1. Freezing Time

State formation is an act inscribed not only in space but also in time: the physical boundaries of a state at the time of its founding often also simultaneously dictate who will be considered its citizens by demanding certain relationships between the individual and their physical location at a particular moment in time. In the words of Elizabeth Cohen, the temporal boundaries of state formation highlight how an individual's rights in relation to the state are not merely a function of who and where they are, but equally, when they happen to be there.Footnote ⁸⁰ The widespread temporal device of “zero option rules” acts as a sorting mechanism for differentiating between members of the polity and foreign others by specifying a cut off point for residence or physical presence on the territory that entitles one to citizenship.Footnote ⁸¹ While facially neutral, by demarcating and freezing a population that is labeled as “native” on a certain date or dates, temporal deadlines can be used strategically by states to shape the ethnic, racial, religious, and linguistic composition of their population and create a class of quasi-citizens and stateless persons.Footnote ⁸² Like time itself, this act of boundary drawing is both backward and forward looking: temporal boundaries can harken back to a primordial vision of an original, true population to which the state seeks to return itself. They can signal a deliberate and violent break from the past where the population of the future is no longer shaped in the image of the past. And they can be used to set the terms of a newborn, imagined community that knows no past, but only the future.Footnote ⁸³

One such instance of temporal deadlines being used to ethnically engineer populations can be seen in the aftermath of the breakup of the Soviet Union, where states such as Latvia and Estonia granted automatic citizenship to individuals who were citizens or permanent residents of these states and their descendants prior to the period of Soviet occupation, rendering stateless thousands of ethnic Russians and other Russian-speaking minorities resident on their territories.Footnote ⁸⁴ In Estonia, these “individuals with undefined citizenship” constituting a third of the country's population could then either seek naturalization as Estonian citizens, opt for the citizenship of another country (including Russia), or simply continue to retain the status of “individuals with undefined citizenship.”Footnote ⁸⁵ In Latvia, the 1994 citizenship law enacted after significant domestic political wrangling, provided for a “window system” for the naturalization of “non-citizens” with staggered time periods during which different categories of residents could apply for citizenship.Footnote ⁸⁶ Both states argued that their nationality laws were a decolonization measure intended to rectify discrimination against ethnic Estonians and Latvians during the period of Soviet occupation.Footnote ⁸⁷ Rather than an ethno-nationalist political project, the rhetoric was thus one of a rightful assertion of sovereignty and independence following decades of illegal occupation.Footnote ⁸⁸

Demanding naturalization requirements, especially those related to language proficiency, meant that the percentage of non-citizens remained fairly significant in both countries until the naturalization policies were softened under pressure from international and regional actors such as the Organization for Security and Co-operation in Europe, the Council of Europe, and the European Commission, in particular through policy recommendations championed by the Commission during the pre-accession process to the EU.Footnote ⁸⁹ However, as scholars have argued, the Commission largely refrained from questioning the ethnocentric state model adopted by both countries and focused narrowly on the mechanisms and procedures for naturalization instead of challenging the discriminatory grounds for citizenship acquisition.Footnote ⁹⁰ Political elites in Estonia as well as Latvia were thus spared from having to undertake major reforms in their citizenship policies in order to achieve their policy goals of entry into the EU and NATO.Footnote ⁹¹ International pressure to resolve the situation of non-citizens in the two countries has since ceased—arguably because this would involve international actors admitting their own failures and oversightsFootnote ⁹²—and the issue has been relegated to domestic politics, where this class of non-citizens has gradually acquired greater rights and privileges that nonetheless stop short of full citizenship.Footnote ⁹³

As Estonian and Latvian cases show, zero-options rules that are argued to be part of the decolonization process present a particularly challenging case for addressing the statelessness that follows. From Asia to Africa to Latin America, newly independent states have inherited artificial borders that were put in place by colonial powers. These state boundaries were imposed in disregard of pre-existing geopolitical realities, arbitrarily grouping together peoples from diverse communities within a single territorial state and simultaneously dividing political, cultural, religious, and ethnic polities into separate territorial units.Footnote ⁹⁴ The legacy of these colonial boundaries lives on in the ways in which nationality is conceived and transmitted in post-colonial states, putting certain groups at risk of statelessness. In the UAE, for instance, the 1971 law of citizenship has sought to limit UAE citizenship to persons who can trace their ancestry to the 1925 Arab tribes documented by the British census, requiring non-Arab minorities such as Persians, East Africans, and South Asians to undergo naturalization and resulting in a limbo population that is not counted as citizens even if their families have been settled in the country for generations.Footnote ⁹⁵

The invocation of temporal deadlines to resolve contestations over which groups are entitled to membership in newly formed and modernizing nations has been particularly fraught in the African context. Notwithstanding the egregious colonial drawing of the political map in Africa, African states elected to preserve the borders in place at the time of their independence through the Organization of African Unity's 1964 Cairo Declaration on Border Disputes Among African States, affirming Member States’ commitment to “respect the borders existing on their achievement of national independence.”Footnote ⁹⁶ This decision has been criticized in various quarters as indefensibly ahistorical and a catalyst for future conflicts. However, it has also been defended as a pragmatic solution to avoid armed conflicts over territorial disputes by putting existing territorial borders in a “holding pattern” to facilitate peaceful resolution of territorial disputes between African states.Footnote ⁹⁷ While these geographical borders and the populations they demarcate have for the most part proved stable in post-colonial states, decolonization of constituent populations has instead been attempted through changes in temporal borders, negatively impacting populations that are considered non-native and placing them at risk of statelessness.

