Manufacturing statelessness

Abstract

Having recently emerged from its unenviable status as the runt of international law, the phenomenon of statelessness nonetheless eludes traditional international legal instruments. Confronted with questions of nationality that typically fall within the domain of sovereignty, international and regional human rights bodies struggle to rein in the increasingly creative measures that states adopt to obscure the production and persistence of statelessness. This Article uncovers and dissects the different ways in which states manufacture statelessness not through explicitly discriminatory laws and unequal treatment, but through manipulating ostensibly neutral criteria for nationality. The Article identifies three such criteria that are not traditionally considered “suspect” categories for the grant or denial of nationality: time, territory, and administrative practice. It also suggests doctrinal, policy, and strategic tools for identifying and responding to the types of statelessness that are not a collateral consequence of state failure or incompetence, but the outcome of state intentionality.