Tragically, it took the brutal rape (and subsequent death) of a twenty-three-year-old New Delhi student in December 2012 finally to generate public outrage at persistent government acquiescence, complicity, and incompetence regarding gender

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violence of epidemic proportions and to set in motion serious self-criticism and scrutiny among senior policy makers. The remarkable Verma Commission Report, a 645-page devastating investigation of the state of gender discrimination in twenty-first-century India, produced in record time within a month of the commission’s establishment, charts an ambitious course for pervasive legal, institutional, and societal transformation that is light years ahead of current Indian realities.53 Meanwhile, the severely skewed gender statistics in secondary and tertiary education remain particularly alarming because it is widely accepted that education is still the most powerful and effective mechanism for correcting historic gender inequality and for enhancing female empowerment. The failure to translate this fundamental aspect of a child’s citizenship endowment into realized benefits continues to relegate millions of girls and young women to a life of early marriage, serious exposure to violence and exploitation, and a pervasive sense of impotence and hopelessness about future prospects for agency and self-realization. A startling survey conducted among several hundred adolescent rural girls in India by the Population Council speaks to the psychosocial legacy of slimy citizenship for many millions of excluded children and adolescents. The survey revealed that, for those between fifteen and nineteen, one-third agreed with the statement that ‘‘my life is a failure.’’ It is hard to imagine a graver indictment of a state’s dereliction of its responsibilities to its youngest citizens.

Conclusion The discriminatory and abusive situations described throughout this chapter generate dramatic and lifelong effects on children and the adults they become. Far from building inclusive societies capitalizing on the benefits of globalization and technological innovation, we seem locked into perverse dynamics that separate very significant numbers of children from their homes or parents, that exclude children from high-quality education and the opportunities it generates, and that vitiate the promise embodied in the notion of modern citizenship. As long as dishonest tactics and weak law enforcement characterize statecraft in both wealthy countries of the North and modernizing countries of the global South, citizenship will remain at best a slippery vehicle for the delivery of rights, and instead a slimy chimera for many millions of children and young people.

Chapter 9

How Citizenship Laws Leave the Roma in Europe’s Hinterland Helen O’Nions

Roma and other travelers1 find themselves on the margins of every society in which they live.2 They experience discrimination in addition to extreme economic and social disadvantage, including widespread unemployment, high infant mortality, residential isolation, and educational segregation. The fundamental principle of equality before the law is routinely denied to European Roma.3 In 2002, the EU Network of Independent Experts on Fundamental Rights identified an ‘‘apartheid situation’’ in which the Roma were excluded from virtually every right contained in the Charter of Fundamental Rights.4 The situation has become more apparent with the expansion of the EU to include states with relatively high Roma populations such as Hungary, Slovakia, and Romania.5 This chapter will move beyond a discussion of the social and economic context to reflect on the slippery nature of citizenship in the context of Roma inclusion by examining how citizenship laws and their interpretation can compound this disadvantage. Citizenship defines membership in a political community; it is, thus, vital for inclusion and integration. Following the dissolution of Czechoslovakia, thousands of Roma were denied automatic Czech citizenship and became de facto stateless. Many rights advocates argued that the new naturalization criteria had been drafted purposely to exclude Slovak Roma. The discriminatory effects of the law were finally remedied in 1999, but the issue of citizenship has again raised its head, with routine expulsions of

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Roma migrants from several European states. These Roma are EU citizens with the right under European law to migrate and reside in another member state for at least three months without formalities.6 Yet their nomadic tradition of life, which seems well suited to these migratory rights, is typically depicted as a threat to the stability of host states, resulting in arbitrary arrest and collective expulsion. There is no clear legal authority for collective expulsion, yet there has been no enforcement action or decisive condemnation by the European watchdog, the European Commission. Instead, these Roma are forcibly returned to their countries of nationality having been effectively stripped of their complementary Union citizen status.

The Situation of Roma in Europe The Roma are Europe’s largest minority with an estimated population of ten to fifteen million spread across the region. The Council of Europe has recognized the Roma’s unique history of ‘‘widespread and enduring discrimination, rejection and marginalisation all over Europe.’’ The Committee of Ministers called on states to adopt strategies aimed at addressing legal or social discrimination and promoting equality of Roma and traveler peoples.7 The UN High Commissioner for Human Rights and the Organization for Security and Co-operation in Europe (OSCE) counterpart have regularly discussed Roma poverty, unemployment, and deprivation, in addition to pervasive discrimination. The European Committee on Social Rights (ECSR) has upheld Roma complaints concerning housing and discrimination against Italy, France, and Bulgaria, with subsequent resolutions from the Committee of Ministers. In 2008, the Czech Republic was found to have violated the rights to education and non-discrimination when consigning Roma pupils to special, remedial schools, effectively preventing their access to mainstream education and employment.8 Although desegregation laws have been introduced across eastern Europe, educational and residential isolation remain common. The relationship between Roma and non-Roma is characterized by mutual mistrust. The EU non-discrimination survey found that onequarter of respondents would ‘‘feel uncomfortable’’ with a Roma neighbor (compared to 6 percent for neighbors from other ethnic groups). That number rises to almost 50 percent in Italy and the Czech Republic.9 The European Commission has recognized the urgent need to tackle Roma

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exclusion and has pledged to continue financial support for inclusion projects.10 In the cases of state dissolution, particularly in Kosovo and Montenegro, the Roma became de jure stateless.11 However, a more common concern to Roma advocates is the social and economic exclusion that undermines the opportunity for Roma to participate fully in civil society. This problem has received comparatively little attention in international law, dwarfed as it is by the more serious examples of de jure statelessness. In this respect, the Roma are different from the other case studies in this book: the link between a Roma minority or nation and a geographical homeland is missing. The Roma are a diaspora and are more accurately defined as a ‘‘transnational minority.’’12 The precise membership of that minority is beyond the scope of this chapter—suffice it to say that a broad approach could incorporate similar groups including Sinti, British Gypsies, and Irish travelers. These groups are linked by a history of persecution and a tradition of traveling but otherwise there is limited common ground to characterize and define this transnational minority. Modern reformulations of the theoretical dimensions of citizenship often fail to engage fully with these issues. Kymlicka’s multicultural citizenship, for example, requires a degree of homogeneity among the communities envisaged to benefit from group rights.13 It is simply not possible to fit the Roma into the homogeneous or constitutive community model, and thus they tend to be excluded from such theoretical remodeling.14

The Czech Citizenship Law The dissolution of Czechoslovakia saw the implementation of a new Czech citizenship law in January 1993 (Law 40/1992). Under the previous Constitution Act 1969, there had been two types of legal identity: citizenship of Czechoslovakia and citizenship of one of the federal states, according to place of birth. No significance was attached to federal citizenship until 1993, when it became the basis of new citizenship provisions. These provisions were based on principles of descent (jus sanguinis), which resulted in descendants of Slovak federal citizens being automatically excluded. Many Slovaks moved to the Czech lands under the postwar communist industrial program when demand for labor grew dramatically.15 An estimated 25,000 Roma habitually resident in the Czech lands were left without

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Czech citizenship following dissolution.16 Linde argues that the difficulty in demonstrating Slovak nationality meant that many were actually stateless de jure.17 Yet, given international law’s narrow interpretation of de jure statelessness, it may be more accurate to define them as stateless de facto.18 Blitz observes that often de facto stateless persons are unable to prove their nationality, residence, or other means of qualifying for citizenship and, as a result, may find themselves excluded from the formal state.19 A leaked government internal document indicated that the Czech government feared an influx of economically impoverished Slovak Roma following dissolution. The citizenship criteria were drafted in such a way as to prevent this ‘‘catastrophic scenario.’’20 Article 18 of Law 40/1992 set out the citizenship conditions, including five years proven residence (this period was initially two years for Slovak citizens in a concession that expired in July 1994), a clean criminal record, and competency in the Czech language. Linde describes this ex post facto penal sanction of denaturalization as ‘‘the most blatant violation of international law.’’21 For many rights advocates, it constituted a deliberate and cynical attempt to exclude Roma, and it soon became known as the ‘‘gypsy clause.’’22 Sample research indicated that a third of Roma denied citizenship had been indicted for petty offenses, prompting the argument that there was ‘‘a clear connection between the tragic social condition of the Roma community and the predominant type of criminal offences.’’ Furthermore, 45 percent of the sample were refused citizenship notwithstanding their clean criminal records, suggesting that many were victims of discriminatory or ill-informed local bureaucracy.23 The ‘‘gypsy clause’’ was widely condemned by international and regional human rights agencies.24 The Council of Europe reasoned that, while a clean criminal record was typically a requirement of naturalization criteria, it was discriminatory and disproportionate when applied in the context of state succession if a person could demonstrate established ties with the state.25 In cases of succession, citizenship is based on a genuine and effective link with the state territory, habitual residence, the will of the person concerned, and the territorial origin of the person.26 Yet it is estimated that over half those denied citizenship were actually born, and had remained, in the Czech Republic.27 An amendment in 1996 allowing the interior minister to waive the criminal record requirement in individual cases did not stem the international criticism.28

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Roma also had difficulty satisfying the residence period due to their occupation of overcrowded, substandard accommodations designed to temporarily house new workers.29 Even the Czech language requirement, which was waived for former Slovak citizens, caused some difficulty, as high levels of illiteracy and unsympathetic municipal officials combined to prevent many Roma from completing the application process. Unsuccessful applicants could apply for permanent residence that would enable claims for medical and unemployment support. However, this also depended on a clean criminal record and proof of income. As a result, many Roma were left in legal limbo as the government recognized they cannot be legally employed or start a business; they cannot be registered by labor offices or receive unemployment benefits; they have no social or medical insurance; they have no right to the state social support benefits; their children are often taken from them and placed in children’s homes as a result of neglect which leads to a chain reaction of social problems; their children should not, in theory, attend school unless the parents directly reimburse the costs.30 Some 851 Slovak citizens were expelled between 1993 and June 1997, the majority of whom were believed to be of Romani origin.31 In 1997, the Czech Supreme Court ruled that lifetime expulsion of a Slovak Romani for stealing $4 worth of beetroot was disproportionate and therefore unlawful.32 It is also possible to identify a wave of Roma emigration blamed in part on their social and economic situation in addition to the rising popularity of far-right politics that typically depicted Roma as enemies of the state. In 1993, 24,000 people were detained after attempting to depart illegally for Germany, a significant number of whom were identifiable as Roma.33 On occasion, Roma were actively encouraged to leave; one notable example was the offer from the mayor of Marianske Hory to provide public funds to assist with their flight expenses.34 The construction of a wall segregating Roma and non-Roma residents in the town of Usti Nad Labem also attracted international condemnation.35 Canada became a popular destination after the airing of a television documentary depicting Canada as a safe haven with a special Roma assistance program.36 In response to the number of Roma asylum applicants, the Canadian government imposed visa

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requirements on Czech nationals in 1997, but there remained a continual flow of Roma arrivals.37 Similar concerns led to temporary imposition of visa requirements against Slovak nationals in the UK. The citizenship law continued to be condemned by international and regional human rights agencies for its discriminatory application.38 After sustained criticism and, most significantly, with EU membership on the horizon, the effects of the law were largely ameliorated by a 1999 amendment that permitted those resident on Czech lands at the time of dissolution to seek a declaration of citizenship.39 In the year immediately following the amendment, 6,278 former Slovaks finally achieved Czech citizenship relying on the new provision.40 However, this came too late for several thousand Roma who had already migrated. The paradoxical effect was that the nomadic tradition abandoned by most Roma in the region became the only realistic option for many. This return to nomadism, also evidenced by Roma migration in the EU, is the logical response for a community on the margins. Yet it is this nomadism that strikes fear in many European politicians. The Czech citizenship law is not purely a matter of historical record. Similar issues have resurfaced in the ‘‘old’’ European states that have become destinations for migrant Roma from ‘‘new’’ Europe. A citizenship dimension is provided by the Treaty on the Functioning of the European Union (TFEU) and EU Citizenship Directive 2004/38, which grants the privileged status of Union citizenship to all EU citizens. This status is more than political sentiment; it places legal obligations on host countries. The basic principle is the right of European citizens to move and reside in other member states without formalities for a period of three months. More significantly, the host state cannot lawfully expel a Union citizen unless it complies with the specific provisions in the directive.41

Union Citizenship The focus of European law has changed markedly from the original objectives in the 1957 Treaty of Rome. Human rights were then relevant only to the extent that they supported economic rights, for example in employment and equal pay. However, as the Community morphed into the Union, the construction of the European citizen became a priority, and human rights, particularly the right to non-discrimination, became central to the competences of the law-making machinery. Notwithstanding some skepticism

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surrounding the citizenship project,42 the case law of the European Court of Justice (CJEU) demonstrates there is real substance to these developments. The Citizenship Directive provides the right to move and reside in another member state irrespective of economic status. This right, originally for three months, will be extended indefinitely if the citizen can demonstrate economic self-sufficiency.43 The right can only be removed on grounds of public security, public policy, or public health.44 Furthermore, that deprivation must be proportionate. Collective and indefinite expulsions are prohibited.45 Theoretically, the Roma with their nomadic traditions should fit perfectly within the free movement paradigm, particularly since its decoupling from economic status. However, Roma arrivals have typically been met with hostility. Collective expulsions have been tenuously predicated on a generalized public security threat that portrays Roma as threats to the fabric of stable society. Their relative poverty is used against them to justify expulsions.46

Italian and French Expulsions: An Overview Collective Expulsions from Italy In 2008, a census of camp residents in Italy was implemented following declaration of a ‘‘nomad emergency.’’47 The emergency stemmed from the killing of an Italian woman by a Romanian migrant believed to be of Roma descent. The murder resulted in a number of violent attacks, culminating in a mob arson attack on a Roma settlement in Naples.48 In May 2009 the powers were extended from three to five regions. Many temporary camps were destroyed, and camp residents either were relocated to designated ‘‘villages’’ or simply became homeless. Action was simultaneously commenced to expel migrant Roma who lacked proof of residence.49 Undocumented stay in Italy became punishable with a fine of up to 10,000 euros, and a nationwide register of homeless residents was established.50 Nomad plans were introduced to relocate those Roma with ‘‘good character’’ to authorized ‘‘villages,’’ but the plans remain incompletely implemented, with many continuing to inhabit temporary shelters with no running water or sanitation.51 The problems faced by Roma and other travelers in Italy are not new.52 In 2004, the Italian government was held in breach of a range of obligations

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under the European Social Charter, including adequate housing, nondiscrimination, and prohibition of forced evictions.53 The same year, a Veronese court found a group of Northern League members guilty of inciting racial hatred, having plastered walls with posters demanding expulsion of nomadic Roma.54 Such incidents attracted little attention outside Italy. The European Parliament condemned the 2008 census of Roma camp residents and urged the Commission to investigate whether the measures contravened European law.55 Yet Italian authorities continued to allow local administrations to conduct the census over the next two years, while violence against Roma and Sinti escalated.56 Legislation was introduced enabling expulsion of Roma migrants, without reference to the obligations in the Citizenship Directive.57 Scores of illegal settlements were closed, with residents evicted without any alternative accommodation.58 Surprisingly, the European Commission adopted a different position to that of the parliament, finding that the census had not been carried out on ethnic grounds.59 Yet only two months earlier, the Commission had warned Prime Minister Silvio Berlusconi against expelling Roma.60 Furthermore, the Italian Red Cross, which had assisted with data collection, was clear that almost all camp inhabitants were of Romani origin and that the procedure was uniformly applied, irrespective of residence permits or nationality. The OSCE had concluded that the census was disproportionate to the scale of the alleged security threat and had fueled ‘‘stigmatization of the Roma and Sinti community in Italy.’’61 The lack of strong condemnation and follow-up action from the European Commission did little to prevent similar initiatives elsewhere, and reports of expulsions from Portugal, Germany, and Denmark soon appeared. Lacking a unified political voice, the Roma are easy scapegoats in times of economic uncertainty. Removal of migrants and denial of Union citizenship rights enable governments to portray themselves as tough on immigration while responding to public fears about security and crime. Such demonization is of course unlikely to yield the desired results. President Berlusconi described foreign criminals in Italy as ‘‘an army of evil,’’ yet crime statistics did not support his analysis of Roma criminality.62 Meanwhile, increased security measures provoke ethnic tension by fueling misconceptions and pandering to an extremist, racist agenda.63 Anti-Roma and antiforeigner rhetoric is no longer exclusively the prerogative of the European far right, as the Italian public have come to view their lives as

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threatened by the Roma. Discriminatory attitudes and intolerance are, thus, legitimized as commonsense responses to the perceived threat.64 The security rhetoric targets nomadism, which appears at odds with the settled, sedentary lifestyle of most Europeans.65 The focus on nomadism allows the question of ethnicity to be obscured.66 Roma migrants are assumed to be nomadic and dangerous, with criminality and poverty seen as cultural characteristics of a transient lifestyle. Media stories of Roma criminality, begging, and petty theft are common, although such stories are rarely substantiated by evidence and the ethnicity of perpetrators is seldom recorded. An Italian opinion poll from 2008 revealed that 92 percent of respondents believed Roma exploit minors, making their living from petty crimes; 83 percent believed Roma choose to live in temporary camps.67 Yet the vast majority of Europe’s Roma are no longer nomadic and do not seek a nomadic lifestyle.68 Interviews with Italian camp inhabitants indicate that most Roma desire settled accommodation where their children can attend school and they can find stability.69 In 2002, about one-third of Italian Roma and Sinti occupied temporary camps, typically characterized by poverty and deprivation.70 Repeated complaints to the European Committee of Social Rights suggest that there is no political will to address these problems, and the latest arrivals of Roma migrants have only worsened the situation.71 These migrants present a challenge for international human rights law. Unlike the Czech Roma, they do have a country of nationality. They are technically neither de jure nor de facto stateless, yet they do not wish to avail themselves of the protection of their nationality. This is largely because the protection offered by that nationality, where it exists at all, is negligible. This leaves thousands of Roma again in legal and political limbo.

Collective Expulsions from France In August 2010, the collective removal of several hundred Roma from France drew widespread condemnation from humanitarian organizations, prompting calls in some sectors for France to be expelled from the EU.72 Apparently responding to security concerns, the government authorized destruction of unauthorized encampments and expulsion of over 1,000 Roma to Bulgaria and Romania. The deportees were reportedly offered 300 euros per adult and 100 euros per child for ‘‘voluntary’’ repatriation.73

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International criticism intensified when a leaked government circular revealed that the expulsions were based on ethnicity rather than any proven security concerns. President Nicolas Sarkozy’s objective was clear: ‘‘300 illegal camps or settlements should have been evicted within 3 months, with Roma ones as a priority.’’74 The circular was quickly rescinded and subsequently declared to have violated the principle of equality before the law by the French Council of State.75 Yet Sarkozy reportedly gained revived electoral support after embarking on his security crackdown: polls published in Le Figaro revealed that 69 to 79 percent of the public were in favor of demolition of the camps, with 65 percent in favor of Roma deportations.76 Again the European Parliament condemned the actions.77 It expressed deep concern that the measures specifically targeted Roma and travelers and that the rhetoric of many French politicians had contributed to the stigma faced by these groups. It also concluded that the measures were prohibited by the Citizenship Directive and established case law, which makes no provision for collective expulsions. On this occasion, the parliament went farther in criticizing the Commission as ‘‘guardian of the Treaties’’ for its failure to take decisive action by preparing a European Strategy on Roma inclusion.78 The head of the Commission, Jose´ Manuel Barroso, was accused of appeasing President Sarkozy by suggesting that freedom of movement should not be interpreted as an absolute right.79 The EU justice commissioner was, however, notably outspoken in her criticism when she compared the expulsions to the Vichy regime’s deportations in World War II.80 Eventually, the Commission issued a formal notice requesting compliance with the Citizenship Directive, but further enforcement action was not forthcoming.81 Despite the revelation of the government circular, the Commission found that the policy had not been intentionally directed toward an ethnic group. Meanwhile, the European Roma Rights Centre successfully intervened to challenge the collective deportation of ten Roma by the Danish Immigration Service, and the German government denied rumors of a similar expulsion initiative.82 In their ruling under the European Social Charter, the ECSR found that both migrant Roma and French travelers had been denied rights to effective housing, resulting from absence of sufficient halting places, conditions of deprivation, and lack of security of tenure.83 They found evidence of discrimination resulting from policies that failed to take specific account of the culture and values of French travelers, and the Committee upheld the

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complaint that migrant Roma had been treated less favorably than nationals of the host state.84 The French government responded to the concerns of the European institutions with new immigration legislation.85 However, there remain serious concerns, as the new law allows a removal notice for those whose stay constitutes an ‘‘abuse of rights.’’ This ‘‘abuse’’ will apply where the citizen is intending to stay in France with the ‘‘fundamental purpose of benefitting from the social assistance system.’’ This appears to be incompatible with the EU Citizenship Directive, which requires removal to be proportionate and based firmly on public policy, security, or health. Human Rights Watch examined 198 orders to quit served on Romanian Roma, finding that only two contained evidence state assistance had actually been sought.86 There is further concern that article 65 of the law allows removals to be based on suspicion of criminality when there is no proof that the individual constitutes a ‘‘genuine, present and sufficiently serious threat,’’ as required by the directive. The offenses that attract this power are particularly surprising, as they include illegal land occupation and the exploitation of begging. In 2010, the Lille Administrative Court annulled eleven orders based on illegal land occupation as the conduct did not constitute a threat to public order. The requirement of proportionality appears to be overlooked in the legislation, and much of the evidence collected by Human Rights Watch suggests that the procedural safeguards of the directive are routinely ignored in expulsion orders.87 There remain significant questions as to whether the European Commission is able to act independently of the interests of the big players from ‘‘old’’ Europe. While there have been some efforts to address the challenge of Roma inclusion across Europe, these projects have had limited effect to date.88 French expulsions to Romania and Bulgaria were still being reported as of 2012, despite President Franc¸ois Hollande’s electoral commitment to address the problem.89 Such strategies cannot be seen as a substitute for clear and decisive enforcement action when the citizenship provisions are breached in such a flagrant manner.

Justifying Exclusion: The Security Rhetoric The Czech citizenship law denied automatic citizenship to thousands of resident Roma due largely to concerns about the economic prosperity and

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security of the new republic. These concerns are now used to deprive the same group of EU citizens of their full citizenship rights under European law, undermining equality before the law. Concerns about Roma exclusion and marginalization are not confined to central and eastern European states. The French and Italian deportations cannot be dissociated from their treatment of native travelers. Ministers have consistently bundled the two groups together in various news items that refer to the problems posed by nomadic people. Native travelers and Roma migrants are constructed as outsiders with different and opposing values to those of the settled population. For example, French MP Jacques Myard argues that the Besson Act, which provided stopping places for traveling people, prevented integration by enabling the continuation of a different, ‘‘Asian’’ and ‘‘medieval’’ lifestyle.90 He went on to suggest that there was no place in France for nomadism with its inherent criminality.91 This rhetoric of security means that the expulsion of Roma does not conform to typical understandings of racism. As Aradau has argued, the Italian measures are part of the ordinary fabric of modern liberal society whereby ‘‘insidious and entrenched racism . . . have been largely neutralized by the rhetoric of security.’’92 This may explain in part the European Commission reluctance to condemn such policies decisively, but it cannot excuse it. Following criticism from the European Parliament regarding the Italian measures, the Commission issued a statement informing the Berlusconi government that the security package might be incompatible with the Citizenship Directive and threatening enforcement proceedings. Yet the census was regarded as consistent with European law, as it applied to all persons of nomadic origin, even though the evidence demonstrates its target to be Roma and Sinti camp residents.93 The parliament made repeated calls to the Commission to commence enforcement action against both member states. This action would have served as an expedient reminder that repeated breaches of European law will not be tolerated. It might also have prevented the proliferation of such policies elsewhere. Unfortunately, however, the opportunity to take decisive action may well now have passed. The Commission is perhaps more constructively deployed in developing its pan-European Roma strategy, ‘‘the platform for Roma inclusion,’’ to address the comparative disadvantage of Roma across Europe and to promote genuine equality of treatment. Citizenship, both de jure and de facto, must be one of the key focuses of this policy.94

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Conclusion There can be no doubt that the Roma are a heterogeneous people whose diverse migratory experiences have influenced their cultural values. The absence of a defined, representative political voice presents particular difficulty in assessing the values and needs of the Roma diaspora. It has also made it comparatively easy for states to ignore their legal and moral obligations through enactment of discriminatory citizenship laws in the Czech Republic and the denial of Union citizenship privileges in the EU. Just as the situation of Czech Roma caught the attention of the European media following a significant rise in asylum applications, so migration following European enlargement has focused attention on the significant disadvantage experienced by Roma of former Communist states. It has simultaneously highlighted the degree of entrenched, structural discrimination that pervades many of the ‘‘old’’ European states. When considering typologies of statelessness, it is easy to view the Czech Roma as victims of ill-defined nationality laws following state succession.95 However, the experience of the Czech Roma cannot be divorced from that of today’s Roma migrants. Their experience transcends the typologies of statelessness.96 In addition to denial through state succession, they experience denial and deprivation of citizenship through discriminatory practices; the withdrawal and loss of European citizenship and associated privileges; and lack of access to the full range of rights afforded to full citizens. Modern conceptions of citizenship require both non-discrimination and equality before the law. Yet the Roma remain ‘‘outsiders in urban society,’’ rarely benefitting from such luxuries.97 The problem of Roma inequality cannot be overstated. It is quite possibly Europe’s biggest human rights challenge. Part of that challenge requires real and effective citizenship in addition to the full realization of human rights norms. A European strategy for Roma integration and equality is now on the table,98 but it is unclear whether the platform for Roma inclusion will be just the latest in a long line of well-intentioned but poorly executed initiatives. The indications from the preliminary European Commission findings reveal, unsurprisingly, serious shortcomings in the responses of national governments.99 The Commission focus on economic and social issues, such as education and housing, while laudable, will be fundamentally flawed if it does not address the overarching civil and political rights of non-discrimination, equality, and citizenship.

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PA R T I V

Labor Migrants

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Chapter 10

Slippery Slopes into Illegality and the Erosion of Citizenship in the United States Nancy Hiemstra and Alison Mountz

A recent movement in the United States illustrates the deep ambivalence and contradictory stance that U.S. citizens and authorities have always taken toward immigrants and immigration. The movement aims to enact legislation known as the DREAM Act (Development, Relief, and Education for Alien Minors). The struggle over the act has happened in fits and starts and embodies larger struggles over American identity and history. First proposed in 2001, the DREAM Act has repeatedly been reintroduced in various forms. It aims to address those undocumented immigrants who grew up in the United States after being brought as children by their (undocumented) parents. The underlying premise of the act is that these young adults were educated and acculturated into the purported American dream that anyone can ‘‘make it.’’ If passed, the DREAM Act would provide permanent residency—an important step on the path to citizenship—to undocumented immigrants who meet certain conditions: arrival in the United States before age sixteen, U.S. residence for at least five consecutive years, acquisition of a high school diploma or General Education Diploma, and ‘‘good moral character.’’ Some versions of the bill have also included military service as a possible route for obtaining permanent residency.1 The DREAM Act model of determining routes to legal participation in U.S. society illustrates the emergence of a highly limited and proscribed view of eligibility for U.S. citizenship. While providing a path to citizenship, the underlying premises of the DREAM Act simultaneously condemn

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undocumented others, such as the parents of ‘‘Dreamers’’ as they are called, playing on long-rehearsed tropes of ‘‘good’’ and ‘‘bad’’ immigrants to the United States.2 In recent years, such prevailing dualities of good/bad, desirable/undesirable, legal/illegal, documented/undocumented, citizen/noncitizen have given way to a proliferating and complex hierarchy of partial forms of citizenship (or noncitizenship). In this chapter, we explore the rapid proliferation of ‘‘tiers’’ of access to citizenship in all realms of migration and immigration (for example, asylum, temporary labor, and undocumented migration). We discuss ways in which large segments of the U.S. population are being forcefully enveloped into new categories of ‘‘illegality,’’ a term used by social scientists to describe the social and political condition experienced by racialized immigrants (and individuals racialized as immigrants). As our brief discussion of the DREAM Act illustrates, the contemporary anti-immigrant climate in the United States has been accompanied by the erosion of access to and rights once associated with citizenship, as well as a sedimentation of avenues through which noncitizens slip outside of shrinking spaces of legal status. While laws may limit who can become a citizen and the rights accorded to people living for extended periods of time in the United States, there are increasing numbers of ways in which people—both citizens and noncitizens—are experiencing fewer rights than they once had. We discuss a variety of categories through which rights and privileges are gradually—if sometimes abruptly and violently—peeled away and the development of differential tiers of access to citizenship. We are particularly interested in how erosion of citizenship rights and practices plays out spatially. We suggest that hierarchies of citizenship are reflected in geographical boxing in, so to speak, according to rights that one does have along with fears that may prevent a person from enjoying those rights due to possible confinement. In what follows, we first outline some of the broader national context in which partial forms of citizenship and conditions of illegality have blossomed. We then discuss changes in border enforcement and policing practices that have also facilitated increases in undocumented status and corresponding intensification of precarity. In our penultimate section, we explore a few key laws, initiatives, and systems that have institutionalized this trend. In our conclusions, we discuss some of the ironies and implications of these trends and return briefly to the DREAM Act and the sense of failure we see surrounding the idea of ‘‘the American Dream.’’

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Context: Legality and Status in the United States There have been numerous periods in U.S. history when the rights and privileges of targeted immigrant groups have been ignored, revoked, or evaded by careful and strategic manipulations of the law. These tend to be times of economic downturn, heightened racialized xenophobia, and intensified concern about ‘‘national security.’’ Volpp, for example, traces this history back to post-Civil War Massachusetts, when many towns assigned the national origin ‘‘Africa’’ to African American freedmen and women to avoid the responsibility of providing poor relief.3 During the anti-Chinese hysteria of the late 1800s, a series of Chinese exclusion laws was passed that prohibited entrance of new Chinese immigrants and also strictly limited citizenship rights for Chinese who were immigrants already in the country.4 During the early twentieth century, deportation was used to keep labor activists—typically immigrants of eastern and southern European descent—in check, beginning with the Bisbee, Arizona, deportations in 1917 and the Palmer Raids of 1919 and 1920, which targeted labor activists. Significantly, many of these deportations entailed denaturalization of U.S. citizens.5 During World War II, the federal government interned over 33,000 ‘‘enemy aliens’’—primarily people of Japanese descent, but also of German and Italian backgrounds—deemed threats to national security.6 Many of the detainees were U.S. citizens. Latino immigrants, commonly racialized homogeneously as ‘‘Mexican,’’ have consistently been a target of race-based persecution since the United States claimed a large swath of Mexican territory in 1848.7 Lured north by the promise of work through both state-based programs and employer recruitment, Mexican migrant workers have been subjected to mass deportation efforts when the U.S. economy experienced downturns, such as the forced ‘‘repatriation’’ of roughly 500,000 Mexican immigrants and U.S. born Mexican Americans in the 1930s. Operation Wetback in 1954 facilitated the departure (through force and fear) of over 500,000 Mexican immigrants.8 During the booming economy of the 1960s and 1970s, American attitudes regarding immigration were generally positive. Then, in the 1980s and 1990s, numerous factors occurred in tandem: economic decline, high unemployment, an inflated sense of crime as threat to public security, hysteria around the War on Drugs, the Oklahoma City bombing (perpetrated by a white American citizen), the first attacks on the World Trade Center, and surging migration from Mexico, Central America, and the

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Caribbean. These trends and events contributed to a growing feeling of crisis among the American public, including fear that immigration was spiraling out of control. This sense of panic spurred a new period of restrictive and punitive immigration policy and the increasing criminalization of Latino immigrants.9 Consequently, in the mid-1990s, critical legal initiatives at both federal and state levels set in motion the spatialized hierarchies of legal status now operating across the country. In 1994, the state of California passed Proposition 187, which aimed to prohibit undocumented immigrants from accessing state-funded health care, public education, and other social services and contained provisions requiring any government employees (including health care professionals and public school teachers) to report suspected undocumented immigrants to immigration officials. Although Proposition 187 was eventually overturned in court, the anti-immigrant narratives and tactics instrumental in its passage proved politically popular. It therefore propelled the passage of a series of federal laws in 1996 that dramatically altered the legal realities and opportunities for both documented and unauthorized immigrants, details of which are discussed below.10 Debates surrounding the 1996 laws illustrated the progressive criminalization of immigration, as well as the increasing portrayal of immigration as a threat to national security. The terrorist attacks of 9/11 instantly accelerated these trends. As Coleman argues, ‘‘9/11 has brought about a near conclusive blurring of what by the late 1990s amounted to an already wellfaded distinction between the legal offenses of undocumented laboring, criminal activity by aliens and terrorism.’’11 The War on Terror, then, also became a war on immigrants.12 The formation of a public imagination in which racialized immigrants are criminals and terrorists has profoundly influenced policy development, leading to the passage and implementation of ‘‘cruel and brutal immigration policies.’’13 Fears that terrorists could potentially disguise themselves among the thousands of undocumented immigrants who enter the United States annually turned every person without authorization into a potential terrorist in the eyes of many policymakers and members of the general public. Such fears have justified astounding escalations in border enforcement, with significant investments in personnel, technology, and the expansion of capacity to detain, prosecute, and deport immigrants. Suddenly, the undocumented population (approximately twelve million) and documented immigrants from racialized groups

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became subject to rights-altering laws and policies. What is more, the economic crash of 2008 coincided with the recent memory and lasting legal legacy of 11 September 2001, further deepening public blame placed on racialized, criminalized immigrants.

Crafting Conditions of ‘‘Illegality’’ Much of the recent war on immigrants has been carried out under the rubric of illegality. It is important to differentiate between ‘‘illegality,’’ ‘‘undocumented status,’’ and ‘‘unauthorized,’’ all of which we use in this chapter. ‘‘Undocumented’’ refers to the legal status of immigrants who are present within national borders without the required documentation. An immigrant may become undocumented either by illicitly crossing a border or by entering through the ‘‘proper’’ channels, but then staying in the United States when her paperwork (such as a visa) lapses or expires. Estimates suggest that at least 40 percent of undocumented immigrants in the United States entered with papers but then became undocumented.14 In popular parlance, the immigrant has become ‘‘illegal,’’ a word that has powerful discursive consequences because it automatically links people so labeled with criminality and immorality, even though it has been argued repeatedly that no human is illegal. Immigrants might, in fact, hold documents (such as matrı´culas consulares, identity documents provided by consular officials), but not those required by the U.S. government. For this reason, we use the terms ‘‘undocumented’’ and ‘‘without authorization’’ interchangeably to refer to legal status of entry and presence, not personhood or citizenship. Drawing on a broad range of scholarship, we use the term ‘‘illegality’’ to refer to a social and political condition experienced by racialized groups.15 ‘‘Illegality,’’ then, is more than legal status; it encompasses the consequences engendered by discursive renderings of undocumented immigrants as ‘‘illegal.’’ Illegality is produced and embodied and plays out in lived experiences.16 It is a structural violence that effectively marginalizes racialized bodies socially, politically, and economically.17 Important, illegality is often experienced spatially, as marginalized individuals intentionally selfpolice their mobility, often limiting their everyday activities to particular ‘‘safe’’ spaces.18

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Because illegality is an inherently racialized condition projected onto the body, it may be experienced by both undocumented and documented individuals—even U.S. citizens.19 For example, if a U.S. citizen is racially profiled and stopped by authorities due to the color of her skin, she feels the effects of illegality. Additionally, because there are many households of mixed status (undocumented immigrants, legal residents, and citizens may be part of the same family), the reverberations of illegality not only affect undocumented immigrants as individuals but also disrupt households and communities where socioeconomic relations are embedded. As such, the conditions of illegality permeate individual, household, and communal daily realities in a plethora of ways. Here we describe some of these ways to show readers the proliferation of avenues for sliding into illegality. Illegal status is directly reflected in a household’s economic and physical well-being.20 Without appropriate paperwork, people are typically confined to low-income, less stable work.21 Undocumented families earn on average 40 percent less than documented and citizen families, and they are far more likely than other immigrants and U.S. citizens to live in poverty.22 There may not be channels through which to protest unsafe working conditions, abuse or harassment at work, or being cheated out of owed wages.23 The careful design of residency and citizenship policies, then, works to craft a vulnerable, easily controlled, and cheap workforce for employers.24 Being illegal can also have serious health consequences. Without access to medical insurance or to government health care options, medical care may be sought only in dire emergency situations; preventive care is often avoided. Also, increasing numbers of states have passed laws requiring medical professionals to inquire about, report, or refuse care to undocumented patients. Undocumented parents of citizen children may be too frightened to bring their children to medical professionals for these reasons. Illegality often limits both childhood and adult educational opportunities. Undocumented parents may refrain from participating in their children’s schools (such as attending parent-teacher conferences or volunteering in classrooms), realities that negatively affect even citizen children’s educational success. Undocumented adults may not be able to take classes, for example, to learn English or advance vocational skills, due to fear of unfamiliar settings or prohibitive costs if deemed ineligible to pay in-state tuition. Undocumented youth live parallel yet unequal lives to their documented peers in ways they feel acutely. They may not go on school trips—

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due to either identification difficulties or their own and parents’ fears of being apprehended in unfamiliar places. They cannot obtain driver’s licenses. They do not have the same options for continuing education as peers. The lack of options can be due to universities rejecting undocumented students (those unable to provide social security numbers). In addition, without legal residency, undocumented students pay out-of-state tuition at state schools and are unable to access financial aid. These economic realities make continuing education impossible for many students. Illegality can also govern undocumented migrants’ mobility, influencing where, when, and how often people travel.25 International mobilities, and therefore transnational relationships, are similarly curtailed because, without legal status, migrants cannot easily leave and return to the United States without some type of illicit travel. Migrants with legal status are affected because of the restrictions attached to particular visas, as well as requirements for continuous residency for those on the ‘‘path to citizenship.’’ People without authorization also find themselves without rights to family reunification and spend prolonged periods separated from family members. Additionally, internal boundaries are created in the context of heightened interior immigration policing.26 Local and regional mobility are proscribed particularly with the devolution of immigration policing to local police through programs such as those described below. Because undocumented immigrants are unable to obtain driver’s licenses, any contact with law enforcement can lead to arrest (for driving without a license), detention, and deportation. Such contact may occur after even minor traffic infractions or through racial profiling. Many are picked up as ‘‘collateral arrests’’ during raids on homes and work sites that may target one individual but result in numerous arrests. Consequently, undocumented immigrants often strictly limit their movements, with all movements tinged with fear. Finally, illegality profoundly influences individuals’ sense of both material and ontological security. New policies have increased cooperation between federal immigration authorities and local law enforcement and profoundly shape how immigrant populations view law enforcement. Due to this multilevel cooperation, any contact with law enforcement puts undocumented immigrants at risk of detention and deportation. For example, women reporting domestic abuse and people reporting other crimes committed against them have become ensnared in the Immigration and Customs Enforcement (ICE) dragnet. Such incidents cause undocumented

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immigrants and their household members to understand law enforcement as instilling fear rather than protecting. Policies and discourses that demonize immigrants are also reflected in increased hate crimes against racialized populations (regardless of whether targets of such violence are undocumented or not), adding to overarching feelings of danger, fear, and anxiety. Additionally, many undocumented individuals, particularly with extended residency in the United States, report feeling frustrated and depressed about their lives and futures due to the ways their illegality proscribes opportunities in work, education, employment, and mobility.27

Expanding Border Enforcement and Policing With the legal infrastructure in place particularly after 1996 to shrink paths to citizenship, the architecture of enforcement has followed suit. A broad, multiscalar push to expand the policing of immigration further fractured experiences of citizenship and stymied access to rights for citizens and noncitizens. In addition to the dramatic intensification of territorial border policing over the past two decades, the United States expanded interior immigration policing. This was accomplished through a multitude of initiatives. One involved the political redefinition of what counts as the country’s national border as up to 100 miles from the physical border, thereby justifying the operation of Border Patrol agents deep into the U.S. interior, as well as in major metropolitan coastal centers such as New York City and Washington, D.C.28 Consequently, for example, migrants have been apprehended and detained by Border Patrol (and U.S. marshals) on buses and trains in upstate New York. Another approach to increasing interior enforcement has been the devolution of immigration enforcement powers to state and local level authorities.29 Traditionally, immigration enforcement was considered to be strictly a federal government activity, but a critical shift has occurred through two key programs: section 287(g) and Secure Communities. The 1996 laws contained a provision adding 287(g) to the Immigration and Nationality Act, thereby establishing a framework for cooperation between federal immigration authorities and state and local law enforcement in immigration policing. These agreements were not adopted on a large scale until 11 September 2001, when political will increased, along with pressure from President George W. Bush’s administration. Then, growing numbers

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of state and local police agencies sought such agreements, and more immigrants found themselves detained and in accelerated deportation procedures as a result of routine encounters with police. There are signs that 287(g) agreements will be phased out as Secure Communities is implemented nationwide. Secure Communities was piloted by the Bush administration in 2008 and has been expanded under President Barack Obama. While participation in Secure Communities was initially optional and initiated by interested agencies, the Obama administration made participation of all law enforcement agencies mandatory, with comprehensive nationwide implementation completed in January 2013. Previously, the fingerprints of those in custody were only submitted to the FBI. Now, through Secure Communities, biometric identification information of anyone who comes into contact with law enforcement is run through federal immigration and criminal databases. If records do not show that the person is a documented resident, he or she will likely be taken into ICE custody and targeted for deportation. Though Secure Communities was purportedly designed to target ‘‘criminal aliens,’’ many people guilty only of immigration violations have been deported through the program. Secure Communities, 287(g), and similar programs have created a highly uneven geography of enforcement for immigrants.30 For example, an undocumented migrant stopped by law enforcement might be detained in one city or county but not in the next, simply by virtue of which cities and counties participate in particular programs. With the nationwide implementation of Secure Communities, however, the geography of enforcement has become wholly unforgiving.31 Another avenue for expansion of immigration enforcement involves voluntary adoption of anti-immigrant measures by state and local authorities. Spurred by frustration with the perceived inability of the federal government to pass comprehensive immigration reform, combined with the post-9/11 anti-immigrant climate, many states have passed anti-immigrant legislation. Unlike California’s failed Proposition 187, most contemporary anti-immigrant state laws have been upheld in court. Arizona, for example, passed numerous bills targeting immigrants, most notably SB 1070 in 2010. The most notorious provision of this bill requires noncitizens to carry their residency papers at all times and requires law enforcement personnel to stop anyone if there exists ‘‘reasonable suspicion’’ that the person is undocumented. Critics charge that the bill encourages, and indeed mandates, racial profiling. In September 2012, opponents lost a final court battle to

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prevent this ‘‘papers, please’’ provision from going into effect. In 2011, Alabama passed HB 56, which, among other things, targets undocumented children and citizen children of undocumented parents in public schools by requiring all students to provide documentation proving that they are legal residents. The bill also makes it illegal for citizens and legal residents to employ, provide transportation for, rent property to, or aid undocumented immigrants in any way. Many other states are following suit. At a more local scale, Varsanyi and others have explored the trend toward the adoption of city ordinances intended to drive immigrant residents away and discourage new immigrant settlement.32 Such ordinances often target day labor hiring sites, proscribe the use of public space for immigrant-dominated recreational activities, declare English the city’s official language, and make renting housing to undocumented immigrants illegal.33 This geographical expansion of policing beyond political boundaries into interior zones and at increasingly smaller, more localized scales continues to shrink spaces of refuge, work, safety, and mobility for those without papers. The expansion also means more encounters with authorities, resulting in the escalation of routes to detention and deportation and away from fuller access to citizenship.

Slippery Slopes into Illegality and Exclusion Since the late 1990s, it seems that, wherever one turns in the United States—the border, the street, at work, at school, seeking medical services, or at home—one finds treacherous new paths to illegality, rather than routes to legality and citizenship. In this section, we provide an overview of some of the major laws and expanded systems through which individuals slip into illegality. Provisions of the 1996 laws created new paths to illegality, and these paths were embraced and pursued by officials more aggressively after 9/11. Here, we discuss three of these provisions. The first altered the definition of legal presence in the United States Over the course of the twentieth century, the concept of ‘‘entry’’ governed the rights to which immigrants were entitled. If a person was technically inside U.S. borders—regardless of whether entrance was gained through legal or illegal means—then she was entitled to a range of due process rights significantly greater than someone

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outside U.S. territory. The 1996 legislation, however, ‘‘change[d] the dividing line between exclusion and deportation based upon physical entry into the territory to a line based upon admission, dividing those never admitted from those lawfully admitted.’’34 Consequently, the due process rights of a large population were instantly revoked. As Volpp explains, ‘‘Immigration doctrine does not treat everyone inside (or outside) the same way. ‘Being here’ can mean many different things, depending upon the initial conditions of a person’s presence inside.’’35 The new shift from ‘‘entry’’ to ‘‘admission’’ also created a ‘‘hierarchy of preference’’ based on whether someone crossed a physical border without authorization or overstayed a visa that had initially allowed authorized entry.36 A person who overstayed the visa had more rights than one who had entered without authorization. Another provision of the 1996 laws vastly expanded the category of ‘‘aggravated felony.’’ Created in drug war legislation passed in 1988, ‘‘aggravated felony’’ referenced types of crimes that automatically subjected noncitizens to mandatory detention and deportation. Initially the only crimes that qualified as aggravated felonies involved drug and firearms trafficking and murder, but the category was expanded in subsequent legislation. After 1996, ‘‘aggravated felonies’’ included crimes with possible sentences of one year, such as shoplifting, gambling, perjury, forgery (including of identification documents), and re-entry after deportation. Aggravated felonies also became limitlessly retroactive, meaning that immigrants were suddenly vulnerable to deportation due to convictions years earlier, including crimes not considered aggravated felonies at the time committed.37 Finally, the 1996 legislation eliminated virtually all possibilities for judicial discretion regarding relief from deportation and permitted use of secret evidence in court decisions.38 Furthermore, because deportation of an aggravated felon is legally framed as an administrative action, these immigrants do not have the right to present cases before an immigration judge, and they are not entitled to the same due process rights as those accused of criminal violations.39 The U.S. systems of detention and deportation are relational and interlocking, though not one and the same. Both were expanded dramatically between 1996 and 2010, reaching record highs in 2011 with 429,000 detainees and 392,000 deportees.40 The 1996 laws set the legal stage for rapid expansion by vastly expanding the categories of immigrants subject to mandatory detention (including children, families, women, and lawful permanent residents) and eliminating provisions for relief from detention based

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on consideration of ‘‘family ties, dependent children, or the extensiveness of the alien’s ties to his community’’ for immigrants subject to deportation.41 In today’s enforcement landscape, programs such as 287(g) and Secure Communities increase the likelihood of encounters with authorities and place greater numbers of migrants on the slippery slope to detention and deportation. The expansion of the detention regime is significant particularly in light of the poor conditions in many detention facilities that proscribe migrants’ exercising the rights to which they are legally entitled. Detainees are frequently not informed of rights that they do have, nor provided with information necessary to pursue possible alternatives to deportation.42 Recent investigative reports have detailed problems such as lack of legal representation for detained migrants—a reality that significantly decreases chances for a positive case outcome—due to factors like the remote location of many facilities and transfers of detainees far from familial and pro bono legal support.43 Moreover, lengthy detention periods and intolerable physical conditions in facilities cause detainees to abandon legitimate legal claims to avoid deportation.44 As if to cement the relational nature of these changes and our argument about tiers of access, there have been numerous incidents in which U.S. citizens are detained, treated as undocumented, and, in some cases, deported.45 This is occurring with increasing frequency with the intensified enforcement in the last decade, particularly since the redoubled efforts of the Obama administration. Citizens who do not have a stereotypical, white ‘‘American’’ appearance have been confined and their claims of citizenship ignored. These incidents have occurred for a variety of reasons, including errors in the Homeland Security database, association of the person by family or friendship with undocumented immigrants, and the ability of ICE to detain and deport immigrants without substantial evidence regarding their legal status. Such incidents are clearly unconstitutional and constitute serious violations of citizen rights.46 Finally, citizenship does not entail the right to the presence of one’s own parent.47 There are over 5,000 children currently in the U.S. foster care system due to the deportation of a parent.48 Approximately 25 percent of deportees are parents of U.S. citizen children.49 The forced separation of citizen children from undocumented parents holds significant implications for the rights of children in the United States. We see in the case of children and others, therefore, that the overarching contexts of criminality and legality, coupled

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with the excessive use of detention, curtail the rights of immigrants and nonimmigrants alike. The highest historical rates of detention and deportation have resounding effects on immigrant and citizen families, households, and communities. We have shown that, throughout the circular stages of migration, arrival, residency, arrest, detention, and deportation, racialized migrants and citizens are made to feel less secure and more criminal. Through the geographical expansion of border enforcement, they are more likely to be arrested and detained; through the vast expansion of the capacity to detain, they are more likely to be detained and deported than ever before in U.S. history. Slippery slopes are proliferating everywhere and at every point in the migratory cycle.