One way to accomplish this resetting of the population to a previous self that preceded the colonial encounter is domestic constitutional and legal arrangements and state practice that make citizenship contingent on membership in “tribes” that pre-date colonial population transfers. A striking instance of the resulting statelessness was made visible in the African Commission on Human and People's Rights decision holding that Côte d'Ivoire had violated the right to nationality of members of the Dioula ethnic community.Footnote ⁹⁸ The complaint hinged on the 1961 Ivorian Nationality Code's adoption of the jus soli principle for grant of nationality defining an Ivorian national as an individual who could trace her ancestry to an Ivorian at the time of independence. However, since the Code failed to define who counted as an “Ivorian,” or as a foreigner, this gave the state the discretion to introduce discriminatory nationality practices under the doctrine of “Ivoirité.” This doctrine was based on the concept of an authentic Ivorian heritage whereby indigenous Ivorians were to be distinguished from “foreign” immigrants from the North who were not entitled to Ivorian nationality.Footnote ⁹⁹ Labeling the Dioula people as foreign migrants, state authorities refused to issue them with documents verifying their legal status such as birth certificates and identity cards and destroyed previously issued documents. The Commission held that this discriminatory interpretation of the nationality law by the state authorities led to thousands of residents who had been born in Côte d'Ivoire, and to parents who were also born in Côte d'Ivoire, becoming stateless.Footnote ¹⁰⁰

While the successful challenge to Côte d'Ivoire's attempt to exploit the ambiguity in its nationality laws to create a class of stateless Dioula “immigrants” seems like a true victory for regional human rights institutions––in 2020, Côte d'Ivoire even became the first African country to adopt a national Statelessness Determination ProcedureFootnote ¹⁰¹—it is important to bear in mind that this success story played out against the backdrop of favorable domestic political winds. The period between 2006, when the case was brought before the Commission, and 2015, the delivery of the decision, saw the election of President Alassane Ouattara, who had himself previously been accused of not being a native Ivorian citizen and faced significant difficulties in proving his eligibility to run for political office. Unsurprisingly, the reform of nationality laws was not only a legal, but equally a personal, project for President Ouattara, who introduced amendments to nationality laws, simplified procedures for access to nationality and the issuance of identity documents, and initiated Côte d'Ivoire's accession to the Statelessness Conventions, measures that were undertaken before the Commission issued its decision.Footnote ¹⁰² It is thus unclear what lessons international legal actors working to combat statelessness can learn from the Côte d'Ivoire example, an issue that this Article will revisit in Part III.

Indeed, international and regional actors have struggled to devise an effective response to another case of statelessness also engineered by a countdown deadline: denial of citizenship to the Rohingya by the government of Myanmar. The 1982 Burmese Citizenship Law grants citizenship to individuals belonging to one of the 135 “national groups” with permanent homes in the state territories before 1823. The government argues that the Rohingya are not “native” to Burma but illegal Bengali immigrants. Since they do not constitute one of the 135 recognized national races, they are not entitled to full Burmese citizenship.Footnote ¹⁰³ While there have been some formal legal efforts responding to Myanmar's discriminatory treatment of the Rohingya prompted by the 2017 atrocities and forced displacement of thousands of Rohingya, they have mostly focused narrowly on the question of accountability for international crimes committed against the Rohingya. Three such proceedings have been running in parallel before different institutions. The first is the Independent Investigative Mechanism for Myanmar set up in 2018 with the mandate to “collect, consolidate, preserve and analyse evidence of the most serious international crimes and violations of international law committed in Myanmar since 2011. . .,” such that this evidence can be used in criminal proceedings.Footnote ¹⁰⁴ Simultaneously, the prosecutor of the International Criminal Court (ICC) has opened investigations into the Bangladesh/Myanmar situation focusing on crimes against humanity, though these will only cover alleged crimes against the Rohingya which took place, at least in part, on the territory of Bangladesh as a state party to the Rome Statute of the ICC.Footnote ¹⁰⁵ Third, proceedings have been instituted before the International Court of Justice (ICJ) by the Gambia against Myanmar alleging violations of the 1948 Genocide Convention. In January 2020, the ICJ ruled in favor of the Gambia's request for provisional measures, ordering Myanmar to comply with its obligations under the Convention, report on their implementation, and take measures to preserve evidence.Footnote ¹⁰⁶

These proceedings have thus far failed to ameliorate the situation of the Rohingya, in particular as concerns the resolution of their statelessness. As late as September 2021, the UN special rapporteur on the situation of human rights in Myanmar, accused the junta regime that came into power following the military coup of February 2021 of continuing to “deny the existence of the Rohingya ethnic minority.”Footnote ¹⁰⁷ Indeed, legal advocates fear that a failure to manage expectations as to what these proceedings can deliver in terms of a path to citizenship for the Rohingya can end up backfiring: “[i]f you allow the Rohingya to believe that the international courts are in a position to grant them citizenship directly, then these processes are set up to be perceived as failures before they have even started.”Footnote ¹⁰⁸ Part III reflects on what this experience might mean for future international litigation efforts to address statelessness.

As the above examples show, zero-option laws premised on time as currency typically rely on highly juridical arguments invoking notions of state continuity, illegal occupation, and reclaiming of sovereign authority. And those that are associated with decolonization and the rhetoric of return to an authentic, true, polity may even invite sympathy in some quarters, complicating efforts to identify and address the statelessness that ensues in their wake.

2. Excising Time

For those who do not pass through the gates of the nation at the time of its birth, the entitlement to become part of the political community is contingent on demonstrating ties with the community. A key element in proving these ties is through residence in the state. While states use various criteria such as family and social relationships, linguistic skills, and knowledge of culture, institutions, and social practices to measure prospective citizens’ embeddedness in and loyalty to the community, these are typically over and above the requirement of physical presence over an extended period of time in the community. Time can be assigned this political value due to its ability to serve as an ostensibly neutral proxy for hard-to-measure criteria such as fidelity, cultural assimilation, and civic virtue.Footnote ¹⁰⁹ Different lengths of residence can be imbued with different political values and used as a form of exchange to accord or deny the right of citizenship depending on the duration of residence.Footnote ¹¹⁰ Indeed, while criteria such as citizenship tests or demanding language requirements are often criticized for their exclusionary character, it is generally assumed that it is reasonable and fair for a state to use time as a factor to distribute the precious good of citizenship.

What matters for citizenship however, is not always the physical, chronological time that an individual may have spent on the territory, but rather how the state counts that time. The legal value assigned to time can be used strategically to exclude, suspend, or fast-track potential applicants in the queue for citizenship.Footnote ¹¹¹ Not only can states discount time spent illegally on the territory for establishing residence, but they can also enact and interpret legal concepts to erase the physical time for which an individual has lived within their boundaries for the purposes of nationality acquisition.Footnote ¹¹²

The Dominican case of the Haitian migrants and Dominicans of Haitian descent is a prominent example of statelessness resulting from the distinction between the passage of chronological time on state territory and its legal counting for the purposes of citizenship entitlement and represents one of the few instances of statelessness to have been successfully litigated before an international court, the IACtHR. The case of Girls Yean and Bosico v. Dominican Republic concerned the Dominican Republic's refusal to issue birth certificates to the applicants who had been born on its territory, thereby denying them the nationality of the Dominican Republic which recognizes the principle of jus soli for grant of citizenship.Footnote ¹¹³ The court held that this denial was a violation, among others, of the right to nationality under Article 20 of the American Convention on Human Rights.Footnote ¹¹⁴

According to the court, the right to nationality was a fundamental, non-derogable right under the Convention and a prerequisite for the exercise of other Convention rights.Footnote ¹¹⁵ While the state retained authority over the determination of nationality questions, its discretion in this respect was circumscribed by the duty to guarantee to individuals the equal protection of law and the obligation to avoid statelessness.Footnote ¹¹⁶ Moreover, in light of the peremptory norm on equal protection and non-discrimination, states were under an obligation to refrain from enacting discriminatory laws and practices regulating nationality and to take active measures to promote equal protection under the law.Footnote ¹¹⁷ States were also prohibited from adopting laws and practices for the grant of nationality that lead to an increase in statelessness. Statelessness could arise “from the lack of a nationality, when an individual does not qualify to receive this under the State's laws, owing to arbitrary deprivation or the granting of a nationality that, in actual fact, is not effective.”Footnote ¹¹⁸

Applying these international norms to the law and practice of the Dominican Republic on the issuance of birth certificates, the court noted that the Dominican Constitution followed the principle of jus soli for the grant of nationality with the exception of children of diplomats and foreigners who are “in transit.” State authorities in the Dominican Republic considered Haitian migratory workers to be in transit and thus treated their children who were born in the Dominican Republic as not entitled to Dominican nationality. Relying on domestic court interpretations of the phrase “in transit” and the international obligation of non-discrimination irrespective of an individual's migratory status, the court held that an individual's migratory status was not sufficient justification for denying them the right to nationality. Further, this status could in any case not be transferred to the children of migrants and individuals had a right to nationality by birth of the state where they were born if they did not have the right to any other nationality.Footnote ¹¹⁹

In this case, the state had applied procedures for the issuance of a birth certificate in a manner that was arbitrary and—especially in light of the vulnerable situation of Haitian migrants and Dominican nationals of Haitian origin—discriminatory, placing the applicants in a situation of statelessness and extreme vulnerability. The state was therefore obligated to take affirmative steps to ensure that the applicants could access birth registration procedures that were reasonable, and in conditions of equality, so as to fully exercise their right to nationality.Footnote ¹²⁰

The judgment and various remedial and reparative measures ordered by the court failed, however, to have the desired impact on nationality legislation in the Dominican Republic. Indeed, the situation became even worse with a 2013 ruling of the Dominican Constitutional Court ordering executive review and retroactive withdrawal of the Dominican citizenship of children born on the territory of the Dominican Republic whose parents who did not have a regular migration status in the country, rendering stateless tens of thousands of Dominicans of foreign descent.Footnote ¹²¹ One year later, this led to the IACtHR judgment in the case of Expelled Dominicans and Haitians v. Dominican Republic, addressing the arbitrary detention and expulsion of Haitians and Dominicans of Haitian descent from the Dominican Republic and the barriers to registering and obtaining nationality for individuals of Haitian descent born in the Dominican Republic.Footnote ¹²² As part of its legal analysis, the court undertook an extensive factual analysis of the discrimination faced by Haitian migrants and Dominicans of Haitian descent, which also impacted their ability to obtain official identity documents. The attainment of a birth certificate––which was a requirement for obtaining nationality––was difficult both due to the social conditions in which these births took place as well as discriminatory official practices that accompanied efforts to register births with the authorities and the suspicion that attached to the subsequent use of these documents.Footnote ¹²³

The court then turned to the right to nationality under Article 20 of the Convention and reiterated its holding in Girls Yean and Bosico on the scope and importance of the right, adding that if the state is not certain that a child born in its territory would be able to obtain the nationality of another state, whether for formal legal reasons, or due to de facto obstacles, it is obligated to grant nationality in order to avoid statelessness at birth.Footnote ¹²⁴ Notwithstanding the interpretation of the nationality laws by the Dominican Constitutional Court, “basic standards of reasonableness” had to be met when evaluating the state's obligations under the American Convention. Domestic constitutional amendments and court cases had held that migrants in an irregular situation should be considered as “aliens in transit” irrespective of the length of their physical presence on the territory as distinguished from the period of ten days that applied to the separate category of “transient aliens.”Footnote ¹²⁵ In line with its previous decision in Girls Yean and Bosico, and contrary to the decision of the Constitutional Court, the court thus held that “to consider a person . . . in transit . . . the State must respect a reasonable time frame, and be coherent with the fact that an alien who develops ties in a State cannot be compared to a transient or to a person in transit.”Footnote ¹²⁶ Furthermore, since the state had not proved that these individuals would in fact be able to acquire the nationality of another state––in this case, Haiti––its decision to deprive them of the nationality of the Dominican Republic risked rendering them stateless and violated their right to nationality and related Convention rights, including the right to recognition of juridical personality, the right to a name, and the right to identity.Footnote ¹²⁷