Conclusions: Old Dreams and New Realities The United States has long prided itself on iterative versions of ‘‘the American Dream,’’ a dream that reemerges during every national political campaign and promises social mobility: the idea that anyone can ‘‘make something’’ of herself, improving one’s lot through hard work alone. Our brief outline of historical moments and contemporary trends reveals the disjuncture between rhetoric and reality that is built into the architecture of immigration law in the U.S. wherein entire groups of people are stripped of citizenship rights. This chipping away of rights parallels trends elsewhere.50 Now, as if to cement the exclusion of immigrants from the American dream, there is a movement afoot to undermine the very heart of citizenship in the United States. Some groups want to repeal the Fourteenth Amendment to the Constitution, which grants citizenship to anyone born in the United States. Supporters angrily invoke the term ‘‘anchor baby’’ to describe children of undocumented immigrants born in the United States and claim that undocumented pregnant women ‘‘sneak’’ into the United States or become pregnant while there solely to obtain citizenship through their children. While there is little grounding in reality for this myth (adult citizen children can initiate the citizenship process for parents; children cannot), it remains central to efforts to end birthright citizenship. There have been many unsuccessful attempts made to initiate the repeal process at the federal level, and some groups are trying to force the issue before the Supreme Court. A new strategy involves action at the state level. In Arizona,

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legislators have proposed that, instead of the now-standard one type of birth certificate, two different types would be issued—one for children of U.S. citizens and another for children of undocumented immigrants.51 It is ironic that hysteria around notions of illegality fuels these measures. Rather than reduce the number of people in the United States without documents, the measures instead intensify the proliferation of slopes to illegality and partial citizenship of one form or another. The kinds of illegality we have discussed involve intersections of legal status and racialization reflected in individuals’ experiences of particular spaces and mobilities. The more routes to illegality we identified, the more persuaded we were about the geographical containment of foreign national workers in the United States.52 Whether at work, on public transit, or at schools and health clinics, no corners of daily life have been left untouched by legislation and enforcement practice and therefore safe for those without papers. We have demonstrated many ways in which the criminalization of racialized populations is eroding the rights of foreign nationals as well as U.S. citizens. While making life more insecure for everyone, the proliferation of paths to illegality also creates different experiences and categories of citizenship. As our final example, we return briefly to the DREAM Act. The Act represents an effort to revive the so-called American Dream for young people. The grounds on which the DREAM Act has been attacked reflect the hierarchical conceptualizations of citizenship and belonging we have addressed. Opponents vigorously contest supporters’ claims that DREAM Act-eligible students are ‘‘American in all but legal status’’ after having grown up and received their education in the United States. Instead, critics hold that the foreignness of such youth is intractably embedded in their lack of documentation, whether the original ‘‘crime’’ of illegal entry was theirs or their parents. Opponents also portray the bill as a form of ‘‘amnesty’’ for ‘‘illegals’’ that would encourage new rounds of undocumented migration. Additionally, despite numerous reports that the DREAM Act would provide a significant net financial gain from the contributions of educated immigrant workers, critics claim that the bill would drain already stretched U.S. resources. In April 2012, a new version of the DREAM Act was proposed informally by Republican Senator Marco Rubio. In this new version—which was considered by moderate Republicans to have potential—undocumented youth

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would gain legal ‘‘nonimmigrant’’ residency that would allow them to remain in the United States on a temporary basis, during which time they could legally work, attend school, and serve in the military. This new nonimmigrant visa would not be a first step in the path to citizenship, in contrast to the original inclusion of the ‘‘green card’’ in the proposed DREAM Act.53 In June 2012, President Obama issued an executive order that essentially enacted core provisions of Rubio’s proposed DREAM Act. The order created a program called Consideration of Deferred Action for Childhood Arrivals (DACA). Through DACA, people who arrived in the United States as children can apply for a two-year period of legal residency, with the possibility of renewal. Those granted DACA status are able to work legally and continue their education. The new Dreamers, then, are not fully living the American dream; they are not entitled to the same rights as citizens, not able to vote or hold a U.S. passport. While many immigrant advocates, including Dreamers, have praised DACA, others worry that those who give the government personal information to receive temporary status through the program put themselves at greater risk in the future should a Republican gain control of the White House. Both Rubio’s DREAM Act and Obama’s DACA offer examples on the one hand of a partial solution or path out of undocumented status and recognition of a problem. But this recognition comes itself in a tiered form that is politically palatable; it aims to contrast children and military personnel in need of help with criminal adults. As such, the logic and discourses around these revamped and partial DREAM Acts reveal an emerging conceptualization of access to citizenship as hierarchical, partial, and reliant on alterity. Young people in the immigrant rights movement have fought in remarkably creative ways the hidden logics of differentiation embedded in the expanding webs of illegality. They have staged new kinds of protest and pronouncement that engaged the public in order to challenge the shrinking spaces of safety and legality. They have held ‘‘coming out’’ events to expose their own status through press releases, press conferences, Facebook, and big parties. When DACA applications first became available in August 2012, thousands of young adults lined up to submit paperwork at temporary processing centers set up and staffed by hundreds of volunteers in Los Angeles, New York, and Chicago. Stepping into the public arena after years of hiding, they are etching, however tenuously, their own paths to legality. Their own fights against the slippery slope of illegality work in direct opposition to the construction of differential tiers of citizenship.

Chapter 11

Managed into the Margins: Examining Citizenship and Human Rights of Migrant Workers in Canada Janet McLaughlin and Jenna Hennebry

Postnational Citizens or Migrant Margizens? Human Rights of Migrant Workers Internationally As this volume has aptly demonstrated, human rights and citizenship access for migrants have proven to be ‘‘slippery’’ in various ways. The case we wish to explore here involves the gap between de jure and de facto rights access for migrant agricultural workers from the so-called Global South who work as temporary visa workers in Canada. This phenomenon is particularly relevant since the entry of temporary foreign workers has grown significantly in Canada over the past decade, surpassing the economic class of immigrants since 2006.1 The type of slipperiness we reference is the ways in which rights access, though evident ‘‘on paper,’’ is elusive (difficult to grasp) in practice because of the dual precarity of migrants workers’ employment and immigration status.2 We imagine the rights associated with citizenship as a rope, the threads of which wind together to produce a potentially strong fabric of protections that citizens can grasp onto both within and beyond the labor market. Migrant workers have legal access to some of the threads of the rope—from which they can dangle precariously and away from slip. As noted by Ruhs and Anderson, the multitude of immigration statuses conferred on noncitizens have associated restrictions on their rights that cannot be imposed

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on citizens, and migrant workers face difficulties accessing these rights in practice.3 Thus, being able to access and protect rights associated with citizenship (the whole rope, as it were) is harder if not impossible for migrant workers. Their vulnerability (both real and perceived) makes their grasp of the small collection of threads—selected differential rights and protections they are legally entitled to according to their immigration status— particularly tenuous or slippery. The slipperiness also refers to the lack of rights enforcement for vulnerable workers who are permitted in the country to perform a designated economic function but never valued as potential members.4 A lack of solid connection between Canadian civil society and these migrant guests, which is exacerbated by a public perception of a binary differentiating ‘‘us/them,’’ further entrenches the vulnerability and sidelining of this population and undermines the potential for political traction to pressure governments into providing meaningful reforms to address these rights disparities. The case of migrant worker rights and integration in Canada provides an interesting comparison to migrant integration and rights access in other Western countries, demonstrating the particularities of a tightly managed migration regime. Writing of the European case, for example, Soysal has observed that (im)migrants, and in particular guest workers, have been able to benefit from broader conceptions of rights that transcend citizenship. Soysal argues that guest workers are anomalies with regard to predominant narratives of citizenship, insofar as they ‘‘are now permanent . . . ‘foreign’ communities within the host societies . . . without formal citizenship status [yet] have been incorporated into the educational system, welfare schemes, labour markets [and engage] in politics through collective bargaining and sometimes vote in local elections.’’5 Soysal suggests these trends are indicative of a move toward ‘‘postnational citizenship,’’ in which rights are no longer dependent on the relationship between states and citizens; rather, they apply to individuals universally.6 This premise is based on ‘‘universal personhood,’’ rather than ‘‘national belonging,’’7 and is consistent with the foundation of international human rights law, including the Universal Declaration of Human Rights (UDHR), which stipulates that rights are entitled without distinction of any kind, including national origin. Comparatively, in the United States, which hosts millions of (mainly Mexican) irregular (im)migrants, many of whom make the United States their permanent home, some argue that, even as immigrants are excluded

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from legal citizenship (and often face high degrees of racism and antiimmigrant sentiment), they may still be able to access some rights through an expanded notion of ‘‘cultural citizenship.’’ Cultural citizenship recognizes migrants’ economic and cultural contributions to the country, for which they are considered ‘‘legitimate political subjects.’’8 Heated debates regularly consider the rights of immigrants’ children to attend schools and universities, the rights of immigrant families to access benefits such as health care and pensions, and even the status regularization of irregular migrants. As millions of immigrant workers attempt to reunite their families and make the host nation their home, notions of citizenship and rights are contested, reconfigured, and reimagined. While there is evidence of some movement toward postnational and denationalized citizenship in Europe, North America has trailed behind. The European Convention on Human Rights and other EU treaties have produced substantive changes in the domestic laws of member countries, demonstrating the denationalization of citizenship.9 There are also cases where noncitizens are constructed as rights-bearing legal persona (for example, in the case of foreign business people and firms).10 Comparatively, in Canada, though some temporary foreign workers have benefitted from a broader spectrum of rights and benefits, including pathways toward permanent residency, this has largely been reserved for those with high levels of education and specialized skills. In general, in both contexts, these more flexible forms of citizenship have been largely reserved for the highly mobile elite. Combined with the development of the international human rights regime, the legal justification for rights claims by non-national entities and noncitizen subjects has been strengthened by these new articulations. Yet membership through the mechanism of citizenship conferred by a nation-state remains one of the key institutions of contemporary society that continues to have considerable ‘‘heft’’11 vis-a`-vis rights; it is the very nature of its heft that leaves certain irregular and temporary migrants outside its reach.12 Largely because of citizenship’s continued importance and the growing numbers of noncitizens residing and working in developed countries, there has also been a proliferation of ‘‘tiers’’ of access to citizenship, where migrants have to prove their worth to gain rights, as Heimstra and Mountz discuss in the case of irregular migrants in the United States (this volume). Further, those with legal, yet temporary, status in a nationstate (particularly those lacking high levels of social and economic capital) also find themselves at the margins (most without a pathway to citizenship)

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with the heft of their origin country membership insufficient to provide adequate access to rights and protections while working abroad. Indeed, the political and economic interests of their mostly less developed sending states are not necessarily served by advocating for the rights of their citizens abroad. For example, while Mexico has expanded its consular presence in Canada, its role in protecting Mexican migrant farm workers is limited mostly to an advisory capacity aimed at protecting Mexico’s position as a leading labor-sending country by not upsetting the powerful employers’ agricultural lobby that hires Mexican workers.13 Despite rhetorical commitments to honor human rights at the international scale, migrant workers often find themselves placed outside the host country’s imagined national identity, which essentially deems them to lack the attributes necessary for entry into the social-political formation that would provide comprehensive rights. For more marginalized deterritorialized subjects, or ‘‘margizens’’14 —such as migrant workers in low-skilled sectors—there is little evidence that meaningful openings for rights claims exist. The influence of the international human rights regime has not been sufficient to denationalize citizenship to such an extent that receiving states have extended full rights to noncitizen migrant workers. Indeed, this lack of commitment to some kind of rights framework for noncitizens is evidenced by the notable paucity of receiving states that have ratified international conventions protecting the rights of migrant workers (as discussed further below). In Canada, we argue, legal migrant workers, particularly but not exclusively in ‘‘low-skilled’’ agricultural positions, have been effectively precluded from making rights claims on the state due to their entry into Canada via highly restricted and controlled managed migration regimes. Migrant farm workers in Canada work under temporary labor programs in which their right to stay in the country is tied to a contract with a particular employer who can fire them at will, thereby leading to deportation. This case contrasts the experience of migrants who access ‘‘postnational rights’’ and demonstrates that, through strict migration management and controls the state can construct and entrench the margizen status of migrant workers, thereby shirking its human rights obligations. Specifically, we show how the state has de/limited the rights of migrant agricultural workers through programs that channel them into highly controlled and managed marginality, while refusing to support key international legal instruments that would uphold postnational rights and promote their specific rights as noncitizens

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(most important, the 1992 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families). We also argue that the denial of citizenship rights to migrant workers affects their ability to access several other key rights, rendering many other rights—including those to which they legally have access—slippery or practically unattainable. As illustrative examples we demonstrate how the denial of citizenship limits rights regarding labor and employment equity, mobility and freedom of residence, and safe working conditions. Similar arguments also apply to access to health care and workers compensation, as we have discussed elsewhere.15 Our findings are based on a decade of individual and collaborative study of migrant health and human rights in Canada. This includes literature and archival reviews, questionnaires, participant observation, interviews, and focus groups with migrant workers and government and nongovernment actors involved in migrant agricultural worker policy and practice.

Wanted as Guests, Not as Citizens: Migrant Workers in Canada Canada has historically used temporary migration programs to facilitate the import of labor for specific industries under tightly controlled parameters, to do work under conditions that citizens often refuse. The separation of those deemed worthy of settlement from those deemed valuable only for temporary labor stems from Canada’s initial nation-building objective. In the British North American colony created after confederation, workers of color from specific countries were admitted on a temporary basis to perform those tasks deemed undesirable by domestic workers, such as railway construction and domestic service. Despite their important contributions to the economy, the migrants who carried out this work were generally considered unworthy of residency or citizenship rights. In this regard, ‘‘foreigner’’ was ‘‘a racialized label of ‘nonwhiteness’ that connoted highly controlled mobility, while ‘white’ implied settler’s capability.’’16 These racialized workers were typically employed in more dangerous and lower paid jobs than their Canadian counterparts. As the legacy of temporary migrant workers has continued into the present, the underlying expectations remain the same: migrant laborers are

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meant to come to Canada without families, work under specific restrictions and in specific industries, and to return home when their labor is no longer needed, when they are no longer able to work, or when their visas expire. For the most part, Canada has succeeded in achieving these objectives through a series of strictly controlled foreign worker schemes. Temporary migration programs have thus provided ways of formally institutionalizing racialized unequal power relations by which the state can benefit from cheap labor without confronting the ethical dilemmas of denying citizenship rights. In the last few decades, the various routes through which migrant workers have come to Canada have changed. Major changes have taken place with respect to the Canadian Temporary Foreign Worker Program (TFWP), which now includes several streams bringing migrant workers into agriculture—including the still predominant Seasonal Agricultural Workers Program (SAWP), the Stream for Lower-Skilled Occupations (since 2002), and an agricultural segment within the latter program introduced in 2011. The SAWP, in place since 1966, employs workers from Mexico and the Caribbean under bilateral federal agreements for up to eight months each year. Most workers return for multiple years, some for decades. The more recent Stream for Lower-Skilled Occupations employs workers from any country for up to four years at a time, after which they must return home for a minimum of four years before applying to reenter.17 The number of migrant workers in Canada rose dramatically after 2000, with over 338,000 temporary foreign workers (TFWs) present in 2012.18 Approximately 40,000 positions were approved in agriculture in 2012, over 70 percent through the SAWP.19 Agricultural migrant workers are the longest-standing group of TFWs who have been consistently denied a path to citizenship rights. These rights have been denied despite agricultural migrant workers paying taxes and being critical to the Canadian economy for nearly fifty years. In the early years of the SAWP, racist ideologies served as justification to prohibit the permanent immigration of migrant farm workers.20 Contemporary governments have failed to publicly justify this ongoing exclusion, despite a recent apology by the federal government for the racist and exclusionary measures used to limit immigration of Chinese railway migrant workers in the nineteenth century.21 Even as many other groups of TFWs (including live-in caregivers) have fought for and achieved the potential to access permanent

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resident status, agricultural workers remain categorically excluded. This exclusion affects their ability to access numerous rights.

Denying Citizenship, Denying Rights: Agricultural Labor Migrants in Canada There are two ways the Canadian state limits or denies the rights of migrant workers. The first is by denying rights on paper—outright denial of certain rights and protections by either refusing to sign conventions or enact laws that would protect migrants’ rights or denying them access to rights on the basis of their temporary residence status. The second is by denying rights in practice—that is, failing to provide the necessary protections and supports that would allow migrant workers to actually access the resources to which they have a legal right. These two forms of denial often intersect and overlap—that is, the denial of rights related to citizenship renders it impossible, or at least difficult, for workers to practically access many of the other rights to which they should be legally entitled.

Denial of Rights on Paper Numerous international initiatives, conventions, and frameworks have emerged aimed at better protecting the rights of migrant workers while working in receiving countries, including two ILO conventions, the C97 Migration for Employment Convention (Revised) (1949) and C143 Migrant Workers (Supplementary Provisions) Convention (1975), (neither of which Canada has signed).22 Most important has been the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW), which lays out a comprehensive and progressive list of rights, sets standards and guidelines for the promotion of fair and legal migration, and integrates the principles in numerous international policy frameworks and instruments developed by the United Nations and International Labor Organization (ILO).23 Many migrantsending countries have ratified this convention, but, as of 2013, Canada, among many other high-income migrant-receiving countries, including most EU states and many ASEAN states, had not yet ratified it.24

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It is hardly surprising that Canada has not ratified the ICMW. Civil society mobilization around ratification is relatively weak in Canada (with most organizations generally seeking to address domestic problems rather than promote international standards and change).25 Further, ratification would require politically unpopular and costly changes to policies across multiple levels of government. It is also unlikely that sending governments involved in the SAWP would push for Canada’s ratification, since they would risk their preferred status in this nearly fifty-year-old program, which brings significant remittance dollars to their annual GDPs. With respect to existing domestic legislation, TFWs face a number of limitations compared to citizens. For example, the Charter of Rights and Freedoms guarantees Canadian citizens ‘‘the right to enter, remain in and leave Canada’’ and to ‘‘pursue the gaining of a livelihood in any province.’’26 TFWs are excluded from this legislation; therefore, they can be repatriated at any time and do not have the right to change employers freely or pursue the gaining of a livelihood in any province (they are normally assigned to work for a specific employer in a specific province). Further, they are not typically granted the right to leave and reenter Canada, as they are only issued single-entry visas for fulfillment of a specific contract. They are also not typically given access to visitor’s visas for family members and are, therefore, denied family reunification while in Canada. Thus, by limiting TFWs’ access to citizenship rights, other rights, such as the right to freedom of movement, of residence, and to change jobs, are effectively denied. Rights are also denied at the provincial level. For example, all agricultural workers in Ontario, where the majority of migrant farm workers have been employed, whether Canadians or migrants, are excluded from many labor and employment-related statutes meant to protect workers with basic standards, including the Ontario Labour Relations Act. As such, they are denied the right to join a union and bargain collectively (this exclusion was upheld in Canada’s Supreme Court in 2011).27 Ontario agricultural workers are also excluded from many provisions set out in the Employment Standards Act, including those related to maximum hours and overtime pay. As Verma argues, such exclusions have ‘‘placed agricultural workers in a vacuum as it relates to legislative employment protections.’’ In effect, migrant workers having equal rights to other Ontario farm workers is ‘‘the equality of having no rights at all.’’28As TFWs, as agricultural workers in particular, migrant farm workers’ rights are thus fundamentally limited.

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Denial of Rights in Practice The second way the Canadian state limits or denies the rights of migrant workers involves rights that are legally conferred on migrant workers but largely denied in practice. Despite the actual rights deficits identified in the previous section, federal government officials and program defenders contend that TFWs are eligible for the same protections as Canadian workers. Yet, there are multiple factors that limit workers’ access to those rights, such as lack of social support and inclusion, language and mobility barriers, poor enforcement of regulations, and complaints-driven rights systems that are unknown or inaccessible to many workers. Ambiguous mandates and poor communication between local, provincial, and national authorities compound problems. Since the TFW program is federal but labor laws are provincial, neither level of government takes responsibility for comprehensive enforcement.29 Rights access is most fundamentally constrained by the denial of citizenship rights. Even as workers’ social exclusion has recently lessened due to increased interaction with support groups and community members,30 workers’ ability to access labor and health-related protections remains constrained by the limits of their migration status. Migrant workers, as citizens in one country and workers in another, are in a uniquely vulnerable position both in Canada and in their countries of origin. For example, in Canada workers are eligible for health care coverage only so long as they are in the country, but most often seriously ill or injured workers are immediately repatriated. Working, living, and making contributions to health and social security programs in Canada, these workers do not normally contribute to the social contract of their countries of origin and, therefore, often remain excluded from many of the benefits they would otherwise have available to them when they return.31 Perhaps most fundamentally, as temporary ‘‘noncitizen’’ residents, migrant workers’ right to stay in Canada can be rescinded at any time. This has significant consequences for the assertion of rights in practice for these migrants, as premature repatriations and lack of freedom of employment render it impossible for workers to access protections or to investigate and enforce workplace rights through dispute resolution mechanisms.32As a Jamaican worker explained, ‘‘That boss in Canada is the worst one I’ve ever had, because in Jamaica when I meet someone like him, I just don’t stay with him, so I don’t have to cope with his foolishness. Up there [Canada]

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I just have to cope with what he is doing, so it was the worst experience for me.’’33 With contract conditions that are rigid, temporary, and precarious, most workers do not feel empowered to make complaints about poor conditions or other rights violations, even when those conditions may compromise their health, safety, or legislated rights.34

Labor and Employment Equity Rights TFWs should be guaranteed all rights under applicable international human rights and labor laws. The UDHR lays out numerous relevant rights. For example, it stipulates that everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment . . . to equal pay for equal work . . . to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection . . . . to form and to join trade unions for the protection of his interests (Article 23:1–4) . . . to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay (Article 24) . . . to . . . medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control (Article 25). In practice, many of these rights are routinely violated for migrant agricultural workers. TFWs, who can be fired at any time and have no recall rights or job security, have no protection against unemployment. They also lack free choice of employment. Due to restrictions on their visas, farm workers who want to switch from assigned employers are often unable to do so, effectively rendering them bound to a given employer under a wide range of possible conditions.35 Migrant workers are often asked to work long hours, in excess of sixty to eighty hours in one week without days of rest, including holidays. Indeed, this flexibility to work long hours while forsaking weekends, evenings, and holidays is part of what constitutes their particular value to Canadian agricultural operations.36 TFWs are likely to take on these long hours of work, since their seasonal and fluctuating incomes

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are often insufficient to support their families. They have no access to employment insurance (EI) benefits, which are normally paid to workers during times of unemployment, parental leave, or sickness; this is in spite of the fact that migrant workers contribute an estimated $3.4 million in EI premiums per year.37 Instead, such workers are typically discarded— returned to their countries of origin, where their access to social safety nets is near nonexistent.38 Hiring practices within the TFWP also routinely violate Canada’s employment equity laws, which stipulate that employment should not be based on factors other than ability.39 Processes of racialization and gender discrimination are readily apparent in the TFWP, as employers deem one ethnic and gendered group preferable for certain tasks over others and hire or fire whole groups of workers accordingly. Indeed, employers of TFWs are given the freedom to request a custom-made workforce from specific nationality and gender groups based on their preconceived notions of such groups’ suitability for various tasks.40 As such, over the past decade, there has been a marked increase in the numbers of Mexican workers in relation to Caribbean workers, in part due to racialized stereotyping and concerns regarding Caribbean workers’ ability to assert their authority in English.41 As one employer puts it, ‘‘You can trust Mexicans to work hard. I think maybe the others were lazy to work. Who? The Jamaicans . . . and they complained . . . that is why there are more Mexicans now. You don’t know with blacks, it is how they are.’’42 Additionally, work tasks and workplace hierarchies are not typically organized according to skill level or experience, but instead are segregated according to country of origin—with Mexicans working with Mexicans, Jamaicans with Jamaicans (each performing tasks perceived appropriate on the basis of racial stereotyping), while Canadians supervise.43 Also, the use of women workers, though increasing over the past two decades, has remained marginal and still constitutes about only 3 percent of SAWP participants. In practice, the structure of the TFWP means that workers with years of experience and advanced skills can be summarily dismissed and replaced if an employer determines a different group is preferred for its docility, flexibility, or any other arbitrary reason. This legal loophole is unique to the employment of TFWs, where the recruitment and selection of workers is explicitly based on gender and country of origin, rather than skills and experience—something employers cannot openly do when hiring Canadians.

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Freedom of Mobility, Residence, and Housing The control employers exert over workers’ housing and mobility is also problematic. The SAWP’s stipulation that workers must live in a residence of their employer’s choosing is a contradiction to international human rights law, as several UN conventions ensure freedom of mobility and choice of residence. For example, article 13 of the UDHR states that ‘‘Everyone has the right to freedom of movement and residence within the borders of each State.’’ Article 12 of the International Covenant on Civil and Political Rights (ICCPR) likewise grants persons lawfully in a state the ‘‘right to liberty of movement in the territory of the State of employment and freedom to choose their residence there.’’44 By contrast, workers in the SAWP are given no choice over where to live and their mobility can be greatly restricted while residing in their employers’ residence. Workers’ homes, often trailers, portables, or modified farm buildings, are commonly placed behind or next to their employers’ properties, or they may reside in large bunkhouses at the back of or near to farm property. In some cases, those coming or going can be monitored by the employer’s family; in other situations, surveillance cameras or security companies are utilized to monitor activities. One migrant worker explains, ‘‘Here they’ve told us that we can’t leave the farm under any condition, if you want to go out for a walk or a stroll, you have to tell the boss, so that someone knows. Because as long as you live in the farm, he is responsible for you . . . and if you don’t tell him when you go out, then it causes a problem because you didn’t let your boss know.’’45 In such contexts, a misdeed off the job, such as visiting town without permission, can result in punishment on the job.46 Research documents numerous examples of employers’ restricting workers’ freedom and mobility, as well as instigating a series of punitive and restrictive measures to govern their social lives.47 The fact that SAWP workers cannot change housing is additionally problematic because their employer-provided accommodations are often undignified and unhealthy. In a 2010 survey of nearly six hundred migrant farm workers in Ontario undertaken by Hennebry, Preibisch and McLaughlin, nearly 50 percent claimed that their housing was inadequate with respect to at least two factors (for example, crowded and poorly ventilated).48 Similar areas of concern have been reported in a British Columbiabased survey of one hundred Mexican workers, in which 37 percent felt

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their housing damaged their health.49 As employers are typically also workers’ landlords, many workers fear making complaints about their accommodations. Such conditions are unique to the circumstances of migrant workers, whose mobility and residency rights are tied to their employment contracts.

Right to Safe Working Conditions Farm work can be characterized by the ‘‘3 Ds’’: difficult, dangerous, and dirty. An Ontario-based survey revealed that many workers are exposed to numerous occupational hazards, including such risks as repetitive movements, working in extreme heat, with chemical products, and without knowledge of risks or sufficient protection.50 Various pieces of international, domestic and even program-specific legislation advise the occupational health protections of workers. The WHO Declaration on Occupational Health for All states that [Workers] have the right to know the potential hazards and risks in their work and workplace, and they should, through appropriate mechanisms, participate in planning and decision-making concerning occupational health and other aspects of their own work, safety and health. Workers should be empowered to improve working conditions by their own action, should be provided information and education, and should be given all the information, in order to produce an effective occupational health response through their participation.51 Since 2006, Ontario farm workers have been covered by the Occupational Health and Safety Act (OHSA), which includes the right to refuse unsafe work, to receive health and safety training, to be informed about workplace hazards, and to be included in health and safety committees.52 Ongoing research, however, suggests that most workers are unaware of their rights or that these rights remain practically inaccessible. For example, although the OHSA includes the provision that workers have the right to refuse unsafe work, most TFWs indicate that they would continue to perform unsafe duties because they would not want to risk angering their employers, on whom they depend for current and future work.53 If they

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refuse work for any reason, employers have the right to fire them and, therefore, cause them to be repatriated. With no formal appeals process, employers can effectively dismiss workers for refusing unsafe work. Research has also found that health and safety training has been inconsistent and insufficient for migrant farm workers. Nearly 60 percent of workers surveyed in Ontario and 74 percent in British Columbia said that they had not received any information or training relating to their health and safety.54 Of those workers who had received training, it was not always accessible; language and literacy barriers often caused problems of comprehension.55

Conclusion As we have shown, managed migration programs enable the state to benefit from the labor of international migrants without having to confer the rights and benefits of citizenship. From the point of view of Canada, as among many migrant receiving countries, foreign labor is wanted, but the people performing this labor are not. Migrants’ inability to access rights is legitimized by keeping them in a permanently temporary position, a type of ongoing limbo in which their legislated ‘‘unbelonging’’ is continual and their denial of access to rights and benefits justified by their ‘‘outsider’’ status. Even for those rights to which they have legal access, their extreme employment and migration precariousness places them in a position where accessing these rights might compromise their employment, their right to be in Canada, and, ultimately, their ability to support their families. Therefore, their access to these rights is slippery or practically unattainable. The denial of citizenship underpins these vulnerabilities, since migrants’ right to be in Canada is tied to their work permit. The tradeoff for migrant workers with few economic alternatives—securing rights versus securing income—in most cases is deemed not to be worth the battle. Consequently, the Canadian state can claim that their rights are accessible on paper, while doing nothing to facilitate or ensure they are accessible in practice. Moreover, by not providing a direct means to access permanent residency (and therefore potential access to citizenship) for migrant agricultural workers (even through a two-step approach, such as through the DREAM Act in the United States56), the Canadian state is explicitly excluding these individuals from membership in the nation and effectively managing them permanently into the margins.

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While granting citizenship rights certainly does not guarantee easy and categorical securing of all rights, we argue that the denial of citizenship rights has been a significant factor in limiting many other rights of migrant agricultural workers in Canada. Granting citizenship (or permanent residency) rights would address many of the aforementioned concerns. It would provide mobility rights, enable freedom of employment and residence, provide full and equal access to employment insurance, and promote language acquisition and social and political inclusion. The enforcement of rights and protections would be more effective if migrants did not fear losing their job, income, and right to stay in Canada as a consequence of advocating for their own rights; and the threat of premature repatriation would no longer function as a deterrent to rights access. Furthermore, citizenship rights would grant TFWs the right to vote and thus to gain political and social capital. Partly because of this lack of representation, there has not been sufficient political pressure for change. Similarly, until very recently there has been very little general knowledge of migrant workers at all, let alone the political struggles that they face. This situation has been changing in recent years as NGOs, unions, and advocacy groups have begun to take up the cause of migrant workers and their rights. Despite these determined efforts, the Canadian government has shown no sign of protecting existing or extending further rights to these migrants by either revising domestic law in line with international standards, or by signing conventions such as the ICMW, or by making existing rights and protections practically accessible to workers. Many people, predominantly from the Global South, migrate in an attempt to ameliorate some of the negative effects of an inequitable global system. Yet labor migration raises new problems with respect to protection of human rights, as migrant workers straddle transnational borders and work in countries where they are not integrated as citizens deemed worthy of equal rights—with neither the sending country nor destination country fully protecting their rights. The Canadian TFWP and SAWP, in particular, are often publicized as model managed migration programs under which migrants’ rights are ensured and protected. As we have shown, conversely, this model has served to manage these migrants into the margins, making universal human rights, or postnational citizenship, far from reality for these migrant margizens.

PA R T V

Emerging Issues and Models

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Chapter 12

Shapeshifting Citizenship in Germany: Expansion, Erosion, and Extension Thomas Faist

On the Renaissance of Citizenship Since the 1980s, the term citizenship has again come into common usage. It is a term employed in debates over the concept of social rights and social citizenship in the context of the transformation of welfare states. It is also used, in the wake of immigration, in public and academic debates over access to full membership for immigrants in countries of immigration (and emigration) by parentage, birthright, or naturalization. The concept of citizenship traveled from the Anglo-Saxon debate into German-speaking countries, where it encountered the older term Staatsangeho¨rigkeit (nationality), which defines the legal dimension of state membership. Although the term citizenship is frequently translated as ‘‘nationality,’’ it makes more sense to broaden the latter to citizenship, as concepts of membership beyond the state in the narrower sense have also gained significance, as in the case of the European Union. The two examples of the welfare state and migration referenced above reflect the challenges facing relations between citizens and the state, on the one hand, and relations among citizens, on the other. With the transformation of welfare states, questions arise such as whether the conditionalization of claims might impair the principle of equal social rights for all citizens. The initial challenge to state citizenship arising from international migration is the exclusion of nonmembers. Citizenship guarantees by law and

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by obligation the inclusion of full members (citizens) in varied functional relationships, such as the labor market, education, or politics. Such a duality of social closure by way of inclusion and exclusion could best be eliminated by the existence of world citizenship. The presence of noncitizens, moreover, questions the necessary congruence between territory, state constituency (electorate), and state authority. It also raises the interesting question whether and to what extent an imagined cultural homogeneity of state citizens is an indispensable requirement for allocation and guarantee of rights and obligations, reciprocity and solidarity. In Germany, as in other liberal democratic societies, three major developments have been observed over the past few decades. They indicate the gradual transformation or shapeshifting of citizenship. First, there is a tendency toward the expansion of nation-state citizenship, as expressed, for instance, in easier access to (state) citizenship for resident migrants. The second development is the public debate over erosion, for example, the dismantling of social rights and a greater emphasis on the personal contributions of full members. The third development is the emergence of different forms of genuine citizenship beyond the nation-state, primarily transnational citizenship as in dual or multiple (state) citizenship, and supranational citizenship as in the EU. All these developments indicate that the borders of (state) citizenship as an instrument of social closure are gradually shifting, creating new lines of differentiation among citizens and between citizens and noncitizens. New rules of citizenship redress inequalities but also produce new ones. In effect, it is no longer possible to distinguish clearly between ‘‘within’’ and ‘‘without,’’ between ‘‘us’’ and ‘‘the others.’’ In sum, citizenship in Germany has undergone a gradual but fundamental transformation, inadequately described by a movement from ‘‘blood’’ to ‘‘soil.’’ It is rather a transformation that points into at least three different directions.

Dimensions of Citizenship Citizenship—that is the demand that all citizens have equal rights—is essentially a contested, normative concept.1 In the Aristotelian tradition of political thought, citizenship constitutes an expression of full membership in a politically constituted community and indicates that citizens are both the rulers and the ruled. It is important to distinguish between the legal

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and political dimensions of citizenship. In the legal sense, it refers to affiliation to, or membership in, a state. The principle of ‘‘domaine reserve´’’ obtains here inasmuch as states have the sovereign right to decide over full membership. An important criterion of international law is thereby the principle of a genuine link, meaning that a person must maintain sustained ties to the state or states in question. These principles are set down in the German Basic Law, specifically article 16 and article 116, para. 1. Even when Germany was divided, the Federal Republic of Germany recognized only one German nationality, the consequence being the inclusion of citizens of the German Democratic Republic over and above their own state citizenship (1967–1990). Legally, at least three means of acquiring German citizenship are distinguished. First, there is eligibility through parentage, that is, children acquire the citizenship of their parents (jus sanguinis)—a principle that obtains in practically all states of the world. Next, in many states, it is also possible to acquire citizenship if the individual is born within the state territory (jus soli)—an option introduced in Germany in 2000. This principle is of particular relevance to the children of migrants. Third, there is also the possibility of acquiring citizenship through naturalization. In this case, criteria such as length of legal residence, command of the pertinent language, and economic prerequisites apply (jus domicilii). The general conditions for acquiring German citizenship were laid down in the Reich and Nationality Act of 1913 (RuStAG), which underwent a comprehensive reform in 2000 and was renamed the Nationality Act (StAG). (State) citizenship is an eminently political concept, founded on the idea that, in a democracy, citizens, not subjects, are the constitutive agents. In the modern sense, citizenship only came into being with the emergence of republican thought after the French Revolution. Since then, the state has been understood as an association of citizens, not in territorial terms or as the personal domain of an absolutist monarch. As a political concept, state citizenship comprises three interconnected dimensions. First, democratic legitimation is created through equal political freedom. Second, citizenship comprises equal rights and obligations for all full members. These include, in T. H. Marshall’s classic triad,2 civil rights under the rule of law, democratic political rights, and social rights in a welfare state; these have been extended—highly contentiously—to include cultural rights for persons and groups such as national minorities, indigenous groups, and immigrants.3 Obligations comprise, for instance, tax liability and, in some countries, compulsory military service.

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A third component of citizenship is affiliation. It concerns the buttressing of the political and legal dimensions through expressive and moral components articulated, for example, through feelings of belonging to a collectivity such as a nation, and which are consequently a major resource for trust building among citizens. This trust is demonstrated through reciprocity (as in, for instance, intergenerational retirement pension contracts) and solidarity. This third dimension in particular highlights the fact that citizenship is not solely based on relations between states and citizens, that relations among citizens are decisive for guaranteeing equal political liberties, rights, and obligations. This brings us to the question how the collectivity relates to minorities. The concept of ‘‘constitutional patriotism’’ as formulated by Dolf Sternberger plays a role here.4 According to this concept, the main frame of reference is not the majority culture in a pluralistic society but rather the universalist principles of human rights and the rule of law, which also protect minorities. In this view, constitutional patriotism substitutes for nationalism as the focus of collective identity.

Three Strands of Development: Expansion, Erosion, and Extension Three main trends in the development of citizenship can be identified that have contributed to shapeshifting citizenship over the past century. These are expansion—through the continual inclusion of new groups within (nation)-states; erosion—through the decreasing political participation of members/citizens in the public sphere; and extension—through the partial separation of the triad of state authority, state population, and state territory and the overall transnationalization of social processes.

Expansion: De-Ethnicization and Diversity The expansion of (state) citizenship can be explained from two viewpoints, namely, progressive inclusion and a conflict approach. An example of progressive inclusion of previously excluded groups is the reform of the German Citizenship Law, which came into force in 2000. The new legislation, which implements a jus soli principle, includes the children of foreign parents born in Germany in the eligibility framework for German citizenship

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if at least one parent has lived legally in Germany for at least six years. Until the early nineteenth century, the birthright principle applied in German states. The first nationality laws, introduced, for example, in Prussia in 1842, adopted jus sanguinis (parentage) as the governing principle for acquiring nationality. With the introduction of the RuStAG of 1913, jus sanguinus was the sole principle of eligibility. With the reform of citizenship legislation in 2000, the birthright principle was extended to include secondgeneration immigrants. An explanation for the relatively restrictive approach to naturalization in Germany compared to that of many neighboring countries in western Europe is the tremendous influence that the notion of nationhood—in particular, the notion of republican or ethnic nationhood—had on German citizenship legislation until quite recently. In this perspective, ‘‘state nations’’ like France exhibit a republican understanding of nationhood that gives rise to more inclusive citizenship regulations, while ‘‘cultural nations’’ like Germany, on account of their ethnic understanding of the nation, are much more restrictive.5 From a republican perspective, an individual’s affiliation to a state is above all a question of subjective will and their readiness to belong to and identify with the state and the nation, while, according to an ethnocultural understanding, state affiliation is objectively determined by membership by descent in an ethnic, cultural, and linguistic community. Access to (state) citizenship in ethnoculturally defined nationstates is thus frequently determined by ethnic background and cultural propinquity and therefore constitutes an exception. In republican nationstates, however, access to citizenship is possible for all immigrants under similar, comparatively liberal conditions. The adoption of the RuStAG of 1913 in West Germany and the long period of restrictive conditions for naturalization, particularly with respect to working immigrants from the 1950s onward, is often explained in terms of continuity of the ethnic or ethnocultural understanding of nationhood in West Germany.6 A continuation of the ethnic notion of nationhood, however, cannot explain the introduction of the birthright principle of eligibility for citizenship in the German Citizenship Act—a far-reaching, liberal piece of legislation compared to those of other European countries—which has been in force since 2000. In the parliamentary debates leading up to this legislation, all the parties in the political spectrum supported a republican concept of nationhood. The proponents of liberalization argued that the integration of migrants required legal activation for them to make use of their citizenship

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rights, while the opponents of an extensive liberalization regarded the acquisition of citizenship as the successful conclusion of an integration process. All the viewpoints reflected, moreover, a deep-seated conviction about societal integration. While liberalization skeptics, such as the Christian Democrats, emphasized the importance of the principle of subsidiarity (the norm that it is the smallest unit that should take care of protection, such as the family and, thus, by implication, immigrants should prove that they are ‘‘integrated’’), advocates of liberalization, such as the Social Democrats and the Greens, underscored the importance of the rights of individuals as the basis for successful social integration.7 For the specific developments in postwar Germany and the fundamental reform of the StAG, political and, in part, legal factors were more important than the alleged continuity of an ethnic concept of nationhood. The political factors were several. For one thing, some aspects of the German concept of nationhood itself did not continue unbroken after World War II. A specific German understanding of nationalism, one aspect of ‘‘Sonderweg,’’ as it has often been called, was certainly a major factor, having led as it did to the catastrophic turmoil of National Socialism and the Holocaust. On the other hand, West Germany’s postwar orientation to the West and to Europe, its welfare-state integration, and West German society’s endeavors, triggered by the student movement in the 1960s and ’70s, to come to terms with the past, are factors of a magnitude that would at least raise questions about the continuation of an ethnic concept of nationhood.8 A further aspect is that even the privileged treatment of ethnic German immigrants in accordance with article 116 of the Basic Law, often cited as key evidence of a continued ethnic concept of German nationhood, is not just ethnically oriented. As is well known, the objective was also for the successor state of Nazi Germany to assume responsibility vis-a`-vis ethnic Germans persecuted and expelled on account of Nazi crimes. After World War II, the ethnic definition was thus not only an end in itself but also a means of identifying individuals eligible for compensation for the injustice they had suffered. In terms of the legal framework, the Basic Law in particular and the prominent role of constitutional jurisdiction in the German political system help explain the controversial character of German citizenship legislation and the delay in extensively reforming it. The adoption of the RuStAG of 1913 in association with article 116 of the Basic Law after World War II

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exemplifies this argument. The measure served to uphold the prospect of German reunification. In this respect, it is no coincidence that political debate over reform of citizenship legislation did not intensify until after reunification. How German law dealt with persons who, during the Nazi regime, had lost German citizenship for political, racial, or religious reasons—among them, many Germans of Jewish descent—also does not fully support the thesis of ethnic nationhood after World War II. Based on article 116, paragraph 2, the law stipulated that persons denaturalized by the Nazi regime, as well as their children, could regain German citizenship by declaration, without the need to return to Germany. According to interpretations of this law, the legislators did not rescind denaturalization summarily so as not to force German citizenship on such persons.9 Although this option was used by persons of Jewish descent denaturalized during the Nazi regime, reports by returning emigrants indicated the mistrust they experienced at the hands of the authorities and public.10 The option for renaturalization should also be considered in the context of reparations. With respect to the latter, the German government was more accommodating to persons of Jewish descent than to other groups who suffered persecution, such as Communists. The first reform measures in the liberalization of eligibility for German citizenship in the 1990s were followed by an increased rate of naturalization. With respect to the countries of origin of individuals applying for and acquiring citizenship, as of 2009 Turkish citizens constitute the largest category (over 25 percent), followed by Serbia and Montenegro (6 percent), Iraq (5 percent), Poland and Afghanistan (each 4 percent), Iran and Morocco (each 3 percent), and the Russian Federation, Romania, and Ukraine (each around 2.5 percent); naturalized citizens from other countries of origin make up over 40 percent.11 The high percentage of ‘‘others’’ is also an indication of the steadily increasing diversification of immigrants’ countries of origin. At the individual level, it is evident that, as a rule, a longer period of residence in Germany and an advanced knowledge of the language increases the likelihood of naturalization, reflected in rules that require a minimum period of residence and knowledge of the German language. It is noteworthy, moreover, that, while the liberalization of eligibility criteria resulted in a higher naturalization rate, the category of the country of origin is at least as important. On average, naturalization figures are higher for immigrants from so-called developing countries and countries

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beset with political instability than for immigrants from other EU and OECD countries. One reason for this is that for immigrants from the former category there are practical advantages to having German citizenship, such as extensive freedom to travel, whereas no such advantages are gained by citizens from other EU member states. However, the extension of citizenship also brought about new ways of exclusion. For example, Germany and Turkey are states that are linked to each other through transnational social spaces and that react to each other’s membership policy changes. In the early 1990s, arson attacks in the German towns of Mo¨lln and Solingen killed eight Turkish women and girls. In the belief that Turkish immigrants in Germany would be fully protected only if they had German citizenship, the Turkish government reacted by changing its previous policy of discouraging naturalization in Germany. At the same time, Turkey wanted to strengthen its links to its largest expatriate community. In 1995, it introduced a ‘‘pink card’’ that facilitated renunciation of Turkish citizenship by guaranteeing former Turkish citizens most of the rights they had previously enjoyed, though it did not provide for the franchise in Turkey. Turkish migrants apparently did not trust the value of this external quasi-citizenship, and a substantial number of migrants renounced Turkish citizenship only temporarily to become naturalized in Germany but reacquired it through the Turkish consulates. The Turkish authorities colluded, exploiting a legal loophole that, before 2000, had not permitted German authorities to deprive German citizens of their nationality while they resided in Germany. In 1999, the new red-green coalition government in Germany, made up of the Social Democratic Party and the Greens, promised to introduce reform to promote dual citizenship but failed to implement this crucial element of its proposal. The new citizenship law that came into force in 2000 required applicants for naturalization to renounce their existing nationality. Shortly before the regional and federal elections in 2005, the German authorities deprived about 20,000 immigrants of Turkish origin of their German citizenship because they had reacquired Turkish nationality, arguing that they had violated the rules governing citizenship in Germany. This episode illustrates how states whose citizenship regimes have become entangled in rather densely knotted transnational spaces may act independently to pursue their own political goals but still become exposed to the policy choices of the other. In the end, the German government, in the face of Turkish opposition, decided to uphold, in principle, the rather restrictive

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renunciation clause. This occurred not despite but perhaps because of other citizenship rules liberalized at the same time. The second strand explaining the expansion of citizenship in the twentieth century is rooted in a conflict-oriented paradigm and focuses on the demands of marginalized groups who press for access, summed up in the slogan ‘‘rights must be taken.’’ This approach emphasizes conflicts between (antagonistic) groups, for example, workers versus capitalists, as the driving force behind the expansion of inclusion. Social citizenship serves as an important example.12 Social citizenship in the German Reich originated in the late nineteenth century, when Otto von Bismarck introduced social legislation in response to the organization of trade unions and social democracy. It was expanded during the Weimar Republic to include unemployment insurance and again after the founding of the Federal Republic of Germany to include retirement pensions and, later on, long-term care insurance. Compared to the civic and political components, social citizenship is much more controversial and is based on the concept that equal citizenship status is provided as a countermeasure to market-generated inequalities, thus, following T. H. Marshall, securing the legitimacy of capitalism in democracies.13 It is precisely through the lens of social citizenship, for instance, that fault lines can be detected in the construct of ‘‘normal’’ employment (husband as full-time wage earner, wife relegated to household work and part-time work in labor markets), which guided German social policy for decades. These distinctions are increasingly controversial, particularly with regard to citizenship rights—for example, the dichotomy of public and private has been debated from a feminist perspective. The aim of ‘‘citizenization’’ from this point of view is to dismantle barriers that promote or cement hierarchies. Such boundaries are seen as sociopolitical constructions that require amendment. Changes achieved in this respect relate, for example, to household management. In the German Civil Code from 1900, the husband was declared in charge of the household. Since the reform of the matrimonial law in 1977, marriage partners are expected to take care of their household management by mutual agreement. The criticism of drawing boundaries under asymmetrical power relations seeks to expose the assumptions that lie behind a universalistic understanding of citizenship in terms of heterogeneities such as class, gender, language, age, and sexual orientation. Multicultural citizenship explicitly takes into consideration the differences between individuals and guarantees minorities special rights in

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order to ensure their inclusion and, hence, the social cohesion of a stateconstituted society. It is part of a human rights revolution observable all over the world since World War II. In Germany, the issue concerns above all partial rights to self-government, education, and language for the ‘‘national minorities,’’ which are regionally concentrated: the Danes (near the border of Denmark in Schleswig-Holstein), Sorbs (a Slavic minority in Saxony, close to the borders of Poland and the Czech Republic), and Frisians (at the North Sea coast and on contiguous islands), who make up around 0.25 percent of the total population. According to German law, national minorities are those groups of citizens who are traditionally resident in Germany and who live in their traditional settlement areas, but who set themselves apart from the majority population by virtue of their own language, culture, and history and who wish to preserve their identity. In Germany, members of such minorities are, thus, only those people with their own citizenship who have been resident in Germany for a long time, a status that newly arrived groups (for example, migrants) or historically nonsedentary groups, such as Roma, cannot achieve or maintain. Multicultural rights for immigrants, such as exemption rights on the grounds of religious convictions, are very limited in Germany.14 Efforts are, nevertheless, being made by state and federal governments to take cultural difference, especially on religious grounds, into consideration with respect to Muslim religious communities. Still, one can at best speak of collective citizenship, as inclusion in public life is granted, where appropriate, through corporatist public bodies, following the model of Christian churches, not primarily through individual rights. International conventions constitute the starting point for inclusive citizenship. The implementation of the UN Convention on the Rights of Persons with Disabilities and hence, for example, the right of children with physical and learning disabilities to inclusion in mainstream education, is lagging behind.15 Inclusion thereby denotes equal status without assuming ‘‘normality.’’ Normality is, in fact, diversity—the existence of manifold heterogeneities. Inclusion refers to the societal institutions that create structures in which individuals with specific needs and abilities can participate. It has become apparent that ‘‘integration’’ is associated with an attitude that societal institutions should only create the background conditions to which individuals are expected to adapt themselves—an approach that is meanwhile controversial.