The ruling, which was hailed as an important moment for putting issues of arbitrary deprivation of nationality on the international legal and political map, has, however, failed to have the desired impact not only internationally, but also on home territory. The Dominican Republic's executive branch moved immediately to reject the ruling and subsequent official public statements have reiterated the fiction that the Dominican Republic has no stateless persons and that the existing legal framework is adequate for protecting those who might be at risk of statelessness.Footnote ¹²⁸ Even the limited legal measures to address statelessness introduced by the Dominican Republic following the severe criticism of the 2013 constitutional decision, and that were judged to be flawed and insufficient in Expelled Dominican, have been sought to be repealed by nationalist groups.Footnote ¹²⁹ Procedures for obtaining the relevant identity documents continue to be characterized by both structural discrimination against Haitian migrants and Dominicans of Haitian descent and additional barriers imposed by individual offices and officials at their discretion.Footnote ¹³⁰ According to some estimates, the Dominican Republic remains the “single largest case of statelessness in Latin America.”Footnote ¹³¹

A more successful regional intervention, albeit one that was dependent on domestic legal efforts for resolution of statelessness, was the pilot judgement of the European Court of Human Rights (ECtHR) concerning the situation of stateless persons in Slovenia.Footnote ¹³² This class of stateless persons was the outcome of a strategic legalistic effort by the Republic of Slovenia to mark time differently for eligibility for citizenship following its independence from the former Yugoslavia. Under the new citizenship law of Slovenia, citizens of other former Yugoslav republics who were permanent Slovenian residents could acquire Slovenian citizenship by lodging an application within six months provided they had been Slovenian permanent residents on the day Slovenia held a plebiscite on independence. This effectively excluded from citizenship citizens of other former Yugoslav republics who had habitually resided and worked in Slovenia but who were not registered as immigrants in Slovenia and therefore did not count as permanent residents. Moreover, even registered immigrants in Slovenia who did not apply for citizenship within the six-month period or those whose applications for citizenship were rejected were deemed foreigners rather than residents under the provisions of the Aliens Act. Their records were struck from the register of permanent residents and transferred to the aliens register without any notice. This population of mainly non-ethnic Slovenes, some of whom had been born in Slovenia and others who had been living there for several decades, became known as the “erased,” becoming de facto aliens or stateless persons illegally residing in Slovenia.Footnote ¹³³

Following significant civil society mobilization, this erasure was challenged and held to be unconstitutional by the Slovenian domestic courts, following which Slovenia amended its laws to permit more of those whose records had been deleted to apply for permanent residence. The ECtHR deemed these remedies to be inadequate and as perpetuating the state of limbo for a significant percentage of the erased. It awarded the applicants non-pecuniary damages for their rights violations resulting from the situation of legal uncertainty and vulnerability, ordered Slovenia to establish a domestic compensation scheme, and subsequently handed down a just satisfaction judgment for pecuniary damages.Footnote ¹³⁴ In 2016, the Council of Europe's Committee of Ministers, which is responsible for supervising the implementation of the ECtHR's judgements, declared itself satisfied that all the measures required had been adopted and closed its examination of the case.Footnote ¹³⁵ However, critics argue that a sizeable number of the erased were unable to restore their legal status and were disqualified from claiming compensation. These include individuals who were deported from, or denied re-entry into, Slovenia pursuant to the loss of status. There is also little political will or momentum to attend to these cases any longer.Footnote ¹³⁶ As Part III will argue, the varying impact of progressive rulings by the IACtHR and ECtHR on statelessness on the ground holds important lessons for actors pursuing statelessness litigation before supranational courts.

Similar to the act of freezing time, excising time does not involve physically expunging persons from the territory of the state. Rather, physical erasure is achieved through temporal erasure whereby the state manipulates chronological time by making the temporal credit for the physical time spent on the territory contingent on the particular legal status of the individual during this period.

3. Dead Time

Between those who pass through the gates of citizenship and those who are turned away lies another category of persons who are effectively stateless: those who are kept waiting indefinitely at the gate. States control and tamper with the temporal register not only through freezing and excising time but equally through its suspension. Like Kafka's “man from the country,” individuals waiting at the temporal borders of citizenship may wait patiently at the border their entire life, pestering, cajoling, and bribing the guards to let them in, only to discover near the end that the gate had been meant for them alone and would cease to exist with their death.Footnote ¹³⁷ While waiting can be the result of incompetence and bureaucratic delays on the part of the state, waiting can also be a deliberate state tactic to continuously defer citizenship.Footnote ¹³⁸

Conceptualizing waiting, not as a “by-product of state institutions and bureaucracies” but as a “management technique that is not outside but fully part of the state,”Footnote ¹³⁹ highlights the ways in which the state can use delays, deferrals, and postponements to exercise power over putative citizens. While waiting is a universal human experience, each individual experiences waiting in his own way depending on his position in the social hierarchy. Waiting time is unequally distributed with those at the top of the social system waited upon by those at the bottom who do the most waiting.Footnote ¹⁴⁰ Waiting can be both a form of inducing compliance and a form of sanctioning by the state. As Auyero's ethnographic account of welfare clients waiting in the welfare office shows, the arbitrariness and uncertainty that characterizes this waiting zone reinforces poor people's conviction that instead of negotiating with the authorities, their only hope for welfare relief is to be patient and comply with the authorities’ dictates.Footnote ¹⁴¹ Beyond the feelings of dependence and subordination that waiting engenders, an individual who is kept waiting indefinitely without any indication of how long this wait may last or whether it will have any concrete outcome may even experience waiting as a form of punishment.Footnote ¹⁴²

The de facto statelessness of individuals who find themselves in this condition of state engineered precariousness can be seen in Noora Lori's superb analysis of migrant populations who occupy a limbo status in the UAE either because their naturalization cases are continuously adjourned by the state or because they are assigned visa statuses that are intended to be temporary but are continuously renewed without, however, bringing them any closer to eligibility for citizenship.Footnote ¹⁴³ Lori refers to the kafala system, the guest worker program of the UAE which brings temporary contractual laborers to the UAE with the intention of meeting short term labor demands in a particular sector. While these temporary contractual laborers are expected to leave once these short-term needs are met and are hence not eligible to apply for permanent residence or citizenship, in practice, their residency is constantly extended through labor contracts that are renewed by domestic sponsors. This has a created a class of non-citizen residents who have been settled in the UAE—at times for several generations—while formally being considered “temporary” by the UAE.Footnote ¹⁴⁴ In the absence of any formal rights of permanent residence or citizenship, these “guests” to the UAE are deportable at the discretion of the government notwithstanding their ties to the country.Footnote ¹⁴⁵

In addition to excluding guest workers from citizenship, the UAE also employs delaying tactics to indefinitely postpone the citizenship of otherwise eligible individuals. Since all UAE residents, including UAE born residents, who cannot trace their lineage to the Arab tribes of 1925 are obligated to go through a naturalization process, one way to defer citizenship is by refusing to either approve or deny the naturalization application. While the naturalization process can legally be initiated after seven years of residence, in practice, naturalization applications of even individuals who have lived in one of the emirates for decades continue to be in abeyance, incentivizing them to persist in their engagement with the state in the hope of an eventual resolution.Footnote ¹⁴⁶

From the state's perspective, the tactic of indefinite postponement is infinitely superior to one of outright citizenship denial. Not only is this permanently “temporary” status invisible to the international legal framework on statelessness, but persuading would-be citizens to engage in a perpetual waiting game where their patience and labor may be rewarded with the benefits of citizenship serves the state's economic purposes while allowing it to avoid difficult or unpopular political judgments on state membership, identity, and inclusion.Footnote ¹⁴⁷

1. Perforating Borders

In dissecting the time-space nexus in the construction of political borders, Cohen draws on the little known historical usage of the word “deadline,” which originally did not signify a time limit for the completion of a task, but rather the perimeter around a military prison that the prisoner was forbidden to cross on pain of getting shot. The deadline was thus a territorial limit, which permitted the state to make life-and-death decisions over the bodies under its control.Footnote ¹⁵² Modern state territorial boundaries too can serve a life-and-death function by acting as a sorting device by which the state categorizes individuals into citizens who fall within these boundaries and the foreigners without who have no entitlement to the protection of the state and its political institutions. However, territorial borders are not merely a function of geography but also of the law and legal institutions that the state sets up to define and police these borders.Footnote ¹⁵³ In the evocative language of Ayelet Shachar, to prevent individuals from crossing—literally and metaphorically—through its borders, the state may even go to the lengths of excising its own territory and creating exceptional zones, as if it were “perforating itself geographically.”Footnote ¹⁵⁴

The borderlands of states are one such zone of exception where spatiality can be legally reconfigured to produce citizens and stateless foreigners. Contestations over citizenship in borderlands may be a legacy of artificially constructed borders during colonization, state dissolution and transfer of territory, or population flows due to political instability and market imperatives.

The curious case of persons living in “enclaves” and consigned to de facto statelessness is one instance of this contestation. Largely ignored as “footnotes to the history of state formation,”Footnote ¹⁵⁵ enclaves are segments of a state's territory that are fully enclosed by another state's territory. Though enclaves were somewhat frequent in the early period of Westphalian nation-state formation, modern enclaves are few and far between. Until recently, the vast majority of enclaves in the world existed on the borderlands of India and Bangladesh, a result of the independence and partition of British India into India and what was then East Pakistan (now Bangladesh) in 1947.Footnote ¹⁵⁶ Forming fissures in the territories of each of these states, they came to be treated as non-state spaces, inhabited by islands of putative citizens who were ungoverned by either the state of their formal citizenship (the home state) or the state within whose territory they were resident (the host state). Not only did each state often deny access to officials of the other state to their own enclave for administrative purposes, but inhabitants of the enclaves were also largely trapped inside the enclaves, unable to move freely outside the enclave and cut off from the life of the host state.Footnote ¹⁵⁷ Lacking all the trappings of citizenship such as a birth certificate, identity card or passport, or access to state facilities and social services, enclave inhabitants were abandoned by both their home state and the host state in the non-state space of the enclave.Footnote ¹⁵⁸

Although an initial attempt was made to absorb these enclaves into the territory of the surrounding territorial state through the 1958 Nehru-Noon Accords between India and Pakistan, the issue of the enclaves became mired in political opposition given the volatile relationship between India and Bangladesh. It was only in 2015 that the two countries implemented a decades-old agreement to exchange the enclaves, with enclave residents being given the choice to acquire the citizenship of their host state or “return” to the home state of their formal citizenship.Footnote ¹⁵⁹ While the exchange has formally resolved the statelessness of enclave inhabitants, the former status of the enclaves as abandoned spaces means that the work of constructing the apparatus of the state around these new citizens who lack both affective and material ties to the states of their citizenship will prolong their limbo status for some time to come.Footnote ¹⁶⁰ Recent reports show that the effects of the nearly seven decades of statelessness experienced by enclave residents still persist. Though they now possess certain formal markers of citizenship such as voter identification cards, the government has largely failed to provide them with land documentation and rehabilitation measures crucial to their livelihoods, resulting in continuing difficulties with accessing the rights and privileges attendant on citizenship.Footnote ¹⁶¹

Though enclaves may constitute a rather exceptional phenomenon of perforated borders, borderlands also yield other forms of state-manufactured statelessness and liminality. The “hill tribes” of Thailand, the official category used by the Thai state to designate various ethnic groups living in the uplands of the Thai borderland, are another example of subjects without citizenship.Footnote ¹⁶² The highlanders have been constructed by the Thai state as “wild non-Thai others” living in the peripheral uplands as a way of reinforcing the Thai-ness of lowland Thais who constitute the core of the nation-state.Footnote ¹⁶³ Labeling the highlanders variously as insurgents, opium producers, and forest destroyers who threatened the security of the state, the government officially classified and registered them as “hill tribes” in the mid-twentieth century, followed by severe restrictions on their mobility and land use throughout the twentieth century.Footnote ¹⁶⁴