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Erosion: Restructuring the Welfare State and the Disappearance of the Laborer Two salient trends dominate the debate over the erosion of citizenship: the restructuring of the welfare state, and the frequent assertion that public spirit is in decline. In welfare state policies, social rights are increasingly supplemented or replaced with contractual elements such as ‘‘activation’’ policies in the labor market. Activation means that people’s human capital is supposed to be mobilized by public policies to enter the formal labor market and find employment, instead of allegedly drawing social assistance payments. Also, areas like education, which have for a long time been a central element of Anglo-Saxon welfare states, are gaining significance, and endeavors are being made to integrate work and family issues, as expressed in ‘‘the four Cs’’: children, care, careers, college education. Opinions are divided, however, on the extent to which the transformation to an activating welfare state amounts to a more forceful implementation of neoliberal—that is, market—elements.16 Activation policies turn classic concepts of social citizenship on their head.17 The approach to social rights in Marshall’s sense emphasizes that social citizenship, as a means of securing a living standard commensurate with economic, cultural, and political developments, can only be effective if the appropriate institutionalizations are implemented and social rights, understood as ‘‘enabling rights,’’ establish the basis on which political freedom can at all be claimed. As to migration across borders and social rights, a sea change has occurred for some of those who are usually labeled labor migrants.18 There are two innovations, so to speak—contract workers19 and the selfemployed. These instruments have contributed to an erosion of social rights. First, in the early 1990s, contract workers came as part of service agreements between German general contractors and foreign subcontractors. At first, these agreements were embedded in treaties between Germany and countries in Middle and Eastern Europe (MOE). It was akin to freedom of services within the EU, and the service agreements were meant as a preaccession aid to MOE countries. In practice, the service provisions implied that subcontracting companies in the construction sector from MOE countries could bring their own labor to deliver the services in Germany. This labor was paid prevailing German wages but not social wages. The latter were determined by the respective sending countries, making these companies competitive. The problem was not a substitution for ‘‘German’’

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labor—reunification opened many more opportunities for construction companies—but the extraterritorial status of labor from MOE countries in Germany. Legally, these workers were not regarded as labor migrants as such but were considered as an appendage to the companies carrying out the contractual agreements, resulting in a recommodification of migrant labor. The issue somewhat shifted when construction companies from southern EU member states entered the German market, bringing along laborers who were paid only wages and social wages according to sending-country standards. This cost-cutting device was soon regulated by an EU directive so that laborers from other EU member states had to be paid wages prevailing in Germany. This led to yet another shift, however. More and more, laborers offer their services as self-employed workers and thus do not fall under the purview of labor law. Overall, while these changes cannot be labeled ‘‘social dumping,’’ they are a clear case of recommodification of labor in a particularly interesting form: workers are legally not considered laborers to be regulated by social and labor law but either as an annex to service providers or service providers themselves.

Extension: Uncoupling of Rights and Collective Identities The extension of citizenship explicitly raises the question of the transformation of states and membership and is a prime case of shapeshifting. The essential question is whether the three dimensions of citizenship—equal political liberties, rights and obligations, and collective identities—can be uncoupled from one another. There are three positions on this. The first—postnational—position is that citizenship can be conceived of and visualized beyond the nation-state. A simplified version of this extension would be that of an evolution of citizenship from cities like the Greek polis or medieval city states to national citizenship and, finally, cosmopolitan and world citizenship. A somewhat more complex approach is the claim that rights on the one hand and collective identity on the other are drifting apart. In the context of the EU as a whole and in the light of weakly developed social rights at the EU level, it could be said that rights on the one hand and welfare state solidarity on the other are disconnected. Not only is there an inflationary use of terms such as postnational citizenship, but there is also hardly any empirical evidence of an EU social citizenship in terms

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of welfare citizenship, with the exception of areas such as the transfer of social rights for EU citizens working abroad, health and safety at work, and gender equality policies. A third opinion, which does not necessarily rule out the other two, draws attention to the fact that nation-states are becoming transnationalized from within, that is, citizenship continues to emanate primarily from the nation-state but is being restructured through the emergence of supranational governance and its interaction with nation-state, regional and local levels,20 as well as the implementation of human rights, but also the influence of neoliberal policies and securitization of immigration over the past decade.21 There are two clear forms of citizenship beyond the nation-state: dual or multiple citizenship in two or more nation-states and nested citizenship within the EU. Dual citizenship illustrates the internal transformation of nation-states. While sixty years ago, dual citizenship was tolerated by hardly any state in the world, today well over half of all states accept some form of dual citizenship. Dual citizens profit mainly in terms of practicalities such as freedom to travel or the ability to buy property in another state. Until the mid-twentieth century, the legal maxim held that every individual should have one nationality, but only one. This requirement has become outdated, however. The main impetus behind this development turned out to be enforcement of human rights beyond international conventions in the national legislation of democracies. This was crucial for the principle of gender equality. In Germany the rule requiring women marrying men of a different nationality automatically to adopt their husband’s citizenship was abolished in the early 1970s. A further motivation, in addition to human rights, was the requirement in democracies that the population and national constituency be essentially congruent—in the long term, incongruence would lead to exclusion of certain categories of residents. While, in contrast to the (by European standards) relatively liberal birthright principle, the regulations in Germany on dual citizenship are still restrictive, there is a growing number of exceptions. For instance, individuals from countries that strictly refuse to revoke their citizenship (for example, Iran, Morocco, Afghanistan) and individuals from EU states are not required to renounce their former citizenship to become naturalized Germans. In recent years, these rules have resulted in a growing number of individuals applying for German citizenship without renouncing their former citizenship; in 2000–2009, the figure was 40–50 percent of applicants.22

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Thus, while dual citizenship entails transnational elements in citizens’ ties to more than one state, it still only applies to (individual) nation-states. Going further, citizenship beyond the nation-state can be interpreted on the basis of postnational models. The starting point for this perspective is that the citizen-foreigner duality has become obsolete. Human rights, it is argued, have in recent decades come closer to citizens’ rights, inasmuch as states not only implement them but also foster new statuses, for example, that of the resident citizen (denizen). Resident citizens are non-naturalized migrants who theoretically have access to an almost complete range of social rights. In their case, there is a divergence of rights on the one hand and collective identity on the other, that is, an uncoupling of the second and third dimensions of citizenship.23 In a postnational perspective, Hannah Arendt’s 1951 dictum that ultimately only state citizenship can guarantee the enforcement of human rights would need to be qualified.24 The postnational claim is that liberal democratic nation-states tend to adhere to human rights. With respect to the postnational position, it is disputed whether international human rights regimes have had an influence on nation-states or whether resident citizenship is not primarily a consequence of welfare state principles. Noncitizens participate in (the German) social insurance scheme(s), for example, if they are legally employed. Globally, more than twelve million stateless persons also attest to the claim that the postnational thesis is to be treated with care when going beyond the narrow band of liberal democratic states. Another example of citizenship beyond the nation-state that does not entail international migration is EU citizenship. In this case, all citizens of EU member countries are simultaneously EU citizens; moreover, the European Court of Justice has drawn up a set of equal rights for all resident citizens, which, however, varies broadly across countries in terms of political and social citizenship. Postnational concepts of citizenship raise the general question whether the double coding of citizenship—that is, trust, reciprocity, and solidarity among citizens as necessary to secure rights and obligations—is still effective when rights are developed at the supranational level or whether the uncoupling of the three dimensions of citizenship is already well underway. The multilayered governance of EU citizenship, including European, national, regional, and local elements, can be seen as nested citizenship.25 The EU layer is thin, however, whereas the national component is strongly developed. This state of affairs is exemplified in social citizenship: the EU

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provides for only selected rights, such as portability of benefits acquired by EU citizens across borders, health and safety rules in the workplace, and some rules applying to gender equality. Moreover, it is important to note in this connection that the EU is pressing ahead with a concept of civic citizenship that is compatible with a sort of market citizenship. This is an endeavor to define a core of rights for citizens of third countries permanently residing in the EU, so that they are treated in a manner comparable to citizens of EU member states, including the right of settlement, family reunification, access to the employment market and social security, the right to vote at European parliamentary elections, and the right not to be expelled. All issues concerning the extension of citizenship fundamentally involve the relationship between human rights and civil rights, which in turn raises the major problem of the relationship between global justice and human rights on the one hand and justice within nation-states on the other. There is no evidence of an alignment of human rights and civil rights, however. While human rights do seem to have had a greater influence on civil rights within the national framework, for instance, regarding the growth of dual citizenship and emerging practices of multicultural citizenship, the validity of human rights is restricted within national borders and the borders of the EU. It is also questionable to what extent the category ‘‘human,’’ as opposed to ‘‘person,’’ guarantees a legal capacity that makes effective protection possible.26

Outlook: ‘‘We’’ and ‘‘the Others’’ The above description of the expansion, erosion, and extension of citizenship in Germany illustrates that conventional concepts of citizenship comprise a duality of inclusion and exclusion. Through social closure mechanisms, categorizations such as ‘‘we’’ and ‘‘the others’’ are produced and reproduced. In a transnational perspective, state citizenship thereby contributes to the reproduction of social inequalities borne by accident of birth or geography. Contrary developments along the changing boundaries of (full) membership are also observable, however. On the one hand, the boundaries of citizenship have become more permeable, for instance, through new institutions such as EU citizenship. Using nationalism as a

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foundation for collective identity is, moreover, a contentious issue in Germany. Skeptics generally question the future of national citizenship and point out that citizenship is being watered down. Because states are no longer reliant on their citizens as workers and soldiers to the same extent as they used to be, but increasingly depend rather on their economic power, they are less inclined to grant citizens full political and social citizenship.27 On the other hand it is noticeable that states are tending to seal themselves off from within, for example, through national and supranational border controls, even before citizenship becomes accessible. The past decades are thus a prime example of shapeshifting citizenship. Notwithstanding all this, it is doubtful whether a dichotomous perspective of ‘‘inside’’ and ‘‘outside’’ is able to capture the changes in citizenship. Through processes of transnationalization within national societies the ‘‘other’’ is always one of ‘‘us,’’ as the constant presence of noncitizens testifies. And what is more, the publicly debated plurality has enlarged to include further heterogeneities such as gender, class, religion, lifestyle, and livelihood activities. It is thus of prime importance to understand the ever shifting shapes of the boundaries of citizenship.

Chapter 13

Multiple Citizenships and Slippery Statecraft Kim Rygiel and Margaret Walton-Roberts

International migration is a defining characteristic of our times: the Population Division of the UN Department of Economic and Social Affairs estimated that ‘‘in today’s world of 7 billion people at least 214 million are living outside their countries of birth.’’1 In this context, acquisition of dual and multiple citizenships provides an important way for people on the move to secure legal status, rights, and security to position themselves better in a neoliberal global economy. Similarly, governments extend the benefits of citizenship to attract ‘‘desirable’’ newcomers. While the exact numbers of people holding dual or multiple citizenship are almost impossible to determine, approximately half of all countries allow dual citizenship, including at least ten of fifteen EU countries and immigrant-receiving countries such as Australia, Canada, and the United States.2 In other words, unlike several decades earlier when the international consensus was that dual citizenship should be discouraged—as reflected in a 1930 statement by the League of Nations that ‘‘All persons are entitled to possess one nationality, but one nationality only’’3 —today, dual and multiple citizenships are much more common. Multiple citizenship is often situated as a more inclusive alternative to modern notions of liberal citizenship, conceptualized as a bundle of rights, responsibilities, and legal statuses based on bounded membership in a territorial state. Rather than representing a linear progression toward more rights through the accumulation of citizenships, this chapter argues the reality is much more mixed, as states use multiple citizenships as a governmental strategy for a variety of outcomes

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and often alongside more restrictive approaches to formal citizenship norms. To illustrate the complexity of multiple citizenships, we have chosen two different types of states: India and Canada. These two nations reflect two ends of the migration spectrum, as India is primarily a sending state and Canada primarily a receiving one.4 Both countries practice a form of multicultural federalism embedded in regional state/provincial relations, or ‘‘state-nations.’’5 Both countries also exhibit elements of what Gamlen terms the ‘‘emigration state.’’6 India is a rising power within the global economy and promotes partial forms of multiple citizenship for its diasporic populations to facilitate national development and global influence. Despite embracing forms of multiple citizenship, India is simultaneously adopting securitized forms of citizenship regarding internal populations of foreign workers and refugees. Canada, which is often taken as an ideal model that encourages multiple citizenship to recognize the reality of its multicultural society, grants citizenship through birthright (jus soli) and acquired citizenship by foreign-born immigrants. However, like India, this model also shows tensions between the ideal of more liberal citizenship policies in an age of mobility and increasingly restrictive policies for noncitizen populations, particularly foreign migrant workers. Canada also illustrates the way that states, through processes of securitization, can use dual and multiple citizenships to renegotiate what it means to be a citizen in ways that render some citizens more precarious or second-class citizens. This chapter uses the idea of ‘‘slippery statecraft’’ (discussed below) to reference the ways governments strategically use different forms of citizenship to manage populations within the logics of neoliberalism and securitization. The chapter concludes by reflecting on how the citizenship contract and the tensions between the rights and responsibilities of states and citizens are renegotiated under conditions of globalization.

Slippery Statecraft Scholarship on the changing nature of citizenship in response to globalization and its impact on the state falls into two positions. One set of scholars views globalization as weakening the state and argues that, as a result, there is a ‘‘crisis in citizenship.’’7 Here, concern is raised that globalization erodes

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the notion of a bounded political community, integral to the proper functioning of citizenship.8 The other set of scholars looks favorably upon the transformation of the state and citizenship as providing a potential opening for more inclusive models of citizenship such as transnational, postnational, or dual and multiple models of citizenship.9 In contrast to both these positions, we argue that the boundaries of citizenship are both opening up and simultaneously and paradoxically narrowing. Governments strategically use citizenship—multiple citizenship, in particular—as a form of governance that enables the state to manage its population in order to position itself competitively in the global economy. We use the term ‘‘slippery statecraft’’ to draw attention to this process by which states use citizenship to open membership to some ‘‘desirable’’ populations, while simultaneously employing securitization to ‘‘shed’’ certain other populations. Rather than seeing these trends as contradictory, the term ‘‘slipperiness’’ draws attention to the way these competing economic and security logics work in tandem as part of the new dynamics of neoliberal statecraft, where the state is viewed not as a unified territorially bounded whole but as an assemblage of territorial and nonterritorial practices that operate simultaneously across various geopolitical scales. An integral part of the functioning of ‘‘how modern states work’’ is ‘‘monopolization of the legitimate ‘means of movement’ . . . the right to authorize and regulate movement has been intrinsic to the very construction of states.’’10 In their effort to achieve this monopoly, states employ multiple citizenship to ‘‘capture’’ or embrace transnational and diasporic populations. On the one hand, the granting of multiple citizenship widens their embrace of both emigrant and immigrant populations. On the other hand, states also use multiple citizenship (in keeping with neoliberal forms of government) to ‘‘discipline’’ populations by appealing to the desirable citizen as an entrepreneurial subject while placing others who do not fit this mold in more precarious positions. ‘‘Disciplining’’ under neoliberal forms of government also involves the individualization of power, achieved by engaging the subject to participate in his or her own government. As Nikolas Rose and Peter Miller note, political power today ‘‘is not so much a matter of imposing constraints upon citizens as of ‘making up’ citizens capable of bearing a kind of regulated freedom. Personal autonomy is not the antithesis of political power, but a key term in its exercise, the more so because most individuals are not merely the subjects of power but play a part in its operations.’’11

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While a neoliberal economic logic may drive the redefinition of citizenship toward the making of an entrepreneurial citizen subject, the logic of security and securing the national population is not at odds, but works in tandem, with this. Under neoliberalism, the state is ‘‘re-codified,’’ in the language of security in the international sphere, while carving out spheres of autonomy in social and economic life: Neo-liberalism re-codes the locus of the state in the discourse of politics. The state must be strong to defend the interests of the nation in the international sphere, and must ensure order by providing a legal framework for social and economic life. But within this framework autonomous actors,—commercial concerns, families, individuals—are to go freely about their business, making their own decisions and controlling their own destinies. Neo-liberal political rationalities weave these philosophical themes into an operative political discourse.12 In the remainder of this chapter, we explore how the state employs multiple and new forms of citizenship to ‘‘embrace’’ a more dispersed population that includes the diasporic (in India) and immigrant communities (in Canada). However, both cases also reveal that the state employs citizenship to securitize the national body within its territory.

India India has a long history of managing communities with multiple national belongings. The colonial and postcolonial experiences created pockets of globally dispersed Indians whose citizenship experiences are diverse. Indentured laborers and kangani (foremen) spread across colonial plantation economies13; postcolonial subjects of partition and annexation14; colonial middlemen minorities in Africa—many of whom later become twice and thrice migrants to the UK and North America15; postwar migrants in the UK16; and the latest phase of laborers in the Middle East and skilled migrants in the West17 have all faced their own challenges living with ‘‘slippery citizenship.’’Historically, India’s engagement with its diaspora has varied.18 In the early independence period, Prime Minister Jawaharlal Nehru advocated that Indians overseas integrate into their new homelands. In the

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1970s, emigrants were seen mostly as evidence of unequal development and the brain drain. By the 1990s, however, globalization and liberalization of the Indian economy under the guidance of then finance minister Manmohan Singh changed the state’s perception of its overseas communities.19 Instead of pariahs who had abandoned the homeland, they were seen as potential saviors. Currently India’s constitution does not permit dual citizenship, but, over the last decade or so, it has developed ‘‘diaspora mechanisms’’ of both recognition and integration.20 This has resulted in a series of official forms of representational and material inclusion, ranging from the British Indian, Overseas Indian, Non-Resident Indian, Global Indian to the Overseas Citizen of India (OCI). As Edwards demonstrates, ‘‘postcolonial societies like India can be seen as forerunners in the development of cosmopolitan ideas, rather than passive recipients of them.’’21 Since the early 2000s, India’s attention has been more fully directed at this vast community and the benefits it might offer.22 Earlier, Non-Resident Indians were seen as having little commitment to India: referred to as NonReliable Indians or Non-Required Indians, there was a sense of national disinterest in them. Then came the Pokhran II nuclear tests in 1998, followed by several economic sanctions, and in response India launched the ‘‘Resurgent India Bonds.’’23 With their high interest rates, the bonds were oversubscribed and many of the purchasers were Non-Resident Indians (NRIs) taking the opportunity of a good rate of return and also showing their support for India in the face of international criticism.24 Since then, NRIs have been granted more liberal permission to transfer funds in and out of India, as well as preferential tax advantages.25 The expanding rights NRIs garnered are part of the post-1991 period of Indian liberalization, during which time India has increasingly benefited from migrant remittances, diasporic investments, and philanthropic contributions.26 The latest round of reimagining the Indian diaspora was kick-started in 2000 by India’s High Level Commission on the Indian Diaspora (HLCID). The HLCID consisted of a team of high-ranking Indian officials who visited numerous international locations where members of the Indian diaspora had settled and reported on their successes and the nature of their connections with the homeland. In 2004, in response to the HLCID report, the Ministry of Indian Overseas Affairs (MOIA) was established to focus explicitly on emigration and overseas Indian communities. The MOIA’s mandate is to ‘‘promote, nurture and sustain a mutually beneficial and symbolic relationship between India and overseas Indians.’’27

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Various designations for members of the Indian diaspora frame their rights within India. NRI is a designation under the Indian tax code and refers to those who have Indian citizenship but are resident outside India for more that 180 days a year. The Person of Indian Origin (PIO) card (introduced in 1999) extends certain rights to those whose parents or grandparents were Indian citizens, those who at some time held an Indian passport, and those whose spouse is an Indian citizen. The PIO grants visa rights and other rights similar to those gained by NRIs, but it excludes those who were ever nationals of Afghanistan, Bangladesh, Bhutan, China, Nepal, Pakistan, or Sri Lanka.28 In 2005, the Overseas Citizenship of India scheme (OCI) was launched after an amendment to the 1955 Citizenship Act. A person who was eligible to become an Indian citizen on 26 January 1950, or was a citizen at any point afterward but migrated to another country and gained citizenship there, is allowed to apply for OCI as long as the country he or she resides in allows dual citizenship. However, the OCI specifically excludes those who have ever been citizens of Pakistan and Bangladesh. Both the PIO and OCI restrictions are based on security concerns reflecting India’s uneasy neighborhood policy,29 ‘‘occasioned by its experience of direct military conflicts in the past, the existential threat of terrorism directed against it from within its immediate neighbourhood as well as its sensitivity to external influences in the region.’’30 A person with OCI status can access a variety of rights, including a multiple entry, multiple purpose lifelong visa; the right to practice as a doctor, advocate, architect, and accountant; and the same rights accrued by NRIs. The OCI equates the rights of cardholders to those of resident Indians, except the rights to vote and to hold political or judicial office. As of February 2010, just over half a million persons of Indian origin had registered as OCIs: 44 percent from the United States, 13 percent from the United Kingdom, 10 percent from Canada, and 9 percent from Australia.31 The OCI travel card effectively replaces the earlier PIO card. As of 2002, the Indian government also hosts an annual Pravasi Bharatiya Samman (Overseas Indian) Award (for prominent NRIs), during the Pravasi Bharatiya Divas (Overseas Indian Day), the annual gathering of NRIs to promote connectivity with the homeland. The state at all levels assesses such relationships to determine what it can gain economically, politically, and culturally by extending such rights, thus firmly rooting the nation in the liberalized spaces of global capital and economic flows, as well as greater mobility of skilled NRIs. Such interactions cannot be classified

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simply as the emigration state’s extracting maximum benefit from its diaspora, but ‘‘rather [as] a form of sovereignty claim of state over citizen albeit one that operates through consent rather than coercion.’’32 The position the diaspora enjoys in its relationship with the Indian government is one of mutual and selective attraction: ‘‘In each incarnation of these relations, the Indian state’s hegemonic projects of strategic selectivity have favoured particular members of the diaspora in fabricating a social basis of support.’’33 Edwards suggests that the work of the HLCID and the representational politics of the term ‘‘global Indian’’ has derived much of its support from, and is ostensibly targeted at, emigrants who are sympathetic to the ideas of Hindu nationalism, or Hindutva. The idea that these new forms of citizenship are evidence of more liberal mobility and rights frameworks in India needs to be considered carefully. At the same time as India’s borders have become more open to selective subjects, they have also become more securitized for others.34 Not everyone who was previously a citizen of colonial India is able to secure these new modes of inclusion. Citizens of Pakistan and Bangladesh who were born in preindependence India cannot gain recognition of their past attachment to the nation. Highly restrictive visitor visa regimes between India and Pakistan limit mobility to specific places during travel.35 At the site of the India-Bangladesh border, common language, culture, kinship, and history of Bangladeshis and Indian Bengalis means that, once people cross the border, they can be hard to differentiate. There is also a different imagination of the nation here, where prepartition sense of community and identity can lead to moral communities that challenge postpartition nationalism and more recent securitized territoriality.36 Security crackdowns on undocumented Bangladeshis across India means that everyone in these border regions is subjected to increased state surveillance methods.37 It is here that slippery statecraft’s methods to differentiate the ‘‘desirable’’ from the ‘‘risky’’ subject become most evident. Official state identity documents that might normally be used for such identification purposes become questionable, even for Bengalis who are Indian citizens. This has led to what Ramachandran in this volume calls ‘‘capricious citizenship.’’ The recent push for unique biometric identity cards in India is seen as one way to deal with undocumented migrants who both Bangladesh and India claim are noncitizens.38 Thus, an initiative that is ostensibly aimed at securing citizenship rights through access to social provision, especially for below poverty line citizens, is also used to securitize the population.39 Yet

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this securitized ‘‘solution’’ is contradictory both in how it will serve below poverty line populations (who are most vulnerable to having weak ID documents), and simultaneously address cross-border migration between Bangladesh and India.40 In the process of ‘‘sorting’’ the populations, the state resorts to increased methods of surveillance and border closure.41 India, thus, illustrates our point about how new methods of citizenship recognition, in the form of ID cards and partial rights for extraterritorial populations, are important tools of slippery statecraft for ‘‘sorting’’ the population, but this itself creates deeply contradictory outcomes for vulnerable populations.

Canada Canada, as noted above, is often taken as representative of an ideal model of multiple citizenship. However, like India, Canada also reveals tensions between the ideals and the reality of how citizenship is used, governing different segments of the population differently. Canadian citizenship dates from the Canadian Citizenship Act, enacted 27 June 1946 and coming into force 1 January 1947. However, it was not until 1978, with the passing of the new Citizenship Act, that the Canadian government began to recognize multiple citizenships.42 On 17 April 2009, the government amended the Citizenship Act, passing Bill C-37. This bill restored citizenship to many Canadians who had lost citizenship when they or a parent had acquired a second citizenship or who were born outside Canada but failed to confirm their citizenship before turning twenty-eight (CIC 2009). Yet Bill C-37 also illustrates the tensions inherent in the way governments use dual and multiple citizenships to further ‘‘slippery statecraft.’’ It restored citizenship to some Canadians while simultaneously limiting others’ ability to acquire Canadian citizenship as a second citizenship; the new law limited the passing on of Canadian citizenship by descent to one generation. Known as the ‘‘first-generation limitation,’’ it prevented those born outside the country from automatically becoming Canadian citizens in cases where their parents were Canadian citizens but also born outside Canada. In this case, a person born abroad to Canadian parents who were also born abroad will be treated as an immigrant to Canada.

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The development of Canadian citizenship law since 1978 can thus be read at one level as an effort by the government to acknowledge the reality of its multicultural society and to allow its citizens to acquire foreign citizenships while also retaining their Canadian citizenship.43 While not fully Canadian citizens but citizens of another country, permanent residents in Canada are entitled to many of the same rights as citizens. These include access to most social benefits; freedom of movement in Canada for residency, work, or school; and protection under Canadian law and the Charter of Rights and Freedoms. Permanent residents are unable, however, to vote or run for political office or take jobs with high-level security clearance. Moreover, if convicted of a crime, permanent residents can be deported to their ‘‘home’’ countries and are often offered little or no help by Canadian officials if they get into trouble abroad. Permanent residency is thus illustrative of Yasemin Soysal’s postnational citizenship, ‘‘characterized by a reconfiguration of citizenship from a more particularistic one based on nationhood to a more universalistic one based on personhood’’ in which ‘‘many of the rights that used to belong solely to nationals are now extended to foreign populations, thereby undermining the very basis of national citizenship.’’44 Receiving assent in June 2013, Bill C-43 makles the status of permanent residency even more precarious. Bill C-43, the Faster Removal of Foreign Criminals Act, would permit removal from Canada of permanent residents sentenced to six months or more imprisonment (lowered from two years), regardless when the crime happened and how long they or their family had resided in Canada. If passed, the situation of permanent residents like Saeed Jama would become more common. Jama, who spent most of his life in Canada, a country he moved to from Saudi Arabia with his family as a child, faced deportation in 2013 to Somalia, a country where he knew no one, did not speak the language, and had never visited, as a result of having served two years as a teenager in prison for a drugrelated crime.45 Another bill, Protecting Canada’s Immigration System Act, introduced a new restrictive regulation of the pathway from temporary to permanent residence and Canadian citizenship. In August 2010, 492 Tamil migrants fleeing the civil war in Sri Lanka arrived in British Columbia as stowaways aboard the MV Sun Sea. As a response to their arrival, the government passed new legislation in June 2012. The act enables the minister of public

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safety to designate a group of persons arriving by boat as an ‘‘irregular arrival,’’ meaning that they are then subject to a different set of policies than other refugee claimants (those arriving by plane, for example). Designated ‘‘irregular arrivals’’ sixteen and over are subject to mandatory detention for up to one year and prohibited from applying for permanent resident status for five years. During this five-year period, an ‘‘irregular arrival’’ is prohibited from traveling or sponsoring family members to enter Canada, rights typically granted to refugee claimants upon acquiring permanent resident status. The act also introduces a new provision regarding inadmissibility and loss of status that amends section 40 of the Immigration and Refugee Protection Act (IRPA). The new section 40(1) outlines causes for cessation of status: clause 18 (as amended) states that upon a final decision that refugee protection has ceased, the foreign national who was previously a Convention refugee is now inadmissible to Canada, and therefore cannot remain in or enter Canada. Cessation of refugee protection is described in section 108 of the IRPA and involves situations such as the individual returning to his or her country of origin, reacquiring his or her original citizenship or acquiring a new one, or simply that the conditions in the country of origin have changed and the person is no longer in need of protection.46 The new powers of cessation awarded to the minister were quite controversial and the final act amended clause 18 to exclude ‘‘cessation if the reasons for which the person sought refugee protection have ceased to exist, such as a change of conditions in the country of origin.’’47 In sum, such changes mean that, rather than seeing permanent resident status as a stepping stone to the acquisition of Canadian citizenship, some refugee claimants, such as those arriving by irregular means by boat, may find themselves living in a state of limbo without the protections that come with the permanent resident status that legal refugees are permitted to acquire. These are just some of the tensions inherent in the way the Canadian government actively uses new forms of citizenship to accord different rights and privileges to different groups. The most egregious case of this is the large and growing numbers of low-skilled temporary foreign workers in Canada who have no route to permanent resident status, as discussed by

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McLaughlin and Hennebry (this volume). As Goldring et al. have argued, aspects of Canadian immigration policy ‘‘routinely generate pathways to multiple forms of precarious status, which is accompanied by precarious access to public service.’’48 In other words, rather than begin from the theoretical conceptualization of a binary status between citizen and noncitizen, Goldring et al. note that government policies have produced ‘‘a confusing array of gradations of uncertain or ‘less than full’ migration status.’’49 As Joppke observes, the proliferation of gradations of citizenship is the outcome of a transformation of citizenship under liberalization, which have removed barriers to inclusion (such as racial and gender barriers) through the promotion of multicultural policies on the one hand, while simultaneously reducing social and welfare rights on the other.50 More recently, particularly in the post-9/11 period of greater securitization of mobility, the Canadian government has used multiple or dual citizenship to renegotiate what it means to be a citizen in ways that ‘‘irregularize citizenship’’51 and render some Canadians second-class citizens in the process.52 There are now several well-known cases of dual Canadian citizens (particularly where one of the nationalities is Middle Eastern) in which dual citizenship has rendered Canadian citizenship precarious.53 The best known is that of Maher Arar, a Canadian of Syrian origin. U.S. authorities detained Arar during a stopover in New York on 26 September 2002 as he was returning to Canada from Tunisia. Arar was then deported to Syria, where he was imprisoned and tortured for over ten months. An official Canadian inquiry into the role of the Canadian government in his extradition and torture (the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar) concluded that Canadian government officials from the Royal Canadian Mounted Police (RCMP), Department of Foreign Affairs and International Trade (DFAIT), and Canadian Security and Intelligence Services (CSIS) were responsible, in part, for actions resulting in Arar’s rendition to and torture in Syria. Despite being exonerated and receiving an official apology and settlement from the Canadian government, as of early 2013, Arar remained on a nofly list in the United States. A second inquiry into the situation of three other men subject to rendition revealed similar findings; yet, as of the time of writing, the men had yet to be offered an official apology or settlement. In its June 2012 report, the UN Committee Against Torture lambasted Canada for its complicity in torture and noted that the cases of these three men must be addressed.

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In addition to these better-known cases, two additional cases are worth briefly noting here. The first is that of dual Sudanese-Canadian citizen Abousfian Abdelrazik, whose name was put on the U.S. and UN no-fly lists as a terrorist suspect with ties to Al-Qaeda. Despite having been cleared by several investigations (including by the RCMP and CSIS), the Canadian government prevented his return from Sudan to Canada until ordered by a 2009 federal court ruling to bring him home. Similarly, Suaad Hagi Mohamud, a Canadian of Somali origin, was prevented by Kenyan officials from boarding a plane back to Canada after visiting her sick mother in Kenya in May 2009 because she did not sufficiently resemble her passport photo. After being denied consular help and detained in Kenya for three months, she won a federal court motion in which the Canadian government was forced to permit her to undergo DNA testing to prove she was who she said she was. The government provided Suaad Hagi with emergency travel documents to fly home but has not yet made an official apology. These examples point to the way in which, rather than a progressive force for the accumulation of rights and capital, the Canadian government has used dual and multiple citizenship to restrict consular protection and mobility rights to individuals when their non-Canadian nationality has been thought to make them risky citizens. Thus, in the Canadian case, the promise of equal rights of all Canadians to travel on a Canadian passport, regardless of whether one is a citizen by birth or has acquired citizenship, and irrespective of one’s nationality and/or religion, is challenged by new ways of managing mobility that depend on knowledge of risk management and profiling technologies.54 Diplomatic protection is particularly problematic in the case of any dual citizen who possesses the nationality of the state against which he or she is seeking assistance from the Canadian state. Audrey Macklin also raises concerns around the increasing ‘‘securitization of dual citizens,’’ noting that ‘‘the capacity to revoke citizenship and deport depends on the subject holding at least dual citizenship’’; thus, dual citizenship may appear attractive to states because ‘‘it enables citizenship revocation without rendering the person stateless.’’55

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Conclusion Despite the differences in government strategies, through use of multiple and new forms of citizenship, there appears to be a convergence between the tactics used to manage human mobility and rights access. India engages in partial forms of dual citizenship for extranational populations while securitizing its borders against irregular migrants, while Canada rewrites its legislated citizenship commitments. People are sorted into these securitized categories through articulations of race, class, regional origin, and religion; in both India and Canada, the Muslim, the refugee, the poor are seen as the most risky subjects that must be managed through securitized, rather than economic and social development solutions.56 Much of the discursive framing of citizenship in both Canada and India revolves around national development and security as the ‘‘ ‘explanation’ of the security process, not discourse to be challenged.’’57 Emerging from this picture is the idea that globalization, mobility, and flexible forms of citizenship produce two sides of a ledger, rights accumulation for the individual on one side and asset accumulation for the state on the other. Ideally, the best scenario appears to be when the first permits the second to occur. But contradictions emerge in the simultaneous process of rights granting and retraction that states engage in. Governmentality is operative in how the state makes determinations regarding who gains and who loses citizenship rights. One means of managing this risk is to create segmented citizenship. Neoliberal logic and biopolitical metrics determine the accounting of rights to promote the state’s agenda where possible, in the process creating ‘‘other’’ forms of citizenship. So in India biometric ID cards are implemented to achieve such forms of governmentality, whereas in Canada legislated changes to previous citizenship commitments are used to manage similar kinds of risks from ‘‘undesirable’’ subjects. To this end, the state is rewriting the citizenship-sovereignty contract. Creating new forms of inclusion while simultaneously imposing new securitization logics creates a feedback mechanism: the more rights are delimited and constrained, the more the need for some kind of rights, no matter how segmented. Securitization could therefore be thought of as producing neoliberal forms of multiple/differentiated citizenship, or slippery citizenship, by which multiple forms of citizenship create many avenues both to

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achieve and restrict rights. In India, the extension of partial forms of multiple citizenships to diasporic populations abroad is matched by a closure of rights within its own neigborhood through greater border and population policing. In Canada, multiple citizenship is used to attract desirable immigrants, while other dual citizens, particularly those of Middle Eastern origin, are subjected to greater security measures that make their movements outside Canada more risky. In this way, governments employ multiple citizenship as a form of slippery statecraft that enables the state to securitize citizenship, while allowing citizens to continue to act in the best economic interests of themselves and the state. The metrics used to sort people into these subject positions (desirable entrepreneurial actor or risk factor) are key to understanding slippery statecraft.

Chapter 14

Sticky Citizenship Audrey Macklin

Slippery citizenship is a great metaphor. It evokes the contemporary anxiety that legal status increasingly eludes the grasp of those who need and want it most desperately: harder to get, easier to lose, functionally tenuous even when formally secure. Understandably, we are most preoccupied with the predicament of those who seek citizenship—de jure or de facto—from a recalcitrant state. Nevertheless, I want to explore slippery citizenship’s mirror image, which I will call ‘‘sticky citizenship.’’ The label applies to situations where a state seeks to stick citizenship on an unwilling recipient or where an individual is stuck with a citizenship she wishes to disavow. This preliminary exploration of sticky citizenship is confined to the former. Worrying about sticky citizenship may seem odd. After all, citizenship is valorized, and citizenship has obvious instrumental value in a globalized world.1 States increasingly permit multiple citizenship, which expands economic and social opportunities for the holder. Few legal duties specifically attach to citizenship in the many states that have abolished conscription. The benefits of citizenship seem easily to outweigh its burdens: citizenship is a good, and it is good. Having citizenship is better than not having citizenship. So when and why might sticky citizenship be a problem? Actual or potential citizenship does not always confer advantage and, even more ominously, can even render the affected person less secure. The examples below are drawn from cases of putative multiple citizenship. One may dismiss these instances as little more than oddball exceptions that prove the rule

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about citizenship, but they raise interesting and important questions. First, they point to a disjuncture between the functionality of nationality for states and individuals. Second, they demonstrate the vacillation between paradigms of citizenship as ascriptive status versus consensual contract. Third, they introduce the question whether acquisition and loss of citizenship ought to operate symmetrically for states and individuals. I draw my case studies from Canadian and Australian refugee jurisprudence and citizenship revocation in Britain. A striking commonality across the two domains is that the state actor does not attempt to impose its own citizenship on an unwilling subject. Rather, the state seeks to impute the citizenship of another state on the subject without regard to the assent of either the individual or the other state. An important point of departure for a consideration of nationality in international law is the Nottebohm decision.2 The 1954 judgment of the International Court of Justice arises from the wartime confiscation of property of a putative enemy alien. Nottebohm was a German national and businessman who had resided in Guatemala since 1904 but relinquished his German citizenship in favor of Liechtenstein in 1939. Despite his change of nationality, Guatemala seized his property as an enemy alien and denied him restitution after World War II. Liechtenstein sought compensation on behalf of Nottebohm. Guatemala objected that Nottebohm was not a genuine citizen of Liechtenstein. The Court agreed with Guatemala and refused to recognize the validity of Nottebohm’s naturalized citizenship because Nottebohm lacked sufficient attachment to Liechtenstein. In the course of his majority judgment, Read J. defined nationality at international law as a legal bond having as its basis a social fact of attachment, a genuine connection of existence, interests and sentiments, together with the existence of reciprocal rights and duties. It may be said to constitute the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as the result of an act of the authorities, is in fact more closely connected with the population of the State conferring nationality than with that of any other State.3 This definition of nationality does not distinguish between birthright and naturalized citizenship. Nor does it contemplate the implications of dual or multiple nationality. It also predates the two United Nations conventions on statelessness. Since Nottebohm had renounced his German citizenship and was a citizen only of Liechtenstein, the ICJ judgment rendered

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Nottebohm stateless under international law. The 1954 Convention relating to the Status of Stateless Persons and the 1961 Convention on the Reduction of Statelessness express the international community’s aversion to statelessness by seeking to reduce the damaging consequences and incidence of statelessness. Nottebohm extols the ‘‘social fact of attachment’’4 as the foundation of nationality, uses it to negate a legal attribute of formal citizenship, and ignores the hazards of statelessness. Sticky citizenship directs attention to the implications of this aspect of Nottebohm, taking into account the effects exerted by the specter of statelessness.

Sticky Citizenship in Refugee Law It is conventionally assumed that states have a duty to protect their nationals. For instance, James Hathaway has described refugee status as a form of ‘‘surrogate protection’’ that states parties to the UN Refugee Convention undertake to provide when the refugee’s own state of nationality has proven unable or unwilling to protect her.5 In Canada (Attorney General) v. Ward,6 the Supreme Court of Canada summed up the predicate of the refugee regime as follows: International refugee law was formulated to serve as a back-up to the protection one expects from the state of which one is a national . . . meant to come into play only in situations when that protection is unavailable. . . . The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged.7 This account of refugee protection enjoys wide acceptance by courts and commentators, and it frames the interpretation of the legal definition of a refugee. State bureaucracies conduct refugee determinations in Canada, the U.S., UK, Europe, Australia, and New Zealand, and the outcomes of administrative decision makers are subject to varying forms of judicial review by independent courts. A finding that the asylum seeker is a dual national almost inevitably precipitates rejection of a refugee claim according to this reasoning: the person seeking asylum in State A may have a wellfounded fear of persecution by State B, but she is also a citizen of State C.

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Typically, she has never visited or resided in State C. She will, consequently, find it difficult to demonstrate individualized risk of persecution in State C. This invites the inference that the asylum seeker could relocate to State C and live there with all the rights and protections available to other citizens of State C. Therefore, a decision-maker can easily conclude the asylum seeker does not need the protection of refugee status in State A. The doctrine seems workable so long as state borders are more or less stable and citizenship rules of individual states draw from a more or less shared set of principles. It founders when these premises do not exist. Consider Jewish asylum seekers from the former Soviet Union. The fall of the Berlin Wall precipitated a mass exodus of nationals of formerly communist countries who sought asylum in Western states. Throughout the 1990s, hundreds of thousands of Russian Jews emigrated from the former Soviet Union to Israel. The Soviet Union defined Jewish nationality on the basis of patrilineal descent and recorded it as a substate nationality in its internal passports. Israel’s Law of Return does not adopt the matrilineal definition of Jewish identity based in Jewish religious law. Rather, it corresponds to the Nazi definition of a Jew under the Nuremberg Laws: anyone with at least one Jewish grandparent qualifies as Jewish. Jews so defined, along with their spouses, children, and parents, are immediately granted Israeli citizenship when they immigrate under Israel’s Law of Return. During the 1990s, thousands of Russian Jews also sought refugee status in Canada, the United States, and Australia. While their fear of persecution was predicated on their Jewish identity and backed by the documented surge in virulent anti-Semitism across Eastern Europe, many professed to be secular or atheist or practicing Christians; many were married to nonJews. Canadian and Australian adjudicators pondered why asylum seekers who claimed to fear persecution on account of their Jewish identity would seek refugee status in Canada or Australia. Why not simply emigrate to Israel, where they could benefit from assured and immediate citizenship? Decision makers’ skepticism toward Jewish asylum seekers from the former Soviet Union generated an expansive interpretation of citizenship that imputed Israeli nationality to Jewish asylum seekers from any other country. The rationale proceeded as follows: asylum seekers must establish a well-founded fear of persecution against each country of nationality. Anyone with a Jewish grandparent is automatically entitled to Israeli citizenship under Israeli law. Therefore, it is legitimate to regard Jewish asylum seekers as virtual citizens of Israel. Since an asylum seeker must establish a wellfounded fear of persecution against each country of nationality, this should

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include Israel whenever the asylum seeker qualifies as Jewish under the Law of Return. Given that Israel was accepting hundreds of thousands of emigrants from the former Soviet Union, establishing a well-founded fear of persecution against it was almost impossible, especially for asylum seekers who had never been there. The first of these cases to reach the Canadian Federal Court was Grygorian v. Canada in 1995.8 The Immigration and Refugee Board denied the claimant refugee status because, as a Jewish woman from Azerbaijan, she could have availed herself of Israeli citizenship. The Federal Court upheld the tribunal decision as reasonable, reiterating that ‘‘the basic principle of refugee law is to grant such status only to those requiring surrogate protection.’’9 According to the Court, refugee protection could also be denied to ‘‘those who have ready and automatic right to another country’s nationality,’’ even if they do not presently possess that nationality. The effect of the Grygorian ruling was to deem all Jews virtual citizens of Israel for purposes of Canadian refugee law. The judgment sparked controversy and was effectively rejected two years later in Katkova v. Canada.10 In Katkova, the Federal Court insisted that nationality should only be imputed where the process of acquisition was a ‘‘mere formality’’ or where it involved confirmation of a ‘‘preexisting status’’ rather than the activation of a ‘‘potential’’ status. Attention to formality speaks to automaticity of obtaining citizenship, while the notion of confirmation appeals to distinction between recognition of an existing status and a right to acquire a status. The Katkova court ruled that Israeli citizenship was not a preexisting status ascribed to every Jew, nor was it automatically attainable by all Jews. The Law of Return specified that citizenship was only available to ‘‘every Jew who expressed his desire to settle in Israel,’’ and the refugee claimant in Katkova emphatically lacked desire to settle in Israel. The Federal Court also noted that the Law of Return reserved residual discretion to reject applicants on grounds of security, public health, or criminality. Therefore, conferral of Israeli citizenship on every Jew was not automatic. These two reasons turn solely on how Israel exercised its legislative prerogative to define criteria for citizenship. If Israel removed the prerequisite that a Jewish immigrant indicate a desire to settle in Israel or lifted the security, criminality, and health bars, then every Jew would indeed be entitled to Israeli citizenship under Israeli law. But should the fact that a country claims someone as a citizen, independent of that individual’s volition or established connection to it, be determinative of nationality? In a sense, birthright citizenship always imposes

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nationality unilaterally. The unease that this might otherwise cause is avoided by the fact that 97 percent of the world’s population spend their lives in their country of birth.11 Assuming that one is attached to the place where one resides, it also makes conventional birthright citizenship a reliable predictor of social attachment to the state that confers the status. Perhaps this explains why most objections to jus soli and jus sanguinis depict them as over- or underinclusive but not irrational. However, moving beyond the conventional bases for citizenship ascription exposes the potentially problematic feature of unilateral imposition of citizenship. In Katkova, the Federal Court addressed Nottebohm’s ‘‘social fact of attachment’’ in relation to the Law of Return: the issue of nationality in international law is decided on the basis of whether there is a ‘‘genuine link’’ between the person and the state. The question . . . therefore, is whether the mere fact of being Jewish creates a ‘‘genuine link’’ between any Jewish person and the State of Israel. I do not find that this is so. In considering what is a ‘‘genuine link,’’ I am guided by the International Court of Justice in the Nottebohm case: ‘‘the habitual residence of the individual concerned is an important factor, but there are other factors such as the centre of his interests, his family ties, his participation in public life, attachment shown by him for a given country and inculcated in his children, etc.’’ In the present case, I do not find that the claimant exhibited the degree of attachment to the State of Israel such as to make it the ‘‘centre of her interests,’’ etc. The claimant has never set foot on Israeli soil; she has no immediate family in Israel and no desire to settle in Israel. The only connection she has with Israel is that she is a Jew. I do not find that fact, by itself, is enough to make one an Israel citizen.12 A few years after the Canadian controversy over Jewish asylum seekers, Australia grappled with the same issue. In NAGV and NAGW v. Minister of Immigration and Multicultural and Indigenous Affairs,13 the High Court of Australia arrived at a similar resolution as the Canadian courts, albeit by a somewhat different route. Initially, the High Court ruled that Israel’s Law of Return did not disqualify a Jewish asylum seeker from eligibility for refugee status in Australia. In a concurring judgment, Kirby J. explicitly

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attends to the irony embedded in the logic that Jews, whose persecution catalyzed both the Refugee Convention and the establishment of the State of Israel, should now be excluded from protection of the former because of the existence of the latter. In rejecting the claim that potential citizenship in another state justified denial of refugee protection, Kirby stated, ‘‘Given that the Law of Return aimed to facilitate the provision of a place for Jews to ‘finally have a place to be free from persecution,’ it would be surprising if it now had the effect that all Jews fleeing persecution anywhere were obliged to go there, even if doing so was contrary to their ‘desire’.’’14 The Australian High Court decision was legislatively overruled, albeit indirectly, by amendments to the Australian Migration Act (1958), whose section 36(3) absolves Australia of any refugee protection obligation in respect of an asylum seeker ‘‘who has not taken all possible steps to avail himself or herself of a right to enter and reside in whether temporarily or permanently and however that right arose or is expressed any country apart from Australia, including countries of which the non-citizen is a national.’’ This amendment is directed at so-called ‘‘forum shopping’’ by asylum seekers. It dilutes Australia’s obligation to grant refugee status by stipulating subcitizenship statuses in third states that will count as effective protection for asylum seekers. These relationships may fall conspicuously short of citizenship’s guarantee of a durable and secure right to enter and reside, amounting even to a mere ‘‘temporary right to eat and sleep there.’’15 The failure of the asylum seeker to take ‘‘all reasonable steps’’ to pursue that possibility of residence will render her ineligible for refugee protection in Australia.16 The Australian government denies that the law’s intent is to require an asylum seeker to seek entry to any and all countries that might, in theory, issue a temporary or permanent visa. It insists that it applies only to those countries where the individual has a ‘‘right’’ to enter and reside. The provision does not literally alchemize potential into actual citizenship. Instead, it shrinks the ambit of Australia’s international legal obligations by making asylum seekers legally responsible for locating, pursuing, and securing safe haven outside the refugee regime before Australia will consider their claim. A plain reading of the provision would seem to apply to Jewish asylum seekers and disqualify them from refugee protection in Australia. However, in 2007, an Australian court ruled that the right of a Russian Jewish asylum seeker to enter Israel under the Law of Return was not an existing but only a conditional right, because the law made a ‘‘desire to settle in Israel’’ a

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prerequisite to exercise of the right and the asylum seeker explicitly disavowed any such desire. But, unlike the Canadian Federal Court ruling in Katkova, the Australian position depends on the contingency of Israeli law; if the desire to settle in Israel did not matter to Israel, it would not matter to Australia, and the Jewish asylum seeker would be ineligible for refugee protection there. Recently, the Refugee Appeal Division of Canada’s Immigration and Refugee Board relied on this contingency to deny refugee status to a North Korean woman and her minor daughter who had escaped North Korea to China before reaching Canada. South Korea’s constitution declares that South Korean citizenship extends to North Korean nationals, although it is impossible for North Koreans to enter South Korea because the countries are divided by the world’s most heavily militarized (de facto) border. In 2013, Canada’s minister of citizenship and immigration decided to aggressively oppose the grant of refugee status to North Koreans on the grounds they are virtual South Koreans.17 The Refugee Appeal Division of the Immigration and Refugee Board accepted the government’s argument, despite contrary Federal Court precedent and scholarly opinion.18 According to the Refugee Appeal Division interpretation of South Korean law, South Korea confers citizenship automatically on all North Koreans from birth, and this status does not depend on the will or desire of any individual so deemed.19 In the result, North Koreans will not be recognized as refugees in Canada.

Sticky Citizenship and Denationalization Outside the refugee regime, human rights commitments minimally constrain states’ power to expel. Most states absolutely prohibit deportation to states that employ torture, but extralegal rendition, along with willful blindness to the likely consequences, continue to facilitate expulsion of noncitizen ‘‘security threats’’ to face persecution and even torture. In the universe constituted by the sovereign state, deportation is akin to a political death penalty. Once expelled from its territory (never to return), the person is as good as dead to the state. That states can treat noncitizens in ways they cannot lawfully treat citizens incentivized states to exploit migration law to pursue counterterrorism objectives post-9/11. It also revived practices aimed at securitizing citizenship itself. The discursive strategy begins with the claim that certain individuals are disloyal, inauthentic, or undeserving citizens and progresses to the

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conclusion that the state is, therefore, entitled to deny them citizenship status. There are two ways to accomplish this objective. The first is to hollow out citizenship by eroding the rights associated with it. One example is passive or active obstruction of a citizen’s right to enter and remain in her own country. Canada used this to great effect post9/11. It selectively refused protection, consular assistance, or passports to Muslim Canadians rendered or detained in foreign states, from Syria to Sudan to Kenya to Guantanamo Bay.20 Without formally stripping citizenship, the state can repudiate the citizen, thereby creating a contemporary form of de facto statelessness. Eviscerating citizenship is convenient when the citizen is already outside state territory. But no Western state has dared (yet) formally to reinstate banishment of citizens as punishment. Instead, states have revoked citizenship prior to expulsion in order to depict the act as deportation of an alien rather than banishment of a citizen. The main legal impediment imposed on states wishing to pursue this tactic is the injunction against creation of statelessness. Article 8(1) of the 1961 Convention on the Reduction of Statelessness states that ‘‘A Contracting State shall not deprive a person of its nationality if such deprivation would render him stateless,’’ unless the citizenship was obtained through fraud or misrepresentation. Article 12 of the International Covenant on Civil and Political Rights affirms the right of a person to ‘‘enter and remain in his own country.’’ Except in limited circumstances, states may not revoke citizenship if doing so would leave the person stateless. One may understand this as a human rights constraint, insofar as statelessness is, as Hannah Arendt declared, a condition of abjection tantamount to rightlessness.21 But an international legal order predicated on state sovereignty has a pragmatic reason to deplore statelessness. Nationality operates as a global cataloguing system that files each of the world’s inhabitants under (at least) one nation state: nationality supplies the territorial address to which noncitizen deportees can be dispatched. States are obliged to admit their own nationals, and no state is obliged to admit a stateless person. So states have an interest in ensuring that everyone has at least one nationality, in order to optimize their own power to deport noncitizens. Statelessness is an inconvenient aberration for states. If statelessness represents a human rights deficit, one view is that citizenship—any citizenship—fills the void. This view aligns with the statist

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approach to nationality, which trades on the formal equality of states. This alignment between the statist and the human rights orientation is compelling to a point, but it only satisfies the goal of perfecting the filing system. It does not address the potential human rights violation entailed by a particular state’s revocation of a particular citizenship, independent of whether the person possesses another citizenship. As Matthew Gibney and Shai Lavi22 observe, justifications for citizenship revocation oscillate between the metaphors of contract and punishment. Naturalization can be analogized by way of social contract theory as a consensual agreement between an anthropomorphized state and the individual. Just as the parties choose to enter a contract, so too might either party choose to sever it. Following this logic, where one party (the citizen) has fundamentally breached the contract by, for example, transferring allegiance to a different country, the other party (the state) is freed from its own obligations. The formerly widespread prohibition on dual citizenship, based on the claim of divided loyalty, facilitated the legal fiction that acquisition of a second citizenship disclosed an irrefutable intention to sever the bonds of membership in the first state. In the United States, this fiction was encapsulated by the doctrine of constructive renunciation known as expatriation. Expatriating acts extended beyond formal renunciation of citizenship and naturalization elsewhere, to conduct that ostensibly disclosed loyalty to another sovereign or disloyalty to the United States. Such conduct included voting in a foreign election, remaining abroad to evade conscription, desertion, and military service in a foreign army. The rise in acceptance of dual citizenship destabilized the legal fiction of constructive renunciation in the paradigmatic instance of immigration and naturalization. Even before the United States effectively relented in its opposition to dual citizenship, a series of Supreme Court judgments rejected the government’s extravagant definition of expatriating acts by U.S. citizens.23 Today, nothing short of a voluntary, deliberate declaration of an intention to renounce citizenship qualifies as sufficient proof of expatriation. In 2013, a Canadian Conservative member of parliament revived the legal fiction of constructive renunciation by introducing a private member’s bill stipulating that a Canadian citizen who commits certain designated acts ‘‘is deemed to have made an application for renunciation of their Canadian citizenship.’’ In support of the bill, Jason Kenney, minister of citizenship

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and immigration, invoked the contractualist model when he declared that ‘‘individuals who are convicted of a terrorist crime in Canada or abroad should be deemed . . . through their own choices and actions . . . to have renounced their Canadian citizenship.’’ Opposition parties mounted a successful filibuster, preventing a final vote on the bill.24 Portraying citizenship revocation as punishment requires less semantic creativity than invoking the social contract model. Since 2004, section 40(2) of the British Nationality Act empowers the home secretary to deprive a person of UK citizenship when it is ‘‘conducive to the public good.’’ This broad and vague grant of discretion applies equally to birthright and naturalized citizens. A revocation order may be appealed to the Special Immigration Appeals Commission (SIAC) and further to the Court of Appeal on a question of law.25 Since 2004, the UK has revoked citizenship of more than twenty UK citizens. Some were dual citizens by birth, while others had immigrated to the UK and were subsequently naturalized. Some were stripped of citizenship while abroad and then denied permission to reenter the UK to appeal the decision. Two among the latter were executed by the United States in drone strikes soon after. Apart from one woman alleged to be a Russian spy, the home secretary has revoked UK citizenship only of Muslim males and only in the name of national security. The home secretary’s statutory discretion to deprive a person of UK citizenship is constrained by the sole proviso that the ‘‘Secretary of State may not make an order . . . if he is satisfied that the order would make a person stateless.’’ This limitation arises from the UK’s international obligations under the 1961 UN Statelessness Convention, which the UK ratified in 1966.26 The practical effect of this restriction is that the UK can only revoke the citizenship of dual (or multiple) nationals. In other words, the slipperiness of UK citizenship depends on the stickiness of another state’s citizenship. The following case shows how hard UK authorities will work to make another nationality adhere to a British citizen. Hilal al Jedda was an Iraqi citizen by birth who fled Iraq in 1992 and obtained asylum in the UK.27 In 2000, he acquired UK citizenship. In 2003, the UK joined the U.S.-led invasion of Iraq. In 2004, al Jedda and his family traveled to Iraq, where American forces apprehended him and handed him over to British forces on suspicion of terrorist involvement. The British detained al Jedda for three years in Iraq, during which time he unsuccessfully challenged the legality of that detention before UK courts, though he

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ultimately prevailed before the European Court of Human Rights in 2011.28 Two weeks before his release without charge on 30 December 2007, the UK home secretary issued an order depriving him of his UK citizenship. Al Jedda pursued an unsuccessful long-distance appeal to the SIAC against the home secretary’s decision and then further appealed to the Court of Appeal. Al Jedda’s central argument was that the order rendered him stateless, contrary to section 40(4) of the British Nationality Act. At first glance, al Jedda’s claim appeared unassailable: he obtained UK citizenship when the operative Iraqi law in force (Iraq’s 1963 Law of Nationality, rticle 11) declared that an Iraqi who freely acquired a foreign nationality ‘‘will be denied the Iraqi nationality.’’ Therefore, al Jedda relinquished his Iraqi citizenship by naturalizing as a UK citizen in 2000. Loss of UK citizenship in 2007 left him stateless. The Court of Appeal mentions that the home secretary was apparently unaware of Iraq’s prohibition on dual citizenship when she issued her order against al Jedda. The UK government’s main argument was that Iraq’s post-Hussein constitution and laws retroactively and automatically restored Iraqi citizenship to al Jedda. Its alternative argument was that, if al Jedda was indeed stateless, it was because of his own refusal to reclaim Iraqi citizenship. Al Jedda—not the UK—was the author of his own statelessness. The home secretary prevailed before the SIAC on the primary claim that al Jedda was an Iraqi citizen, so SIAC did not rule on the alternative claim. The legal arguments about al Jedda’s nationality expose a host of international and comparative law puzzles about the status of law and constitution making under belligerent occupation and the reception of foreign law in domestic courts. For present purposes, the following sequence of events is pertinent to the nationality question: the invasion of Iraq and overthrow of Saddam Hussein occurred in March 2003. In May 2003, the occupying powers—mainly U.S. and UK—formed a Coalition Provisional Authority to govern Iraq until the prospective transition to constitutional democracy. In July 2003, the Coalition Provisional Authority appointed an Iraqi Governing Council as an interim administration. This Governing Council enacted a Transitional Administrative Law (TAL) in March 2004. A caretaker government was appointed in June 2004, whose functions included organizing election of a National Assembly that would draft a new Iraqi constitution. The new Iraqi constitution came into force on 20 May 2006. These events produced three potential sources of Iraqi nationality law postoccupation: the TAL, which was in effect until the 2006 Nationality

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Law, and the 2006 Iraqi constitution. In furtherance of eliminating ‘‘the vestiges of the oppressive acts of the previous regime’’ (article 6), article 11 of the TAL altered Iraqi nationality law by prohibiting citizenship revocation and exile unless Iraqi citizenship had been acquired by fraud or misrepresentation. Henceforth, an Iraqi whose citizenship was withdrawn for ‘‘political, religious, or sectarian reasons, ha[d] the right to reclaim his Iraqi citizenship.’’ The TAL explicitly affirmed the legality of multiple citizenship and declared that an Iraqi ‘‘whose citizenship was withdrawn because he acquired another citizenship shall be deemed an Iraqi.’’29 The 2006 Nationality Law superseded the TAL and was subject to the 2006 Iraq constitution. Article 18 of the constitution declares that a birthright citizen of Iraq ‘‘may not have his citizenship withdrawn for any reason’’ and confers a right to demand reinstatement of birthright citizenship revoked under a previous law. Article 10 of the 2006 Nationality Law states that ‘‘An Iraqi who acquires a foreign nationality shall retain his Iraqi nationality, unless he declares in writing his renunciation of Iraqi nationality.’’ A [former] Iraqi who renounced citizenship may regain citizenship by returning and residing in Iraq for a year and applying for restoration of citizenship. A striking feature of these nationality rules is the prohibition on citizenship revocation except in the case of fraud or misrepresentation in acquisition of citizenship. The English Court of Appeal cites Saddam Hussein’s expansive and arbitrary power to revoke citizenship on political, racial, or sectarian grounds as an example of past injustice that the new nationality laws, with their limited power of revocation, aimed to rectify. It seems reasonable to suppose that the new Iraqi citizenship laws, drafted under the supervision of U.S. and UK occupying powers, reflected a ‘‘state-of-theart’’ model of citizenship befitting a modern, democratic, rights-respecting state. Yet, at the very moment that the UK was encouraging Iraq to enact a law that embraced multiple citizenship and restricted grounds for denationalization, it was arrogating for itself ever more extravagant and peremptory powers to strip citizenship from birthright as well as naturalized citizens. Pairing the UK broad revocation power alongside Iraq’s narrow revocation power reveals how the UK can maximize the slipperiness of its own citizenship in direct proportion to the stickiness of other citizenships. The UK law can be deployed without prior notice or opportunity to respond whenever the home secretary considers it conducive to the public good. Yet this UK law would have been not only unlawful but even unconstitutional

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had it been enacted in Iraq under the legal regime that arose under U.S. and UK occupation. As noted earlier, the home secretary’s discretion to revoke citizenship can only be exercised against dual citizens. Thus, the position advanced by the home secretary was that article 11 of the Iraqi TAL and/or article 18 of the constitution and/or article 10 of the 2006 Nationality Law retroactively and automatically revived al Jedda’s Iraqi citizenship. It would be as if al Jedda—and approximately 1.5 million other Iraqis who had emigrated from Iraq and naturalized elsewhere—had never lost Iraqi citizenship at all. The Court of Appeal ultimately rejected the home secretary’s depiction of Iraqi nationality as a kind of zombie citizenship that post-invasion law reform raised from the dead. It did so first on the basis that the TAL should be interpreted (to the extent possible) in conformity with the international law of belligerent occupation. International law forbids an occupying power from executing fundamental changes to the law of nationality that go ‘‘beyond anything necessary either for the governance of Iraq during the transitional period or for the move to a democratically elected government’’ (art. 11). Turning to the 2006 Nationality Law, the Court of Appeal considered the testimony of two Iraqi experts (one called by al Jedda, the other by the home secretary) and noted that both seemed to agree that emigrants who lost Iraqi citizenship under the Saddam Hussein regime on grounds of dual nationality would be eligible to regain it if and only if they applied for it. In other words, restoration of citizenship was not automatic but depended on the will and desire of the individual. Threaded through the Court of Appeal’s judgment is a sense of discomfort with the implications of automatic, retroactive imposition of citizenship. It hums in the background and inclines the Court of Appeal away from the interpretation proffered by the home secretary. As the Court of Appeal remarks, ‘‘For a State to confer nationality automatically and irrespective of their wishes on some 1.5 million foreign nationals (albeit former Iraqi nationals) spread around the world would be a very surprising step.’’30 The Court of Appeal does not address whether assigning citizenship to a person against his or her will might actually contravene international law31 and instead confines itself to noting that clearer evidence would be required to demonstrate an intention by Iraqi legislators to produce such an outcome. Having ruled that Iraqi citizenship was not restored retroactively and automatically to al Jedda by the 2006 Iraqi Nationality Law, the Court of

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Appeal turned to the home secretary’s alternative argument: if al Jedda were to apply for Iraqi citizenship, he would certainly succeed, so it was not the home secretary who rendered al Jedda stateless, but al Jedda himself. The Court of Appeal disposes of this legal argument with celerity, observing simply that section 40(4) directs the home secretary to consider the effects of her order on the person concerned. An order depriving al Jedda of UK citizenship has the effect of rendering him stateless, ‘‘irrespective of whether he could previously have acquired another nationality had he chosen to do so, or whether he could do so in the future.’’32 It may be a testament to the Court of Appeal’s commitment to the rule of law that the judges felt compelled to reach a result they plainly deplored. The author of the main judgment found it ‘‘deeply unsatisfactory, in that the Secretary of State is satisfied . . . that to deprive the appellant of his British nationality is conducive to the public good.’’33 One concurring judge described al Jedda’s case as ‘‘conspicuously lacking in merit.’’ Both concurring judges expressed regret that the British government lacked the foresight to retain the power to render people stateless (by registering a reservation under the 1961 Convention on the Reduction of Statelessness) when it expanded its power of citizenship revocation in 2002.34 These obiter remarks effectively signal their view that the legal defect of citizenship revocation in the circumstances was technical, not normative. The home secretary appealed the decision to the UK Supreme Court, focusing exclusively on the claim that al Jedda was not properly regarded as stateless because he could have sought and obtained restoration of his Iraqi citizenship. A unanimous court dismissed the appeal, noting that recent Home Office guidelines about applications for UK residency by stateless persons clearly state that determination of statelessness ‘‘is not a historic nor a predictive exercise.’’35 In the court’s view, the home secretary’s ‘‘own guidance eloquently exposes the fallacy behind her own appeal.’’36

Conclusion In a world where the hazards of slippery citizenship affect millions of people, one might reasonably ask whether the predicaments of sticky citizenship are mere variations of ‘‘man-bites-dog’’ stories. In response, I offer a few reasons for noticing sticky citizenship. First, refugee law and citizenship

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revocation are not the only sites where sticky citizenship comes into focus and invites normative inquiry. Indigenous people may experience citizenship in a colonizer state as coercive. Cosmopolitans chafe against the political and practical implications that flow from prioritizing national identification in a world of territorial nation states. Sticky citizenship also reveals that individuals are not the only ones to use citizenship opportunistically. The eagerness of refugee-receiving states to impute additional citizenships to asylum seekers is motivated by the objective of minimizing international legal obligations toward those seeking refugee protection. In al Jedda, the home secretary’s expansive interpretation of Iraqi citizenship was devised for the express goal of UK citizenship revocation. For this gambit to work, however, the UK must implicitly maintain contradictory conceptions of citizenship. Citizenship revocation proceeds from the idea that a citizen may not deserve the status and that the state can, therefore, take it away. But for this regime to operate in the face of the prohibition on statelessness, the UK must demand that citizenship in the other state of nationality be regarded as entirely formal and devoid of normative content. Iraq’s putative obligation to admit al Jedda must derive entirely from the fact that al Jedda is a citizen and cannot be contingent on whether he ‘‘deserves’’ Iraqi citizenship. What would happen if all states adopted the same regime as the UK, taking into account that the paradigmatic target of citizenship revocation in the contemporary era is the terrorist, who poses a global threat and is loyal to no state? The net result would be citizenship revocation as a race between states: the state who revokes first wins; the loser gets the citizen. Another reason for thinking about sticky citizenship is conceptual. A statist approach to citizenship prioritizes the common interest of states in assigning each person to at least one state. Individuals typically desire to avoid statelessness, for obvious reasons. Consequently, it is easy to assume that state sovereignty and human rights generate the same interest in ensuring citizenship. But sticky citizenship demonstrates that the interests of states and individuals are not identical. International law regards citizenship as fungible: UK citizenship is no different from Malian or Polish; each equally corrects the statuslessness of statelessness and supplies a mailing address to which every other state can send the citizen. But for al Jedda and others, one citizenship is not the equivalent of another in respect of social attachment or genuine links.

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Finally, the phenomenon of sticky citizenship invites deeper inquiry into the roles of ascription and agency in citizenship. When Peter Schuck and Rogers Smith wrote Citizenship Without Consent in the mid-1980s, their subject was children born in the United States to parents without legal status.37 Their critique was that jus soli citizenship was bestowed on the children without the consent of the polity. But sticky citizenship offers instances where the polity foists citizenship on individuals without their consent. Can one reconcile a vision of birthright citizenship as unilateral and ascriptive, with naturalization as mutual and voluntaristic? Ought the same principles to apply to states in granting, withholding, and revoking citizenship as to individuals in claiming, retaining, and relinquishing citizenship? Attending to sticky citizenship may not furnish ready answers to these questions, but at least it encourages us to confront them.

Conclusion: Slippery Citizenship and Retrenching Rights Margaret Walton-Roberts

The title of this book acknowledges the multiple and contradictory ways citizenship rights operate for vulnerable groups under current conditions of increasingly securitized sovereignty. The Oxford English Dictionary (9th ed.) denotes the adjective ‘‘slippery’’ in two ways: first as ‘‘difficult to hold firmly or stand on through being smooth, wet, or slimy’’ and, second, as ‘‘(of a person) evasive and unpredictable.’’ All the chapters in this collection examine how citizenship rights are increasingly slipping out of the grasp of many vulnerable groups, even as they may be landing in the hands of some privileged others, but the second definition usefully signals the ‘‘evasive and unpredictable’’ nature of the state when it comes to upholding and administering the rights that international law expects them to uphold on behalf of subjects residing within (and outside) their territories. This collection, by scholars from different disciplines, draws on various cases to focus on the gap between the rhetoric and practice of citizenship and human rights laws (de jure) and the degree to which these benefits and protections are actually experienced in practice (de facto). 1 We have not come across elsewhere an explicit treatment of what we have termed ‘‘slippery citizenship,’’ nor of the related practices of slippery statecraft (Rygiel and WaltonRoberts, in this volume) we associate with the tendency of rights to spread along a spectrum between de jure and de facto.2 Some authors in this collection have directly engaged with the metaphor of slippery, as well as other apposite terms, such as Jacqueline Bhabha and Margareta Matache’s use of the term ‘‘slimy’’ to reference the deceptive and weak form of citizenship rights granted to some children. Audrey Macklin

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employs the countervailing term of ‘‘sticky’’ to detail how states try to rescind their own citizenship from certain ‘‘undesirable’’ individuals by ‘‘sticking’’ them with another citizenship, thereby avoiding the creation of stateless subjects.3 Macklin’s chapter represents strategic stickiness on the road to slipperiness. Such slipperiness can be seen most clearly when the state manoeuvers to avoid certain human rights responsibilities while trying to remain within the framework of international norms and conventions. In the following section, I explore three ways to think of slipperiness: as hard to hold or stand on, as evasive (particularly applicable to the range of state practices), and in terms of the broadening of space within which slipperiness occurs. Then I consider how this slipperiness is enacted at different scales: the international, the national, and the local. Finally, I reflect on the slippage between and across these scales and how it creates the current landscape in which the slipperiness of citizenship is fast becoming the norm for already vulnerable subjects and, in certain cases, is also generating further vulnerability. I offer this explanation by drawing on the geographical notions of space and scale. Current theories of space recognize how power and knowledge are implicated in the production of space; space is not a neutral container of natural and man-made objects but is produced through social, historical, political, and economic processes, practices, and changes. As such, spaces can be interrogated in terms of the nature of prevailing sociopolitical relations that might stabilize or contest such spaces.4 There is also a deep awareness that space is not transparent or representative of rational order. Space is, in fact, actively produced through various ‘‘power geometries’’: that is, how ‘‘different groups and different individuals are positioned in very distinct ways in relation to these flows and interconnections.’’5 Traditionally, geographers employ scale to indicate resolution, but recent interventions have promoted the idea of ‘‘rescaling’’ and the social construction of scale. Resolution indicates the appropriate scale, depending upon the data or issue under consideration; rescaling references scalar interactions or changes in the production of phenomena—for example, the ‘‘downloading’’ of select responsibilities to junior levels of government rescales power and control to different levels of authority and alters the resolution of power or the scale where power is supposedly invested.6 The social production of scale suggests that scales are not fixed but are outcomes of the social-spatial dialectic; the social and the spatial are engaged in a mutually constitutive contingent process of social production

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that is structured by prevailing power-geometries.7 For example, the production of an international scale of governance for the administration of universal human rights has been debated as either a Western state response to create order across newly emerging postcolonial states or as a constituent feature permitting such state creation in the first place.8 Recognizing the active role of space and scale in the creation and administration of international human rights laws permits a more overarching analysis of the various practices this collection’s authors have identified in relation to this theme of slippery citizenship.

Three Ways to Conceptualize ‘‘Slippery’’ Hard to Grasp or Stand on The metaphor of slippery as ‘‘hard to stand on’’ references the problematic relationship of rights to space. To grasp something or to stand on it implies a relationship between an object and a subject in space. Citizenship is central to the space in which a person is empowered to exercise rights, and this geographical framing of citizenship is central to the differential rights various subjects can access in all areas of life. This geographical grounding of citizenship is the means by which the wealth of nations is rationed, or a person is catalogued in the filing cabinet of sovereign states, to use Macklin’s term (this volume). Yet such territorialization is deeply at odds with the ideal of universal rights. As Odinkalu (this volume, 93) points out, ‘‘Human rights as a universal proposition and citizenship as a territorialized entitlement may, thus, seem to be at odds.’’ Odinkalu uses the case of Nigeria to illustrate how place-based identities are fundamental to rights and argues that, in his study site of Jos, the qualification to be considered an indigene (and, thus, access certain rights to political representation), discriminates against pastoralists. Odinkalu (109) see this microterritorialization as the most serious threat to citizenship: ‘‘These structural causes combust at their point of contact with cleavages of identity, sect, livelihood, traditional institutions, access to land, markets and natural resources, and territorialization and boundary adjustments for access to power.’’ This expectation of identity having some rootedness in place similarly frames the disadvantage many Roma face in Europe, as O’Nions highlights in her chapter. The Roma are not conventional sedentary communities; their

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history and identity are spatially diffuse, which problematizes—or at least is exploited as a reason to limit—the Roma’s claims to territorially grounded rights. The security of citizenship and human rights protections is being tested in the expansionary regionalization experiment of the EU by Italy’s and France’s positions on the Roma, a case O’Nions argues is one of the most significant human rights challenges Europe currently faces. To be without the bond to territory is not just about a lack of citizenship, as Belton informs us. Being stateless has repercussions for access to all kind of rights protected under the Universal Declaration of Human Rights (UDHR). De jure stateless people (consider Uddin’s examination of the Rohingya in this volume) have no nationality, but de facto statelessness also includes those who lack any ‘‘effective’’ citizenship, such as the Roma. Belton reminds us that many people considered ‘‘stateless’’ have, in fact, lived in the same places and communities for generations, so processes other than rootlessness contribute to the production of their increasing marginalization. The Rohingya are a clear case of stateless people who struggle to build community in the places where they reside, in the face of absolute social and economic marginalization. Another example is that of the ‘‘Banglo-Indians’’ in the India-Bangladesh borderlands. As Ramachandran informs us in her chapter, Bengalis from Bangladesh and India have deep cultural similarities, despite the increasingly intrusive presence of securitized state sovereignty through biometric tools such as ID cards. The lack of access to basic documentation (such as birth certificates) for marginalized sections of these transborder communities increases their vulnerability as the Indian state cracks down on ‘‘undocumented’’ residents in these regions.

Evasive and Unpredictable: Slippery State Three tendencies evident in the current era contribute to a landscape where evasive and unpredictable state actions increase the disadvantages some vulnerable groups face: international migration and mobility, securitization, and variable legal frameworks. The global mobility of populations directly and indirectly shapes the demand, and need, for the various protections citizenship offers. As Bhabha and Matache (this volume, 131) state, ‘‘As demands for access to citizenship rights increase globally under the pressure of accelerating international migration—for residents, for dual nationals, for descendents of migrants—so the challenge of translating

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demand into reality grows and the slipperiness of citizenship as a guarantee of fundamental aspects of individual security becomes more apparent.’’ Aligned with this increased global mobility, some authors in this collection also identify how the legal status of citizenship is increasingly being overwritten by the assertion of state sovereignty as security. While this permits the exclusion of some ‘‘undesirable’’ groups, it also facilitates the capture of actors who offer economic and political advantages that advance the state’s interest, as highlighted in the case of diaspora populations in the chapters by Rygiel and Walton-Roberts, and Moulin. To manage the effective distribution of rights, the state segments the population, and the application of such segmentation itself acts as a dragnet that can entangle those outside the specific target population. This is especially evident in the case of children negatively affected by their parents’ citizenship status, as Hiemstra and Mountz, Bhabha and Matache, and Moulin highlight. Challenging situations where vulnerability is unfairly imposed upon certain individuals demands legal test cases, but for those most affected by the securitization of citizenship rights, their very vulnerability often precludes their legal activism. As the U.S. case documented by Heimstra and Mountz informs us, not only is staying out of sight of the state one way to survive, but changes in legislation enforce such conditions of isolation and containment. Moments of major legal transformation add an important element of slipperiness to citizenship, illustrating Odinkalu’s (this volume, 101) point that ‘‘The physical boundaries of statehood and other forms of political territory often change over time, thus also changing the territorial scope of sovereignty and the identities dependent on them.’’ One of the features of such change, especially in colonial and postcolonial contexts, is the result of the integration of customary and civic law. The British colonial method of managing local groups by implementing a Janus-faced legal framework combining customary and commercial law creates the context for immense slipperiness.9 This is evident in the citizenship rights girls and women are traditionally permitted to access in India, as Bhabha and Matache highlight in their chapter. The historical context of colonialism generates the ongoing opportunity for evasiveness by postcolonial states, where such legal hybridity lends itself to the application of easy bureaucratic discretion to exclude certain groups from certain rights, or the ‘‘show me the person and I will show you the regulation’’ style of bureaucratic discretion. The slipperiness we examine is also enabled by processes of reterritorialization that have been underway across Europe over the last two decades.

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As maps and constitutions are redrawn, unprecedented moments arise for states to redefine their responsibilities. O’Nions reminds us of how the redrawing of the map of Europe in the post-Cold War phase presented an opportunity for some states (Czech Republic and Slovakia) to design naturalization laws that denied inclusion to their Roma communities under ‘‘the Gypsy clause.’’ Myanmar explicitly denied all Rohingyas their rights with their creation of new citizenship laws. Such processes may even occur by what appears to be bureaucratic error, as Moulin demonstrates in the case of Brazil, or intentionally, as proposed Canadian (Rygiel and WaltonRoberts) and new UK laws (Macklin) have demonstrated. Such slipperiness persists as long as the state prevents or resists possible legal challenges to such legislation.

Expanding Slippery Spaces Notwithstanding the centrality of the legal definition of citizenship, the social intrudes on the ability to exercise legal rights not just at the level of the individual but also of the state. Didier Bigo argues that ‘‘Immigration is now problematized in Western countries in a way that is very different from the distinction between citizen and foreigner. It is not a legal status that is under discussion but a social image, concerning . . . the ‘social distribution of bad’.’’10 The state’s preoccupation with social image is exacerbated by economic recession; indeed, the value the state accrues from the citizenship contract is increasingly defined by the economic value of workers rather than the social contribution of citizens (let us not forget that EU membership and freedom of movement is about the rights of ‘‘workers’’).11 Likewise, the asymmetrical regulation of employers who hire undocumented workers in the United States creates a system of spatial entrapment where being at the site of work is likely the safest place for undocumented workers to be. Even when the state liberalizes citizenship or offers partial citizenship, such as in India and Canada, the terms are increasingly utilitarian in seeking agents of economic and political value to the state who conform to social practices that align with these state interests. Therefore, the threat posed by the Roma in the EU may be read through their unconventional livelihood strategies. These unconventional communities, who through want or compulsion, exercise alternative forms of socioeconomic organization, will continue to be manipulated into the margins.

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Subjects who inhabit vulnerable social positions present useful political fodder for politicians when it comes to debating citizenship rights. As Bigo argues, ‘‘the contemporary revival of sovereignty in political debate is thus to be understood as the deployment of a narrative.’’12 Politicians need to be seen to be useful people who solve ‘‘problems.’’ The case of the United States is one where the ‘‘non-status/migrant’’ presents a useful ‘‘problem’’ that political discourse can exploit at opportune moments. The expulsion of Roma from Italy is also illustrative of politically driven discourse, as is the government of India’s efforts to securitize the India-Bangladesh border (Ramachandran) and the lack of political support all around for the Rohingya (Uddin). Baer’s illustration of the variable citizenship rights Palestinians can access across the Middle East also demonstrates how Palestine is constructed as a regional political security problem, not an embodied crisis of human rights experienced by individual subjects. This spread of securitized citizenship appears increasingly evident not only in OECD nations but in the BRICS13 states as well, as Ramachandran’s and Moulin’s chapters suggest. Such examples draw attention to the idea of slippery as covering a spectrum of changes that can range in the degree and direction of movement but may all be propelled by similar structural tendencies.

Three Scales Where Slippage Occurs Within and Between Scale is central to the idea of the slippery because something has to slip within the space between things, and such interstitial spaces are themselves produced (be it in terms of jurisdictional definition and/or legislative absence). Scale is clearly evident when we discuss global human rights, which have emerged during an era when parallel forces at various scales appear to be undermining such ‘‘universal’’ rights: ‘‘States have become market-led entities allowing the integration of markets but disintegration of production, the integration of concepts of human rights (civil, political, socioeconomic, and cultural) but also the ‘disintegration’ of their application.’’14 The contributions in this volume flag three scales of analysis (international, state, local) that illustrate where this slippage occurs in an age of market integration/rights disintegration.

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The International: Respect, Protect, and Fulfill? States are expected to respect, protect, and fulfill international human rights.15 Both Weissbrodt and Belton provide an overview of the status of international covenants and indicate which populations are most vulnerable when it comes to gaps in protection. International covenants can be understood in terms of application and enforcement. A number of universal human rights agreements were signed after the Second World War under a multilateral system of governance that continues to be the means by which these various human rights protections are institutionalized.16 But, despite an accelerated rate of ratification by sovereign states, violations and noncompliance remain widespread, most especially by repressive governments where civil society is weakly developed.17 Scholars argue that repressive governments’ ratification of human rights laws are a form of ‘‘tactical concession’’ to gain other benefits such as trade and financial support from the international community, rather than a commitment to uphold universal human rights for their citizens.18 Whether this results in eventual compliance behavior by those states is debated, but some evidence suggests it does not, leading to the ‘‘paradox of empty promises.’’19 This is one example of the evasiveness and slipperiness of states that exploit international conventions to advance their own interests, rather than the rights of their own citizens. Under current conditions, despite the willingness of many nations to sign human rights agreements, compliance remains a concern.20 The international scale remains the apex from which the framework of rights and protections must be created and maintained, but the cracks and fissures at ground level are increasingly apparent. International human rights frameworks are perhaps some of the most effective forms of global governance mechanisms we currently have to dull such tendencies, but the erosion or complete absence of rights for groups that face intersecting forms of marginality remains a significant challenge. In light of the international and universal ideals of the human rights frameworks, scholars have made important demands that states recognize their obligations extraterritorially, as well as domestically.21 Notwithstanding this vital demand, this volume suggests that it is not only the extraterritorial responsibilities of states that need to be monitored. By drawing together critical migration and human rights scholars, we have highlighted how states are increasingly employing segmented and partial forms of rights for subjects within their

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own territory (never mind outside). Migration (be it by asylum seekers, labor migrants, or mixed flows) continues to offer a constrained, or the only, option for populations under various forms of duress. The treatment they find in receiving states becomes an important indication of the validity of the universal human rights regime. Thus, rather than attending to how states protect human rights norms outside their own jurisdiction, our collection asserts that we should pay closer attention to what is happening within nations, where we increasingly witness the creation of differentially protected subjects under conditions of increased mobility and displacement.

Inside the Nation: Producing Partial Rights-Bearing Subjects The territory-rights link is most fully elaborated at the state scale and has long been the most challenging conundrum in the human rights realm. This collection illustrates various examples of how nationality, as the channel to access rights, is complicated by international migration, statelessness, and loss of citizenship, all of which sever the nexus of rights and territorial membership. This condition demands some kind of portable rights regime, but our collection suggests that, rather than progress in this realm, we are witnessing increasing slippage (be it by legal removal or lack of application) of the territory-rights matrix. Hiemstra and Mountz’s chapter demonstrates that U.S. laws have removed the limited rights some resident migrants might claim based on their presence on U.S. territory, by connecting such rights not to entry but to the nature of their initial admission.22 McLaughlin and Hennebry demonstrate how the conditions of employment of lowskilled temporary foreign workers in Canada can be so restrictive that access to rights mandated by national and international law are effectively, if not legislatively, closed off from them. The processes of slippage that these two cases illustrate are different, but the effect is the same: namely, de facto and de jure retrenchment and closure of access to rights. This collection also contains some examples where citizenship rights have been expanded. Rather than citizenship being used as a tool to limit inclusion, German citizenship changes suggest an expansion, as Faist explores. Faist does mention that this expansion occurs alongside a restructuring of the welfare state, where social rights become enabling rights that should facilitate greater self-reliance. Faist considers how citizenship is

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becoming transnationalized through global rights demands and neoliberal engagement and how this results in contradictory processes that simultaneously inform the state-citizenship contract. For example, the state interprets the exercise of migrant transnational connections positively for high-skilled workers (international trade, diplomacy) but negatively for low-skilled workers (political activism, terrorism). At the same time as citizenship is commodified along the lines of workers’ rights, other long-running social contract exchanges frame the citizenship debate nationally. The transnational lens also informs Moulin’s chapter, which illustrates how diasporic Brazilians mobilized to regain citizenship rights for their overseas-born children. In this case, it was the government’s growing interest in using its diaspora to leverage economic influence globally that encouraged it to respond positively to the demand to reinstate rights they had removed. Similarly, as Rygiel and Walton-Roberts explore, the economic and political power of India’s diasporic population encouraged the Indian government to grant concessions and special rights for those not normally resident within the state. Nevertheless, this pattern of expansive inclusion by the ‘‘emigration state’’23 marks an uneven application of the territory-rights nexus. While the Indian case suggests expansive projects of inclusion for nonresidents of a certain socioeconomic position, simultaneously populations who are normally resident in the country face more intrusive and restrictive state regulations, as Ramachandran’s contribution on ‘‘Banglo-Indians’’ illustrates. For many of these ‘‘transmigrant’’ communities resident in the Bangladesh-India borderlands, the very idea of the nation is problematized by a complicated history of partition that ruptured community. That sense of community is, in many ways, still tacitly present in daily life. Thus, the slipperiness of citizenship under the combined conditions of distress-induced human mobility and neoliberal economic globalization has begun to unsteady some of the more stable frameworks that had anchored daily life for many marginal communities. Civil society is central to persuade states to adopt human rights conventions, and the national scale is an effective one at which to organize and communicate this societal activism. Civil society tends to be more robust in liberal democracies, and knowledge of human rights conventions is promoted through citizen activism. But this connection is problematized when the territory-citizen link is absent or truncated, as in the various cases examined in this collection that involve international migrants. Migrants who desire that their rights be honored tend not to have the same level of

250 Margaret Walton-Roberts

political and social capital as citizens. As McLaughlin and Hennebry suggest, the case of low-skilled temporary agricultural workers in Canada is one in which a relative lack of civil society protest may be one reason for the lack of policy attention to their plight. Nor would the sending regions that have signed binational labor migration agreements lobby to improve their workers’ rights, since that would jeopardize their access to these employment programs. Civil society solutions are further undermined by uneven development, as the case of the Rohingya demonstrates. But the case of the Roma in Europe, undocumented migrants in the United States, and temporary workers in Canada are all suggestive of limited civil society engagement even in more developed nations where civil society is more robust. The presence of nonnationals within a polity also speaks to the challenges of promoting human rights through civil society because the degree of incorporation of migration populations within the polity and the public’s interest in securing the rights of these groups is often at odds. Here the complexities of nationalism, rights, and responsibilities are evident, and we can see from O’Nions’s, Uddin’s, and Heimstra and Mountz’s chapters how the presence of the noncitizen ‘‘other’’ enables states to ignore or reduce their rights. The agents of the state often commit the worse offences against those in positions of slippery citizenship. The Rohingya families Uddin spoke with, who have to tolerate the rape of their daughters by security personnel, understand their total lack of rights. The migrants who avoid any official agent of the state for fear of possible deportation internalize their lack of access to normal rights, such as primary education for their children. In some cases, other vulnerable subjects might turn on their own community members to ‘‘bargain with sovereignty,’’ so to speak. This is evident in the case of Bangladeshis in India, as Ramachandran suggests.

Individual and Community: Belonging Building a sense of community is also central to the creation of civil society and common support for human rights, as Howard-Hassmann also references in the introduction to this collection. Empathy is vital when a neighbor’s support is needed, but often enhanced vulnerability created through a deficit of rights encourages competition, not collaboration. The chapters in this collection referring to the Rohingya, pastoralists in Nigeria, and

Conclusion: Slippery Citizenship and Retrenching 251

Banglo-Indians demonstrate how the restriction of rights undermines collective civil society and instead enhances and rewards competitive forms of social, political, and economic organization. The lack of a strong local connection between citizen and noncitizen populations helps explain the differential impact of civil society interest. Temporary migrant agricultural workers are a case in point. Living and working in relatively remote regions away from large urban settlements tend to place these workers in a vacuum when it comes to activating local interest in their situation. Even noncitizens who live in urban areas may effectively self-police their engagement with civil society for fear of surveillance. Hiemstra and Mountz (this volume, 165) detail this with regard to the way ‘‘illegality is often experienced spatially as marginalized individuals intentionally self-police their mobility, often limiting their everyday activities to particular ‘safe’ spaces.’’ Thus, the nature of interaction at the local scale is fundamentally important to the manner in which civil society-noncitizen coalitions might emerge. Restrictive policies effectively control mobility, both spatially and politically, in ways that trap subject populations and separate them from what might become strong community support. The U.S. case demonstrates a form of sovereignty creep whereby territoriality and control are rescaled to the local from the national through legislative changes mandating that local police forces and other state employees (teachers, medical professionals, local municipal officers) report on undocumented populations. Thus, not even the local offers a respite from national ‘‘border’’ surveillance. In effect, the slippage of border regulations to all geographical scales has become endemic in the United States. We need further studies to examine and illustrate how the local might act as the bulwark against this sovereignty creep. We need to understand what happens in places where people create effective communities that resist the local rescaling of border policing being undertaken by increasingly securitized states. The case of Banglo-Indians and local political representation offers an interesting example of how local versus national political interests differ, and this might inform other actions that attempt to advance socially just responses.

Conclusion ‘‘Slippery’’ is an appropriate marker for citizenship rights during this era, which is increasingly defined by shifts in the application of fundamental

252 Margaret Walton-Roberts

rights under the application and reworking of citizenship laws. Scholars have already questioned the ability of universal human rights structures to deal with instances of multiple and overlapping forms of discrimination.24 During this era of increasing mobility and distress-induced migration, which, in turn, is contextualized by securitized borders and citizenship regimes, we find increasing evidence of more and more people inhabiting this slippery space between what rights they should and what rights they actually can access. Our contributors demonstrate how this tendency is occurring globally from low- to high-income national contexts. Increased mobility and multiplicity (in terms of legal status) is occurring within a context of increased securitization, where, for some states, the prime interest is not the population’s social welfare but the management and categorization of the various populations residing within their national territories. In some cases, these processes may be merely concurrent; in others, they may be causal. Understanding the difference, however, may not be the key; rather, guarding vulnerable populations from the consequences (intended or otherwise) is the more immediate concern. While border securitization suggests a focus on external features of the nation, securitization is in fact deeply implicated in processes of community formation within the nation. The resultant categorization of subjects based upon citizenship biometrics such as ID cards is spreading, and the consequences this has for universal human rights are critical issues with which liberal notions of citizenship must struggle.25 The contributions to this collection demonstrate that heightened state interest in security has produced greater vulnerability for certain legally and practically marginalized populations. As mandatory documentation, widespread surveillance, integrated databases, enhanced police and security authority, and retrenched civil rights penetrate all spaces and scales, the need for some kind of official status has never been more fundamental. States are rewriting the code of citizenship, civil rights, and inclusion in ways that create segmented forms of rights and belonging. This segmented hierarchy traces complex intersections of ‘‘race,’’ class, gender, generation, and religion, alongside others axes of difference. In the dragnet that results, populations along the status spectrum are caught in the web, and, in the process, vulnerability is enhanced as well as produced. And yet, there are important examples of how new forms of civil society can affect change. Moulin’s chapter highlights for us how the transnational political mobilization of the Movement of Young Stateless Brazilians resulted in the constitutional amendment to revoke the

Conclusion: Slippery Citizenship and Retrenching 253

stateless condition of many children born abroad to expatriate Brazilians. There are also important developments in the United States in response to the DREAM Act, where young people are ‘‘outing’’ themselves as undocumented migrants. This all suggests that the next step after identifying how the state exploits this slippery space is to explore how the same slipperiness might be usefully employed as a tactic to prevent or challenge these processes. Slippery citizenship is a heuristic device. While citizenship can be considered a legal binary—either you have it or you do not—citizenship is discursively and socially mobilized; in this regard, as Macklin has argued, it is not a binary.26 All citizenships are not the same, and legal rights do not miraculously apply equally to all people in all contexts. Belonging and membership are not just legal criteria but are historically, socially, economically, and politically constructed. Processes of exclusion rest on the intersections of these variables, and that is how the slipperiness of citizenship emerges. The contributors to this volume have empirically demonstrated that fact. Our concern with slipperiness emerges at a time when other scholars have examined emerging forms of new citizenship, be it postnational, nested, or multiple citizenship.27 It is possible that these tendencies, both in legislative and scholarly attention, have coincided with and conditioned the expansion (both legislatively and materially) of slippery citizenship. We need a deeper engagement with these conditions and perhaps some consideration of how we might seek rights and protections for marginalized communities both within and outside the citizenship framework.

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Notes

Introduction: The Human Right to Citizenship 1. Helmut Hassmann, Account of Escape from Germany, Zurich, 1939. 2. David Weissbrodt, The Human Rights of Noncitizens (New York: Oxford University Press, 2008), 25. 3. Seyla Benhabib, The Rights of Others: Aliens, Residents, and Citizens (New York: Cambridge University Press, 2004), 22. 4. John Torpey, The Invention of the Passport: Surveillance, Citizenship and the State (New York: Cambridge University Press, 2000), 132. 5. Hannah Arendt, The Origins of Totalitarianism (1951; New York: Harcourt Brace, 1973), 278. 6. Ibid., 290. 7. Bryan S. Turner, ‘‘Contemporary Problems in the Theory of Citizenship,’’ in Citizenship and Social Theory, ed. Bryan S. Turner (London: Sage, 1993), 2. 8. Jacqueline Bhabha, ‘‘From Citizen to Migrant: The Scope of Child Statelessness in the Twenty-First Century,’’ in Children Without a State: A Global Human Rights Challenge, ed. Jacqueline Bhabha (Cambridge, Mass.: MIT Press, 2011), 4. 9. Benhabib, The Rights of Others, 177. 10. Audrey Macklin, ‘‘Who Is the Citizen’s Other? Considering the Heft of Citizenship,’’ Theoretical Inquiries in Law 8, 2 (2007): 354. 11. Open Society Institute, ‘‘Lack of Citizenship Rights a Major Cause of Conflict in Africa,’’ press release, 21 October 2009, www.opensocietyfoundations.org. 12. Chidi Odinkalu, ‘‘From Nativity to Nationality: Understanding and Responding to Africa’s Citizenship Crises,’’ Democracy and Development—Journal of West African Affairs 4, 1 (2004): 35, 36, 39. 13. Rhoda E. Howard, Human Rights in Commonwealth Africa (Totowa, N.J.: Rowman and Littlefield, 1986), 101, 102. 14. Stefanie Grant, ‘‘The Recognition of Migrants’ Rights Within the UN Human Rights System: the First 60 Years,’’ in Are Human Rights for Migrants? Critical Reflections on the Status of Irregular Migrants in Europe and the United States, ed. Maria-Be´ne´dicte Dembour and Tobias Kelly (New York: Routledge, 2011), 33. 15. Jelka Zorn, ‘‘Ethnic Citizenship in the Slovenian State,’’ Citizenship Studies 9, 2 (2005): 136. 16. Nurul Islam, ‘‘Rohingya Tangled in Burma Citizenship Politics,’’ Kaladan Press Network, 30 May 2012. 17. Francis Wade, ‘‘Burma ’Creating Humanitarian Crisis’ with Displacement Camps in Arakan,’’ The Guardian, 13 July 2012.

256 Notes to Pages 7–12 18. Eleanor Abdella Doumato, ‘‘Saudi Arabia,’’ in Women’s Rights in the Middle East and North Africa: Progress amid Resistance, ed. Sanja Kelly and Julia Breslin (Lanham, Md.: Rowman and Littlefield, 2010), 3–4. 19. Nira Yuval-Davis, Gender and Nation (London: Sage, 1997), 78. 20. Odinkalu, ‘‘From Nativity to Nationality,’’ 37. 21. Unity Dow, The Citizenship Case: The Attorney General of the Republic of Botswana v. Unity Dow, 1995 22. Diana Mehta, ‘‘ ‘Lost Canadians Seek Citizenship at Home,’’ Canadian Press, 21 November 2010. 23. Joseph H. Carens, ‘‘Aliens and Citizens: The Case for Open Borders,’’ in Theorizing Citizenship, ed. Ronald Beiner (Albany: State University of New York Press, 1995), 163. 24. Immigration Equality,‘‘ About Us,’’ 2013, http://immigrationequality.org/about. 25. Jacqueline Bhabha, ‘‘The ’Mere Fortuity of Birth’? Children, Mothers, Borders, and the Meaning of Citizenship,’’ in Migrations and Mobilities: Citizenship, Borders, and Gender, ed. Seyla Benhabib and Judith Resnik (New York: New York University Press, 2009), 192. 26. Paula Gerber, Andy Gargett, and Melissa Castan, ‘‘Does the Right to Birth Registration Include a Right to a Birth Certificate?’’ Netherlands Quarterly of Human Rights 29, 4 (2011): 434–59. 27. Commission on Legal Empowerment of the Poor, Making the Law Work for Everyone (New York: UNDP, 2008), 1. 28. Torpey, The Invention of the Passport, 1. 29. Kim Rygiel, Globalizing Citizenship (Vancouver: UBC Press, 2010), 2–3. 30. Marie-Be´ne´dicte Dembour and Tobias Kelly, ‘‘Introduction,’’ in Are Human Rights for Migrants, ed. Dembour and Kelly, 1. 31. UNGA, Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live, 1985, Article 2:1. 32. Demetrios G. Papademetriou, ‘‘International Migration: Global Trends and Issues,’’ in Citizenship, Borders, and Human Needs, ed. Rogers M. Smith (Philadelphia: University of Pennsylvania Press, 2011), 24, 17. 33. Margaret Walton-Roberts, ‘‘Student Nurses and Their Migration Plans: A Kerala Case Study,’’ in Governance and Labour Migration: India Migration Report 2010, ed. S. I. Rajan (London: Routledge, 2010). 34. Aihwa Ong, ‘‘Latitudes of Citizenship: Membership, Meaning, and Multiculturalism,’’ in People out of Place: Globalization, Human Rights, and the Citizenship Gap, ed. Alison Brysk and Gershon Shafir (New York: Routledge, 2004). 35. Alison Brysk and Gershon Shafir, ‘‘Introduction: Globalization and the Citizenship Gap,’’ in People out of Place, ed. Brysk and Shafir, 3. 36. Kristen Hill Maher, ‘‘Who Has a Right to Rights? Citizenship’s Exclusions in an Age of Migration,’’ in Globalization and Human Rights, ed. Alison Brysk (Berkeley: University of California Press, 2002), 37. 37. Saskia Sassen, A Sociology of Globalization (New York: Norton, 2007), 145, 164–89. 38. Bryan S. Turner, Vulnerability and Human Rights (University Park: Pennsylvania State University Press, 2006), 23. 39. Yuval-Davis, Gender and Nation, 85. 40. Lisa S. Alfredson, Creating Human Rights: How Noncitizens Made Sex Persecution Matter to the World (Philadelphia: University of Pennsylvania Press, 2009). 41. Rhoda E. Howard-Hassmann, ‘‘State-Induced Famine and Penal Starvation in North Korea,’’ Genocide Studies and Prevention 7, 2/3 (2012): 159. 42. Rygiel, Globalizing Citizenship. 43. Alison Mountz, ‘‘The Enforcement Archipelago: Detention, Haunting, and Asylum on Islands,’’ Political Geography 30 (2011): 123.