Following the official classification of hill tribes, Thailand made various efforts to accurately count and identify this population for administrative purposes. Numerous population surveys and registration campaigns were carried out to document and register highlanders and special color coded identity cards were issued to grant them semi-permanent residency. However, due to lack of knowledge of the terrain, lack of resources and administrative capacity, and problems with processing the data, these surveys were far from complete and many highland villages were never found or registered, excluding inhabitants from identity documents signifying rights of residence.Footnote ¹⁶⁵ The administrative non-existence of highland minority villages in the official territory of the Thai state has thus produced several generations of highlanders who the state does not even register as hill tribes, thus excluding them from Thai citizenship.Footnote ¹⁶⁶

And even for the highlanders who were registered, this did not grant them automatic citizenship on the basis of either jus soli or jus sanguinis, but only entitled them to subsequent citizenship by naturalization.Footnote ¹⁶⁷ In the absence of proof of registration, the primary way for stateless highlanders who have been physically resident in Thailand for generations to qualify for Thai citizenship is through officially documented proof of birth on the territory before the date of February 26, 1992, which the majority of them lack.Footnote ¹⁶⁸ As scholars note, the Thai state has largely refused to acknowledge the reasons for the lack of this documentation and has persisted in demanding evidence that most elderly highlanders do not possess, resulting in a situation where they have no path to citizenship.Footnote ¹⁶⁹

Even for the highlanders who do possess the appropriate state-produced documentation, ethnographic accounts reveal that the documents themselves are often riddled with inconsistencies and subject to the unpredictable evaluation of state officials, that prevents them from evidencing citizenship.Footnote ¹⁷⁰ Given the constantly changing rules and policies and a proliferation of different categories of registration numbers and identity cards that distinguish between various kinds of non-citizens, errors in registration practices by state officials are not uncommon. Once produced, these errors can not only ensnare the individual in a bureaucratic maze of attempting to acquire the appropriate paperwork that evidences his claim to citizenship, but also highlight the fragility of these documents whose worth may always be challenged, rejected, or revoked.Footnote ¹⁷¹ Not everyone has to bear the brunt of this hermeneutics of suspicion. The ethno-nationalist construction of the Thai state means the burden of enduring statelessness falls disproportionately on ethnic minorities like the highlanders who have long been subject to state discrimination.Footnote ¹⁷² In addition to not being able to access the rights attached to citizenship, they are also at risk of being classified as unauthorized foreign workers and refugee populations from Burma, with whom they share ethnic and kinship ties, and labeled as illegal migrants.Footnote ¹⁷³

The legal configuration of territory in borderlands represents state attempts to pin down and delineate the ambiguous nature of belonging of the populations that inhabit and traverse these territories. In the process, inhabitants of these non-state spaces may be rendered outsiders in the name of state building, labor migration enforcement, and domestic security.

2. Hardening Borders

In order for the territorial border to identify and categorize people into insiders and outsiders with certainty, the border itself must give the illusion of being the stable eye in the storm of ever-changing population movements within and outside its limits.Footnote ¹⁷⁴ In bringing persons within the territorial fold and thereby the political authority of the state, the state engages in the production of collective identities that are developed and strengthened in opposition to external others. Since this exercise in building collective identity is often premised on a fictional unity among “insider” citizens, the presence of outsiders within poses a threat to the nation-state's territorial and political authority. In the words of Balibar, the attempt at consolidation is tinged with the ever-present danger that “outsiders or “nomadic subjects,” in the broad sense, resist territorialization, remain located outside the normative “political space,” in the land of (political) nowhere.”Footnote ¹⁷⁵ While Balibar's reference to nomadic subjects is intended to broadly refer to all internal others within the state's physical boundaries, his play on words highlights the different categories of people who pose a particular challenge to the state's territorial concept of citizenship: groups that are excluded from its territorial imaginary and nomadic peoples.Footnote ¹⁷⁶

The bidoon (literally those “without nationality”) of Kuwait are one group that has fallen victim to a “hyper-territorialised and hyper-localised” delineation of the boundaries of Kuwaiti membership.Footnote ¹⁷⁷ The 1959 Nationality Law based national membership on the concept of a settled population: entitlement to automatic citizenship was limited to individuals who could prove uninterrupted residence in the territory of the emirate since 1920 and their descendants (through the male line). However, the conception of territory in 1920 was not one of the “national” territory––since the borders of Kuwait were yet to be defined in 1920––but the walls of the old town and surrounding oases.Footnote ¹⁷⁸ The initial beneficiaries of Kuwaiti citizenship were thus an eclectic mix of town dwellers––known as hadar in contrast to the badû (bidoon) or the desert dwellers––that included the royal family and merchants, but also slaves and artisans. In addition, groups that had close networks with this sedentary population of town-dwellers through frequent presence in the territory, such as individuals living in the peripheral settlements, were included in this qualified citizenship.Footnote ¹⁷⁹

The inexperienced Committees of Nationality who were in charge of applying these nationality criteria to evaluate claims of citizenship had to rely mainly on oral testimonies of individuals and their community members rather than documentary evidence for proof of settlement. In the case of the bidoon who had applied for citizenship, the Committees were confronted with the dilemma that though the bidoon belonged to tribes that had settled within the “territorial limits” of the Kuwaiti desert, they could not claim to have lived within the town walls. As such, the work of the Committees that was premised on an urban concept of citizenship with a clear divide between the hadar and the badû was unable to account for the bidoons’ claim to citizenship, a geographic and mental map that continues to influence the perception of the bidoon as internal others within Kuwait.Footnote ¹⁸⁰ Though the Kuwaiti government has made repeated promises over the years to ostensibly “resolve” the bidoon situation, its official agency tasked with this mandate––the Central System for the Remedy of the Situation of Illegal Residents established in 2010––has persistently labeled the bidoon as “illegal residents,” reportedly refusing to issue them with identity documents unless they confess to their “true” nationalities.Footnote ¹⁸¹

The mental map of the modern nation-state in which groups such as the bidoon are trapped is often not only territorially, but also terrestrially, rigid: the borders are drawn on land rather than water, excluding the diverse ways of identity formation and belonging that are based on seascapes.Footnote ¹⁸² Members of groups who inhabit the maritime interstices of these terra firma shaped boundaries find themselves without recognition in any of the territories claimed by nation-states. These groups, variously known as “sea gypsies” or “sea nomads,” are often arbitrarily lumped together with “irregular migrants” notwithstanding their prolonged presence in maritime regions that straddle the borders of nation-states.Footnote ¹⁸³

The Bajau Laut of Malaysia are one such sea-faring nomadic population inhabiting an area that was traditionally part of the Sulu state and is now apportioned between Malaysia and the Philippines. Occupying the lowest rung in the ethnic hierarchy and exploited by other dominant ethnic groups, the boat-dwelling Bajau are considered a pariah people.Footnote ¹⁸⁴ Common to the various origin myths of the Bajau as a separate people is the commission of an act of sacrilege due to which they were cast out to sea and condemned to live the life of nomads as a people without religion and without a territorial home.Footnote ¹⁸⁵ This traditional Bajau nomadic existence and way of life underwent a significant transformation after World War II when a combination of market forces and government pressure led to the settlement of the majority of the Bajau and the adoption of a terrestrial lifestyle.Footnote ¹⁸⁶ However, a smaller percentage of the “sea Bajau” continue to have a semi-nomadic lifestyle, living in water-villages in peripheral and intertidal zones and even on house-boats plying the waters on Sabahs's eastern coast, at times all the way to the places of their ancestral origin in the Philippine waters. Most of them lack documentary proof of their residence in Malaysia and are considered as illegal residents by the Malaysian state. Denied access to the rights attendant upon citizenship in Malaysia and lacking recognition by any other country, they have been faced with a protracted situation of statelessness over successive generations.Footnote ¹⁸⁷

This rejection––cultural as well as political––of the Bajau Laut is characteristic of the symbolic rejection of peripatetic minority lifestyles by dominant sedentary majorities in modern nation-states.Footnote ¹⁸⁸ The Bajau Laut, like other nomadic groups inhabiting the state's peripheries, threaten both the state's political imaginary by rejecting the cultural model of citizenship associated with modernity and its security and immigration apparatus focused on policing movements within and beyond territorial boundaries.Footnote ¹⁸⁹

3. Reinventing Borders

Scholars writing on nationality and citizenship have remarked on the emergence of habitual (territorial) residence as a norm that is considered to constrain states’ ability to deny individuals the right to citizenship.Footnote ¹⁹⁰ However, this emphasis on the coincidence of habitual residence and eligibility for citizenship understates the extent to which states are increasingly engaged in decoupling territorial presence from political membership when doing so serves their political interests. Most of the literature on this separation focuses on the “ladders” rather than the “chutes”––to borrow Ayelet Shachar's vivid metaphor––of access to political membership, that is, the ability of elites to buy their way into the citizenship of states with whom they share no historical, socio-cultural, or even residential ties.Footnote ¹⁹¹ These investor citizenship, golden passport, or cash-for-passport programs as they are variously labeled, allow states to fast-track the citizenship of those who they perceive as creating value for the state by dispensing with the traditional criteria for political membership and in the absence of any evidence of affective ties to the nation, even as states close the doors to “unworthy” internal others, including long term residents.Footnote ¹⁹²

One such ingenious scheme that severs the connection between territory and citizenship is the creation of a class of “offshore citizens” by governments such as the UAE and Kuwait.Footnote ¹⁹³ Noora Lori's incisive ethnographic account of the arrangement between the UAE and the Union of Comoros, one of the world's smallest and poorest countries, paints a striking picture of this practice of off-shoring. As Lori discusses, the process whereby the UAE purchased Union of Comoros passports to turn its own resident minorities into stateless “citizens” of Comoros was a carefully orchestrated process by the UAE Ministry of Interior. Beginning in 2008, the Ministry launched a statelessness registration drive and issued stateless identity cards to stateless individuals and those with pending naturalization applications. Persons with a stateless ID card were then issued Comoros passports with the understanding that the foreign passports were a temporary documentation measure to “regularize” their legal residence as foreigners in the UAE pending the eventual grant of UAE citizenship.Footnote ¹⁹⁴

Through this outsourcing arrangement, long-term resident minorities in the UAE have been transformed into temporary residents, permanently at risk of deportation. However, since these “passports of convenience” do not entitle passport recipients to call on the Union of Comoros for diplomatic protection or to reside in Comoros, it is unclear where they could be deported if the UAE were minded to expel them.Footnote ¹⁹⁵ This risk may in fact never materialize given that the limbo status of offshore citizenship is not foreseen as a pathway to expulsion, but rather as a form of conditional inclusion. Counting putative citizens as temporarily resident foreigners meets the UAE's security objective of comprehensively documenting its minority population and its economic interest in being able to call upon its labor, while simultaneously postponing any resolution of the political contestation around who belongs to the body politic.Footnote ¹⁹⁶ At the same time, the artificial attribution of the citizenship of Comoros to this population allows the UAE to avoid having to explicit deny them Emirati citizenship and the formal statelessness that would ensue.Footnote ¹⁹⁷