Notes to Pages 13–22 257 44. Ayelet Shachar, The Birthright Lottery: Citizenship and Global Inequality (Cambridge, Mass.: Harvard University Press, 2009), 69. 45. Ibid., 16. 46. Ibid., 181. 47. White House, ‘‘Remarks by the President on Immigration’’ (Washington, D.C.: Office of the Press Secretary, June 15, 2012). 48. Standing Senate Committee on Foreign Affairs and International Trade, The Evacuation of Canadians from Lebanon in July 2006: Implications for the Government of Canada (Ottawa: Senate of Canada, May 2007), 1, 10, 20. 49. David Trifunov, ‘‘Canada looking to close anchor-baby loopholes,’’ GlobalPost, March 7, 2012. 50. Economist, ‘‘Dutchmen Grounded,’’ Economist, 7 January 2012, 51. 51. Carens, ‘‘Aliens and Citizens,’’ 230. 52. Yasemin Nuhoglu Soysal, ‘‘Postnational Citizenship: Reconfiguring the Familiar Terrain,’’ in The Blackwell Companion to Political Sociology, ed. Kate Nash and Alan Scott (Malden, Mass.: Blackwell, 2004), 335. 53. Ibid., 339. 54. Margaret Walton-Roberts, ‘‘Globalization, National Autonomy and Non-Resident Indians,’’ Contemporary South Asia 13, 1 (2004): 53. 55. Rogers M. Smith, ‘‘Introduction,’’ in Citizenship, Borders, and Human Needs, ed. Smith, 11. 56. Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism, rev. ed. (London: Verso, 1991). 57. Rhoda E. Howard, ‘‘Being Canadian: Citizenship in Canada,’’ Citizenship Studies 2, 1 (1998): 133–52. 58. Ronald Beiner, ‘‘Introduction: Why Citizenship Constitutes a Theoretical Problem in the Last Decade of the Twentieth Century,’’ in Theorizing Citizenship, ed. Beiner, 12. 59. John G. A. Pocock, ‘‘The Ideal of Citizenship Since Classical Times,’’ in Theorizing Citizenship, ed. Beiner, 47. 60. Thomas Faist and Christian Ulbricht, ‘‘Constituting Nationality Through Transnationality: Categorizations and Mechanisms of Inequality in German Integration Debates,’’ in Fear and Anxiety over National Identity, ed. Nancy Foner and Patrick Simons (New York: Russell Sage, 2014), 1. 61. UNHCR, ‘‘UNHCR Concerned by Potential Impact of Dominican Court Decision on Persons of Haitian Descent,’’ press release, 1 October 2013.

Chapter 1. Human Rights of Noncitizens 1. International Organization for Migration (IOM), ‘‘Facts and Figures on World Migration: Global Estimates and Trends,’’ http://www.iom.sk/en/about-migration/facts-figures. 2. See, e.g., European Commission against Racism and Intolerance (ECRI), Second Report on Denmark, adopted 16 June 2000, paras. 18–25. 3. Refugees International, ‘‘Nationality for All: A Progress Report and Global Survey on Statelessness,’’ 11 March 2009, http://refugeesinternational.org. 4. This chapter is a revised and updated summary of David Weissbrodt, The Human Rights of Noncitizens (New York: Oxford University Press, 2008). 5. The Universal Declaration of Human Rights, GA Res. 217A (III) at 71, (1948) UN Doc. A/810, recognizes this principle in art. 2(1).

258 Notes to Pages 22–24 6. See, e.g., International Covenant on Civil and Political Rights, arts. 2(1), 4, UNGA Res. 2200A (XXI), 21 GAOR Supp. (No. 16) 52, UN Doc. A/6316 (1966), 999 UNTS 171, entered into force 23 March 1976. 7. See Committee on the Elimination of Racial Discrimination, General Recommendation XIV (42nd Sess.) (1993), UN Doc. A48/18, para 2: ‘‘The Committee observes that a differentiation of treatment will not constitute discrimination if the criteria for such differentiation, judged against the objectives and purposes of the Convention, are legitimate or fall within the scope of article 1, paragraph 4 [relating to special measures], of the Convention. In considering the criteria that may have been employed, the Committee will acknowledge that particular actions may have varied purposes. In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.’’ The Human Rights Committee has similarly observed that differences in treatment may be permissible under the Covenant ‘‘if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the Covenant.’’ Human Rights Committee, General Comment 18, Non-Discrimination (37th Sess., 1989), para. 13. 8. See Joan Fitzpatrick, ‘‘The Human Rights of Migrants,’’ paper presented at Conference on International Legal Norms and Migration, Geneva, 23–25 May 2002. See, e.g., .Berrehab v. The Netherlands (1988) 138 Eur Ct HR (Ser A). 9. See C. Tiburcio, The Human Rights of Aliens Under International and Comparative Law (Leiden: Nijhoff, 2001), 145–47. 10. Measures adopted by states to protect their citizens and economies from noncitizens should not lead to the detriment of the enjoyment of human rights. Federation Internationale des Ligues des Droits de l’Homme v. Angola, African Commission on Human and Peoples’ Rights, Communication No. 71/92, Oct. 1997, para. 16; see also Tiburco, The Human Rights of Aliens, 96–97, 147. 11. Committee on Economic, Social, and Cultural Rights, General Comment No. 19: The Right to Social Security (art. 9) (2007), reprinted in Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, UN Doc. HRI/GEN/1/Rev.9 (Vol. 1), 27 May 2008. 12. Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19 of the Convention: Concluding Observations of the Committee against Torture, Lithuania, UN Doc. CAT/C/LTU/CO/2, 19 January 2009. 13. CERD, General Recommendation XXX, Discrimination against Non-Citizens, 64th Sess., 2004, UN Doc. CERD/C/64/Misc.11/rev.3 (2004). 14. See art. 12(5) of the African Charter on Human and Peoples’ Rights: ‘‘The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.’’ See also art. 22(9) of the American Convention on Human Rights: ‘‘The collective expulsion of aliens is prohibited’’; and Protocol No. 4 to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR): ‘‘Collective expulsion of aliens is prohibited.’’ The International Law Commission has advised that ‘‘the expulsion of even a relatively small number of aliens may violate the prohibition of collective expulsion if the expulsion of each alien is not considered on an individual case-by-case basis. The collective character of the expulsion of a group of aliens as such is the essential element of the prohibition of collective expulsion.’’ See ILC, Expulsion of Aliens, Memorandum by the Secretariat, UN Doc. A/CN.4/565, Aug. 2006, para. 985. 15. See also African Commission on Human and Peoples’ Rights, Communication Nos. 54/ 91, 61/91, 98/93, 164/97 to 196/97, and 210/98 (2000). Malawi African Association and Others v. Mauritania, on an action challenging the deportation of about 50,000 black Mauritanians to Senegal, the Commission held that ‘‘Evicting Black Mauritanians from their houses and depriving

Notes to Pages 24–26 259 them of their Mauritanian citizenship constitutes a violation of article 12(1) (freedom of movement and residency within the state). The representative of the Mauritanian government described the efforts made to ensure the security of all those who returned to Mauritania after having been expelled. He claimed that all those who so desired could cross the border, or present themselves to the Mauritanian Embassy in Dakar and obtain authorization to return to their village of birth. He affirmed that his government had established a department responsible for their resettlement. The Commission adopts the view that while these efforts are laudable, they do not annul the violation committed by the State’’ (para. 126). 16. The Convention on the Rights of the Child (CRC) creates a presumption against separation of children from their parents. Consequently, the Committee on the Rights of the Child has specifically recommended that states seek ‘‘to avoid expulsions causing the separation of families, in the spirit of art. 9 of the Convention.’’ CRC, Concluding Observations of the Committee on the Rights of the Child: Norway, 25 April 1994, CRC/ C/15/Add.23, para 24. See also ILC, Expulsion of Aliens, para. 826, where the ILC states that ‘‘The expulsion of aliens who are minor children, particularly those who are not accompanied by family members, has raised serious concerns in the international community. The expulsion of such aliens may be prohibited, or permitted only on very limited grounds.’’ The Inter-American Court has held that ‘‘any decision pertaining to separation of a child from his or her family must be justified by the best interests of the child,’’ and even then, in exceptional circumstances. See Juridical Condition and Human Rights of the Child, Advisory Opinion OC-17/02 of 28 August 2002, Inter-Am. Ct. H.R. (Ser. A) No. 17 (2002), para. 71. 17. Slavery, Servitude, Forced Labour and Similar Institutions and Practices Convention of 1926 (Slavery Convention of 1926), 60 LNTS 253, entered into force 9 March 1927; Protocol amending the Slavery Convention, 182 UNTS 51, entered into force 7 December 1953; Supplementary Convention on the Abolition of Slavery, the Slave Trade, and Institutions and Practices Similar to Slavery, 226 UNTS 3, entered into force 30 April 1957; Convention for the Suppression of the Traffic in Persons and of the Exploitation of the Prostitution of Others, 96 UNTS 271, entered into force 25 July 1951; International Agreement for the Suppression of the ‘‘White Slave Traffic,’’ 18 May 1904, 35 Stat. 1979, 1 LNTS 83, entered into force 10 July 1905; International Convention for the Suppression of the ‘‘White Slave Traffic,’’ 4 May 1910, 211 Consol. T.S. 45, 103 BFSP 244, entered into force 5 July 1920. 18. Convention against Discrimination in Education, 429 UNTS 93, entered into force 22 May 1962. 19. Convention on the Rights of the Child (CRC), UNGA Res. 44/25, Annex, 44 GAOR Supp. (No. 49), UN Doc. A/44/49 (1989) 167, entered into force 2 September 1990. 20. It should be noted, however, that each of the ratifying countries both sends and receives migrants. 21. For a full list of countries that have ratified the ICRMW, see UN Treaty Collection: International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. 22. The Convention Relating to the Status of Refugees, 189 UNTS 150, entered into force 22 April 1954, for example, has been ratified by 144 countries as of 1 April 2011. 23. See Concluding Observations of the Committee on the Elimination of All Forms of Racial Discrimination: Italy, UN Doc. A/50/18, 22 September 1995, para. 83. 24. See Concluding Observations of the Committee on the Elimination of Racial Discrimination: Hungary, UN Doc. CERD/C/61/CO/6, 23 August 2002, para. 14. 25. Magna Carta, ch. 42, reprinted in A Documentary History of Human Rights: A Record of Events, Documents and Speeches That Shaped Our World, ed. Jon E. Lewis (New York: Avalon, 2003), 146: ‘‘In future it shall be lawful for any man to leave and return to our kingdom unharmed and without fear, by land or water, preserving his allegiance to us, except in time of war, for some short period, for the common benefit of the realm.’’

260 Notes to Pages 27–29 26. Protocol No. 4 to European Convention for the Protection of Human Rights and Fundamental Freedoms, 16 September 1963, as amended by Protocol No. 11, E.T.S. No. 155. 27. American Convention on Human Rights, 22 November 1969, O.A.S.T.S. No. 36, 1144 U.N.T.S. 123. 28. African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 U.N.T.S. 217. 29. Boultif v. Switzerland, 33 E.H.R.R. 50 (EuCt.H.R. 2001). 30. William Blackstone, Commentaries on the Laws of England 259 (Chicago: Callaghan, 1899): ‘‘by the law of nations no member of one society has a right to intrude into another. And therefore Puffendorf very justly resolves, that it is left in the power of all states to take such measures about the admission of strangers, as they think convenient. . . . Great tenderness is shown by our laws, not only to foreigners in distress . . . but with regard also to the admission of strangers who come spontaneously. For so long as their nation continues at peace with ours, and they themselves behave peaceably, they are under the king’s protection; though liable to be sent home whenever the king sees occasion.’’ 31. Emer De Vattel, The Law of Nations or Principles of Natural Law 92, 154 (1916) (Charles G. Fenwick trans. ed. 1758). 32. See David Weissbrodt and Laura Danielson, Immigration Law and Procedure (St. Paul, Minn.: West Group, 2011), 416–26. 33. See, e.g., ECRI, Second Report on Austria, adopted on 16 June 2000, paras. 16–21; Concluding Observations of the Committee on the Elimination of Racial Discrimination: Ukraine, UN Doc. A/56/18, 16 August 2001, para. 375. 34. See, e.g., Philip Anderson, ‘‘In a Twilight World—Undocumented Migrants in the United Kingdom,’’ http://jrs.net/Assets/Publications; M. J. Gibney, ‘‘Outside the Protection of the Law: The Situation of Irregular Migrants in Europe,’’ Oxford University Refugee Studies Centre Working Paper 6 (2000); see also the website of the NGO GISTI (Groupe d’Information et de Soutien des Immigre´s), http://www.gisti.org, UN, ECOSOC, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, The Rights of Noncitizens: Progress Report of the Special Rapporteur, UN Doc. E/CN.4/Sub.2/2002/25/Add. 3, 3 June 2002, para. 3. 35. See n. 8 and accompanying text. 36. Medellin v. Texas, 554 U.S. 759, 761 (2008). See also Human Rights Watch, World Report 2009—United States, Jan. 14, 2009, UNHCR Refworld. 37. Vienna Convention on Consular Relations (Paraguay v. United States of America), 1998 I.C.J. 248 (Provisional Measures, Order of 9 April) and 1998 I.C.J. 266 (9 April); see also LaGrand Case (Germany v. United States of America), 1999 I.C.J. 9 (Provisional Measures, Order of 3 March) and 1999 I.C.J. 28 (5 March). The ICJ ordered the United States to ‘‘take all measures at its disposal’’ to ensure that two German nationals were not executed in Arizona, while the Court considered the implications of the failure of Arizona to comply with the consular notification requirement of the Vienna Convention. 38. Breard v. Greene, 523 U.S. 371, 376 (1998). 39. See, e.g., UN, ECOSOC, Human Rights Council, Report of the Special Rapporteur on the Human Rights of Migrants, UN Doc. A/HRC/17/33/Add.4, 2 May 2011. 40. The Rights of Noncitizens: Progress Report of the Special Rapporteur, para. 3. See also Human Rights Watch, The Bedoons of Kuwait: Citizens Without Citizenship, 1 August 1995, http:// www.hrw.org. 41. The Rights of Noncitizens: Progress Report of the Special Rapporteur, paras. 3 and 4. 42. Katherine Fennelly et al., Protecting the Civil Rights of Detained Immigrants in Minnesota, Center for Urban and Regional Affairs Policy Brief 2 (2011). 43. A. T. Gallaher and E. Pearson, Detention of Trafficked Persons in Shelters: A Legal and Policy Analysis, Social Science Research Network (SSRN) (20 October 2008), http://ssrn.com/ abstract⳱1239745.

Notes to Pages 29–33 261 44. See, e.g., UN, ECOSOC, Commission on Human Rights, Report of the Special Rapporteur on the Human Rights of Migrants, Ms. Gabriela Rodrı´guez Pizarro, Submitted Pursuant to Commission on Human Rights resolution 2002/62, UN Doc. E/CN.4/2003/85, 30 December 2002. 45. See, e.g., al-Kidd v. Ashcroft, 2011 WL 2119110 (Sup. Ct. 2011). 46. Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070, 1073 (9th Cir. 2010) (citing United States v. Reynolds, 345 U.S. 1, 11 (1953)). 47. Ibid. at 1082. 48. See, e.g., Concluding Observations of the Human Rights Committee: Syrian Arab Republic, UN Doc. CCPR/CO/ 71/SYR, 5 April 2001 para. 22. 59. See, e.g., Convention relating to the Status of Refugees, art. 33(1); Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3; ICCPR, art. 7; Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), art. 3. 50. See, e.g., Concluding Observations of the Human Rights Committee: Yemen, UN Doc. CPR/CO/75/YEM, 26 July 2002.

Chapter 2. Statelessness: A Matter of Human Rights 1. The terms citizenship and nationality are used interchangeably in this text, as is common in scholarship on statelessness. 2. UNHCR, ‘‘UNHCR Intergovernmental Meeting at Ministerial Level, 2011, Closing Remarks by the UN High Commissioner for Refugees,’’ 8 December 2011, 2. 3. UN Convention relating to the Status of Stateless Persons, art. 1.1. 4. Hugh Massey, UNHCR and De Facto Statelessness, LPPR/2010/01, Division of Internal Protection, UNHCR, April 2010, 61. 5. Carol Batchelor, ‘‘Stateless Persons: Some Gaps in International Protection,’’ International Journal of Refugee Law 7, 2 (1995): 232–59; Ga´bor Gyulai, ‘‘Forgotten Without Reason: Protection of Non-Refugee Stateless Persons in Central Europe,’’ Hungarian Helsinki Committee, June 2007http://www.unhcr.org/; Nehemiah Robinson, ‘‘Convention Relating to the Status of Stateless Persons: Its History and Interpretation,’’ Institute of Jewish Affairs, 1955, rpt. UNHCR, 1997 ; Laura van Waas, Nationality Matters: Statelessness Under International Law (Antwerp: Intersentia, 2008). 6. UN Convention on the Reduction of Statelessness (with Final Act of the UN Conference on the Elimination or Reduction of Future Statelessness held at Geneva from 24 March to 18 April 1959, Resolutions I, II, II and IV of the Conference), 1961, 279, http://treaties.un.org/doc/ Publication/UNTS/Volume%20989/volume-9 89-I-14458-English.pdf. 7. Massey, UNHCR and De Facto Statelessness, i. 8. UNHCR, ‘‘Figures at a Glance,’’ 2012, http://www.unhcr.org/pages/49c3646c11.html. 9. Mirna Adjami and Julia Harrington, ‘‘The Scope and Content of Article 15 of the Universal Declaration of Human Rights,’’ Refugee Survey Quarterly 27, 3 (2008): 107. 10. This official figure does not capture known stateless populations in states for which data are unavailable, such as Australia, the Bahamas, Canada, the Dominican Republic, or the United States. 11. Bidoon is ‘‘an Arabic word that means ‘without nationality’.’’ These are nomadic and seminomadic persons of the Gulf region who have been unable to acquire citizenship. See Abbas Shiblak, ‘‘The Lost Tribes of Arabia,’’ Forced Migration Review 32 (2009): 37. 12. The Lhotshampas are ethnic Nepalis whose ancestors migrated to Bhutan for work. Although they were initially politically accepted in Bhutan, the merger of the Hindu polities of Sikkim and India led the Bhutanese government to fear that the Hindu Lhotshampas would wish to secede and join India. Consequently, restrictive citizenship laws were enacted that allegedly

262 Notes to Pages 33–36 directly targeted the Lhotshampa. See Gerrard Khan, ‘‘Citizenship and Statelessness in South Asia,’’ New Issues in Refugee Research, UNHCR Working Paper 47, October 2001, 1–25. 13. Hannah Arendt, The Origins of Totalitarianism (New York: Schocken, 2004). 14. Arendt discusses statelessness at two distinct times in the early twentieth century. The first refers to the ‘‘Heimatlosen,’’ the ‘‘oldest group of stateless people,’’ who were ‘‘produced by the Peace Treaties of 1919, the dissolution of Austria-Hungary, and the establishment of the Baltic states’’ (Origins of Totalitarianism, 353). Jews were the primary group affected by these events, although other minority groups were also affected. The second refers to those who were denationalized due to totalitarian policies. While Jews and Armenians ‘‘showed the highest proportion of statelessness’’ from these discriminatory acts (358; see also 367), ‘‘Trotskyites’’ and others were also targeted (343). 15. UDHR, art. 15.2; UN Human Rights Council, ‘‘Human Rights and Arbitrary Deprivation of Nationality,’’ A/HRC/RES/7/10, 27 March 2008. 16. League of Nations, Convention on Certain Questions Relating to the Conflict of Nationality Law, League of Nations, Treaty Series, vol. 179, no. 4137, 1930; UN Convention on the Reduction of Statelessness. 17. Mark Manly, ‘‘The Spirit of Geneva: Traditional and New Actors in the Field of Statelessness,’’ Refugee Survey Quarterly 26, 4 (2007): 256. 18. Peter Geschiere, The Perils of Belonging: Autochthony, Citizenship, and Exclusion in Africa and Europe (Chicago: University of Chicago Press, 2009); Charles C. Fonchingong, ‘‘Exploring the Politics of Identity and Ethnicity in State Reconstruction in Cameroon,’’ Social Identities 11, 4 (2005): 363–80; Browen Manby, Struggles for Citizenship in Africa (London: Zed, 2009); Chidi Odinkalu, ‘‘Statelessness in Africa: Turning Citizens into Nomads,’’ Open Society News: New Challenges to Building Open Societies in Africa (Winter 2007–2008): 14–15; Odinkalu in this volume. 19. Brad K. Blitz, ‘‘Statelessness and the Social (De)Construction of Citizenship: Political Restructuring and Ethnic Discrimination in Slovenia,’’ Journal of Human Rights 5, 4 (2006): 453–79; Igor Stiks, ‘‘Nationality and Citizenship in the Former Yugoslavia: From Disintegration to European Integration,’’ Southeast European and Black Sea Studies 6, 4 (2006): 483–500; Claude Cahn and Sebihana Skenderovska, ‘‘Briefing Paper for Expert Consultation on Issues Related to Minorities and the Denial or Deprivation of Citizenship,’’ National Roma Centrum, 6–7 December 2007, http://www.nationalromacentrum.org. 20. Indira Goris, ‘‘Stateless in the Dominican Republic: One Family’s Story,’’ Open Society Justice Initiative, 31 August 2011; Inter-American Court of Human Rights, The Case of Yean and Bosico Children v. the Dominican Republic, 8 September 2005; Observatorio de derechos humanos, ‘‘Suspendido Temporalment’’ (Santo Domingo: Dominican Republic, 2011), 9; UN, ‘‘Promotion and Protection of All Human Rights, Civil, Political, Economic, Social, and Cultural Rights, Including the Right to Development,’’ A/HRC/7/23, Human Rights Council, 2008; Bridget Wooding, ‘‘Contesting Discrimination and Statelessness in the Dominican Republic,’’ Forced Migration Review 32 (2009): 23–25. 21. See Moulin, this volume. 22. For further examples of how conflicts in nationality laws can render a person stateless, see Peter A. Mutharika, The Regulation of Statelessness Under International and National Law (Dobbs Ferry, N.Y.: Oceana, 1989), 106–29. 23. See also O’Nions, this volume for a similar case regarding the Roma. 24. UNHCR, ‘‘Statistical Online Population Database,’’ 2012, http://www.unhcr.org/pages/ 4a013eb06.html. 25. Eleanor Roosevelt, ‘‘The Promise of Human Rights,’’ Foreign Affairs 26 (1948): 470–77. 26. UNHCR, Commemorating the Refugee and Statelessness Conventions, 2010–2011, Division of Internal Protection, 2012, 10.

Notes to Pages 36–38 263 27. For example, article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) states that citizenship is a civil right. Article 24 of ICCPR and article 7 of the Convention on the Rights of the Child declare the right of every child to acquire a nationality, while article 9 of CEDAW affirms that a woman has the right to acquire, change, and retain her nationality. 28. Imitiaz Ahmed, ‘‘Globalization, Low-Intensity Conflict and Protracted Statelessness/ Refugeehood: The Plight of the Rohingyas,’’ GSC Quarterly 13 (2004): 1–23; Bill Berkeley, ‘‘Stateless People, Violent States,’’ World Policy Journal 26, 1 (2004): 3–15; John W. Heffernan, ‘‘Being Recognized as Citizens: A Human Security Dilemma in South and Southeast Asia,’’ Commission on Human Security, November 2002, http://www.statelesspeopleinbangladesh.net; Chris Lewa, ‘‘North Arakan: An Open Prison for the Rohingya in Burma,’’ Forced Migration Review 32 (2009): 11–13; Chris Lewa, ‘‘Forced Labour Still Prevails: An Overview of Forced Labour Practices in North Arakan, Burma,’’ Arakan Project, 30 May 2012. 29. David A. Feingold, ‘‘Human Trafficking,’’ Foreign Policy 150 (2005): 26–32; Katherine Southwick and Maureen Lynch, ‘‘Nationality Rights for All: A Progress Report and Global Survey on Statelessness’’ (Washington, D.C.: Refugees International, 2009); Vital Voices, ‘‘Stateless and Vulnerable to Human Trafficking in Thailand’’ (Washington, D.C.: Vital Voices, 2007). 30. Sebastian Ko¨hn and Ariela Bla¨tter, ‘‘Without Citizenship: Statelessness, Discrimination and Repression in Kuwait ’’ (New York: Open Society Institute, May 2011). 31. Decree No. 93 of 1962 rendered many of Syria’s Kurds stateless, requiring them to prove residence in Syria from 1945. ‘‘Implementation of this order went awry. Even Kurds with proof of residence lost their nationality’’; see Maureen Lynch and Perveen Ali, ‘‘Buried Alive: Stateless Kurds in Syria’’ (Washington, D.C.: Refugees International, 2006), 1. However, approximately 69,000 Kurds were provided Syrian citizenship through a 2011 presidential decree (see UNHCR, ‘‘Addressing Statelessness,’’ UNHCR Global Report 2011, 2012, 46). UNHCR identifies 231,000 who still remain stateless; see UNHCR, ‘‘2012 UNHCR Country Operations Profile—Syrian Arab Republic,’’ 2012, http://www.unhcr.org/pages/49e486a76.html. 32. Lynch and Ali, ‘‘Buried Alive.’’ 33. Ahmed, ‘‘Globalization, Low-Intensity Conflict and Protracted Statelessness,’’ 16; Kristy Crabtree, ‘‘We Have No Soil Under Our Feet,’’ Forced Migration Review 32 (2009): 14; Uddin, this volume. 34. Al Jazeera, ‘‘Thais Admit Boat People Set Adrift,’’ 27 January 2009; BBC, ‘‘Thailand’s Deadly Treatment of Migrants,’’ 17 January 2009; Human Rights Watch, ‘‘Perilous Plight: Burma’s Rohingya Take to the Seas,’’ 26 May 2009. 35. David Weissbrodt, The Human Rights of Non-Citizens (New York: Oxford University Press, 2008). 36. Chris Lewa, ‘‘Issues to Be Raised Concerning the Situation of Stateless Children in Myanmar (Burma),’’ Arakan Project, http://www.oxfordburmaalliance.org, updated January 2012, 8; Equal Rights Trust, Unravelling Anomaly: Detention, Discrimination and the Protection Needs of Stateless Persons (London: Equal Rights Trust, July 2010); David S. Weissbrodt and Clay Collins, ‘‘The Human Rights of Stateless Persons,’’ Human Rights Quarterly 28, 1 (2006): 245–76. 37. Vital Voices, ‘‘Stateless and Vulnerable,’’ 12. 38. Lewa, ‘‘North Arakan,’’ 12. 39. The Karana are of Indo-Pakistani origin. Many ‘‘failed to register for Malagasy or Indian citizenship following India’s independence in 1947 [and] are no longer eligible for either citizenship’’; Bronwen Manby, Citizenship Law in Africa: A Comparative Study (New York: Open Society Justice Initiative, 2009), 43–44. 40. Maureen Lynch, Lives on Hold: The Human Cost of Statelessness (Washington, D.C.: Refugees International, 2005). 41. Chris Lewa, ‘‘Issues . . . concerning . . . stateless children in Myanmar (Burma),’’ 6; Equal Rights Trust, ‘‘Unravelling Anomaly,’’ 5.

264 Notes to Pages 38–51 42. Human Rights Watch, Prisoners of the Past: Kuwaiti Bidun and the Burden of Statelessness (New York: HRW, 2011). 43. Lynch, ‘‘Lives on Hold,’’ 5. 44. For a more extensive treatment of the socioeconomic rights violations that stateless persons face, see Kristy A. Belton, ‘‘Statelessness and Economic and Social Rights,’’ in The State of Economic and Social Human Rights: A Global Overview, ed. Lanse Minkler (Cambridge: Cambridge University Press, 2013). 45. Human Rights Watch, Stateless Again: Palestinian-Origin Jordanians Deprived of Their Nationality (New York: HRW, 2010). 46. Vital Voices, ‘‘Stateless and Vulnerable,’’ 13. 47. See also Bhabha, this volume. 48. UNHCR, ‘‘Commemorating the Refugee and Statelessness Conventions,’’ 29. 49. UNHCR, ‘‘Pledges 2011: Ministerial Intergovernmental Event on Refugees and Stateless Persons,’’ Geneva, 7–8 December 2012. 50. Belton, ‘‘Statelessness and Economic and Social Rights,’’ 227. 51. UNHCR, ‘‘UNHCR Intergovernmental Meeting.’’ 52. UNHCR, ‘‘Guidelines on Statelessness No. 1: The Definition of ‘Stateless Person’ in Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons,’’ 2012, HCR/GS/ 12/01. 53. UNHCR, ‘‘Guidelines on Statelessness No. 2: Procedures for Determining Whether an Individual Is a Stateless Person,’’ 2012, HCR/GS/12/02. 54. UNHCR, ‘‘Guidelines on Statelessness No. 3: The Status of Stateless Persons at the National Level,’’ 2012, HCR/GS/12/03. 55. UNHCR, ‘‘Q&A: The World’s 15 Million Stateless People Need Help,’’ 18 May 2007. 56. UNHCR, ‘‘Addressing Statelessness,’’ 45. 57. Mark Manly and Santhosh Persaud, ‘‘UNHCR and Responses to Statelessness,’’ Forced Migration Review 32 (2009): 7–10. 58. UN, ‘‘Guidance Note of the Secretary-General: The United Nations and Statelessness,’’ June 2011, 3. 59. Ibid., 7.

Chapter 3. The Palestinian People: Ambiguities of Citizenship 1. Sunday Times, London, 15 June 1969, cited in Baruch Kimmerling and Joel S. Migdal, The Palestinian People: A History (Cambridge, Mass.: Harvard University Press, 2003), xxvi–xxvii. 2. Ahmad H. Sa’di, ‘‘Catastrophe, Memory and Identity: Al-Nakbah as a Component of Palestinian Identity,’’ Israel Studies 7, 2 (2002): 175. 3. Khalil Asem, Palestinian Nationality and Citizenship: Current Challenges and Future Perspectives (Florence: European University Institute; Robert Schuman Centre for Advanced Studies, 2007), 29. 4. ‘‘U.S. State Department Affirms Support for 5 Million ‘Palestinian Refugees’,’’ Algemeiner, 30 May 2012. 5. UN Relief and Works Agency for Palestinian Refugees in the Near East (UNRWA), ‘‘Who We Are.’’ 6. UNRWA, ‘‘Where We Work: Syria,’’ 1 January 2013, http://www.unrwa.org. 7. UNRWA, ‘‘Where We Work: Lebanon,’’ 1 January 2012. 8. UNRWA, ‘‘Where We Work: Jordan,’’ 1 January 2012. 9. Asem, Palestinian Nationality and Citizenship, 31–32. 10. Oroub El Abed, ‘‘The Invisible Palestinians of Egypt: Refugees Face Discrimination, Poverty and No Access to Basic Services,’’ Daily Star, 18 August 2003.

Notes to Pages 51–57 265 11. Ibid.; Helena Lindholm Schulz and Juliane Hammer, The Palestinian Diaspora: Formation of Identities and Politics of Homeland (London: Routledge, 2003), 62–63. 12. ‘‘Palestinian Refugee Numbers/Whereabouts—Egypt, Israel, Iraq, Jordan, Lebanon, OPT, Syria, Refugees/IDPs,’’ Occupied Palestine, 8 December 2010, http://occupiedpalestine .wordpress.com. 13. Schulz and Hammer, The Palestinian Diaspora, 64–65. 14. ‘‘Angry Welcome for Palestinian in Kuwait,’’ BBC News, 30 May 2001. 15. Abbas Shiblak, ‘‘Reflections on the Palestinian Diaspora in Europe,’’ in The Palestinian Diaspora in Europe: Challenges of Dual Identity and Adaptation, ed. Abbas Shiblak, Refugee and Diaspora Studies 2 (Jerusalem: Institute of Jerusalem Studies; Ramallah: Palestinian Refugee and Diaspora Center, 2005), 14. 16. Statistics Canada, ‘‘2006 Census of Population,’’ www.statcan.gc.ca. 17. Gadi Wolfsfeld, Eli Avraham, and Issam Aburaiya, ‘‘When Prophesy Always Fails: Israeli Press Coverage of the Arab Minority’s Land Day Protests,’’ Political Communications 17, 2 (2001): 118. 18. Adriana Kemp, ‘‘ ‘Dangerous Populations’: State Territoriality and the Constitution of National Minorities,’’ in Boundaries and Belonging: States and Societies in the Struggle to Shape Identities and Local Practices, ed. Joel S. Migdal (Cambridge: Cambridge University Press, 2004), 76. 19. As’ad Ghanem, The Palestinian-Arab Minority in Israel, 1948–2000: A Political Study, ed. Russell Stone, SUNY Series in Israeli Studies (Albany: State University of New York Press, 2001), 18–19. 20. William J. Serow, Handbook on International Migration (New York: Greenwood, 1990), 135. 21. Ibid., 131. 22. Hebrew: immigrant to Israel; in Hebrew this word literally means ascent. 23. Mazal Mualem, ‘‘New Identification Cards Without the ’Nationality’ Rubric Will Be Produced Starting Today,’’ Haaretz, 25 April 2002. 24. Hebrew: nationality. ‘‘The Israeli Interior Ministry recognizes 126 nations, but not the Israeli nation. . . . According to the official doctrine, the State of Israel cannot recognize an ’Israeli’ nation because it is the state of the ’Jewish’ nation.’’ Uri Avnery, ‘‘White Lie,’’ Gush Shalom, 27 February 2010. 25. Laurence Loue¨r, To Be an Arab in Israel, updated rev. ed., CERI Series in Comparative Politics and International Studies (New York: Columbia University Press, 2007), 11. 26. Uri Davis, Citizenship and the State: A Comparative Study of Citizenship Legislation in Israel, Jordan, Palestine, Syria and Lebanon (Berkshire: Ithaca Press, 1997), 46. 27. Ayelet Shachar, ‘‘Whose Republic? Citizenship and Membership in the Israeli Polity,’’ Georgetown Immigration Law Journal 13 (1999): 252. 28. Nationality Law 5712–1952 (1 April 1952). 29. Ilan Saban, ‘‘Minority Rights in Deeply Divided Societies: A Framework for Analysis and the Case of the Arab-Palestinian Minority in Israel,’’ International Law and Politics 36, 4 (2004): 961. 30. Citizenship and Entry into Israel Law (temporary provision) 5763–2003. The law clearly states it does not apply to inhabitants of Israeli settlements in the area, that is, to Jews. 31. Saban, ‘‘Minority Rights in Deeply Divided Societies,’’ 962. 32. ‘‘Israel: High Court Rulings Undermine Human Rights,’’ Human Rights Watch, 30 January 2012. 33. Israel, 1986, Defense Service Law (Consolidated Version), 5746–1986. 34. Ronald R. Krebs, Fighting for Rights: Military Service and the Politics of Citizenship, Cornell Studies in Security Affairs (Ithaca, N.Y.: Cornell University Press, 2006), 62.

266 Notes to Pages 57–65 35. See, for example, National Insurance Institute of Israel, ‘‘Grant to Discharged Soldiers Performing Vital Work’’ (1949); Discharged Soldiers (Reinstatement in Employment) Law, 5709– 1949, Passed by the Knesset on 26 Nisan 5709 (25 April 1949) and published in Sefer HaChukkim, no. 6 of 27 Nisan 5709 (26 April 1949), 13; the bill and an explanatory note were published in Hatza’ot Chok, no. 3 of 21 Adar 5709 (22 March 1949), 7; Consideration of Reports Submitted by States Parties Under Article 9 of the Convention: Concluding Observations of the Committee on the Elimination of Racial Discrimination, Israel, Committee on the Elimination of Racial Discrimination (UN, 14 June 2007), 4, CERD/C/ISR/CO/13. 36. The population as of 1 January 2014 of the West Bank is estimated by UNRWA at 2.4 million, of which a quarter, 727,471, are registered refugees living in 19 refugee camps; UNRWA, ‘‘Where We Work: West Bank.’’ The population of the Gaza Strip as of 1 January 2014 is estimated at 1.5 million, of which 1,221,110 are registered refugees living in 8 refugee camps; UNRWA, ‘‘Where We Work: Gaza Strip,’’ http://www.unrwa.org. 37. Birzeit University, ‘‘Legal Status in Palestine,’’ http://lawcenter.birzeit.edu. 38. Ibid. 39. Ibid. 40. Ibid. 41. Asem, Palestinian Nationality and Citizenship, 14–15. 42. B’Tselem: The Israeli Information Centre for Human Rights in the Occupied Territories, ‘‘Gaza Strip,’’ 1 January 2011, http://www.btselem.org/gaza_strip. 43. Ibid.; B’Tselem, ‘‘The Gaza Strip: One Big Prison,’’ 2007, https://www.btselem.org. 44. B’Tselem, ‘‘Land Expropriation and Settlements,’’ 1 January 2011. 45. B’Tselem, ‘‘Land Expropriation and Settlements in the International Law,’’ 1 January 2013.

Chapter 4. State of Stateless People: The Plight of Rohingya Refugees in Bangladesh 1. UNGA, Convention Related to Status of Stateless People, 28 September 1954, art. 1(1). 2. David Weissbrodt, The Human Rights of Non-Citizens (New York: Oxford University Press, 2008). 3. Margaret Walton-Roberts, this volume. 4. See Ahmed Ahmed, ed., The Plight of the Stateless Rohingyas (Dhaka: University Press, 2010); Kristy Crabtree, ‘‘Economic Challenges and Coping Mechanisms in Protracted Displacement: A Case Study of the Rohingya Refugees in Bangladesh,’’ Journal of Muslim Mental Health 5, 1 (2010): 41–58; Nasir Uddin, ed., To Host or To Hurt: Counter Narratives on Rohingya Refugee Issue in Bangladesh (Dhaka: Institute for Culture and Development Research (ICDR), 2012). 5. Just after the riot took place in Rakhine State, the government of Bangladesh strengthened its border security to prevent entry of any Rohingyas into its territory. Border guard Bangladesh (BGB) pushed huge numbers of Rohingya asylum seekers back, but about 50,000 entered Bangladesh through various irregular channels. For details, see Uddin, To Host or to Hurt. 6. This is an estimate of the number of unregistered Rohingyas, since there is no official record. The actual number seems much larger than the estimates, as the flow of migration has continued. 7. Ukhia and Teknaf are two subdistricts of Cox’s Bazar District (see Figure 4.1). 8. As a local resident of Cox’s Bazar, both villages are familiar to me: three of my relatives live there; therefore, I had easy access to the villagers. The pseudonyms of two villages used here have rhetorical significance. Vasan Para means a village where largely mobile (vasan) people live and Pasan Para a village where local residents are very cruel (pasan).

Notes to Pages 65–70 267 9. Confrontations over cow stealing from Bengali families by Rohingyas, raping of a Rohingya girl by a local Bengali, arrest of Rohingyas in connection with militant activities, and many other social crimes are the reasons these villages regularly appear in local and national dailies. 10. One household contains on average five family members. 11. The name Burma was changed to Myanmar and Arakan to Rakhine State by the military government in 1989. 12. Agence France-Presse (AFP) report ‘‘Myanmar, [and] Bangladesh leaders ’to discuss Rohingya’,’’ 25 June 2012. 13. Imtiaz Ahmed, ‘‘State and Stateless in South Asia: Reaping Benefits from a Reconstructed Discourse on State and Nationality,’’ Theoretical Perspective (special issue) 9, 10 (2002–3): 5. 14. For details, see Godfrey Eric Harvey, History of Burma: From the Earliest Times to 10 March 1824 (London: Frank Cass, 1925); Abdul Karim, The Rohingyas: A Short Account of Their History and Culture (Chittagong: Arakan Historical Society, 2000); Me´decins sans Frontie`res, 10 Years for the Rohingya Refugees in Bangladesh: Past, Present and Future (MSF-Holland, 2002), http://www.msf.fr/sites/www.msf.fr/files/2002-03-01-Wiggers.pdf; Nasir Uddin, ‘‘Of Hurting and Hosting: Crises in Co-existence with Rohingya Refugees in Bangladesh,’’ in To Host or To Hurt, ed. Uddin, 83–98. 15. The Rakhine people, believed to be a mixture of an indigenous Hindu group and Mongols, have inhabited Arakan since early historical times. Today, the Rakhine are Buddhist, speak a dialect of Burmese, and constitute the majority ethnic group in Rakhine State. 16. Karim, The Rohingyas. 17. Me´decins sans Frontie`res, 10 Years for the Rohingya. 18. Chris Lewa, Unregistered Rohingya Refugees in Bangladesh: Crackdown, Forced Displacement and Hunger (Bangkok: Arakan Project, 2010), accessed http://www.burmalibrary.org/ docs08/Bangladesh-Crackdown.pdf 19. Scott Mathieson, ‘‘Plight of the Damned: Burma’s Rohingya’’ Global Asia 4, 1 (2009): 87. 20. The Rohingya and the people in Chittagong region speak Chittagonian, a dialect of Bengali. 21. ‘‘Bangladesh is neither a signatory to the 1951 Convention relating to the Status of Refugees nor to its 1967 Protocol and has not enacted any national legislation on asylum and refugee matters . . . [but] Bangladesh has acceded to several of the existing international rights, Covenants and Conventions and have provisions within its Constitution that uphold the rights and duties within the UN Charter and further safeguard the legal protection of non-citizens within its territory’’; Pia Prytz Phiri, ‘‘Rohingyas and Refugee Status in Bangladesh,’’ Forced Migration Review 30 (2009): 34–35. 22. The Rohingyas live in sheds in the two camps. The GoB supervised the process of building these sheds funded by UNHCR. There are 852 sheds where 5,112 families are accommodated as each shed contains six families. Information from a field visit, June 2011. 23. Crabtree, ‘‘Economic Challenges and Coping Mechanisms,’’ 42. 24. Delwar Hossain and Faridul Alam, ‘‘Response of the State,’’ in The Plight of the Stateless Rohingyas, ed. Imtiaz Ahmed (Dhaka: University Press, 2010), 89. 25. Lewa, Unregistered Rohingya Refugees, 2. 26. Carl Grundy-Warr and Elaine Wong, ‘‘Sanctuary Under Plastic Sheet: The Unresolved Problem of Rohingya Refugees,’’ IBRU Boundary and Security Bulletin (Autumn 1997): 87. 27. Phiri, ‘‘Rohingyas and Refugee Status,’’ 1. 28. For details, see Hussain Misha, ‘‘For Rohingya in Bangladesh, No Place Is Home,’’ Time, 19 February 2010. 29. I have deliberately used pseudonyms of the informants so that none of them can be harassed by any quarter for their contribution to my research. In addition, I have added age to every name so that context of the event could be clearly understood.

268 Notes to Pages 70–84 30. RAB means Rapid Action Battalion, an elite force in Bangladesh law-enforcing agencies. 31. Naf is a river marking the border of Bangladesh and Myanmar. 32. The Myanmar border security force is called Nasaka. 33. Matthew Gibney, Statelessness and the Right to Citizenship, Report by Refugee Study Center at the University of Oxford, 2006, 50. 34. Margaret Walton-Roberts, this volume, 242. 35. Selim Uddin and Arfin Khan, Comparing the Impact of Local People and Rohingya Refugees on Teknaf Game Forest (Honolulu: East-West Center, 2010). 36. Amartya Sen, Development as Freedom (Oxford: Oxford University Press, 2001). 37. Per the official records I collected from the local police station. 38. Karen Jacobsen, ‘‘Factors Influencing the Policy Responses of Host Governments to Mass Refugee Influxes,’’ International Migration Review 30, 3 (1996): 655–78. 39. Gil Loescher, ‘‘The UNHCR and World Politics: State Interests vs. Institutional Autonomy,’’ International Migration Review 35, 1 (2001), 33–56. 40. The Rohingya Solidarity Organizations (RSO) is allegedly involved with militant activities in southeastern Bangladesh. In 2009 and 2011, Bangladesh security forces and law enforcement agencies found a huge number of arms, guerrillas, and destructive weapons in the deep forest of the Ukhia and Bandarban hill district. For details, see Mahfuzul Chowdhury and Nasir Uddin, ‘‘Bar between Brothers: Rohingya-Issue in Bangladesh-Myanmar Relations,’’ in ‘‘Of Hurting and Hosting,’’ 31–46.

Chapter 5. Mobilizing Against Statelessness: The Case of Brazilian Emigrant Communities 1. Nevzat Soguk, States and Strangers: Refugees and Displacements of Statecraft (Minneapolis: University of Minnesota Press, 1999). 2. See Belton, this volume, for a discussion on the two conventions. 3. John Torpey, The Invention of the Passport: Surveillance, Citizenship and the State (Cambridge: Cambridge University Press, 2000), 5. 4. The term Brazilian Communities Abroad (Comunidades Brasileiras no Exterior) refers, in this chapter, to a set of diverse and distinct associations and gatherings, both formal and informal, that bring together Brazilian nationals residing overseas. The term has been used recently by the Ministry of Foreign Relations as an ‘‘institutional catchphrase’’ that encompasses all groups of Brazilian nationals who are based in foreign territory and have some connection with government policies toward emigrants. 5. Department of Economic and Social Affairs, UN Secretariat, World Economic and Social Survey: International Migration, Document E/2004/75/Rev.1/Add.1, 2004. 6. Neide Lopes Patarra, ‘‘Migrac¸o˜es internacionais de e para o Brasil contemporaˆneo: volumes, fluxos, significados e polı´ticas,’’ Sa˜o Paulo Perspec. 19, 3 (2005): 26. 7. Comissa˜o Parlamentar Mista de Inque´rito da Emigrac¸a˜o (CPMI), Final Report (Brasilia, 2006), 21–22. 8. Constitution of the Federative Republic of Brazil, 5 October 1988, Constitutional Amendments 1/1992–64/2010; Revision Constitutional Amendments 1/1994–6/1994. 9. See RE 415957/RS, Decision by Min. Sepu´lveda Pertence, granted 22 August 2005, according to which ‘‘nationality of Brazilian children, born abroad, but resident in the country, is subject to the suspensive condition of judicial homologation of option,’’ http://www.jusbrasil .com.br/jurisprudencia/763480/recurso-extraordinario-re-415957-rs-stf. 10. Ricardo Glasenapp, ‘‘O direito a` nacionalidade e a EC n.54: a reparac¸a˜o de um erro,’’ Revista Brasileira de Direito Constitucional 11 (2008): 12.

Notes to Pages 85–101 269 11. Rui Martins, ‘‘A Verdadeira histo´ria dos sem Pa´tria’’ ‘‘The true history of the stateless], 30 September 2007, http://www.brasileirinhosapatridas.org/revela.htm. 12. Giralda Seyferth, ‘‘Colonizac¸a˜o, Imigrac¸a˜o e a questa˜o racial no Brasil, REVISTA USP, Sa˜o Paulo, n. 53 (marc¸o/maio 2002): 117–49. 13. Eduardo Mattarazo Suplicy, ‘‘Movimento ‘Brasileirinhos Apa´tridas’: uma pa´gina vitoriosa da histo´ria do nosso paı´s,’’ Cadernos de Debates Refu´gio, Migrac¸o˜es e Cidadania 3, 3 (2008): 19–25. 14. Rossana Rocha Reis, ‘‘A polı´tica do Brasil para as migrac¸o˜es internacionais,’’ Contexto Internacional 33, 1 (2011): 47–69. 15. Rene´ Maldonado, Remittances to Latin America and the Caribbean in 2009: The Impact of the Global Financial Crisis (Washington, D.C.: Inter-American Development Bank/Multilateral Investment Fund, 2010). 16. Rene´ Maldonado, Natasha Bajuk, and MariaLuisa Hayem, Remittances to Latin America and the Caribbean in 2011: Regaining Growth (Washington, D.C.: IDB/MIF, 2012). 17. Roberto Marinucci, Brasileiros e brasileiras no exterior: apresentac¸a˜o de dados recentes do Minsite´rio das Relac¸o˜es Exteriores, http://www.csem.org.br/2008/roberto_marinucci_brasileiros_e _brasileiras_no_exterior_segundo_dados_do_mre_junho2008.pdf (accessed 15 july 2010). 18. Brasileiros No Mundo, ‘‘Associac¸ o˜ es brasileiras no exterior,’’ http://www.brasileiros nomundo.itamaraty.gov.br/a. 19. Jacqueline Bhabha, ‘‘From Citizen to Migrant: The Scope of Child Statelessness in the Twenty-First Century’’ in Children Without a State: A Global Human Rights Challenge, ed. Jacqueline Bhabha (Cambridge, Mass.: MIT Press, 2011), 4, 8, 11. 20. Anastasia Moloney, ‘‘Brazil Bill Gives Hope to Latin America’s Stateless,’’ AlertNet, 23 August 2012. 21. Regiment of the Council of Representatives of Brazilians Abroad (CRBE), http://www .brasileirosnomundo.itamaraty.gov.br/conselho-de-representantes-de-brasileiros-no-exterior -crbe/portaria-657-de-26-de-outubro-de-2010/portaria-regimento-crbe.pdf. 22. Suplicy, ‘‘Movimento ‘Brasileirinhos Apa´tridas’,’’ 21. 23. Jamil Chade, ‘‘Pais pedem aulas de portugueˆs na Suı´ca,’’ Estado de Sa˜o Paulo, 10 August, 2012. 24. Joa˜o Fellet, ‘‘Brasil se torna destino de novos imigrantes,’’ BBC Brasil, 26 January 2012. 25. Quoted in Adailson Oliveira, ‘‘Refugiados haitianos: ‘Chegou a hora de o Brasil comec¸ar a dizer na˜o,’ diz ministra,’’ Amazoˆnia, 31 May 2012. 26. National Council of Immigration, Normative Resolution 97/2012, 12 January 2012. 27. In April 2013, the restriction on visas to Haitians (1200 visas per year) was suspended according to CNIg Normative Resolution 102/2013. The main goal was to restrict incentives to ‘‘illegal migration’’ and clandestine routes that were putting these migrants in situations of extreme vulnerability. The situation of Haitians in Brazil, particularly in border provinces, remains conflictive, and government responses have been, following reports from human rights NGOs, selective and improvised. For an example, see Conectas analysis at ‘‘Brasil po˜e fim a` cota de 1200 vistos anuais a haitianos,’’ http://www.conectas.org. 28. Abdelmalek Sayad, The Suffering of the Immigrant (Cambridge: Polity Press, 2004).

Chapter 6. Natives, Subjects, and Wannabes: Internal Citizenship Problems in Postcolonial Africa 1. Indigene is not to be confused with ‘‘Indigenous Peoples,’’ the subject of the Declaration on the Rights of Indigenous Peoples, UNGA Res. 61/295 of 13 Sept. 2007. The declaration does not offer a definition or description of ‘‘indigenous peoples.’’ 2. Hague Convention on Conflict of Nationality Laws, 1930, 179 LNTS 80.

270 Notes to Pages 101–110 3. Dilcia Yean and Violeta Bosico v. Dominican Republic, Int. Am. Ct. H.R. case no. 12.189 (2005). 4. Communication 97/93, Modise v. Botswana (2000) AHRLR 30, para 91; Communication 159/96, Union Interafricaine des Droits de l’Homme and Others v. Angola (2000) AHRLR 18; Communication 97/93; Communication 211/98, Legal Resources Foundation v. Zambia (2001) AHRLR 84. 5. In April 2013, the African Commission on Human and Peoples’ Rights affirmed that the right to nationality ‘‘is . . . implied within the provisions of Article 5 of the African Charter on Human and Peoples’ Rights and essential to the enjoyment of other fundamental rights and freedoms under the Charter.’’ See Resolution 234/2013 on the Right to Nationality, adopted by the 53rd Ordinary Session of the African Commission on Human and Peoples’ Rights, Banjul, The Gambia, April 2013. 6. Bronwen Manby, Citizenship Law in Africa: A Comparative Study (New York: Open Society Foundation, 2010). 7. Re Southern Rhodesia (1919) A. C. 211 at 233. 8. See Mahmood Mamdani, Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton, N.J.: Princeton University Press, 1996), 63 et. seq. 9. A. E. W. Park, Sources of Nigerian Law (London: Sweet and Maxwell, 1963), 102–3. 10. See Hussaini Abdu, Clash of Identities: State, Society and Ethno-Religious Conflicts in Northern Nigeria (Kaduna: Devreach, 2010), 66. 11. Theophilus Okere, ‘‘Keynote Address,’’ in The Igbo Origin Question, Proceedings of the International Symposium, Organized by the Whelan Research Academy, Owerri, Nigeria, ed. T. I. Okere (Nigeria: Gabtony Prints, 2010), 1, 3. 12. [1985] 12 S.C. 84. 13. 1999 Constitution, s. 25(1)(a). 14. 1999 Constitution, s. 147(3); 1979 Constitution, s. 135(3). 15. 1999 Constitution, s. 318; 1979 Constitution, s. 277. 16. 1999 Constitution, s. 41(1). 17. Ibid., s. 42(1). 18. Olusegun Obasanjo, ‘‘The Settler Question in Nigeria: The Case of Jos Plateau,’’ opening address, seminar organized by Conflict Prevention and Management Centre, Africa Leadership Forum (ALF), Jos, 15–17 December 1993. 19. Plateau Resolves: Report of the Plateau Peace Conference 2004 (Nigeria: Government Printer, Jos, 2004), 30. 20. Ibid., 37, para 7.3.0. 21. Government of Plateau State of Nigeria, Fiberesima Commission Inquiry Report (1994), 25, item 3.1.4 (hereafter Fiberesima Committee Report) 22. Cited in Mamdani, Citizen and Subject, 83. 23. T. I. Okere, ‘‘Preface,’’ in The Igbo Origin Question, xiv. 24. Abubakar Momoh, Even Birds Have a Home: The Social Pathologies of Citizenship in Nigeria (Lagos: Empowerment and Action Research Centre, 2001), 1. 25. Bola Ajibola Commission Report, 54. 26. 1999 constitution, ss. 25–26. 27. Anzaku v. Governor of Nassarawa State, (2005) 5 NWLR (Part 919) 449. 28. Sam Egwu, ‘‘Bridging the Indigene and Settler Divide: Challenges of Peace-Building in Nigeria,’’ presentation, Seminar for Opinion Leaders to Provide Inputs into Conflict Management Discourse, Jos, 9 February 2005, at the Leadership Institute, Dandaura Road, GRA Jos, 2. 29. Umar Danfulani, ‘‘The Jos Peace Conference and the Indigene/Settler Question in Nigerian Politics,’’ manuscript, Jos: University of Jos, 2006, 2. 30. White Paper, Fiberesima Committee Report, para. 2.1.2 (April 2009).

Notes to Pages 110–119 271 31. Ibid., 2.1.4. 32. Ibid., 2.2.5. 33. Plateau State Government, White Paper on Niki Tobi Commission Report (2002): 15–170. 34. Idris Bawa and Victoria Nwogu, ‘‘The Jos Crisis,’’ in Hope Betrayed? A Report on Impunity and State-Sponsored Violence in Nigeria, ed. World Organisation Against Torture (OMCT) and Centre for Law Enforcement Education (CLEEN) Foundation (Geneva: World Organisation Against Torture, 2002), 107. 35. Government of Plateau State, Nigeria, Report of the Bola Ajibola Commission of Inquiry (2009), 291. 36. Global Centre for the Responsibility to Protect, Atrocities in Nigeria’s Plateau State and the Responsibility to Protect, Policy Brief, March 2010, 1, 37. Innocent Chukwuma, ‘‘Introduction,’’ in Hope Betrayed?, 11. 38. Ibid. 39. See Colonial Office, Report of the Commission Appointed to Enquire into the Fears of the Minorities and the Means of Allaying Them, July 1958 (hereafter Willink Commission Report, 1958). 40. Ibid., 53, para. 6. 41. Federal Republic of Nigeria, Office of the National Security Adviser, ‘‘Jos Crises: A Diagnostic Review and Analysis,’’ December 2011, para. 5.8.

Chapter 7. Capricious Citizenship: Identity, Identification, and Banglo-Indians 1. Naila Kabeer, ‘‘Citizenship, Affiliation and Exclusion: Perspectives from the South,’’ IDS Bulletin 33, 2 (2002): 1. 2. Nira Yuval-Davis, The Politics of Belonging: Intersectional Contestations (Los Angeles: Sage, 2011). 3. Ibid. 4. David Lyon, Identifying Citizens: ID Cards as Surveillance (Cambridge: Polity Press, 2009). 5. Didier Bigo, ‘‘Globalized (In)Security: The Field and the Ban-Opticon,’’ in Terror, Security and Liberty: Illiberal Practices of Liberal Regimes After 9/11, ed. Didier Bigo and Anastassia Tsoukala (New York: Routledge, 2008), 10. 6. Mumbai (formerly called Bombay in English) is the capital of Maharashtra state in western India. 7. Kalyan Chaudhuri, ‘‘Protest in West Bengal,’’ Frontline, 15 August 1998. 8. ‘‘Maharashtra Upset at Bengal Incident,’’ Times of India, 25 July 1998. 9. Chaudhuri, ‘‘Protest in West Bengal.’’ 10. ‘‘Bengal Government Sore over Deportation from Mumbai,’’ Times of India, 25 July 1998. 11. ‘‘Bengal BJP Backs Maharashtra, Cong Dismayed,’’ Indian Express, 26 July 1998. 12. Lok Sabha is the principal house of the Indian Parliament, whose members are directly elected representatives. 13. ‘‘Opposition Walkout in LS,’’ Statesman, 28 July 1998. 14. Sujata Ramachandran, ‘‘Devouring the Map: Diasporas, Discourses, Discrimination and Banglo-Indians,’’ South Asian Review 32, 3 (2011): 199–220; Sujata Ramachandran, ‘‘Indifference, Impotence, Intolerance: Transnational Bangladeshis in India,’’ Global Migration Perspectives 42 (September 2005). 15. Kamal Sadiq, Paper Citizens: How Illegal Migrants Acquire Citizenship in Developing Countries (Oxford: Oxford University Press, 2009): 101–2. 16. Ibid., 72. 17. Manan Kumar, ‘‘No Work Permits for Settlers,’’ The Telegraph, 12 June 2005.

272 Notes to Pages 119–123 18. ‘‘HC Glays Govt on B’deshi Issue.’’ Outlook India, 18 May 2005. 19. UNICEF, Children in the Urban World (New York: UNICEF, 2011). 20. Prem Mony, Kiruba Sankar, Tinku Thomas, and Mario Vaz, ‘‘Strengthening of Local Vital Events Registration: Lessons Learnt from a Voluntary Sector Initiative in a District in Southern India,’’ Bulletin of the World Health Organization 89 (0000): 379–84; UNICEF, Celebrating Twenty Years of Convention on Rights of the Child (New York: UNICEF, 2009). 21. CURE, ‘‘Citywide Baseline Survey Report of Agra, Uttar Pradesh’’ (New Delhi: Cities Alliance and Centre for Urban and Regional Excellence, 2011); Plan India and Chetna, ‘‘Ensuring Identity to Street and Vulnerable Children,’’ n.d. (monograph). 22. Anupama Roy, Mapping Citizenship in India (New Delhi: Oxford University Press, 2010). 23. Press Information Bureau, ‘‘Infiltration of Militants Through Bangladesh,’’ 21 February 2006; ‘‘Mehrauli Blast: 2 Bangladeshi Suspects Held,’’ Indian Express, 28 October 2009. 24. Ministry of Home Affairs, Annual Report 2004–05 (New Delhi: Government of India), 132–33. 25. Bigo, ‘‘Globalized In(Security),’’ 6. 26. Jonathan Crush and Sujata Ramachandran, ‘‘Xenophobia, International Migration and Human Development,’’ Human Development Research Paper 2009/47 (New York: UNDP, 2009). 27. Megan Moodie, ‘‘Why Can’t You Say You Are from Bangladesh? Demographic Anxiety and Hindu Nationalist Common Sense in the Aftermath of the 2008 Bombings,’’ Identities: Global Studies in Power and Culture 17, 5 (2010): 531–59. 28. Reece Jones, Border Walls: Security and the War on Terror in the United States, India and Israel (London: Zed, 2012); Reece Jones, ‘‘Geopolitical Boundary Narratives, the Global War on Terror and Border Fencing in India,’’ Transactions of the Institute of British Geographers 34 (2009): 290–304. 29. Bigo, ‘‘Globalized (In)Security,’’ 12. 30. Sujata Ramachandran, ‘‘Barbed Wires and Border Crossings,’’ Economic and Political Weekly, forthcoming. 31. Wendy Brown, Walled States, Waning Sovereignty (New York: Zone, 2010). 32. Ibid., 8. 33. Kirstie Ball and Frank Webster, ‘‘The Intensification of Surveillance,’’ in The Intensification of Surveillance: Crime, Terrorism and Warfare in the Information Age, ed. Kirstie Ball and Frank Webster (Sterling, Va.: Pluto Press, 2003), 1–15. 34. Yuval-Davis, Politics of Belonging. 35. Brown, Walled States. 36. ‘‘And Now, ID for Cows,’’ Times of India, 7 November 2001; Subir Bhaumik, ‘‘Photo ID Cards for Indian Cattle,’’ BBC News, 30 August 2007. 37. Sumanta Ray Chaudhuri, ‘‘Cows Get Photo IDs in Security Beef-Up,’’ Daily News & Analysis, 31 August 2007. 38. Azizur Shaikh Rahman, ‘‘Indian Cattle Asked to Show Police Their Photo ID Cards,’’ Toronto Star, 27 August 2007. 39. ‘‘And Now, ID for Cows.’’ 40. Delhi High Court, Razia Begum and Ors. v. State and Ors., W.P. (Crl.) 677/2008, 12 August 2008. 41. Ibid., 1. 42. Delhi Police, ‘‘Press Bulletin,’’ 5 December 2007. 43. Citizens’ Campaign to Preserve Democracy, Democracy, Citizens and Migrants: Nationalism in the Era of Globalization (New Delhi: Citizens’ Campaign, 2004). 44. Armand Mattelart, The Globalization of Surveillance (Cambridge: Polity Press, 2010). 45. Delhi High Court, Razia Begum and Ors, 4.

Notes to Pages 123–127 273 46. Ibid., 3. 47. Ibid., 4. 48. Roy, Mapping Citizenship in India. 49. Louise Amoore, ‘‘Governing by Identity,’’ in Playing the Identity Card: Surveillance, Security and Identification in Global Perspective, ed. Colin J. Bennett and David Lyon (London: Routledge, 2008), 21–36. 50. Lyon, Identifying Citizens, 8. 51. Ibid., 39–62; Torin Monahan, Surveillance in the Time of Insecurity (New Brunswick, N.J.: Rutgers University Press, 2010). 52. Torin Monahan, Surveillance in the Time of Insecurity (New Brunswick, N.J.: Rutgers University Press, 2010). 53. Lyon, Identifying Citizens, 53. 54. Ibid., 41. 55. Keith Breckenridge, ‘‘The Elusive Panopticon: The HANIS Project and the Politics of Standards in South Africa,’’ in Playing the Identity Card, ed. Bennett and Lyon, 21–36; R. Ramakumar, ‘‘Aadhaar: On a Platform of Myths.’’ Hindu, 17 July 2011; Usha Ramanathan, ‘‘The Myth of the Technology Fix,’’ India Seminar, 17 June 2011. 56. Unique Identification Authority of India (UIDAI), ‘‘What Is Aadhaar,’’ http://uidai .gov.in/quick-links-en/resident-en.html. 57. UIDAI, ‘‘Aadhaar Enrolment Progress in India,’’ https://portal.uidai.gov.in/uidwebpor tal/dashboard.do. 58. UIADI, ‘‘Aadhar: Concept,’’ http://uidai.gov.in/why-aadhaar.html. 59. Anil Khachi, Social Inclusion and Aadhaar, 30 April 2012, 3, http://uidai.gov.in/images/. 60. Ibid. 61. UIDAI, ‘‘Why Aadhaar.’’ 62. UIDAI, ‘‘How to Enroll [for Aadhaar],’’ http://uidai.gov.in/how-to-enroll.html. 63. Standing Committee on Finance, ‘‘The National Identification Authority of India Bill, 2010: Forty Second Report’’ (New Delhi: LokSabha, 2011), 28. 64. Kirti Suneja, ‘‘Aadhaar Enrolments get Tough for Phase II,’’ Financial Express, 23 April 2012. 65. ‘‘UID Compulsory from January 1, But Lakhs Yet to Be Enrolled,’’ Times of India, 18 December 2012. 66. Ramakumar, ‘‘Aadhaar: On a Platform.’’ 67. Census of India, ‘‘FAQs for NPR,’’ http://censusindia.gov.in/2011-Common/FAQs.html. 68. Ministry of Home Affairs, ‘‘Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003,’’ Ministry of Home Affairs Notification, New Delhi, 10 December 2003 G.S.R.937(E). 69. Taha Mehmood, ‘‘India’s New ID Card: Fuzzy Logics, Double Meanings and Ethnic Ambiguities,’’ in Playing the Identity Card, ed. Bennett and Lyon, 112–27. 70. ‘‘FAQs for NPR.’’ 71. Torin Monahan, Surveillance in the Time of Insecurity (New Brunswick, N.J.: Rutgers University Press, 2010). 72. UIDAI, ‘‘Background,’’ http://uidai.gov.in/all-about-uidai/uidai-background.html. 73. ‘‘Giving India’s Millions a Unique Identity: The UID Aadhaar Project,’’ Albright Stonebridge Group, 20 December 2012, http://www.albrightstonebridge.com/news/aadhaar-india%E2 %80%99s-identification-system. 74. Samar Halarnkar, ‘‘Nandan Nilekani’s New Deal,’’ Hindustan Times, 22 September 2012. 75. Praful Bidwai, ‘‘Why Indians Should Fear the UID,’’ Rediff.com, 12 October 2010; Citizens’ Forum for Civil Liberties, ‘‘Data Mining Mafia Threatens National Security and Citizens Rights,’’ Counter Currents, 25 June 2012; Usha Ramanathan, ‘‘A Unique Identity Bill,’’ Economic

274 Notes to Pages 127–134 and Political Weekly 45, 30 (2010): 10–14; Taha Mehmood, ‘‘Aadhaar: A Threat to Indian Democracy,’’ Counter Currents, 1 April 2012. 76. Amba Uttara Kak and Swati Malik, ‘‘Privacy and the National Identification Authority of India Bill: Leaving Much to the Imagination,’’ NUJS Law Review, October–December (2010): 485–509; Venkatesh Nayak, ‘‘Stepping Up Surveillance,’’ Deccan Herald, 5 September 2012; R. Ramakumar, ‘‘Identity Concerns,’’ Frontline, 19 November 2011; R. Ramakumar, ‘‘Aadhaar: Time to Disown the Idea,’’ Hindu, 16 December 2011. 77. Monahan, Surveillance in Time of Insecurity, 10. 78. Mehmood, ‘‘India’s New ID Card: Fuzzy Logics, Double Meanings and Ethnic Ambiguities,’’ in Playing the Identity Card, ed. Bennett and Lyon, 112–27. 79. Peter Geschiere, The Perils of Belonging: Authochthony, Citizenship, and Exclusion in Africa and Europe (Chicago: University of Chicago Press, 2009). 80. Sadiq, Paper Citizens.

Chapter 8. Are Children’s Rights to Citizenship Slippery or Slimy? 1. Gergely Szakacs, ‘‘Hungary’s Far-Right Calls for Zero Tolerance Against Roma,’’ Chicago Tribune, 25 August 2012 (emphasis added). 2. Children’s Charter, Distilling Recommendations of President Hoover’s White House Conference on Child Health and Protection in 1930, cited in Beverly C. Edmonds and William R. Fernekes, Children’s Rights: A Reference Handbook (Santa Barbara, Calif.: ABC-CLIO, 1996), 182–85. 3. Nottebohm case (Liechtenstein v. Guatamala), 1955 ICJ REP.4 (6 April). 4. ‘‘Slippery,’’ OxfordDictionaries.com, 2013. 5. Peter J. Spiro, ‘‘A New International Law of Citizenship,’’ American Journal of International Law 105, 4 (2011): 694. 6. Seyla Benhabib, The Rights of Others: Aliens, Residents and Citizens (London: Cambridge University Press. 2004). 7. Holly Brewer, By Birth or Consent: Children, Law and the Anglo-American Revolution in Authority (Chapel Hill: North Carolina Press, 2005). 8. Though many distinguish between the terms ‘‘nationality’’ and ‘‘citizenship,’’ generally reserving the former for the international and interstate aspects of state affiliation and the latter for domestic intrastate questions, in this chapter we use the terms interchangeably. 9. Spiro, ‘‘A New International Law of Citizenship,’’ 710. 10. Jacqueline Bhabha, Moving Children: Child Migration in the Twenty-First Century (Princeton, N.J.: Princeton University Press, 2013), Chap. 2. 11. Shanta Sinha, ‘‘Starting in the Middle: Ending the Exploitation of Adolescents in India,’’ in Human Rights and Adolescence, ed. Jacqueline Bhabha, 293–308 (Philadelphia: University of Pennsylvania Press, 2014). 12. Elizabeth F. Cohen, Semi-Citizenship in Democratic Politics (New York: Cambridge University Press. 2009): 11. 13. Ibid., 180–81. 14. U.S. Department of Homeland Security, Office of Inspector General, Removals Involving Illegal Alien Parents of United States Citizen Children, OIG-09–15, Washington, D.C., January 2009, 5. 15. Immigration and Customs Enforcement Agency (ICE), Deportation of Parents of U.S.Born Citizens Fiscal Year 2011: Report to Congress, Washington, D.C., 26 March 2012, 4. 16. As many as 4.5 million U.S. citizen children have an unauthorized parent and at least nine million ‘‘mixed status’’ families include an authorized adult and a citizen child. Paul Taylor

Notes to Pages 134–139 275 et al., Unauthorized Immigrants: Length of Residency, Patterns of Parenthood (Washington, D.C.: Pew Hispanic Center, 2011), 6. 17. James D. Kremer, Kathleen A. Moccio, and Joseph W. Hammell, Severing a Lifeline: The Neglect of Citizen Children in America’s Immigration Enforcement Policy, Report by Dorsey & Whitney LLP to Urban Institute, March 2009, 74–79 . 18. Memorandum from John Morton, Assistant Secretary, ‘‘Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens,’’ U.S. Immigration and Customs Enforcement, Policy no. 10075.1, 17 June 2011, 4. 19. Applied Research Center, Shattered Families: The Perilous Intersection of Immigration Enforcement and the Child Welfare System, 2 November 2011, 29–30. 20. Jack Pugh, ‘‘Immigration, Part One: Erica Delgado and Miriam Ortiz,’’ Wyoming EagleTribune, 1 March 2012. 21. Jack Pugh, ‘‘Immigration, Part Two: Irma Mejia and Irma Avina,’’ Wyoming EagleTribune, 1 March 2012. 22. The U.S. government does not collect data on the number of cases where both parents and children are removed, or where parents are deported but leave their U.S. citizen children behind. U.S. Department of Homeland Security, Removals Involving Illegal Alien Parents, 1. 23. Delgado v. Holder, No. 11–2648 (7th Cir., 22 March 2012). For additional illustrations of this ‘‘painfully narrow standard,’’ see Kremer, Moccio, and Hammell, Severing a Lifeline, 76–80. 24. Mark Krikorian, director of the Washington-based Center for Immigration Studies, cited in Kristin Collins, ‘‘Deported Parents Leaving Children Born in U.S.,’’ News & Observer, 20 December 2009. 25. American Psychological Association (APA), Presidential Task Force on Immigration, Crossroads: The Psychology of Immigration in the New Century (Washington, D.C: APA, 2012). 26. Damien Cave, ‘‘American Children, Now Struggling to Adjust to Life in Mexico,’’ New York Times, 18 June 2012. 27. See ibid.; Seth Freed Wessler, ‘‘Thousands of Kids Lost from Parents in U.S. Deportation System,’’ Color Lines, 8 June 2012; Elise Foley, ‘‘What Happens to Children When Their Parents Are Detained or Deported?’’ Washington Independent, 16 November 2010. 28. Applied Research Center, Shattered Families, 15. 29. Ibid., 6. 30. One clinical psychologist who met with families affected by workplace immigration raids ‘‘concluded that the level of post-traumatic stress disorder and anxiety rivaled that seen in war torn countries like Bosnia.’’ Kremer, Moccio, and Hammell, Severing a Lifetime, 70. 31. Zhu and Chen v. Secretary of State for the Home Department [2004] ECR I-9925, Case C-200/02; Zambrano v. office national de l’emploi, ECJ 8 March 2011 (Case C-34/09). 32. Opinion of Advocate-General Sharpston, 30 September 2010, Gerard Ruiz Zambrano v. Office National de L’Emploi, para. 63 33. ‘‘Palilula—Our Home: Results on Research on Returnees from Western Europe,’’ Grupa 484, February 2008. 34. Personal Communication from Save the Children Belgrade, August 2012, on file with authors. 35. Jacqueline Bhabha, ‘‘Introduction,’’ in Children Without a State: A Global Human Rights Challenge, ed. Jacqueline Bhabha (Cambridge, Mass.: MIT Press, 2011). 36. ‘‘EU and Roma,’’ European Commission, 13 May 2014. 37. Margareta Matache and David Mark, ‘‘Confined by Narrow Choices: The Stories of Roma Adolescents,’’ in Human Rights and Adolescence, ed. Bhabha. 38. See Case of D.H. and Others v. The Czech Republic, 13 November 2007. 39. See Case of Orsˇusˇ and Others v. Croatia, 16 March 2010.

276 Notes to Pages 139–145 40. See Case of Sampanis and Others v. Greece, 5 June 2008. 41. Open Society Justice Initiative, ‘‘Committee on the Elimination of Racial Discrimination: Submission for Review of the Czech Republic,’’ Office of the High Commissioner for Human Rights, 18–19 August 2011. 42. Amnesty International and European Roma Rights Center, ‘‘Five More Years of Injustice: Segregated Education for Roma in Czech Republic,’’ European Roma Rights Centre, 2012. 43. UNDP/ World Bank/EC regional Roma survey (2011) cited in World Bank, ‘‘Towards an Equal Start: Closing the Early Learning Gap for Roma Children in Eastern Europe,’’ 4 June 2012. 44. Eben Friedman et al., School as Ghetto: Systemic Overrepresentation of Roma in Special Education in Slovakia (Budapest: Roma Education Fund, 2009). 45. Romani CRISS, ‘‘Raport Anual 2006,’’ 2006, http://www.romanicriss.org. 46. EU Monitoring and Advocacy Program, Equal Access to Quality Education for Roma (Budapest: Open Society Institute, 2007). 47. ‘‘International ‘Racism Index’ Puts Hungary Fifth of 33 Countries; Belief in Genetic Roots of Roma Crime Widespread,’’ Politics.hu, 5 December 2011. 48. Amnesty International, ‘‘A Class Apart: Slovakia’s Segregation of Romani Students,’’ 31 August 2012. 49. All data in this paragraph are drawn from research by the NGO Romani CRISS in Romania, 2011–2012, on file with authors. 50. MTI-EconNews, ‘‘Jobbick Proposes to Set Up ‘Criminal Zones’ Outside Cities,’’ 2 September 2010, http://www.politics.hu, cited in Immigration and Refugee Board of Canada briefing on ‘‘The Movement for a Better Hungary,’’ HUN103822.E, 6 October 2011. 51. Brown v. Board of Education, 347 U.S. 483 (1954). 52. We are deeply indebted to our colleague Orla Kelly for extensive research assistance with this section of the chapter. See also Orla Kelly and Elizabeth A. Newnham, ‘‘The Challenges Facing India in Advancing Secondary Education Attainment Among Adolescent Girls,’’ in Human Rights and Adolescence, ed. Bhabha. 53. Justice J. S. Verma, Justice Leila Smith, and Gopal Supramanium, Report of the Committee on Amendments to Criminal Law, 23 January 2013, http://www.scribd.com/doc/1218 03158/.

Chapter 9: How Citizenship Laws Leave the Roma in Europe’s Hinterland 1. This chapter will use the term ‘‘Roma’’ for simplicity to encompass Roma, Sinti, and British Gypsies who have inherited particular cultural practices and a seminomadic lifestyle (although most are no longer nomadic) and whose ancestry can be traced to India around the tenth century. The term ‘‘travelers’’ may be used when referring also to more recent traveling communities and specifically to Irish travelers who share many of the problems encountered by the Roma but form a distinct ethnic group. ‘‘Gypsy’’ is, in fact, a pejorative term used to identify the darker skin of migrants arriving from southern Europe and North Africa in the sixteenth century, although many British traveling people are happy to accept the designation. The Sinti are a particular group of Romani origin who speak a dialect influenced by their residence in Germany and surrounding areas. It is estimated that 200,000 to 1.5 million Roma died in the Porrajmos (Romani holocaust). See Ian Hancock, We Are the Romani People (Hatfield: Interface University of Hertfordshire Press, 2002). 2. Helen O’Nions, Minority Rights Protection in International Law: The Roma of Europe (Aldershot: Ashgate, 2007). 3. Amnesty International, Human Rights on the Margins of Europe, Briefing Paper (London: Amnesty International, 2010).

Notes to Pages 145–148 277 4. Network of Independent Experts on Fundamental Rights, Report on the Situation of Fundamental Rights in the European Union and Its Member States in 2002, EU CFR-CDF (Brussels: European Commission, 2002). 5. EU Agency for Fundamental Rights (FRA), The Situation of Roma EU Citizens Moving in and Settling in Other Member States (Brussels: Fundamental Rights Agency, 2009); Amnesty International, Treated like Waste: Roma Homes Destroyed and Health at Risk in Romania, 39/001/ 2010 (London: Amnesty International EUR, 2010); Amnesty International, Violent Attacks Against Roma in Hungary: Time to Investigate Racial Motivation, 27/001/2010 (London: Amnesty International EUR, 2010). 6. Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the Right of Citizens of the Union and Their Family Members to Move and Reside Freely Within the Territory of the Member States, 30.4.2004 OJ L158/77. 7. Council of Europe, ‘‘Recommendation of the Committee of Ministers to Member States on Policies for Roma and/or Travellers in Europe, CM/Rec (2008) 5 (Strasbourg: Council of Europe, 2008). 8. DH v. Czech Republic, 2008, App. 57325/00. 9. European Commission, Discrimination in the EU, Special Eurobarometer Survey 296 (Brussels: European Commission, 2006). 10. European Commission, Community Instruments and Policies for Roma Inclusion, COM (2008) 420 (Brussels: European Commission, 2008). ¨ hman, ‘‘Displaced Kosovo Roma and Property Rights,’’ 11. Jose-Maria Arraiza and Linda O Forced Migration Review 32 (2009): 43. 12. Aidan McGarry, Who Speaks for the Roma? Political Representation of a Transnational Minority (London: Continuum, 2010). 13. Will Kymlicka, Multicultural Citizenship (Oxford: Oxford University Press, 1995). 14. Stephen Castles and Alastair Davidson, Citizenship and Migration (Basingstoke: Palgrave, 2000), 11. 15. Will Guy, ‘‘The Czech Lands and Slovakia: Another False Dawn?’’ in Between Past and Future: The Roma of Central and Eastern Europe, ed. Will Guy (Hatfield: University of Hertfordshire Press, 2002). 16. Chris Powell, ‘‘Time for Another Immoral Panic? The Case of the Czechoslovak Gypsies,’’ International Journal of the Sociology of Law 22, 22 (1994): 117. 17. Robyn Linde, ‘‘Statelessness and Roma Communities in the Czech Republic: Competing Theories of State Compliance,’’ International Journal of Minority and Group Rights 13 (2006): 349. 18. UNHCR, Expert Meeting, ‘‘The Concept of Stateless Persons Under International Law,’’ Prato, Italy, 27–28 May 2010. 19. Brad Blitz, Statelessness, Protection and Equality, Forced Migration Policy Briefing 3 (Oxford: Refugee Studies Centre, University of Oxford, 2009), 7. 20. Jirina Siklova and Marta Miklusakova, ‘‘Law as an Instrument of Discrimination: Denying Citizenship to Czech Roma,’’ East European Constitutional Review 7, 2 (1998): 4. 21. Linde, ‘‘Statelessness and Roma Communities,’’ 349. 22. O’Nions, Minority Rights Protection, 18. 23. Zoon and Siroka, The Non-Czech Czechs (Prague: Tolerance Foundation, 1995), 18 24. O’Nions, Minority Rights Protection, 120. 25. Council of Europe, Report of the Experts of the Council of Europe on the Citizenship Laws of the Czech Republic and Slovakia and their Implementation (Strasbourg: Council of Europe, 2 April 1996), 10. 26. See article 18, European Convention on Nationality, 1997, European Treaty Series 166, Council of Europe.

278 Notes to Pages 148–151 27. Tolerance Foundation, Report on the Czech Citizenship Law (Prague: Tolerance Foundation, 1994). 28. Helen O’Nions, ‘‘Bona Fide or Bogus? Roma Asylum Seekers from the Czech Republic,’’ Web Journal of Current Legal Issues 3 (1999). 29. Ibid. 30. Czech Government, ‘‘Report on the Situation of the Romani Community in the Czech Republic,’’ July 1997, cited in European Commission ‘‘Regular Report on Czech Republic’s Progress Towards Accession’’ (Brussels: European Commission 1998). 31. U.S. Department of State, ‘‘Czech Country Report 2000,’’ February 2001; Council of Europe, Report of the Experts, 15. 32. European Roma Rights Centre (ERRC), ‘‘Statement of the ERRC on the Occasion of the Acceptance into NATO of the Czech Republic, Hungary and Poland’’ (Budapest: ERRC, July 1997). 33. Bella Edginton, ‘‘To Kill a Romany,’’ Race and Class 35 (1994): 80. 34. ‘‘TV Show Sparks Immigration Rush,’’ Globe and Mail, 13 August 1997. 35. ‘‘Czech Gypsies Fear Ghetto Wall,’’ Guardian, 20 June 1998, 16. 36. ‘‘Gypsy Accuses ‘Arrogant’ Canada,’’ Toronto Star, 24 August 1997, A2; TV NOVA 1997 Na vlastni oci [With your own eyes], 5 August 1997. 37. Judith To´th, ‘‘The Incomprehensible Flow of Roma Asylum-Seekers from the Czech Republic and Hungary to Canada,’’ CEPS Paper in Liberty and Security in Europe (Brussels: CEPS, November 2010). 38. CERD UN Committee on the Elimination of All Forms of Racial Discrimination, General Recommendation XXVII, Discrimination Against Roma adopted at 57th session, 16 August 2000. 39. Law 193/1999; O’Nions, Minority Rights Protection, 122. 40. Andrea Barsˇova´, ‘‘Country Report: Czech Republic,’’ EUDOC Citizenship Observatory, Robert Schumann Centre for Advanced Studies, European University Institute, 2010. 41. Council of Europe, ‘‘Council Directive 2004/38/EC on the Right of Citizens of the Union and Their Family Members to Move and Reside Freely Within the Territory of the Member States,’’ 30 April 2004, Official Journal L158–77 30/04/2004, articles 27 and 28. 42. Joseph Weiler, ‘‘The Selling of Europe,’’ working paper, Jean Monnet Center, New York University School of Law, 1996. 43. European Council, ‘‘Council Directive 2004/38/EC,’’ article 7. 44. Ibid. 45. Criminal Proceedings Against Donatella Calfa, C-348/96, press release 1/99, 1 January 1999. 46. UN Development Programme, At Risk: Roma and the Displaced in South-East Europe (New York: UN, 2006). 47. Decreto del Presidente del Consiglio dei Ministri,’’ 21 maggio 2008 (in Gazzetta Ufficiale n. 122 del 26.5.2008, ‘‘Dichiarazione dello stato di emergenza in relazione agli insediamenti di comunita nomadi nel territorio delle regioni Campania, Lazio e Lombardia’’ [‘‘Nomad Emergency Decree,’’ Decree of the President of the Council of Ministers,’’ n. 122 of 21 May 2008, in the Official Journal, 26 May 2008, ‘‘Declaration of a State of Emergency in Connection with the Settlements of Nomadic Communities in the Territory of Campania, Lazio, and Lombardy’’]. 48. Office for Democratic Institutions and Human Rights (ODIHR), Assessment of the Human Rights Situation of Roma and Sinti in Italy (Warsaw: OSCE, 2009). 49. BBC News, ‘‘EU Nations and Roma Repatriation,’’ 17 September 2010; Amnesty International, ‘‘Italian Authorities Urged to Stop Forced Evictions of Roma,’’ press release, 11 March 2010. 50. ‘‘Nomad Emergency Decree,’’ 2008; Pacchetto Sicurezza, Legge GU. 170 no. 94, 24/07/ 2009.

Notes to Pages 151–154 279 51. Amnesty International, The Wrong Answer: Italy’s ‘Nomad Plan’ Violates the Housing Rights of Roma in Rome, 39/001/2010 (London: Amnesty International EUR, 2010). 52. Piero Colacicchi, ‘‘Ethnic Profiling and Discrimination Against Roma in Italy: New Developments in a Deep-Rooted Tradition,’’ Roma Rights Journal 2 (2008): 35–44. 53. ERRC v. Italy, Complaint No 27/2004, 7 December 2005, Budapest, ERRC. 54. Institute of Race Relations, press briefing, 4 May 2004, https://www.irr.org.uk/cgi-bin/ news/open.pl?id⳱6812. 55. European Parliament, ‘‘Resolution on the Census of the Roma on the Basis of Ethnicity in Italy,’’ P6_TA-PROV (2008)036, 10 July 2008. 56. Henry Scicluna ‘‘The Life and Death of Roma and Sinti in Italy: A Modern Tragedy,’’ Roma Rights Journal 2 (2008): 9–29. 57. Gabriella Binannchi and Guy Dinmore, ‘‘Italy Pushes Law Driven by Roma Influx,’’ Financial Times, 10 September 2010. 58. European Roma Rights Centre (ERRC), ‘‘Security al a Italiana: Fingerprinting, Extreme Violence and Harassment Against Roma in Italy,’’ press release, 2008; Amnesty International, The Wrong Answer. 59. Lucia Kubosova, ‘‘EU Gives Blessing for Italy’s Roma Fingerprint Scheme,’’ EU Observer, 5 September 2008. 60. EurActiv News, ‘‘Commission Warns Italy Not to Expel Roma,’’ 21 May 2008. 61. ODIHR, Assessment of the Human Rights Situation, 8. 62. Claudia Aradau, ‘‘The Roma in Italy: Racism as Usual?’’ Radical Philosophy 153, 2 (2009): 2; Tom Kington, ‘‘68% of Italians Want Roma Expelled—Poll,’’ The Guardian, 17 May 2008. 63. ODIHR, Assessment of the Human Rights Situation. 64. Paul Iganski, Hate Crime and the City (Bristol: Policy Press, 2008). 65. Thomas Hammarberg, ‘‘Report by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, Following His Visit to Italy on 13–15 January 2009,’’ CommDH(2009)16, Strasbourg, Council of Europe, 16 April 2009. 66. Robbie McVeigh, ‘‘Theorising Sedentarism: The Roots of Anti-Nomadism,’’ in Gypsy Politics and Traveller Identity, ed. Thomas Acton (Hatfield: University of Hertfordshire Press, 1997). 67. Istituto per gli Studi sulla Pubblica Opinione, ‘‘Italiani, Rom e Sinti a confronto: Una ricerca qualitativa,’’ Conferenza Europea sulla popolazione Rom, Rome 22–23 January 2008. 68. UN Committee on the Elimination of Racial Discrimination, ‘‘Concluding Observations-Italy,’’ CERD/C/54/Misc.32/Rev.3, 18 March 1999. 69. Amnesty International, The Wrong Answer; European Union Agency for Fundamental Rights (FRA), ‘‘The Situation of Roma in 11 EU Member States: Survey Results at a Glance,’’ May 2012. 70. European Commission Against Racism and Intolerance, ‘‘Second Report on Italy,’’ Strasbourg, Council of Europe, 23 April 2002. 71. ERRC v. Italy, Complaint No 27/2004, 7 December 2005 (Budapest: ERRC). 72. Louise Doughty, ‘‘France Deserves to Be Kicked Out of the EU for Deporting Roma People,’’ Guardian Unlimited, 1 September 2010. 73. Valentina Pop, ‘‘EU Questions Legality of French Roma Deportations,’’ EU Observer, 2 September 2010; Ian Traynor, ‘‘EU Says Roma Deportations by France a Disgrace,’’ The Guardian, 14 September 2010. 74. Kim Wilsher, ‘‘Orders to Police on Roma Expulsions from France Leaked,’’ The Guardian, 13 September 2010; Human Rights Watch, ‘‘France’s Compliance with the European Free Movement Directive and the Removal of Ethnic Roma EU Citizens: A Briefing Paper Submitted to the European Commission’’ (New York: HRW, July 2011).

280 Notes to Pages 154–161 75. Le conseil d’e´tat, ‘‘Campements illicite de Roms,’’ press release, 7 April 2011. 76. ‘‘Sarkozy’s Roma Deportations Backed by 69% of French Voters,’’ Business Week, 27 August 2010; ‘‘Expulsions of Roma Get Public Nod in Sarkozy’s France,’’ Business Week, 13 August 2010. 77. European Parliament, Resolution P7_TA-PROV(2010)0312, 9 September 2010. 78. Ibid., paragraph 13. 79. Ricardo Martı´nez de Rituerto, ‘‘La libertad de circulacio´n en la UE no es absoluta,‘‘ El Pais, September 9, 2010. 80. Viviane Reding, ‘‘Statement on the Latest Developments on the Roma Situation,’’ press release, speech 10/428, 14 September 2010, http://europa.eu/rapid/press-release_SPEECH-10 -428_en.htm. 81. European Commission, ‘‘Commission Assesses Recent Developments in France, Discusses Overall Situation of the Roma and EU Law on Free Movement of EU Citizens,’’ press release, IP/10/1207, 29 September 2010; ERRC, ‘‘Danish Authorities Reverse Decisions in Roma Expulsions,’’ press release, 18 April 2011. 82. ERRC, ‘‘ERRC challenges Danish expulsion of EU Roma,’’ press release, September 6, 2010. 83. European Committee on Social Rights, Decision on the Merits ERRC v. France, complaint no. 51/2008, 19 October 2009. 84. Ibid., paragraph 119. 85. Immigration, Integration and Nationality Law 2011–672. 86. Human Rights Watch, ‘‘France’s Compliance.’’ 87. Ibid. 88. European Commission, ‘‘The Social and Economic Integration of the Roma in Europe,’’ Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions, 7.4.2010 COM (2010) 133 final (Brussels: European Commission, 2010). 89. ERRC, ‘‘Hollande Should Keep His Election Promises Regarding Roma,’’ press release, 22 August 2012. 90. Huub van Baar, ‘‘Expulsion Fever in Europe: The Case of the Roma,’’ Association for the Study of Nationalities, Nationalities Blog, 26 September 2010. 91. France 24, ‘‘Stigmatizing Travelling People?’’ (interview, 2010). 92. Aradau, ‘‘The Roma in Italy, Racism as Usual’’ 27 93. Scicluna,‘‘The Life and Death of Roma and Sinti in Italy,’’ 27. 94. European Commission, ‘‘Roma in Europe: The Implementation of European Union Instruments and Policies for Roma Inclusion—Progress Report 2008–2010,’’ COM (2010)133, Brussels, 7 April 2010. 95. Blitz, Statelessness, Protection and Equality, 16. 96. Ibid. 97. David Sibley, Outsiders in Urban Society (Basingstoke: Palgrave, 1981). 98. European Commission, ‘‘Roma in Europe.’’ 99. European Commission, Communication to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘‘National Roma Integration Strategies: A First Step in the Implementation of the EU Framework (SWD(2012) 133 final) Brussels, 21 May 2012 COM(2012) 226 final (Brussels: EC, 21 May 2012).

Chapter 10: Slippery Slopes into Illegality and the Erosion of Citizenship in the United States 1. At time of writing in early 2013, twelve states had passed versions of the bill that allowed in-state tuition for undocumented students who had graduated from high schools within that

Notes to Pages 161–166 281 state: California, Connecticut, Illinois, Kansas, Maryland, Nebraska, New Mexico, New York, Rhode Island, Texas, Utah, and Washington. The bills passed in California, New Mexico, and Texas also allowed access to financial aid for undocumented students who met particular requirements. Five states had passed bills expressly forbidding undocumented students from receiving in-state tuition: Arizona, Colorado, Georgia, Indiana, and South Carolina. 2. Bonnie Honig, ‘‘Immigrant America? How Foreignness ‘Solves’ Democracy’s Problems,’’ Social Text 16 (1998): 1–27. 3. Leti Volpp, ‘‘Imaginings of Space in Immigration Law,’’ Law, Culture and the Humanities 9, 3 (2013): 456–74. 4. Daniel Kanstroom, Deportation Nation: Outsiders in American History (Cambridge, Mass.: Harvard University Press, 2007). 5. Ibid. 6. Jennifer Ridgley, ‘‘The Legacy of War: Migration-Related Detention and the Restructuring of the INS in the 1940s,’’ presentation at Annual Meeting of Association of American Geographers, Seattle, 2011. 7. Joseph Nevins, Operation Wetback (New York: Routledge, 2002). 8. Ibid.; Kanstroom, Deportation Nation; David M. Herna´ndez, ‘‘Pursuant to Deportation: Latinos and Immigrant Detention,’’ Latino Studies 6, 1–2 (2008): 35–63. 9. Teresa A. Miller, ‘‘Citizenship and Severity: Recent Immigration Reforms and the New Penology,‘‘ Georgetown Immigration Law Journal 17, 4 (2003): 611–66. 10. The laws of primary importance are the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) and the Antiterrorism and Effective Death Penalty Act (AEDPA). Kent A. Ono and John M. Sloop, Shifting Borders: Rhetoric, Immigration, and California’s Proposition 187 (Philadelphia: Temple University Press, 2002). 11. Mathew Coleman, ‘‘Immigration Geopolitics Beyond the Mexico-US Border,’’ Antipode 39, 1 (2007): 60. 12. Justin A. Chaco´n and Mike Davis, No One Is Illegal: Fighting Racism and State Violence on the U.S.-Mexico Border (Chicago: Haymarket, 2006). 13. Deepa Fernandes, Targeted: Homeland Security and the Business of Immigration (New York: Seven Stories Press, 2007), 30. 14. Sara Murray, ‘‘Many in U.S. Illegally Overstayed Their Visas,’’ Wall Street Journal, 7 April 2013. 15. Susan B. Coutin, ‘‘Being En Route,’’ American Anthropologist 107, 2 (2005): 195–206; Nicholas DeGenova, Working the Boundaries: Race, Space, and ‘‘Illegality’’ in Mexican Chicago (Durham, N.C.: Duke University Press, 2005); Leo R. Chavez, ‘‘The Condition of Illegality,’’ International Migration 45, 3 (2007): 192–96; Sarah S. Willen, ‘‘Toward a Critical Phenomenology of ‘Illegality’: State Power, Criminalization, and Abjectivity Among Undocumented Migrant Workers in Tel Aviv, Israel,‘‘ International Migration 45, 3 (2007): 8–38. 16. Coutin, ‘‘Being En Route’’; Willen, ‘‘Toward a Critical Phenomenology of ‘Illegality’.’’ 17. Chavez, ‘‘The Condition of Illegality.’’ 18. DeGenova, Working the Boundaries; Coutin, ‘‘Being En Route’’; Nancy Hiemstra, ‘‘Immigrant ‘Illegality’ as Neoliberal Governmentality in Leadville, Colorado,‘‘ Antipode 42, 1 (2010): 74–102; Roberto G. Gonzales and Leo R. Chavez, ‘‘ ‘Awakening to a Nightmare’: Abjectivity and Illegality in the Lives of Undocumented 1.5-generation Latino Immigrants in the U.S.,‘‘ Current Anthropology 53, 3 (2012): 255–81; Roger Rouse, ‘‘Making Sense of Settlement: Class Transformation, Cultural Struggle, and Transnationalism Among Mexican Migrants in the U.S.,’’ in Towards a Transnational Perspective on Race, ed. Nina Glick Schiller et al. (New York: New York Academy of Sciences, 1992), 25–52. 19. Willen, ‘‘Toward a Critical Phenomenology of ‘Illegality’; DeGenova, Working the Boundaries; Chavez, ‘‘The Condition of Illegality.’’

282 Notes to Pages 166–172 20. Chavez, ‘‘The Condition of Illegality.’’ 21. Jill Lindsay Harrison and Sarah E. Lloyd, ‘‘Illegality at Work: Deportability and the Productive New Era of Immigration Enforcement,‘‘ Antipode 44, 2 (2012): 365–85. 22. Immigration Policy Center, ‘‘The DREAM Act,’’ 18 May 2011. 23. Hiemstra, ‘‘Immigrant ‘Illegality’ as Neoliberal Governmentality’’; Harrison and Lloyd, ‘‘Illegality at Work.’’ 24. DeGenova, Working the Boundaries; Harald Bauder, Labor Movement: How Migration Regulates Labor Markets (New York: Oxford University Press, 2006). 25. Rouse, ‘‘Making Sense of Settlement.’’ 26. Coleman, ‘‘Immigration Geopolitics’’; Susan B. Coutin, ‘‘Confined Within: National Territories as Zones of Confinement,‘‘ Political Geography 29 (2010): 200–208. 27. Coutin, ‘‘Confined Within’’; Gonzales and Chavez, ‘‘Awakening to a Nightmare’’; Harrison and Lloyd, ‘‘Illegality at Work.’’ 28. Coleman, ‘‘Immigration Geopolitics.’’ 29. Ibid.; Monica Varsanyi, ‘‘Rescaling the ‘Alien,’ Rescaling Personhood: Neoliberalism, Immigration, and the State,‘‘ Annals of the Association of American Geographers 98, 4 (2008): 877–96. 30. Coleman, ‘‘Immigration Geopolitics.’’ 31. There are, however, notable examples of pushback against Secure Communities. As of October 2014, several cities and a number of counties and states have taken various steps attempting to resist the federal requirement of automatically holding all immigrants identified through Secure Communities for ICE pick-up. 32. Monica Varsanyi, ed., Taking Local Control: Immigration Policy Activism in U.S. Citiesand States (Stanford, Calif.: Stanford University Press, 2010); Varsanyi, ‘‘Rescaling the ‘Alien’.’’ 33. Varsanyi, Taking Local Control. 34. Volpp, ‘‘Imaginings of Space in Immigration Law,’’ 7. 35. Ibid., 2. 36. Ibid., 7–8. 37. Miller, ‘‘Citizenship and Severity’’; Kanstroom, Deportation Nation. 38. Miller, ‘‘Citizenship and Severity’’; Kanstroom, Deportation Nation; Herna´ndez, ‘‘Pursuant to Deportation.’’ 39. Kanstroom, Deportation Nation. 40. John Simanski and Lesley M. Sapp, ‘‘Immigration Enforcement Actions: 2011,’’ DHS Office of Immigration Statistics, September 2012. 41. Miller, ‘‘Citizenship and Severity,’’ 636. 42. National Immigrant Justice Center, ‘‘Isolated in Detention: Limited Access to Legal Counsel in Immigration Detention Facilities Jeopardizes a Fair Day in Court,’’ September 2010, http://www.immigrantjustice.org; Miller, ‘‘Citizenship and Severity’’; American Civil Liberties Union of New Mexico, ‘‘Outsourcing Responsibility: The Human Cost of Privatized Immigration Detention in Otero County,’’ January 2011. 43. National Immigrant Justice Center, ‘‘Isolated in Detention’’; ACLU of New Mexico, ‘‘Outsourcing Responsibility.’’ 44. ACLU of New Mexico, ‘‘Outsourcing Responsibility’’; Nancy Hiemstra, ‘‘ ‘You don’t even know where you are’: Chaotic Geographies of U.S. Migrant Detention and Deportation,’’ in Carceral Spaces: Mobility and Agency in Imprisonment and Migrant Detention, ed. Dominique Moran, Nicholas Gill, and Deirdre Conlon (Aldershot: Ashgate, 2013). 45. Julia Preston, ‘‘Immigration Crackdown Also Snares Americans,’’ New York Times, 13 December 2011; Jacqueline Stevens, ‘‘U.S Government Unlawfully Detaining and Deporting U.S. Citizens as Aliens,’’ Virginia Journal of Social Policy and the Law 18, 3 (2011): 606–720. 46. Stevens, ‘‘U.S Government Unlawfully Detaining and Deporting U.S. Citizens.’’

Notes to Pages 172–180 283 47. Seth F. Wessler, ‘‘How Immigration Reform Got Caught in the Deportation Dragnet,’’ ColorLines, 7 October 2010. 48. Ibid.; see also Bhabha and Matache in this volume. 49. Wessler, ‘‘How Immigration Reform Got Caught.’’ 50. Bhabha and Matache and Rygiel and Walton-Roberts, this volume. 51. Marc Lacey, ‘‘Birthright Citizenship Looms as Next Immigration Battle,’’ New York Times, 4 January 2011. 52. Coleman, ‘‘Immigration Geopolitics.’’ 53. Lizette Alvarez, ‘‘With G.O.P.’s Ear, Rubio Pushes Dream Act Proposal,’’ New York Times, 26 April 2012.

Chapter 11. Managed into the Margins: Examining Citizenship and Human Rights of Migrant Workers in Canada 1. This includes both principal applicants and dependents in the total. 2. Janet McLaughlin and Jenna Hennebry, ‘‘Pathways to Precarity: Structural Vulnerabilities and Lived Consequences for Migrant Farmworkers in Canada,’’ in Producing and Negotiating Non-Citizenship: Precarious Legal Status in Canada, ed. Luin Goldring and Patricia Landolt (Toronto: University of Toronto Press, 2013), 175–94. 3. Martin Ruhs and Bridget Anderson, ‘‘Introduction,’’ in Who Needs Migrant Workers? Labour Shortages, Immigration and Public Policy¸ ed. Martin Ruhs and Bridget Anderson (Oxford: Oxford University Press, 2010), 30–31. 3. Ibid., 2. 4. Nandita Rani Sharma, Home Economics: Nationalism and the Making of ‘‘Migrant Workers’’ in Canada (Toronto: University of Toronto Press, 2006). 5. Yasemin Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago: University of Chicago Press, 1994), 2. 6. See, for example, Soysal, Limits of Citizenship; David Jacobson, Rights Across Borders: Immigration and the Decline of Citizenship (Baltimore: Johns Hopkins University Press, 1996). 7. Soysal, Limits of Citizenship: 1–3. 8. William Vincent Flores with Rina Benmayor ‘‘Introduction: Constructing Cultural Citizenship,’’ in William Vincent Flores and Rina Benmayor (eds.) Latino Cultural Citizenship: Claiming Identity, Space, and Rights (Boston: Beacon, 1997): 11. 9. Saskia Sassen, Territory, Authority, Rights: From Medieval to Global Assemblages (Princeton, N.J.: Princeton University Press, 2006); Soysal, Limits of Citizenship; David Jacobson and Galya Benarieh Ruffer, ‘‘Courts Across Borders: The Implications of Judicial Agency for Human Rights and Democracy,’’ Human Rights Quarterly 25, 1 (2003): 74–92. 10. Sassen, Territory, Authority, Rights: 417. 11. Audrey Macklin, ‘‘Who Is the Citizen’s Other? Considering the Heft of Citizenship,’’ Theoretical Inquiries in Law 8 (2007): 333–66. 12. Stephen Castles and Alastair Davidson, Citizenship and Migration: Globalization and the Politics of Belonging (New York: Routledge, 2000). 13. Jenna Hennebry and Kerry Preibisch, ‘‘A Model for Managed Migration? Re-Examining Best Practices in Canada’s Seasonal Agricultural Worker Program,’’ International Migration 50, 1 (2010): 19–40. 14. Marco Martinello, ‘‘Citizenship of the European Union: A Critical View,’’ in From Aliens to Citizens, ed. Rainer Baubo¨ck (Aldershot: Ashgate, 1994). 15. Janet McLaughlin, ‘‘Migration and Health: Implications for Development,’’ The Canadian Foundation for the Americas (FOCAL) Labour Mobility and Development Project, Policy Paper 2, 2009; Janet McLaughlin and Jenna Hennebry, ‘‘Backgrounder on Health and Safety for

284 Notes to Pages 180–185 Migrant Farmworkers in Canada,’’ International Migration Research Centre: Policy Points 1 2010; Jenna Hennebry and Janet McLaughlin, ‘‘The Exception That Proves the Rule: Structural Vulnerability, Health Risks and Consequences for Temporary Migrant Farmworkers in Canada,’’ in Legislating Inequality: Canada’s Temporary Migrant Worker Program, ed. Christine Hughes and Patti Tamara Lenard (Montreal: McGill-Queen’s University Press, 2012). 16. Ricardo Trumper and Lloyd L. Wong, ‘‘Canada’s Guest Workers: Racialized, Gendered, and Flexible,’’ in Race and Racism in 21st-century Canada: Continuity, Complexity, and Change, ed. B. Singh Bolaria and Sean P. Hier (Peterborough, Ont.: Broadview Press, 2007), 152. 17. For a more detailed comparison of these program streams, see Jenna Hennebry, ‘‘Permanently Temporary? Agricultural Migrant Workers and Their Integration in Canada,’’ Institute for Research in Public Policy, Study 26, 2012. 18. Government of Canada, ‘‘Preliminary Tables—Permanent and Temporary Residents, 2012,’’ Citizenship and Immigration Canada, 19. Government of Canada, ‘‘Temporary Foreign Worker Program: Labour Market Opinion (LMO) Statistics, Annual Statistics 2009–2012.’’ . 20. Vic Satzewich, Racism and the Incorporation of Foreign Labour: Farm Labour Migration to Canada Since 1945 (New York: Routledge, 1991); Sharma, Home Economics. 21. See Prime Minister of Canada, ‘‘Address by the Prime Minister on the Chinese Head Tax Redress,’’ for a transcript of the apology. 22. See Weissbrodt, this volume, for a more detailed summary of the conventions that apply to noncitizens. 23. For example, UN instruments such as the UDHR and ICCPR and ILO instruments such as the Convention Concerning Migration for Employment (No. 97), among others. 24. For a list of countries that have ratified the agreement to date and the status of the convention, see http://treaties.un.org/. 25. Victor Piche´, Euge´nie Pelletier, and Dina Epale, ‘‘Identification of the Obstacles to the Ratification of the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families: The Canadian Case,’’ UNESCO, 2006, http://unesdoc.unesco.org. 26. Constitution Act, Canadian Charter of Rights and Freedoms, Section II, 1982, Section 6(1). 27. Ontario (Attorney General) v. Fraser, 2011 SCC 20. 28. Veena Verma, ‘‘The Mexican and Caribbean Seasonal Agricultural Workers Program: Regulatory and Policy Framework, Farm-Industry-Level Employment Practices, and the Future of the Program Under Unionization,’’ in Canada’s Seasonal Agricultural Workers’ Program (CSAWP) as a Model Best Practices in the Employment of Caribbean and Mexican Farm Workers (Ottawa: North-South Institute, 2003): 63–64. 29. Ibid.; Jenna Hennebry, ‘‘Who Has Their Eye on the Ball? ‘Jurisdictional Fu´tbol’ and Canada’s Temporary Foreign Worker Program,’’ Policy Options, July–August 2010, 61–67. 30. Hennebry, ‘‘Permanently Temporary?’’; Kerry Preibisch, ‘‘Social Relations Practices Between Seasonal Agricultural Workers, Their Employers and the Residents of Rural Ontario,’’ in Canada’s Seasonal Agricultural Workers’ Program. 31. McLaughlin, ‘‘Migration and Health.’’ 32. Verma, ‘‘The Mexican and Caribbean Seasonal Agricultural Workers Program.’’ 33. As quoted in Janet McLaughlin, ‘‘Trouble in Our Fields: Health and Human Rights Among Mexican and Caribbean Migrant Farmworkers in Canada,’’ Ph.D. dissertation, Department of Anthropology, University of Toronto, 2009: 519. 34. Ibid.; Hennebry and McLaughlin, ‘‘The Exception That Proves the Rule.’’ 35. Hennebry and McLaughlin, ‘‘The Exception That Proves the Rule.’’ 36. Tanya Basok, Tortillas and Tomatoes: Transmigrant Mexican Harvesters in Canada (Montreal: McGill-Queen’s University Press, 2002).

Notes to Pages 186–195 285 37. Although they could never access regular EI benefits, previously migrant farm workers were able to access special EI benefits (such as maternity and parental benefits). In 2012, the federal government revoked this right. See Laurie Monsebraaten, ‘‘Migrant Ontario Farm Workers Seek EI Parental Benefits,’’ Toronto Star, 11 October 2013. 38. McLaughlin, ‘‘Migration and Health.’’ 39. See section 10 of Canadian Human Rights Act. 40. Jenna L. Hennebry, ‘‘Globalization and the Mexican-Canadian Seasonal Agricultural Worker Program: Power, Racialization and Transnationalism in Temporary Migration,’’ Ph.D. dissertation, Department of Sociology, University of Western Ontario, 2006; Janet McLaughlin, ‘‘Classifying the ‘Ideal Migrant Worker’: Mexican and Jamaican Transnational Farmworkers in Canada,‘‘ Focaal: Journal of Global and Historical Anthropology 57 (2010): 79–94. 41. Kerry Preibisch and Leigh Binford, ‘‘Interrogating Racialized Global Labour Supply: An Exploration of the Racial/National Replacement of Foreign Agricultural Workers in Canada,’’ Canadian Review of Sociology and Anthropology 44, 1 (2007): 5–36. 42. Hennebry, ‘‘Globalization and the Mexican-Canadian Seasonal Agricultural Worker Program’’, p. 179 43. Ibid., p.180–184. 44. See Depatie-Pelletier, Euge´nie, ‘‘Under Legal Practices Similar to Slavery According to the U.N. Convention: Canada’s ‘Non-White’ ‘Temporary’ Foreign Workers in ‘Low-Skilled’ Occupations,’’ presentation at Tenth National Metropolis Conference, Halifax, 5 April 2008. 45. Interview with migrant worker, 2006. 46. McLaughlin, Trouble in Our Fields, 214. 47. Ibid.; Hennebry, ‘‘Globalization and the Mexican-Canadian Seasonal Agricultural Worker’’; Preibisch, ‘‘Social Relations Practices.’’ 48. A summary of this survey can be found at: Jenna Hennebry, Kerry Preibisch, and Janet McLaughlin, Health Across Borders: Health Status, Risks and Care Among Transnational Migrant Farm Workers in Ontario (Toronto: CERIS Ontario Metropolis Centre, 2010). 49. Gerardo Otero and Kerry Preibisch, ‘‘Farmworker Health and Safety: Challenges for British Columbia‘‘ (Vancouver: WorkSafeBC, 2010), 54. 50. Hennebry, Preibisch and McLaughlin, Health Across Borders. 51. WHO, ‘‘Declaration on Occupational Health for All,’’ WHO/OCH/94.1, 1994. 52. See Government of Ontario, Ministry of Agriculture, Food, and Rural Affairs, ‘‘Occupational Health and Safety Act: Application to Farming Operations.’’ http://www.omafra.gov.on.ca. 53. Hennebry, Preibisch, and McLaughlin, Health Across Borders. 54. Ibid. 1; Otero and Preibisch, ‘‘Farmworker Health and Safety,’’ 57. 55. Ibid. See also Janet McLaughlin, Jenna Hennebry, and Ted Haines, ‘‘Paper Versus Practice: Occupational Health and Safety Protections and Realities for Temporary Foreign Agricultural Workers in Ontario,’’ Pistes: Interdisciplinary Journal of Work and Health 16, 2 (2014). 56. See Heimstra and Mountz, this volume.

Chapter 12. Shapeshifting Citizenship in Germany: Expansion, Erosion, and Extension 1. Michael Walzer, ‘‘Citizenship,’’ in Political Innovation and Conceptual Change, ed. Terence Ball, Jonathan Farr, and Richard L. Hanson (Cambridge: Cambridge University Press, 1989), 211–20. 2. Thomas Humphrey Marshall, Citizenship and Social Class (1950; Cambridge: Cambridge University Press, 1964). 3. Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (Oxford: Oxford University Press, 1995).

286 Notes to Pages 196–206 4. Ju¨rgen Habermas, Faktizita¨t und Geltung (Frankfurt a.M.: Suhrkamp, 1992). 5. Roger Brubaker, Citizenship and Nationhood in France and Germany (Cambridge, Mass.: Harvard University Press, 1992), 182. 6. Dieter Gosewinkel, Einbu¨rgern und Ausschließen. Die Nationalisierung der Staatsangeho¨rigkeit vom Deutschen Bund bis zur Bundesrepublik Deutschland (Go¨ttingen: Vandenhoeck & Ruprecht, 2001). 7. Thomas Faist, Dual Citizenship in Europe: From Nationhood to Societal Integration (Aldershot: Ashgate, 2007). 8. See, for example, Heinrich August Winkler, Der lange Weg nach Westen, vol. 2: Deutsche Geschichte vom Dritten Reich bis zur Wiedervereinigung (Mu¨nchen: C.H. Beck, 2000). 9. Hermann von Mangoldt, Friedrich Klein, and Christian Strack, Kommentar zum Grundgesetz, 6th ed., vol. 3 (Mu¨nchen: Vahlen, 2010), 1791–1852. 10. Hans Georg Lehmann, ‘‘Ru¨ckkehr nach Deutschland? Motive, Hindernisse und Wege von Emigranten,’’ in Ru¨ckkehr und Aufbau nach 1945: Remigranten im o¨ffentlichen Leben Nachkriegsdeutschland, ed. Claus-Dieter Krohn and Patrick von zur Mu¨hlen (Marburg: Metropolis, 1997). 11. Migration Report, Migrationsbericht des Bundesamtes fu¨r Migration und Flu¨chtlinge im Auftrag der Bundesregierung (Berlin: Bundesministerium des Inneren, 2009), 230. 12. Marshall, Citizenship and Social Class, on social rights see 46–77. 13. For newer discussions on social citizenship beyond the national level, see Social Protection Floor initiative by the International Labour Organization (ILO) and the UN, ‘‘Global Extension of Social Security,’’ ILO. 14. Peter A. Kraus and Karen Scho¨nwa¨lder, ‘‘Multiculturalism in Germany: Rhetoric, Scattered Experiments and Future Chances,’’ in Multiculturalism and the Welfare State: Recognition and Redistribution in Contemporary Democracies, ed. Keith Banting and Will Kymlicka (Oxford: Oxford University Press 2006), 202–21. 15. Heiner Bielefeld, Zum Innovationspotenzial der UN-Behindertenrechtskonvention (Berlin: Deutsches Institut fu¨r Menschenrechte), 2009. 16. One may argue that a case of gradual erosion is the German public pension system in the face of demographic changes, as the proportion of contributors to the system is getting smaller, whereas the proportion of beneficiaries (retired persons) is growing. Over the past two decades, a perceptible shift has been occurring in that the contributors are encouraged to invest individually into capital savings schemes. In the long run, this implies a shift away from intergenerational reciprocity to individual liability. 17. Stephan Lessenich, Die Neuerfindung des Sozialen: Der Sozialstaat im flexiblen Kapitalismus (Bielefeld: Transcript), 2008. 18. Thomas Faist, ‘‘Migration in Contemporary Europe: European Integration, Economic Liberalization, and Protection,’’ in European Integration in Social and Historical Perspective 1850 to the Present, ed. Jytte Klausen and Louise Tilly (Lanham, Md.: Rowman and Littlefield, 1997), 223–48. 19. Contract workers, sometimes called posted workers, are sent abroad by their companies, subcontracted by German general contractors. Such workers, for example, did come to Germany as personnel of Polish subcontractors to carry out construction projects in Germany. 20. Thomas Faist, ‘‘Social Citizenship in the European Union: Nested Membership,’’ Journal of Common Market Studies 39, 1 (2001): 39–60. 21. Thomas Faist, ‘‘ ‘Extension du domaine de la lutte’: International Migration and Security,’’ International Migration Review 36, 1 (2003): 7–14. 22. Migration Report, Migrationsbericht des Bundesamtes, 232. 23. Yasemin N. Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago: University of Chicago Press), 1994.

Notes to Pages 206–211 287 24. Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, Brace, 1951). 25. Faist, ‘‘Social Citizenship in the European Union.’’ 26. Georg Wilhelm Friedrich Hegel, Grundlinien der Philosophie des Rechts: Naturrecht und Staatswissenschaft, Werke 7 (1821; Frankfurt: Suhrkamp, 1979), 92–102. 27. Andreas Fahrmeir, Citizenship: The Rise and Fall of a Modern Concept (New Haven, Conn.: Yale University Press, 2007).

Chapter 13. Multiple Citizenships and Slippery Statecraft 1. UN Population Fund, State of World Population Report: People and Possibilities in a World of 7 Billion (New York: UNFPA, 2011), 66. 2. Greta Gilbertson, ‘‘Citizenship in a Globalized World,’’ Migration Information Source, 1 January 2006. 3. Thomas Faist and Ju¨rgen Gerdes, Dual Citizenship in an Age of Mobility (Washington, D.C.: Migration Policy Institute, 2008), 5. 4. Canada was the fifth-largest receiving country (as of 2010), hosting the highest proportion of foreign-born population (20.6%) over 6.7 million international migrants (Statistics Canada Immigration and Ethnocultural Diversity in Canada National Household Survey, 2011, 4), while India is one of the top three migrant-sending countries with a diaspora of over 20 million (Report on the High Level Commission Report on the Indian Disapora, 2001, xi). 5. Alfred Stepan, Juan J. Linz, and Yogendra Yadav, Crafting State-Nations: India and Other Multinational Democracies (Baltimore: Johns Hopkins University Press, 2011). Stepan et al. consider state-nations countries with territorially dispersed ethnic diversity and cite India and Canada as examples. 6. Alan Gamlen, ‘‘The Emigration State and the Modern Geopolitical Imagination,’’ Political Geography 27, 8 (2008): 840–56. Gamlen argues that modern geopolitical thinking creates a binary between territorially bounded nation-state domestic policy making and engagement with globally dispersed diaspora communities (outside the nation-state). Rather, he posits that several states (more and less developed) have created ‘‘diaspora mechanisms’’ (Gamlen cites building and integration as two types of mechanism) that incorporate their overseas migrant communities into their national agendas and planning. Rather than an aberration, this is a normal part of national policy making. Gamlen’s argument rests on a differentiation of state (an institutional complex) from territory (a geographically bounded area governed by an institutional complex). This allows for the state to engage with extraterritorial populations; see also Margaret WaltonRoberts, ‘‘Globalization, National Autonomy and Non-Resident Indians,’’ Contemporary South Asia 13, 1 (2004): 53–69. 7. David Scobey, ‘‘The Specter of Citizenship’’ Citizenship Studies 5, 1 (2001): 11–26. 8. Bjorn Hettne, ‘‘The Fate of Citizenship in Post-Westphalia,’’ Citizenship Studies 4, 1 (2000): 35–46; David Jacobson, Rights Across Borders: Immigration and the Decline of Citizenship (Baltimore: Johns Hopkins University Press, 1996); David Miller, Citizenship and National Identity (Cambridge: Polity Press, 2000). 9. Engin Isin and Patricia Wood, Citizenship and Identity (London: Sage, 1999); Thomas Faist, ‘‘Transnationalization in International Migration: Implications for the Study of Citizenship and Culture,’’ Ethnic and Racial Studies 23, 2 (2000): 189–222; Yasemin Nuhoglu Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (Chicago: University of Chicago Press, 1994); Saskia Sassen, ‘‘The Global City: Strategic Site/New Frontier,’’ in Democracy, Citizenship and the Global City, ed. Engin F. Isin (London: Routledge, 2000), 48–61; Aiwha Ong, Flexible Citizenship: The Cultural Logics of Transnationality (Durham, N.C.: Duke University Press, 1999). 10. John Torpey, ‘‘Coming and Going: On the State Monopolization of the Legitimate ‘Means of Movement’,’’ Sociological Theory 16, 3 (1998): 240.

288 Notes to Pages 211–215 11. Nikolas Rose and Peter Miller, ‘‘Political Power Beyond the State: Problematics of Government,’’ British Journal of Sociology 43, 2 (1992): 174. 12. Ibid., 199. 13. Hugh Tinker, The Banyan Tree: Overseas Emigrants from India, Pakistan and Bangledesh (London: Oxford University Press, 1977). 14. Papiya Ghosh, Partition and the South Asian Diaspora: Extending the Subcontinent (London: Routledge, 2007); Karen Isaksen Leonard, Locating Home: India’s Hyderabadis Abroad (Stanford, Calif.: Stanford University Press, 2007). 15. Parminder Bhachu, Twice Migrants: East African Sikh Settlers in Britain (London: Tavistock, 1985). 16. Centre for Contemporary Cultural Studies, Empire Strikes Back: Race and Racism in 70s Britain (London: Routledge, 1982). 17. Xiang Biao, Global ‘‘Body Shopping’’: An Indian International Labor System in the Information Technology Industry (Princeton, N.J.: Princeton University Press, 2007); Neha Vora, Impossible Citizens: Dubai’s Indian Diaspora (Durham, N.C.: Duke University Press, 2013). 18. Marie-Carine Lall, India’s Missed Opportunity: India’s Relationship with the Non-Resident Indians (Aldershot: Ashgate, 2001). 19. Stuart Corbridge and John Harriss, Reinventing India (Cambridge: Polity Press, 2000). 20. Gamlen, ‘‘The Emigration State.’’ 21. Kate Edwards, ‘‘For a Geohistorical Cosmopolitanism: Postcolonial State Strategies, Cosmopolitan Communities, and the Production of the ‘British,’ ‘Overseas,’ Non-Resident’ and ‘Global’ Indian,’’ Environment and Planning D: Society and Space 26 (2008): 460. 22. Devesh Kapur, Diaspora Development and Democracy: The Domestic Impact of International Migration from India (Princeton, N.J.: Princeton University Press, 2010). 23. Foreign currency denominated deposits offered to NonResident Indians and Overseas corporate bodies. See Somini Sengupta, ‘‘India Taps into Its Diaspora; Expatriates Buy Bonds for Love of Country, and 7.75 percent Interest,’’ New York Times, 19 August 1998. 24. Anupam Chander, ‘‘Diaspora Bonds,’’ New York University Law Review 76 (2001): 1005–1855. 25. S. Irudaya Rajan and V. J. Varghese, ‘‘Broadening Exchanges and Changing Institutions: Multiple Sites of Economic Transnationalism,’’ in Transnationalisation and Institutional Transformations, ed. Thomas Faist, Pirkko Pitkanen, Jurgen Gerdes, and Eveline Reisenauer, Working Paper 87 (Bielefeid: COMCAD Arbeitspapiere, 2010), 93–113. 26. Kapur, Diaspora Development and Democracy; Verne Andrew Dusenbury and Darshan Singh Tatla, eds., Sikh Diaspora Philanthropy: Global Giving for Local Good (London: Oxford University Press, 2009). 27. Ministry of Overseas Indian Affairs, Handbook for Overseas Indians (HOI) (New Delhi: Government of India, 2006). 28. Parliament of India Standing Committee on Home Affairs, 159th Report on the Citizenship (Amendment) Bill 2011, section 1:10 (New Delhi: Rajya Sabha Secretariat, 2012), 9. 29. ‘‘The Government of India can, based on inputs received from the concerned stakeholders and security agency, specify any country including Afghanistan in the list of countries whose nationals are ineligible to get OCI cards.’’ Parliament of India Standing Committee on Home Affairs, 159th Report on the Citizenship (Amendment) Bill 2011, 18. 30. Ashok K. Behuria, Smruti S. Pattanaik and Arvind Gupta, ‘‘Does India Have a Neighbourhood Policy?’’ Strategic Analysis 36, 2 (2012): 240. 31. P. S. Sahai, K. Chand, P. Kumar, and T. Sahai, ‘‘Study of Indian Diaspora with Particular Reference to Development and Migration from the State of Punjab,’’ Centre for Research in Rural and Industrial Development (CCRID), Chandigarh, Punjab, 2011. 32. Gamlen, ‘‘The Emigration State,’’ 847.

Notes to Pages 215–219 289 33. Edwards, ‘‘For a Geohistorical Csmopolitanism,’’ 450. 34. Recent events (primarily the Mumbai bombings of 2008) indicate that India’s neighbors are key to the nation’s security and economic success, Behuria et al., ‘‘Does India Have a Neighbourhood Policy?’’ 35. ‘‘India, Pakistan to Sign New Liberalised Visa Agreement,’’ Economic Times, 7 September 2012. 36. Jason Cons, ‘‘Narrating Boundaries: Framing and Contesting Suffering, Community, and Belonging in Enclaves Along the India-Bangladesh Border,’’ Political Geography 35 (2013): 37–46. 37. See Ramachandran this volume. 38. Elida K. U. Jacobsen, ‘‘Unique Identification: Inclusion and Surveillance in the Indian Biometric Assemblage,’’ Security Dialogue 43, 5 (2012): 457–74. 39. See http://uidai.gov.in/ for details on the unique identification authority of India, the agency tasked with the Aadhaar (biometric card) system. A detailed blog on the UIDAI process suggests that ‘‘If UIDAI/Aadhaar stands for the new conditions of the neoliberal social, that is of the promises of development in the aftermath of the failed planning state, Security has become the negative of that promise, and the two are kept distinct through the establishment of what are in effect two parallel zones of government by distinct ecologies of information,’’ posted 29 September 2012, blog author Lawrence Cohen, Anthropology UC Berkeley, 4 January 2013, http:// followuidai.wordpress.com. 40. Instead, critiques have argued that improved bilateral relations and more economic development initiatives in the region are needed. Josy Joseph, ‘‘Securitization of Illegal Migration of Bangladeshis to India,’’ S. Rajaratnam School of International Studies Working Paper 100, 1 January 2006. 41. Reece Jones, ‘‘Geopolitical Boundary Narratives, the Global War on Terror and Border Fencing in India,’’ Transactions of the Institute of British Geographers 34, 3 (2009): 290–304. 42. Before this date, multiple and dual citizenship was limited, and many Canadians lost their Canadian citizenship on acquiring a second one. 43. Canadian citizenship can be acquired through birthright or naturalized citizenship by a person born outside Canada, who either is born of a parent who is a Canadian citizen or immigrates to Canada and becomes a permanent resident, lives in Canada for three years, and then successfully applies for citizenship. This application process includes successful completion of a Canadian citizenship test for those ages eighteen to fifty-four and language proficiency in one of Canada’s official languages, French or English. 44. Yasemin Nuhoglu Soysal, Limits of Citizenship: Migrants and Postnational Membership in Europe (University of Chicago Press, 1994), 137. 45. CBC, ‘‘Deporting Permanent Residents with Criminal Pasts,’’ The Current, 26 November 2012. 46. Government of Canada, Bill C-31: An Act to Amend the Immigration and Refugee Protection Act, the Balanced Refugee Reform Act, the Marine Transportation Security Act and the Department of Citizenship and Immigration Act (Legislative summary). Publication 41–1C31-E 29. Library of Parliament 19 (Ottawa: Library of Parliament, February 2012 [Revised 4 June 2012]), 20. 47. Ibid., 20, bold original. 48. Luin Goldring, Carolina Berinstein, and Judith K. Bernhard, ‘‘Institutionalizing Precarious Migratory Status in Canada,’’ Citizenship Studies 13, 3 (2009): 239. 49. Ibid., 240. 50. Christian Joppke, ‘‘Transformation of Citizenship: Status, Rights, Identity,’’ Citizenship Studies 11, 1 (2007): 37–48. 51. Peter Nyers, ‘‘Forms of Irregular Citizenship,’’ in The Contested Politics of Mobility: Border Zones and Irregularity, ed. Vicki Squire (New York: Routledge, 2011), 184–98; Daiva

290 Notes to Pages 219–230 Stasiulis and Darryl Ross, ‘‘Security, Flexible Sovereignty, and the Perils of Multiple Citizenship,’’ Citizenship Studies 10, 3 (2006): 329–348. 52. Stasiulis and Ross, ‘‘Security, Flexible Sovereignty, and the Perils of Multiple Citizenship’’; Audrey Macklin, ‘‘The Securitisation of Dual Citizenship,’’ in Dual Citizenship in Global Perspective: From Unitary to Multiple Citizenship, ed. Thomas Faist and Peter Kivisto (Palgrave Macmillan, 2007), 42–66; Peter Nyers, ‘‘Dueling Designs: The Politics of Rescuing Dual Citizens,’’ Citizenship Studies 14, 1 (2010): 47–60. 53. Such cases include dual Canadian citizens Maher Arar, Abdulah Almalki, Ahmad El Maati, and Muayyed Nureddin. All found themselves persons of interest or targets of investigations related to terrorism and were arrested while traveling out of the country, detained, and subject to extraordinary rendition and torture. 54. Kim Rygiel, ‘‘Mobile Citizens, Risky Subjects: Security Knowledge at the Border,’’ in Mobilities, Knowledge, and Social Justice, ed. Suzan Ilcan (Kingston: McGill-Queen’s University Press, 2013). 55. Macklin, ‘‘The Securitisation of Dual Citizenship,’’ 62. 56. Didier Bigo, ‘‘Security and Immigration: Toward a Critique of the Governmentality of Unease,’’ Alternatives 27 (2002): 63–92. 57. Ibid., 72.

Chapter 14: Sticky Citizenship 1. Linda Bosniak, ‘‘Multiple Nationality and the Postnational Transformation of Citizenship,’’ Virginia Journal of International Law 42 (2001): 979. 2. Nottebohm (Liechtenstein v. Guatemala), 4 International Court of Justice (1955). 3. Ibid., 23. 4. Ibid. 5. James Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991). 6. Canada (Attorney General) v. Ward, 2 Supreme Court of Canada (1993). 7. Ibid., para 25. 8. Grygorian v. Canada (Minister of Citizenship and Immigration) (1995), 33 Imm. L.R. (2d) 52 (F.C.T.D.). 9. Ibid., para. 15. 10. Katkova v. Canada (Minister of Citizenship and Immigration) (1997), 40 Imm. L.R. (2d) 216 (T.D.). 11. ‘‘International Migration: The Human Face of Globalisation,’’ OECD, September 2009. 12. Katkova v. Canada, para. 22. 13. NAGV and NAGW of 2002 v. Minister for Immigration and Multicultural and Indigenous Affairs, 6 High Court of Australia (2005). 14. Ibid., para. 96. 15. SZMWQ v. Australia (MIAC) (2010) 187 FCR 109, paras 23–26. For a discussion of the legislation and case law, see generally, Guide to Refugee Law in Canada, Chapter 9, Third Country Protection (Australian Government: Migration Review Tribunal, Refugee Review Tribunal, 2013), http://www.mrt-rrt.gov.au/CMSPages/GetFile.aspx?guid⳱e80ef663-03a5-40f3-bc59-48cd4492e1c9. 16. Minister of Immigration v. SZRTC &Ors [2013], Federal Circuit Court of Australia 1, para. 25. 17. Nicholas Keung (2013) ‘‘Canada Closing Door on North Korean refugees,’’ Toronto Star, 15 December 2013. 18. Kim v. Canada (Minister of Citizenship and Immigration), 2010 Federal Court 720. See also Andrew Wolman, ‘‘North Korean Asylum Seekers and Dual Nationality,’’ International Journal of Refugee Law 24 (2013): 793–814.

Notes to Pages 230–240 291 19. IRB Canada Response to information requests, http://irb-cisr.gc.ca/Eng/ResRec/RirRdi/ Pages/index.aspx?doc⳱453874 (accessed 19 October 2014). 20. See the case of Abousfian Abdelrazik, a Canadian-Sudanese dual national whose return to Canada from Sudan was blocked by the government: Abdelrazik v. Canada (Minister of Foreign Affairs), 580 Federal Court (2009). See also the delay in the return of Omar Khadr to Canada following the portion of his sentence served in Guantanamo Bay: Michelle Shephard, ‘‘Canada Blames U.S. for Omar Khadr Transfer Delays,’’ Toronto Star, 13 September 2012. See also the case of Suaad Hagi Mohamud, a Canadian-Somali dual citizen, who was detained in Kenya on charges of fraud, on the mistaken accusation that she was not the true holder of her identity and traveler’s documents. A DNA test later confirmed her identity and she returned to Canada: ‘‘Woman’s Kenya ’Nightmare’ Ends with Toronto Reunion,’’ CBC News, 15 August 2009. 21. Hannah Arendt, The Origins of Totalitarianism (London: Deutsch, 1986), 295–99. 22. Matthew Gibney, ‘‘Should Citizenship Be Conditional? Denationalisation and Liberal Principles,’’ Journal of Politics 75, 3 (2013): 646–58; Shai Lavi, ‘‘Citizenship Revocation as Punishment: On the Modern Duties of Citizens and Their Criminal Breach,’’ University of Toronto Law Journal, 61, 4 (2011): 783–810. 23. See Peter Spiro, ‘‘Dual Nationality and the Meaning of Citizenship,’’ Emory Law Journal 18 (1997): 1411 at 1450–51. In Schneider v. Rusk, 377 U.S. Supreme Court (1964), the court struck down the presumption that a naturalized citizen expatriated herself by returning to her country of origin for more than three years; and Afroyim v. Rusk, 387 U.S. Supreme Court (1967), which extended the voluntariness requirement to citizens voting in foreign elections. 24. Tobi Cohen, ‘‘NDP Launches Filibuster Against Would-Be Tory Bill to Strip Terrorists of Canadian Citizenship,’’ National Post, 14 June 2011. 25. On the British law of revocation, see Caroline Sawyer, ‘‘ ‘Civis Britannicus Sum’ No Longer? Deprivation of British Nationality,’’ Journal of Immigration Asylum and Nationality Law 27, 1 (2013): 1–96. 26. UN Convention on the Reduction of Statelessness, UNTS 989, 175. 27. Unless otherwise noted, the facts are from Al Jedda v. Secretary of State for the Home Department, 358 England and Wales Court of Appeal (Civil Division) (2012). 28. Al Jedda v. United Kingdom, European Court of Human Rights, United Nations, App. 27021/08, 7 July 2011. 29. Al Jedda v. Secretary of State, para. 23. 30. Ibid., para. 81; see also paras. 98, 126. 31. Ibid., para. 45. 32. Ibid., para. 121. 33. Ibid., para. 124. 34. Ibid., paras. 128, 130–31. 35. Quoted in Secretary of State for the Home Department v. Al-Jedda, [2013] UKSC 62, para. 34. 36. Ibid. 37. Peter Schuck and Rogers Smith, Citizenship Without Consent: Illegal Aliens in the American Polity (New Haven, Conn.: Yale University Press, 1986).

Conclusion: Slippery Citizenship and Retrenching Rights 1. As Weissbrodt (this volume, 30) argues, ‘‘even in those countries where court decisions or other official pronouncements purport to offer increased human rights protections to noncitizens, it remains to be seen whether such protections ‘on the books’ are translated into actual improvements in the lives of noncitizens.’’

292 Notes to Pages 240–247 2. De Ming Fan, Mary. ‘‘Citizenship Perception Strain in Cases of Crime and War: On Law and Intuition.’’ Michigan State Law Review (2010): 1–49, considers the legal dimension [of citizenship] is ‘‘surprisingly blurry and slippery’’ especially in times of war and cases of crime. 3. Chapter II, article 7, of the 1930 Convention on Certain Questions Relating to the Conflict of Nationality Laws (‘‘The Hague Convention on Nationality’’) states that, should a state desire to issue an expatriation certificate, ‘‘such a permit shall not entail the loss of the nationality of the State which issues it, unless the person to whom it is issued possesses another nationality or unless and until he acquires another nationality.’’ 4. David Harvey, ‘‘Between Space and Time: Reflections on the Geographical Imagination,’’ Annals of the Association of American Geographers 80, 3 (2005): 418–34. 5. Doreen Massey, ‘‘Power-Geometry and a Progressive Sense of Place,’’ in Mapping the Futures: Local Cultures, Global Change, ed. John Bird, Barry Curtis, Tim Putnam, and Lisa Tickner (New York: Routledge, 1993), 62. 6. Eric Swyngedouw, ‘‘Authoritarian Governance, Power and the Politics of Rescaling,’’ Environment and Planning D: Society and Space 18 (2000): 63–76. 7. Sallie A. Marston, ‘‘The Social Construction of Scale,’’ Progress in Human Geography 24, 2 (2000): 219–42. 8. See Christian Reus-Smit, ‘‘Human Rights and the Social Construction of Sovereignty,’’ Review of International Studies 27, 4 (2001): 519–38. 9. David A. Washbrook, ‘‘Law, State and Agrarian Society in Colonial India,’’ Modern Asian Studies 15, 3 (1981): 649–721. 10. Didier Bigo, ‘‘Security and Immigration: Toward a Critique of the Governmentality of Unease,’’ Alternatives: Global, Local, Political 27, 1 suppl (2002): 71. 11. ‘‘Freedom of movement for workers is one of the founding principles of the EU. It is laid down in Article 45 of the TFEU and is hence a fundamental right of workers. It entails the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.’’ 12. Bigo, ‘‘Security and Immigration,’’ 68. 13. Brazil, Russia, India, China, and South Africa. The acronym is used to reference large and fast-growing emerging economies. 14. Thanh-Dam Truong, ‘‘Gender in Transnational Migration: Re-Thinking the Human Rights Framework,’’ Migration and Development 1, 1 (2012): 82. 15. ‘‘The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfill means that States must take positive action to facilitate the enjoyment of basic human rights.’’ Office of the High Commissioner of Human Rights, ‘‘International Human Rights Law,’’ http://www.ohchr.org. 16. Michael A. Elliott, ‘‘The Institutional Expansion of Human Rights, 1863–2003: A Comprehensive Dataset of International Instruments,’’ Journal of Peace Research 48, 4 (2011): 537–46. 17. Emilie M. Hafner-Burton and Kiyoteru Tsutsui, ‘‘Justice Lost! The Failure of International Human Rights Law to Matter Where Needed Most,’’ Journal of Peace Research 44, 4 (2007): 407–25; Eric Neumayer, ‘‘Do International Human Rights Treaties Improve Respect for Human Rights?’’ Journal of Conflict Resolution 49, 6 (2005): 925–53. 18. Beth Simmons, ‘‘Treaty Compliance and Violation,’’ Annual Review of Political Science 13 (2010): 273–96. 19. Emilie M. Hafner-Burton and Kiyoteru Tsutsui, ‘‘Human Rights in a Globalizing World: The Paradox of Empty Promises,’’ American Journal of Sociology 110, 5 (2005): 1373–1411. 20. Linda Camp Keith, ‘‘The United Nations International Covenant on Civil and Political Rights: Does It Make a Difference in Human Rights Behavior?’’ Journal of Peace Research 36, 1 (1999): 95–118.

Notes to Pages 247–253 293 21. Mark Gibney, Katarina Tomasevski, and Jens Vedsted-Hansen, ‘‘Transnational State Responsibility for Violations of Human Rights,’’ Harvard Human Rights Journal 12 (1999): 267. 22. See Hiemstra and Mountz, this volume, for details on the impact of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA). 23. Alan Gamlen, ‘‘The Emigration State and the Modern Geopolitical Imagination,’’ Political Geography 27, 8 (2008): 840–56. 24. Judith Squires, ‘‘Intersecting Inequalities: Reflecting on the Subjects and Objects of Inequality,’’ Political Quarterly 79, 1 (2008): 53–61. 25. Katja Franko Aas, ‘‘ ‘Crimmigrant’ Bodies and Bona Fide Travelers: Surveillance, Citizenship and Global Governance,’’ Theoretical Criminology 15, 3 (2011): 331–46. 26. Audrey Macklin, ‘‘Who Is the Citizen’s Other? Considering the Heft of Citizenship,’’ Theoretical Inquiries in Law 8, 2 (2007): 333–66. 27. Yasemin Soysal, Limits of Citizenship: Migrants and Postnational Citizenship in Europe (Chicago: University of Chicago Press, 1994); Rainer Baubo¨ck, ‘‘Migration and Citizenship 1,’’ Journal of Ethnic and Migration Studies 18, 1 (1991): 27–48; Thomas Faist, ‘‘Social Citizenship in the European Union: Nested Membership,’’ Journal of Common Market Studies 39, 1 (2001): 37–58.

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Contributors

Michal Baer was born and grew up in Israel. She received her B.A. in Political Science and a Post-Graduate Certificate in Mediation and Conflict Resolution at Tel Aviv University. While in Israel she also worked with the organization Courage to Refuse, a group of conscientious objectors to military service in the Occupied Palestinian Territories. Her Ph.D. from Boston University was on the Palestinian citizens of Israel, interrogating the status of supposed citizenship they are said to hold. She is now working as research assistant with Pulitzer Prize-winning author Lawrence Wright, for his book on the Camp David Accords Kristy A. Belton is Post-Doctoral Fellow in Human Rights Studies, University of Dayton, and holds a Ph.D. from the Department of Political Science at the University of Connecticut. Her work focuses on the changing nature of political membership globally with particular emphasis on statelessness and racial and ethnic exclusion in the Caribbean. She has published articles in the Journal of Global Ethics, Ethnic and Racial Studies, International Journal of Bahamian Studies, Alternatives: Global, Local, Political and Latin Americanist. Jacqueline Bhabha is Director of Research at the Franc¸ois-Xavier Bagnoud Center for Health and Human Rights, Harvard University, Professor of the Practice of Health and Human Rights at the Harvard School of Public Health, Jeremiah Smith Jr. Lecturer in Law at Harvard Law School, and Adjunct Lecturer in Public Policy at the Harvard Kennedy School. Prior positions include Director of the Human Rights Program at the University of Chicago, and human rights lawyer at the European Court of Human Rights in Strasbourg. She has published extensively on transnational child migration, refugee protection, and children’s rights and citizenship.

296 Contributors

Thomas Faist is Professor of Sociology at Bielefeld University, Dean of the Faculty of Sociology, and Deputy Director of the Collaborative Research Centre ‘‘From Heterogeneities to Inequalities.’’ His fields of interest are transnational relations, citizenship, social policy, development, and migration. He held visiting professorships at Malmo¨ University and the University of Toronto. He has published Beyond Methodological Nationalism: Social Science Research Methodologies in Transition (with Anna Amelina and Devrimsel Nergiz), Transnational Migration (with Margit Fauser and Eveline Reisenauer), and Disentangling Migration and Climate Change (with Jeanette Schade). Jenna Hennebry is Director of the International Migration Research Centre at Wilfrid Laurier University. She conducts comparative international research on mobility and migration governance with an emphasis on foreign worker programs. Her recent coedited books include Targeted Transnationals: The State, the Media and Arab Canadians and Territoriality and Migration in the EU Neighbourhood. Nancy Hiemstra teaches Migration Studies in the Department of Cultural Analysis and Theory at Stony Brook University. Her research interests are human mobility, migration policy making, and lived experiences of in/ security. Previous research examined Latino immigration to small-town Colorado. Current research focuses on migrant detention and deportation policies and practices in the United States and the embodied consequences of immigration enforcement policies in Latin American countries of migrant origin. She has published articles in Antipode, Geopolitics, Social and Cultural Geography, Gender, Place and Culture, and in a number of edited volumes. Rhoda E. Howard-Hassmann is Canada Research Chair in international human rights at Wilfrid Laurier University. Her most recent books with University of Pennsylvania Press include Reparations to Africa and coedited volumes, Economic Rights in Canada and the United States and The Age of Apology. She is also author of Can Globalization Promote Human Rights? She maintains a website on political apologies and reparations, http://politi cal-apologies.wlu.ca, as well as a blog, Rights&Rightlessness, at http://rhoda hassmann.blogspot.com. Her current research is on state food crimes,

Contributors 297

focusing especially on North Korea, Zimbabwe, Venezuela, Israel/Palestine, and Canada. Audrey Macklin is a professor at the Faculty of Law, University of Toronto. She holds law degrees from Yale and Toronto. She served as law clerk to Mme. Justice Bertha Wilson at the Supreme Court of Canada. Her teaching areas include criminal law, administrative law, and immigration and refugee law. Her research and writing interests include transnational migration, citizenship, securitization, multiculturalism, and business and human rights. Margareta Matache, a postdoctoral research fellow at the Franc¸ois-Xavier Bagnoud Center for Health and Human Rights at Harvard University since September 2012, is a Romanian Roma human rights activist. She has worked on Roma and minorities issues since 1999 in various local, national, and international environments. From 2005 to 2012, she was Executive Director of Romani CRISS (www.romanicriss.org), a leading Roma NGO that defends and promotes the rights of Roma. She completed her doctoral research work in early childhood development of Romani children at the Faculty of Political Sciences, University of Bucharest, in 2012. Janet McLaughlin teaches Health Studies at Wilfrid Laurier University, and is a Research Associate with Laurier’s International Migration Research Centre. She has authored numerous articles and book chapters on health and human rights issues facing migrant agricultural workers in Canada. She is also co-founder of the Migrant Worker Health Project, which aims to improve health care access for migrant workers in Canada (www.mi grantworkerhealth.ca). Carolina Moulin is Professor at the Institute of International Relations, Pontifical Catholic University of Rio de Janeiro. She holds a Ph.D. in Political Science from McMaster University and has worked with refugee and e/immigrant communities in Brazil alongside civil society organizations and international organizations. Her latest publications include ‘‘Border Languages: Rumors and (Dis)placements of (Inter)national Politics,’’ Alternatives: Global, Local, Political (October–December 2010) and ‘‘Ungrateful Subjects? Refugee Protests and the Logic of Gratitude’’ in Peter Nyers

298 Contributors

and Kim Rygiel, eds., Citizenship, Migrant Activism, and the Politics of Movement. Alison Mountz is Associate Professor of Geography and Canada Research Chair in global migration studies at the Balsillie School of International Affairs, Wilfrid Laurier University. Her work explores the tension between the decisions and desires that drive human migration and the policies and practices designed to manage immigration. Her current research examines struggles over border enforcement, asylum, and detention. She is principal investigator of the island detentions project, funded by a CAREER grant from the National Science Foundation (U.S.). Her recent publications include Seeking Asylum: Human Smuggling and Bureaucracy at the Border. Helen O’Nions is a Senior Lecturer in Law at Nottingham Trent University. She is author of Minority Rights in International Law: The Roma of Europe and has published widely on Roma rights and European asylum policy. Her latest book is Asylum: A Right Denied. She is a founding member of Nottingham Law School Centre for Conflict Rights and Justice and edits the Nottingham Law Journal. Chidi Anselm Odinkalu heads the Africa Programme of the Open Society Justice Initiative and chairs Nigeria’s National Human Rights Commission. Among his other affiliations, he founded the Coalition for an Effective African Court on Human and Peoples’ Rights, Arusha (Tanzania), and the Section on Public Interest and Development Law (SPIDEL) at the Nigerian Bar. He is also a member of the Board of the International Refugee Rights Initiative (IRRI). Odinkalu was formerly Brandeis International Fellow at the Centre for Ethics, Justice, and Public Life at Brandeis University and Jeremiah Smith Jr. Lecturer in Law at the Harvard Law School. Sujata Ramachandran is a Research Associate with the Southern African Migration Program (SAMP) based at the Southern African Research Centre at Queen’s University (Kingston, Ontario). She has conducted extensive research on Bangladeshi migrations in India. Trained as a geographer, her research interests include South-South migration, diaspora development engagement, and migrant integration in receiving countries. She has contributed to the background research series of the Global Commission on

Contributors 299

International Migration (GCIM) and UN Development Report on Migration. She has recently coauthored a new report on public attitudes and xenophobia in South Africa. Kim Rygiel is Associate Professor in the Department of Political Science at Wilfrid Laurier University and teaches in the graduate program at the Balsillie School of International Affairs. Her research focuses on border security, citizenship politics, and migrant activism in North America and Europe. She is author of Globalizing Citizenship, coeditor with Peter Nyers of Citizenship, Migrant Activism and the Politics of Movement, and with Krista Hunt of (En)Gendering the War on Terror: War Stories and Camouflaged Politics. She has published in several edited books and in the journals Citizenship Studies and Review of Constitutional Studies. Nasir Uddin is Associate Professor of Anthropology at the University of Chittagong. He studied and researched in the University of Dhaka; Kyoto University; University of Hull; Delhi School of Economics; Ruhr-University Bochum; VU University of Amsterdam; University of Heidelberg; and London School of Economics. His research interests include indigeneity and identity politics; the state in everyday life; migration and refugee studies; citizenship and human rights; the Chittagong Hill Tracts; and South Asia. His recent publications include The Politics of Peace: A Case of the Chittagong Hill Tracts and Life in Locker: State of the Rohingyas in Bangladesh. Margaret Walton-Roberts is Associate Professor of Geography and Associate Director of the International Migration Research Centre at Wilfrid Laurier University; she is also Associate Dean of the School of International Policy and Governance at the Balsillie School of International Affairs, She is a human geographer with teaching and research interests in gender and migration, transnationalism and immigrant settlement. Her latest coedited book is Territoriality and Migration in the EU Neighbourhood: Spilling over the Wall. David Weissbrodt is Regents Professor and Fredrikson and Byron Professor of Law at the University of Minnesota Law School. He established the University of Minnesota Human Rights Library (http://www.umn.edu/

300 Contributors

humanrts). In 1996–2003, he served as a member of the UN SubCommission on the Promotion and Protection of Human Rights and in 2001–2, was elected chairperson of the sub-commission. He was designated UN special rapporteur on the rights of noncitizens in 2000–2003. He has written twenty books and over two hundred articles focusing principally on international human rights law, immigration law, and torts.

Index

Page numbers in italics followed by f or t refer to figures and tables, respectively. Aadhaar (national identification system, India), 125–28 Abdelrazik, Abousfian, 220 Afghanistan, 82, 199, 205, 214, 288n29 Afizere (Nigeria), 110–11, 112 Africa: the African citizen (indigene-settler dichotomy), 97, 98–99, 102–8, 269n1; citizenship as priority, 114 African American freedmen, 163 African Charter of Human and Peoples’ Rights: freedom of movement, 27; on mass expulsions, 258n14; right to nationality omitted, 5, 101, 270n5 agricultural workers in Canada: denial of rights of, 179–80, 182–83, 184–85, 190; isolation of, 251; overview, 11–12, 190; rights and government policies, 180–82, 187–88, 188–90, 285n37. See also Canada; migrants, migrant workers, and guest workers Ajibola Commission of Inquiry (Nigeria), 107, 111 Alabama (U.S.): bills targeting migrants (HB 56), 170 al Jedda, Hilal, 233–37, 238 Alli, Chris, 111 American Convention on Human Rights, 27, 258n14 Anaguta (Nigeria), 110–11, 112 anchor babies, 14 Anderson, Bridget, 176 apartheid, 61 Aradau, Claudia, 156 Arafat, Yasser, 52

Arar, Maher, 16, 219, 231, 290n53 Arendt, Hannah, 2, 16, 17, 34, 138, 206, 231, 262n14 Arizona (U.S.), 169–70, 173–74 astronaut citizenship, 14 Australia: Aboriginal children’s birth certificates, 9; Jewish refugees, 15, 228–29; refugee laws, 229–30; refugees after 9/11, 12 Azerbaijian, 36, 227 Baby without a Homeland/Beˆbe sem Pa´tria, 86 Baer, Michel, 2, 4, 45–61 Bangladesh: migrants rights in India, 5, 7, 9, 117, 215; nationality laws, 42; Rohingya, repatriation of, 63, 68–71; Rohingya refugee camps in, 63, 64f, 66, 68–69; Rohingya relations with locals, 72–75; Rohingya relations with the state, 68–77, 75–76; UN obligations, 77, 267n21 Banglo-Indians, 116–19, 128–29, 215, 243, 251. See also Bangladesh; India Banopticon dispotif, 120 Barroso, Jose´ Manuel, 154 Basic Law (Germany), 194–96, 198 Basic Law (Israel), 55 Begum, Razia, 122–24 Belton, Kristy, 4, 31–42, 79, 90, 243 Bengalis. See Bangladesh; Banglo-Indians Berlusconi, Silvio, 141–42, 152, 156 Berom (Nigeria), 110–11, 112 Besson Act (France), 156 Bhabha, Jacqueline, 3, 9, 89, 130–44, 240, 243–44

302 Index Bhutan, 40, 214, 261n12 Bidoon: about, 261n11; statelessness and UDHR, 37, 38, 39–40 Bigo, Didier, 116, 120, 245–46 biometric identification, 9, 124–25, 126, 128, 169, 215, 252, 289n39 birthright citizenship. See jus soli/jus sanguinis BJP-led coalition (India), 126 BJP-Shiv Sena parties (Maharashtra), 117 Blackstone, William, 27, 260n30 Bola Ajibola Commission of Inquiry (Nigeria), 107, 111 border enforcement: fence at IndoBangladesh border, 121; terrorist fears and, 164–65; U.S. expansion of, 168–70; wall separating Roma, 149 Border Patrol (U.S.), 168 Botswana, 7–8 Brazil: constitutional amendments and reforms, 83–89; deportation rates of nationals, 82; emigration patterns, 81–82, 85, 87–88, 93; Haitians in, 93, 269n27; nationals abroad, political influence, 4–5, 82–83, 87, 88–89, 91–92, 249; remittances and money transfers, 87; UN conventions and, 79–80, 79t, 90–91 Brazilian Communities Abroad (BAC): Council of Representatives, 88–89, 91–92; terminology, 268n4 Breard, Angel Francisco, 28 Britain: African colonialism, 102; citizenship powers compared to Iraq, 235–36; citizenships revoked by, 15, 233–37, 238; nationality laws, 233, 234; Palestinian history and, 46, 53, 55; Roma migrants, 150 Brown, Wendy, 121 Brown v. Board of Education (U.S.), 142 Burma. See Myanmar Bush, George W., 28, 168–69 California, 164, 280n1. See also United States Canada: anchor babies in, 14; Canadians of Palestinian origin, 53; citizenship, acquisition of, 289n43; citizenship rights for migrant workers, 189–90; citizenship through father (not mother), 8; citizens in Lebanon, 13–14; complicity in torture, 219; constructive renunciation in, 232–33;

economic contributions of migrant workers, 181, 183, 186; foreign born population, 287n4; international protection for migrants, 182–83; irregular arrival designation, 217–18; Jewish refugees, 15, 226–30; jus soli complications, 8–9; laws and government programs, 181, 183–86, 187, 188, 190, 216, 217; migrant farm workers’ rightlessness, 11–12, 179–80, 182–90; migrant workers, historically, 180–82; multicultural policies, 219; multiple citizenships, management of, 216–20, 221–22, 289n42, 290n53; permanent residents, 217; receiving state/ emigration state, 210, 287n6; refugee status, 14–15, 218, 226–30; removing rights of citizens, 231, 291n20; Roma migrants, 149–50 Canada (Attorney General) v. Ward, 225 Caribbean: migrant workers to Canada, 181, 183, 184–85 Casablanca Protocol, 48–49, 51 Charter of Rights and Freedoms (Canada), 183, 217 children (undocumented, stateless, etc.): anchor babies, 14, 173; of Brazilians, born abroad, 83–85, 89–90; citizenship as protection, 130–33; citizenship different from parents, 8–9, 132, 133–37, 172–73, 174–75, 259n16, 274n16, 275n22; citizenship responsibilities, 131–32; citizenship through father (not mother), 7–8, 34–35, 38; constructive deportation, 8–9, 134, 141–42; EU citizenship rights, 136, 142; first generation limitation, 216; right to acquire nationality, 8, 130, 132; Roma education in EU, 139–42; statelessness and activism, 85–89, 89–93; statelessness and UDHR, 37; undocumented child immigrants, 13, 170. See also jus soli/jus sanguinis; multiple/transnational citizenship China, 11, 12, 214 Chinese exclusion laws (U.S.), 163 citizenship: capricious citizenship, 116, 117, 118; hard/soft citizenship, 4, 6, 10, 14–15, 178–79; legal and political dimensions of, 2–3, 194–96; partial forms of, 2, 14, 138, 162, 174–75, 210, 216, 221–22, 245, 248; rights and responsibilities, 130–31; slipperiness of (overview), 2–3, 5–9, 17–18,

Index 303 240–41, 251–53; stickiness and revocation of citizenship, 223–24, 237–38, 240–41; terminology, 193–94, 261n1, 274n8. See also human rights; multiple/transnational citizenship; nationality, right to; noncitizens; stateless peoples and statelessness Citizenship Act (Bill C-37) (Canada), 216 Citizenship Act (Germany), 196–202. See also jus soli/jus sanguinis citizenship gap, 11, 35, 247–48 Citizenship Law (Myanmar), 67 civic citizenship (EU), 207 class, 10–11, 15, 119, 125–26 Cohen, Elizabeth, 133 Coleman, Mathew, 164 colonialism: the African citizen (indigenesettler dichotomy), 97, 98–99, 102–8, 269n1; India’s emigrant legacy of, 212–13; indigene-settler violence in Nigeria, 112–13, 114 Commission on Legal Empowerment (UN), 9 community and human rights, 16–17, 250–51 Consideration of Deferred Action for Childhood Arrivals (DACA, U.S.), 175 Constitution of the Federative Republic of Brazil (FC/88), 83 constructive deportation. See under children (undocumented, stateless, etc.) constructive renunciation. See expatriation/ revocation of citizenship Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), 16, 23 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), 7, 79t Convention on the Nationality of Married Women, 79t Convention on the Reduction of Statelessness (1961), 32, 231, 233, 237; ratification of, 41, 79, 79t, 90 Convention on the Rights of the Child (CRC): deportations separating families and, 259n16; nationality rights (art. 7.1), 8; ratification of, 79t Convention Relating to the Status of Refugees (1951), 12, 76, 259n22, 267n21

Convention Relating to the Status of Stateless Persons (1954): ratification of, 40–41, 79, 79t Coˆte d’Ivoire, 5, 34 Council of Europe: on Roma, 146, 148 Council of Representatives of BECs (Brazil), 88–89, 91–92 Council of State (France), 154 Crabtree, Kristy, 68 criminalization: illegality status, 167, 169–73, 281n10, 282n31; of (racialized) immigrants, 13, 164–65, 168–69, 170, 217; method of entry, 170–71; Roma citizenship and, 148–49 Croatia, 34, 88, 139 cultural rights. See social and cultural rights Czechoslovakia, 36, 146 Czech Republic: Roma and citizenship law, 6, 145–46, 147–50, 155–56, 157; Roma children’s education, 139, 146 Defense of Marriage Act (U.S.), 8 Defense Service Law (Israel), 57 Delgrado, Erica, 134–35 denationalization: based on discrimination, 34–35; of citizenship, 178; jus nexi proposal, 13–14; Myanmar and Rohingya, 67; revocation of citizenship, 231–32, 233–37, 238; state manipulation of, 15–16, 244–45; sticky citizenship and, 230–37; totalitarianism and, 2, 16; UN conventions addressing, 41. See also deportation and expulsion; nationality, right to; stateless peoples and statelessness Denmark, 154 deportation and expulsion: of BangloIndians, 116–17, 118–19; of Brazilians, high number of, 82; case studies of, 122–24; of child citizens, 8–9, 130, 132, 133–37, 141–42, 259n16, 275n30; constructive deportation of children, 8–9, 134, 141–42; denationalization and, 230–31; documentation disputes, 122–24; expanded justification for, 13–15, 29, 170, 171–73; fear of, 28, 33; of Mexican migrant workers, 163; of noncitizens, 24, 30; registration of citizens and, 9; of Roma, 130, 136–37, 145–46, 149, 151–55; Serbians from EU, 136–37; of U.S.

304 Index deportation and expulsion (continued ) citizens, 163, 172. See also stateless peoples and statelessness deportaton and expulsion, collective or mass: of Banglo-Indians, 116–17, 118–19; international law prohibition, 3, 23–25, 147, 148, 154, 258nn14–15; of migrant Mexican workers, 163; of Palestinians, 51; of Rohingya, 7, 67; of Roma, 136–37, 145–46, 149, 151–53, 153–55. See also stateless peoples and statelessness detention of irregular migrants, 29 discrimination and citizenship: citizenship criteria, 6, 265n30; collective deportations, 3, 7, 23–25, 51, 67, 258nn14–15; Czech citizenship ‘‘gypsy clause,’’ 148; denationalization, 34–35; disabilities and, 202; education of children, 139–41, 142–44; international law and noncitizens, 23–24; nondiscrimination principles as weak, 3; of Roma, 146–47, 151–53. See also race and ethnicity documentation of citizenship: birth certificates, 35–36, 119, 123; boundaries to, 9; class and, 119; in developing countries, 118; disputes over, 122–24, 220; documentary citizenship, 118, 129; identity/ identification systems, 124, 125–28, 129, 214–16; illegal/undocumented distinction, 165–66; membership in imaginary community, 115–16; passports, 10, 60, 84, 86, 91. See also undocumented, ‘‘illegal’’ (etc.) migrants Dominican Republic: citizenship and Haitian descent, 17, 34, 35, 37, 40 Dow, Unity, 7–8 DREAM Act (Development, Relief, and Education for Alien Minors, U.S.), 161–62, 174–75, 189, 253, 280n1 Dre`ze, John, 127 driver’s licenses, 119, 167 dual citizenship. See multiple/transnational citizenship economic rights and financial matters: employment insurance, 186; fines for undocumented migrants, 151; health care of temporary workers, 184; migrants in terms of economic value, 183, 245, 249; political and economic power divisions

and, 113–14; poverty, 12, 125–28, 129, 132, 166; remittances and money transfers, 87, 183; rights for noncitizens/stateless, 22, 38–39; rights of Non-Resident Indians, 213; rights of Roma in Czech Republic, 149; taxes paid by migrant workers, 181, 214; ‘‘voluntary’’ repatriation payments, 153–54. See also employment and unemployment; social and cultural rights education: children’s rights and, 132, 134–35; of children with disabilities, 202; of EU Roma children, 139–42, 146; expulsions from EU and, 137; Indian girls and secondary, 142–44; statelessness and UDHR, 39–40; statistics on Roma, 141; undocumented/illegality status and access to, 161–62, 166–67, 170, 280n1. See also social and cultural rights Edwards, Kate, 213, 215 Egypt: Palestinians and, 48, 51–52, 53–54. See also Gaza/Gaza strip emigration. See migrants, migrant workers, and guest workers employment and unemployment: contract work and self-employment, 203–4, 286n19; emigration patterns and, 81; limited resources in host countries, 73–74, 76–77; noncitizen workers’ rights, 185–86, 188–89, 206, 285n37; rights under UDHR, 185; of Roma, 141; safe workplace rights, 188–89. See also economic rights and financial matters Estonia, 37–38 ethnicity. See race and ethnicity ethnographic research. See research European Commission: on Roma camps in Italy, 152, 154 European Committee on Social Rights (ECSR): Roma situation, 146–47, 153, 154, 157 European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), 258n14 European Court of Human Rights (ECtHR), 139, 142, 234 European Court of Justice (CJEU), 151, 206 European Parliament: on Roma camps in Italy, 152, 156 European Roma Rights Centre, 154 European Social Charter: breaches of, 151–52, 154–55

Index 305 European Union (EU): children’s citizenship, 136; civic citizenship, 207; nested citizenship, 17, 205–7, 253; rights of workers in, 245, 292n11; Serbia, returnees to, 136–37; Union citizenship (Directive 2004/38), 150–51, 152, 154–55, 156 EU Network of Independent Experts on Fundamental Rights, 6, 145 expatriation/revocation of citizenship, 231–32, 233–37, 238, 291n23, 292n3. See also stateless peoples and statelessness expulsion. See deportation and expulsion Faist, Thomas, 6, 16–17, 193–208, 248–49 farm workers in Canada. See agricultural workers in Canada Faster Removal of Foreign Criminals Act (Canada), 217 Fiberesima Commission of Inquiry (Nigeria), 105–8, 110–11 financial matters. See economic rights and financial matters Foreigners’ Regional Registration Offices (India), 123 Fourth Geneva Convention, 61 Fourth Protocol to the European Convention on Human Rights: freedom of movement, 27 France: Roma deportations, 141, 153–56 freedom of expression and association: statelessness and UDHR, 38–39 Gamlen, Alan, 210, 287n6 Gaza Disengagement Plan, 60. See also Israel Gaza/Gaza strip, 46, 47f, 48, 50f, 54, 57, 58–61; population, 266n36. See also Egypt gender: citizenship discrimination and, 7, 34–35; countries discriminating by (listed), 34–35; Germany and dual citizenship, 205; India and secondary education, 143–44; interethnic marriage and statelessness, 73; statelessness and UDHR, 37, 38; treatment of stateless women and girls, 70–71 Germany: citizenship development, 194; ethnicity and identity, 16–17, 196–202, 208; jus sanguinis/jus soli laws, 1–2, 6, 195, 196–202; multicultural citizenship in, 201–2, 207; naturalization, countries of

origin, 199–200, 205; nested and dual citizenships, 205–6; restructuring the welfare state, 203–4, 248–49, 286n16; Roma deportations, 154 Gibney, Matthew, 70–71, 232 global Indian, 215 globalization, 11, 210–11, 215 Goldring, Luin, 219 Greece, 139 Grygorian v. Canada, 227 Guatemala, 224 guest workers. See migrants, migrant workers, and guest workers Guterres, Anto´nio, 26 Gypsies: Czech ‘‘gypsy clause,’’ 148; terminology, 276n1. See also Roma Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws, 99–101, 292n3 Hague Convention Respecting the Laws and Customs of War on Land, 61 Haiti: Haitians in Dominican Republic, 17, 34, 35, 37, 40; poverty refugees, 12; worker’s visa for Brazil, 93, 269n27 Hamas, 58, 60 Harmand, Jules, 106 Hassmann, Helmut, 1–2 Hathaway, James, 225 Hausa-Fulani (Nigeria), 109–11, 112–13 health and medicine: disease in refugee camps, 70; migrants’ access to, 164, 166, 180, 184; rights under UDHR, 185. See also social and cultural rights Hennebry, Jenna, 11–12, 176–90, 248, 250 Hiemstra, Nancy Ann, 13, 120, 161–75, 178, 248, 251 High Level Commission on the Indian Diaspora (HLCID, India), 213, 215 Hindu nationalism, 215 Hollande, Franc¸ois, 155 Homeland Security-U.S. Immigration and Customs Enforcement (ICE), 29, 172 Hoover, Herbert, 130, 133 Howard-Hassmann, Rhoda, 1–18 human rights: aligning with civil rights, 207; association with citizenship, 1–2, 17, 205; de jure/de facto, 240, 252; national identity systems and, 128; rightlessness, 10–12; statelessness and, 31–42; vulnerability of

306 Index human rights (continued ) temporary migrant workers, 184–85. See also nationality, right to Human Rights Watch, 155 Hungary: Roma and children’s rights, 130, 132, 140, 141 Hussein, Saddam, 52, 234, 235 identity: citizenship as identity, 24, 112, 113–14, 115–16, 208; constitutional patriotism and, 196; documentation of citizenship, 124, 125–28, 129, 221; ethnicity and German identity, 16–17, 196–202, 208; European citizenship and, 17, 204–7; human right of legal identity, 3, 24, 37–38; indigene/citizen in Africa, 105–8, 112–13, 242; indigene/citizen violence in Jos (Nigeria), 110–11, 112–13; language and, 92; local identity in access to power, 113–14, 242–43; Palestinian, 53; republican and ethnocultural notions of, 197–99 ‘‘illegal’’ migrants. See undocumented, ‘‘illegal’’ (etc.) migrants Illegal Migrants Determination by Tribunals (IMDT) Act (India), 120 immigration. See migrants, migrant workers, and guest workers Immigration and Customs Enforcement Agency (U.S.), 134 Immigration and Nationality Act (U.S.): sec. 287(g), 168–70, 170–73 Immigration and Refugee Protection Act (IRPA, Canada), 218 India: capricious citizenship and BangloIndians, 116, 117, 118, 251; cattle ID cards, 122, 129; deportation case study, 122–24; deportation targets for Bangladeshis, 118–19; fence at Indo-Bangladesh border, 121, 246; Hindu nationalism, 9, 120, 126, 215; insecurity and slippery sovereignty, 120–22; migrants rights in, 5, 7, 9, 117; multiple citizenships, management of, 11, 212–16, 221–22; national identification systems, 124–28, 214–16, 221, 243, 289n39; non-resident Indians (NRIs)/ Person of Indian Origin (PIO), 14, 213–16, 288n29; resident-citizen distinction, 117–18; a sending (emigration) state, 210, 287n6

Inter-American Court of Human Rights: Yean and Bosico Children v. the Dominican Republic, 37 International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), 23–24, 111, 258n7 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW), 12, 21, 24–26, 91; ratification and non-ratification of, 26, 179–80, 182–83; rights and liberties (listed), 24–25 International Court of Justice (ICJ): Nottebohm decision, 224–25, 228; U.S., lack of compliance in, 28 International Covenant on Civil and Political Rights (ICCPR), 22, 26–27, 132, 187, 231; ratification of, 79t International Covenant on Economic, Social and Cultural Rights (ICESCR), 3, 22 International Labor Organization (ILO), 25, 182–83 international laws and conventions: basis for, 21–26; compliance evasion, 247; gaps in protection, 247–48; obligations of states, 247, 292n15; ratification of, 79t; scale of governance and, 241–42. See also individual conventions Interpretation Act (Nigeria), 102 Iraq: children’s citizenship, 34; deportation of nationals, 82; German citizenship, 199; nationality law, post-Hussein, 234–37, 238; Palestinians in, 52 Irma Meija and Irma Avina, 135 irregular migrants. See undocumented, ‘‘illegal’’ (etc.) migrants Israel: citizenship and democracy, 4, 54–55; the green line, 46, 54–55; immigration/ citizenship laws and policies, 53, 55–56, 57, 59–61, 60, 226–30, 265n24; Jewish refugees sent to, 15; map of, 47f; Palestine and, 46; Palestinian history and, 48. See also Jews; Occupied Palestinian Territories (OPT); Palestinians Italy, 141–42, 151–53, 156, 246 Jacobsen, Karen, 75 Jama, Saeed, 217 Japan, 84–85, 87 Japanese American internments, 163

Index 307 Jews, 2, 15, 199, 226–30, 262n14. See also Israel Jobbik Party (Hungary), 130, 141 Joppke, Christian, 219 Jordan: children, 34, 39; Palestinian history and, 46, 48; Palestinian refugees/citizens, 49–51, 50f, 53–54, 58–59 Jos, Nigeria: about, 109; Indigene of Jos, definition, 105, 269n1; internal citizenship conflict/violence, 109–13; map, 100f; postcolonial pathology, 99. See also Nigeria jus soli/jus sanguinis: Brazilian constitution and, 83–84; children’s citizenship and, 8–9, 132, 133–37, 172–73, 174–75, 259n16, 274n16, 275n22; citizenship gaps, 35; citizenship imposed, 227–28; countries denying citizenship (listed), 34–35; Czech citizenship law, 147; Germany’s changed laws, 1–2, 6, 195, 196–202; India’s changed laws, 123–24, 129; jus domicilii, 195; jus nexi proposal, 13–14; multiple citizenships and, 8; terminology, 6; in U.S., 8–9, 173–74. See also children Karana (Madagascar), 38, 263n39 Katkova v. Canada, 227, 228, 230 Kenney, Jason, 232–33 Kerala (India), 11. See also India Korea (North and South), 12, 34, 230 Kurds, 37, 38, 263n31 Kutupalong and Nayapara refugee camps (Bangladesh), 63, 64f, 66, 69–70 Kuwait: children’s citizenship, 34; Palestinian refugees, 52; stateless Bidoon and, 33, 37, 38, 39–40 Kymlicka, Will, 147 labor activists deported (U.S.), 163 Labour Relations Act (Ontario), 183 language: of German national minorities, 202; Roma and Czech citizenship law, 149; social and cultural rights, 92 Latvia, 36 Lavi, Shai, 232 Law of Return (Israel), 56, 226–30 League of Arab States, 48–49 League of Nations Covenant, 102 Lebanon: Canadian citizens in, 13–14; children’s citizenship, 34; Palestinian refugees, 33, 49–51, 50f, 52–53

Le Figaro opinion poll, 154 Lewa, Chris, 68 Lhotshampas, 40, 261n12 Libya, 38 Liechtenstein, 224 Lille Administrative Court (France), 155 Linde, Robyn, 148 Lins, Enio, 86 Loescher, Gil, 75 London Sunday Times: 1969 Meir interview, 45 Lyon, David, 121, 124 Macklin, Audrey, 2, 15, 220, 242, 253 Madagascar, 38, 263n39 Malawi African Association and Others v. Mauritania, 258n15 Malaysia, 39 margizens, 179, 190 Marianske Hory (Czech Republic), 149 marriage, 8, 38, 73, 77, 131. See also children; gender Marshall, T. H., 195, 201, 203 Martins, Rui, 84 Matache, Margareta, 9, 130–44, 243–44 Mato, Alhaji Aminu, 109–11 Mauritania, 258n15 McLaughlin, Janet, 11–12, 176–90, 248, 250 Me´decins sans Frontie`res (MSF), 70 Medellı´n, Jose´, 28 Mehmood, Taha, 127 Meir, Golda, 45 Mexico: migrants and U.S.-born children, 134–36; migrant workers to Canada, 181, 183, 187–88; protection of migrant workers, 179; remittances and money transfers, 87, 183; U.S. targeted migrant group, 163–64 migrants, migrant workers, and guest workers: Banglo-Indians as transmigrants, 117–19, 124, 128–29; Brazil, from emigration to immigration, 81–82, 85, 87, 93; Brazilians, treatment abroad of, 82–83; Canadian temporary migrant workers, 11–12, 176, 179–90, 218, 248, 251, 285n37; contract and self-employed workers, 203–4, 286n19; definition of migrant workers, 21; hard and soft migration, 10–11; India’s history of emigrants, 212–13; international law and migrant

308 Index migrants, migrant workers, and guest workers (continued ) workers, 3, 12, 21, 24–26, 91, 179–80, 182–83; remittances and money transfers, 87–88, 183; social class and status, effect on, 10–11; statistics on, 10, 21; tropes of ‘‘good’’ and ‘‘bad’’ immigrants, 161–62, 245–46, 248–49; U.S. criminalization of, 164–65, 168–70, 281n10, 282n31; vulnerability of right to stay, 184–85. See also noncitizens; refugees; undocumented, ‘‘illegal’’ (etc.) migrants Migration Act (Australia), 229 Miller, Peter, 211 Ministry of Indian Overseas Affairs (MOIA, India), 213 mobility: in colonial Africa, 102–3; growth in mobility, restriction of rights, 243–44; illegality status and, 167–68, 251; indigeneship and, 103; international law and freedom of movement, 10, 26–27, 38, 79–80; of Palestinians, 48–49, 51–52, 58–61; rights access and managing of, 221; of Rohingya, 70; of temporary migrant workers, 183, 187–88, 251. See also migrants, migrant workers, and guest workers Mohamud, Suaad Hagi, 220 money transfers. See remittances and money transfers Moodie, Megan, 120 Moulin, Carolina, 4, 78–93, 249, 252–53 Mountz, Alison, 13, 120, 161–75, 178, 248, 251 Movement of Young Stateless Brazilians (MYSB), 80–81, 85–89, 90, 93, 252–53. See also Brazil multiple/transnational citizenship: attained through education, 11; balancing of, 11, 15; citizenship different from parents, 8–9, 132, 133–37, 172–73, 174–75, 259n16, 274n16, 275n22; constructive renunciation and, 232–33; dual/nested citizenship in EU, 17, 205–7, 209, 253; shifting borders of citizenship, 208; state manipulation of, 14–15, 209–22, 233–37, 238, 290n53. See also children (undocumented, stateless, etc.); citizenship Muslims: Banglo-Indians, 9, 116–17; Canadian citizens refused rights, 231,

291n20; revocation of British citizenship, 233; second citizenship risks for, 15–16. See also Rohingya MV Sun Sea, 217 Myanmar: Rohingya of, 3, 37, 38, 62–63, 66–71, 76. See also Rohingya Myard, Jacques, 156 NAGV and NAGW v. Minister of Immigration and Multicultural and Indigenous Affairs, 228–29 nationality, right to: the African citizen and, 97, 98–99; birthright citizenship and, 227–28; children’s right to acquire, 8, 130, 132; citizenship gaps, 11, 35, 247–48; cows with nationalities, 122; of dual citizens, 220; as human right, 3, 17, 36–37, 42, 263n27; international law definition, 224; nationality laws, 42, 56, 78–80, 195, 197, 233, 234, 244–45, 265n24; terminology, 78, 193, 261n1, 274n8. See also denationalization; human rights; jus soli/jus sanguinis; multiple/transnational citizenship; Universal Declaration of Human Rights Nationality Act (StAG, Germany), 195, 197 Nationality Act (UK), 233, 234 Nationality Law (Israel), 56, 265n24 Nationality Law 2006 (Iraq), 234–36 National Population Register (NPR, India), 126–28 Nayapara and Kutupalong refugee camps (Bangladesh), 63, 64f, 66, 69–70 Nazi Germany, 198–99, 226 Nehru, Jawaharlal, 212 neoliberal forms of government, 211–12, 221 Nepal, 42 nested citizenship, 17, 205–7, 253. See also multiple/transnational citizenship Netherlands, 14 Ne Win, General, 67 Nigeria: federalism/localism/indigene-settler conflicts, 103–13, 114. See also Jos, Nigeria Niki Tobi Commission of Inquiry (Nigeria), 111 9/11. See September 11, 2001 nomadism in Europe, 156. See also Roma; travelers noncitizens: definition of, 21; international human rights law and, 3, 21–30, 258n10;

Index 309 problems asserting rights of, 27–30, 62–63, 178–80, 240, 250, 291n1; resident citizens, 206; statistics of, 21; treatment of, 230–31. See also migrants, migrant workers, and guest workers; undocumented, ‘‘illegal’’ (etc.) migrants nonimmigrants: definition of, 21 Non-Resident Indian (NRI, India), 213 Northern League (Italy), 152 North Korea, 12, 34, 230 Nottebohm decision (ICJ), 224–25, 228 Nuremberg laws, 2 Obama, Barack, 169, 172, 175 Obasanjo, Olusegun, 105, 111 Occupation Health and Safety Act (OHSA, Ontario), 188–89 Occupied Palestinian Territories (OPT), 46, 47f, 48, 49, 53, 58, 59–61 Odinkalu, Chidi, 5, 97–114, 242, 244 Oleh: Jewish immigration policies (Israel), 55–56 Olowu v. Olowu (Nigeria), 103 O’Nions, Helen, 6, 17, 145–57, 242–43 Ontario labor laws, 183, 188–89. See also agricultural workers in Canada Operation Wetback (U.S.), 163 Organization for Security and Co-operation in Europe (OSCE), 146, 152 Oslo Accords, 58, 59, 60 Ostrava case (ECtHR), 139 Overseas Citizenship of India scheme (OCI), 214 Pakistan, 215 Palestinian Authority, 57, 58, 59–61 Palestinian Citizens of Israel (PCI), 53, 57 Palestinians: citizenship, ambiguities of, 4, 45–61; in Europe and the Americas, 48, 52–53; refugee category of, 2; securitization of, 246; statelessness and UDHR, 38; statistics on refugees, 49, 50f, 51, 52. See also Israel; stateless peoples and statelessness Palmer Raids, 163 Parliamentary Commission of Inquiry (CPMI, Brazil), 81–82 Paschimbanga (India), 116–17, 122 passports. See documentation of citizenship

PEC 05 constitutional amendment (Brazil), 89 PEC 272 constitutional amendment (Brazil), 86 Person of Indian Origin (PIO) card (India), 214 Phiri, Pia Prytz, 70, 267n21 Plateau Peace Conference, 105 Plateau Resolves (Nigeria), 111 Poland, 199 political rights: of children, 133; citizenship as power, 115–16; control of territories, 107–8; of electorate abroad, 87–89, 91–92, 93; immigrants in terms of political value, 245–46, 249; of India’s diaspora, 214; international law guarantees, 22; of permanent residents, 217; political and economic power divisions and, 113–14, 211; of Roma diaspora, 157; state citizenship and, 195, 197–98, 200, 211. See also social and cultural rights postnational citizenship, 11, 15, 204–7, 217. See also multiple/transnational citizenship ; nationality, right to poverty, 12, 125–28, 129, 132, 166. See also economic rights and financial matters; social and cultural rights Pravasi Bharatiya Samman (Overseas Indian) Award, 214 property rights, 38. See also economic rights and financial matters Protecting Canada’s Immigration System Act (Canada), 217 race and ethnicity: Banglo-Indians and, 124; Brazilian ‘‘orientalist’’ bias, 85; in citizenship criteria, 6, 7; colonialism in Africa, 113; criminalization of immigrants, 13, 164–65, 168–69, 170; German identity and, 16–17, 197–99, 208; global class positions, 11; ‘‘illegality’’ as racialized, 166; international law and noncitizens, 23–24; in management of citizenship, 221; nativity in colonial Africa, 102–3; Palestinian Authority and, 61; rhetoric of security and, 156; Roma in Europe and, 139, 146–47, 151–55; statelessness and, 6–7, 34, 63, 73; workers of color as noncitizens, 180–81. See also discrimination and citizenship

310 Index Rakhine Buddhists, 63, 66, 67, 74, 266n5, 267n15. See also Myanmar Ramachandran, Sujata, 5, 9, 115–29, 215, 243, 249 RCA 3/94 constitutional reform (Brazil), 83–89 refoulement, 30 refugees: camps for, 63, 64f, 66, 68–71, 266n36, 267n22; cessation of status, 218; country of origin conditions, 14–15; distinct from statelessness, 32–33; forced repatriation of, 63, 68–71; forum shopping, 229; Jews and Israeli citizenship, 226–30; law enforcement and, 69–70, 74–75; limited resources in host countries, 3, 7, 17, 41, 72–75, 76; Palestinian, definition of, 49; poverty not ground for status, 12; refugee law and sticky citizenship, 225–30. See also migrants, migrant workers, and guest workers; Rohingya remittances and money transfers, 87, 183. See also economic rights and financial matters repatriations: of Mexicans, 163; of migrant workers in Canada, 183, 184, 188–89, 190; of Rohingya, 63, 68–71, 76; of Roma, 153–54. See also agricultural workers in Canada; deportation and expulsion; Mexico; Rohingya; Roma research: interview informants, 70, 72, 73, 74; methodology, 65–66, 266n8, 267n22 resident citizens, 206. See also noncitizens revocation of citizenship. See stateless peoples and statelessness rightlessness of migrants: overview, 10–12. See also human rights; migrants, migrant workers, and guest workers; stateless peoples and statelessness Rohingya: Bangladesh and, 5, 7, 62–77, 64f, 250, 266n5, 267n22; ethnographic research, 65–66, 266n8, 267n22; militant activities of, 74–75, 268n40; mobility rights, 38, 70; as stateless, 3, 7, 37, 39, 67, 243; statistics, 63, 69, 266n6 Roma: children’s citizenship rights, 39, 130, 136–37; citizenship rights denied, 6, 17, 34, 145–46, 147–50; collective expulsions, 136–37, 151–53, 153–55; in Europe, situation overview, 146–47; geographical

framing of citizenship and, 242–43; terminology, 276n1; as unconventional community, 245 Romania, 141 Rome Statute of the International Criminal Court, 61 Roosevelt, Eleanor, 36 Rose, Nikolas, 211 Rubio, Marco, 174–75 Ruhs, Martin, 176 Rygiel, Kim, 2–3, 14, 16, 209–22, 249 Sadiq, Kamal, 118, 129 same-sex relationships, 8 Sarkozy, Nicolas, 141, 154 Saudi Arabia, 7, 34 Seasonal Agricultural Workers Program (SAWP, Canada), 181, 183, 187, 190 Secure Communities (U.S.), 168–70, 170–73 security: conscription, 57; criminalization and, 164–65; enclosure and separation, 121–22, 149, 164–65; India’s relationship with neighbors, 214, 215, 288n29, 289n40; managing multiple citizenships and, 221–22; militant activities by refugees/ noncitizens, 51, 59–60, 74–75, 76, 268n40; national identification systems, 124–28, 129, 221, 252; racism and rhetoric of, 156; revocation of citizenship and, 233; securing national population, 212; securitized citizenship, 120–22, 244–46, 252; surveillance, 122, 129, 215; terrorism and terrorists, 24, 29, 120, 164–65; used against Roma, 152–53, 153–55, 155–56. See also September 11, 2001 Sen, Amartya, 75 September 11, 2001: criminalization of (racialized) immigrants, 13, 164, 165, 168–69, 170; denationalization and, 230–31; dual citizenship after, 16, 219; refugee laws after, 12; securitization of citizenship after, 29–30. See also security Serbia, 39, 136–37, 199 Shachar, Ayelet, 13 Sharpston, Advocate-General, 136 Sierra Leone, 6 Singh, Manmohan, 213 Sinti community in Europe, 152–53, 156; terminology, 276n1. See also Roma slavery, 24, 25, 37, 259n17

Index 311 Slovakia, 139–40, 147–48 Slovenia, 6, 34 Smith, Rogers, 16 smuggling (human), 5–6, 28–29, 76. See also undocumented, ‘‘illegal’’ (etc.) migrants social and cultural rights: affiliation and citizenship, 196–98, 228; civil society engagement and, 249–50, 250–51; as cultural citizenship, 176–78; education of girls in India, 142–44; housing, 187–88; identification systems and, 127; illegality status and, 166–67; international law, for noncitizens, 22–23, 24, 179–80; in Italy for travelers, 151–52; language, 92; legal representation, 172; municipal laws and, 170; of Palestinians, 49, 51–52, 60–61; of Rohingya, 70, 76–77; of Roma, 139–43, 149, 157; social citizenship, 201–2, 204–5; social production of scale, 241–42; statelessness and UDHR, 39–40; temporary foreign workers and, 184–85, 206, 249–50; welfare state and citizenship rights, 193, 203–4. See also economic rights and financial matters; health and medicine; political rights social class and status. See class Social Science Research Network, 29 South Africa, 7 South Korea, 34, 230 Soysal, Yasemin, 15, 177, 217 space and social construction of scale, 241–42 Special Immigration Appeals Commission (SIAC, UK), 233, 234 Sri Lanka, 42, 217–18 Staatsangeho¨rigkeit, 193. See also nationality, right to state citizenship: development of, 4–5, 194, 196–204 stateless peoples and statelessness: Brazilians’ mobilization against, 80–93; causes and forms of, 4, 17, 33–36, 79–80; children and, 8–9; countries with discriminatory practices (listed), 34–35; ethnicity and, 6–7, 63; expatriation/revocation of citizenship, 231–32, 233–37, 238, 291n23, 292n3; experience of, 1–2, 70–71, 72–73, 74; gender and, 7–8, 38; human rights of, 1–2, 36–40, 62–63; interests of individuals/states, 238; international law and,

80, 90, 147, 148, 224–25, 231, 233, 292n3; of Palestinians, 2, 48; Roma as stateless, 147–48, 244–45; stateless groups (listed), 33, 36; statistics on, 21, 36, 41–42; terminology (de facto/de jure), 31–33, 147–48, 153, 243; UN activity regarding, 40–42. See also deportation and expulsion statistics: Brazil, 81, 87, 90; British citizenships revoked, 233; Canada temporary migrant workers, 176, 181, 186, 187–88, 189, 287n4; German naturalization, 199–200, 205; housing conditions, 187–88; India, 143, 214, 287n4; migrant population in world, 10, 21, 209, 287n4; Palestinians, 49, 50f, 51, 52–53, 58, 266n36; remittances from emigrants, 87–88; Rohingya, 63, 65–66, 266n6; Roma, 141, 154; safety of migrant workers, 189; Serbia returnees, 136–37; statelessness, 21, 31, 33, 36, 41–42, 90; UN convention ratifications, 26, 41, 79t, 259n22 Sternberger, Dolf, 196 Stream for Lower-Skilled Occupations (Canada), 181 St. Vincent and the Grenadines, 26 Sumner, Lord: Re Southern Rhodesia, 102 Syria: Maher Arar (Canadian of Syrian origin), 6, 219, 231; children’s citizenship, 34; Palestinian refugees, 49, 50f, 52; stateless Kurds and, 37, 38, 263n31 Teknaf (Bangladesh), 63–65, 64f, 68–69, 73–74, 75, 267n9; ethnographic study, 65–66, 266nn6–8 Temporary Foreign Worker Program (TFWP, Canada), 181, 183–86, 188, 190. See also agricultural workers in Canada; migrants, migrant workers, and guest workers territorialization: citizenship in colonial Africa and, 102–3, 242–45; political control in Nigeria, 107–8; sovereignty and citizenship rights, 8, 97–98, 99, 101, 242–43, 244, 248–49. See also Universal Declaration of Human Rights (UDHR) terrorism and terrorists, 24, 29, 120, 164–65. See also security; September 11, 2001 Thailand, 37, 38 Torpey, John, 79–80

312 Index torture, 16, 23, 29, 37, 219 totalitarianism and denationalization, 2, 16 trafficking. See smuggling Transitional Administrative Law (TAL, Iraq), 234–36 transmigrants. See migrants, migrant workers, and guest workers transnational citizenships. See multiple/ transnational citizenship transnational minority: Roma as, 147 travelers, 154–55, 156; terminology, 147, 276n1. See also Roma Treaty on the Functioning of the European Union (TFEU), 150 Turkey, 16–17, 199, 200–201 Uddin, Nasir, 3, 5, 7, 250 Uganda, 6 Ukhia (Bangladesh), 63–65, 64f, 68, 71, 73–74, 75, 267n9; ethnographic study, 65–66, 266nn6–8 undocumented, ‘‘illegal’’ (etc.) migrants: contributing factors for, 67–68; cultural citizenship and, 176–78; environmental costs of, 74; ethnographic studies of, 66–67; human smuggling, 5–6, 28–29, 76; international law and, 22, 25, 37; law enforcement and, 69–72, 74–75, 151; living conditions of, 63, 65, 70–71, 166–68; problems asserting rights of, 12, 28–30, 76–77, 251, 252–53; racialization of, 13; terminology, 165–66. See also children; documentation of citizenship; migrants, migrant workers, and guest workers; noncitizens Union of Soviet Socialist States (USSR), 36 Unique Identification Project and Aadhaar (India), 9, 125–28 United Arab Emirates, 34–35, 38 United Kingdom. See Britain United Middle Belt Conference (Nigeria), 112 United Nations bodies and laws: activity regarding statelessness, 40–42; ratification of conventions, 26, 41, 79t, 179, 259n22; support for Rohingya refugees, 68, 77. See also individual international laws, conventions and committees UN Committee against Torture, 219

UN Convention on the Rights of Persons with Disabilities, 202 UN High Commissioner for Human Rights, 146, 292n15 UN High Commission for Refugees (UNHCR): Brazil and, 79–80, 90–91; mandate and conventions, 32–33, 40–42, 225, 229; Palestinians and, 49, 52; ratification of international conventions, 79, 79t; Rohingya and, 63–65, 68–69, 74, 76; statelessness statistics and concerns, 32–33, 36, 41–42 UN Relief and Works Agency for Palestinian Refugees (UNRWA), 48–49, 50f, 51, 58; definition of Palestinian refugees, 49 United States: Americans of Palestinian origin, 52–53; birthright citizenship threatened, 8–9, 173–74; border enforcement and policing, 168–70, 251; Brazilian money transfers from, 87; children, 13, 134–37, 161–62, 172, 175, 274n16, 275n22; criminalization of immigration, 29, 164–65, 168–70, 281n10, 282n31; DREAM Act proposals, 161–62, 174–75, 253, 280n1; drone strikes, 233; executions of foreign nationals, 28, 260n37; expatriation, 232, 291n23; Haitian refugees, 12; illegality conditions in, 165–68; laws as paths to illegality (1996 legislation), 168–70, 170–73, 244, 248; politicization of migrants, 246; same sex marriages, 8; state secrets doctrine, 29; targeted immigrant groups (overview), 163–64 Universal Declaration of Human Rights (UDHR): acquiring nationality right (art. 15), 131–32; employment rights (art. 23–25), 185; legal identity right (art. 6 and 7), 3, 37–38; marriage and property rights (art. 16–17), 38; marriage as age limited, 131; mobility rights (art. 13), 10, 26–27, 38, 187–88; post-national citizenship and, 177; sovereignty and citizenship rights, 8, 97–98, 99, 101; statelessness, violation of (art. 15), 3, 31, 36, 62, 76, 78, 263n27; statelessness and violations of (art. 1–27), 37–40 universal human rights. See human rights Usti Nad Labem (Czech Republic), 149

Index 313 Varsanyi, Monica, 170 Vattel, Emer De, 27 Verma Commission Report, 144, 183 Vienna Convention on Consular Relations, 28 Volpp, Leti, 163, 171 Vona, Gabor, 130, 132, 141 Walton-Roberts, Margaret, 2–3, 11, 14, 15–16, 63, 209–22, 240–53 Weissbrodt, David, 3, 21–30, 291n1 welfare state and recommodification of labor, 193, 203–4

West Bank, 46, 47f, 50f, 51, 53–54, 57, 58–61; population, 266n36 WHO Declaration on Occupational Health for All, 188 Willink Commission (Nigeria), 112 women. See gender world citizenship, 194, 204 World War II: U.S. internments, 163 Yean and Bosico Children v. the Dominican Republic, 37 Yugoslavia, 36

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Acknowledgments

We must thank many people and institutions for their contributions to this volume. First, we thank the authors who worked so graciously with us, revising their chapters several times at our request. We are also most grateful to the Social Sciences and Humanities Research Council of Canada for a grant in support of the authors’ workshop held in October 2012 at Wilfrid Laurier University. Rhoda Howard-Hassmann thanks the Canada Research Chairs program for the time and funds that enabled her to work on this project, and Wilfrid Laurier University for nominating her for her Chair. Margaret Walton-Roberts thanks the International Migration Research Centre at Wilfrid Laurier University for sponsoring the workshop, and the Director, Dr. Jenna Hennebry, and IMRC research associate Dr. Janet McLaughlin, for their intellectual contribution to initial discussions around the ‘‘slippery citizenship’’ idea. We would also like to thank Pam Schaus for her work on the maps in the book. We are grateful to all the research assistants who helped us with this project. Sarah Ahsan and Elizabeth Baisley were particularly helpful in assisting our research, as was Laurier’s Office of Research Services. Andrew Basso assisted at the workshop and helped Rhoda Howard-Hassmann with her own research, and Huzan Dordi assisted Margaret Walton-Roberts during the workshop and with aspects of her research for this book. Laura Reidel, Ph.D., worked diligently to help us put the final manuscript together. In its early stages Wendy Webb, then Administrative Assistant to Rhoda Howard-Hassmann, and in its later stages Mayura Stratopoulos, who replaced Ms. Webb in September 2012, took care of finances, administration, and myriad other details. Mayura patiently sat through the entire workshop so she could be available in case of need.

316 Acknowledgments

Finally, we are grateful to the reviewer of an earlier draft of this manuscript. We are also grateful to Peter Agree of the University of Pennsylvania Press for his guidance throughout the process of creating this book; to Alison Anderson for her patient and careful editing; and to Mary Newberry for her indexing.