Off-shoring citizenship enables the UAE to perform the alchemy of converting would-be citizens to foreign residents without any modification of its territorial boundaries or any movement of population within and beyond these borders. A similar program introduced by Kuwait to outsource the bidoon to the Comoros was reportedly abandoned following international outcry, though a more cynical explanation is that carving a path for residence in the state would have undermined Kuwait's stance that the bidoon should return to the countries of their true nationality.Footnote ¹⁹⁸ Details of the current status of the UAE's scheme, which did not receive the same level of international visibility, are difficult to come by, but the latest reports suggest that Emirati holders of Comoros passports have found it either difficult or impossible to renew these passports, and in the latter case, have yet again found themselves without any identity documents.Footnote ¹⁹⁹

Scholars have noted that rather than being provoked by any real crisis, the UAE's statelessness problem was prompted by the UAE's “own attempts to exhaustively count and categorize all residents in the country without expanding the boundaries of the citizenry.”Footnote ²⁰⁰ As Part III will argue, the possibility that state identity regularization drives can create new forms of exclusion should inform international policymaking on statelessness.

1. Archival Erasure

Can personal identity be obliterated through the destruction of an archive? Prior to the advent of documentation practices of state legibility, this could have been dismissed as a theoretical question with little impact on the identity and everyday life of a member in the political community. In the context of the modern nation-state, identity documentation has become a form of “administrative ordering” with both emancipatory and regressive consequences: identity documents are both vital for the welfare state to provide and expand access to social services as well as an instrument of surveillance and control for the state to “discipline and punish” subjects.Footnote ²⁰² Official recognition of one's legal status through documents such as birth certificates, identity cards, and passports can empower individuals and collectives to assert claims against the state or against other members of the political community.Footnote ²⁰³ At the same time, through providing the criteria for state legibility, documents can also be used to exclude, create, manipulate, and obscure identities, molding them to serve the different purposes of the state and in the process even shaping how individuals perceive themselves.Footnote ²⁰⁴

The consequences of making a population visible through identity documentation is that one's membership in the state can be worth little more than the paper that it is written on. The case of “the erased” in Slovenia mentioned previously is a particularly chilling instance of the state's ability to transform community members into foreigners through paperwork, and with little in the way of warning.Footnote ²⁰⁵ Many of the erased had failed to apply for citizenship in the six-month window for submitting applications either because they were given inaccurate information on the documents they would need to supply, or because they had practical concerns relating to inheritance and retirement in their countries of origin. Even more importantly, they were under the illusion that they would continue to retain their social rights as permanent residents with long term ties to Slovenia.Footnote ²⁰⁶ The erasure of their records and loss of rights thus came as a shock: residents were asked to appear in person before official authorities and the documents pertaining to their residence were either confiscated or destroyed.Footnote ²⁰⁷

Equally poignant is the case of “non-citizens” in Latvia and Estonia, whose identity was not erased, but rather reconfigured through documentation. While this status gives Latvian non-citizens a range of rights and privileges beyond stateless persons––for example, a special passport guaranteeing them the right of return, the right of residence, and the right to diplomatic protection—they have restricted political rights and are prohibited from occupying certain official positions.Footnote ²⁰⁸ The lack of international pressure to clarify the international law status of Latvian non-citizens has received a boost with the 2005 Latvian Constitutional Court ruling that non-citizens cannot be classified as either stateless persons or as citizens, but occupy a sui generis status that should not be considered akin to Latvian citizenship.Footnote ²⁰⁹

Much worse, from the point of view of access to state protection and rights, is the case of individuals registered as “nationality unknown” in the Netherlands. A designation applied to thousands of persons in the Dutch civil registration records,Footnote ²¹⁰ “nationality unknown” is premised on the individual's inability to prove a negative, namely, they do not hold any nationality. Unlike the category of statelessness, which would provide a pathway to citizenship in the Netherlands, “nationality unknown” leaves the individual in limbo, subject to detention and without any prospect of acquiring Dutch nationality.Footnote ²¹¹ This practice was the subject of a petition before the UN Human Rights Committee (HRC) filed by a child born in the Netherlands to a Chinese mother who had been trafficked to the Netherlands as a minor and classified as an “illegal alien.”Footnote ²¹² Since the mother was unable to acquire Chinese citizenship due to lack of birth registration in China and was also unable to conclusively prove that her son did not have any other nationality, the Dutch authorities refused to change his status from “nationality unknown” to “stateless,” thus excluding him from the international protections applicable to stateless children.Footnote ²¹³ Mother and son were compelled to live in a center for unsuccessful asylum applicants and under constant risk of being deported.Footnote ²¹⁴ The HRC held that in depriving the petitioner of his right as a minor to acquire a nationality, the Netherlands had violated his right to a nationality under Article 24(3) of the International Covenant on Civil and Political Rights (ICCPR). In addition, the Netherlands had an obligation under the Statelessness Convention to “‘determine whether a child would otherwise be stateless as soon as possible so as not to prolong a child's status of undetermined nationality.’”Footnote ²¹⁵

The HRC decision signals a significant international victory for resolving cases of childhood statelessness in the Netherlands, in that it marks the beginning of a series of steps that would have to be undertaken in order to eventually acquire Dutch nationality. It was made possible by over a decade of strategic litigation by international and local NGOs and experts (including the Open Society Justice Initiative, which has actively pursued cases of statelessness before regional human rights mechanisms) coupled with an administrative court decision and a report by the Dutch Advisory Committee on Migration Affairs reprimanding the Dutch government for its failure to establish a stateless determination procedure.Footnote ²¹⁶ As Part III will argue, strategic litigation efforts that combine domestic and international expertise to mobilize a range of legal actors may provide one avenue to counter statelessness creep.

2. Paper Non-citizens

While administrative erasure is a clinically efficient way for a state to simply “disappear” various citizens from its books, a more insidious way to turn citizens into stateless persons is through “paper-izing” informal identity and the criteria for belonging. Documents such as ID cards and passports capture “the citizen himself as an effect of his ‘mise en carte,’”Footnote ²¹⁷ in the process thwarting or rendering obsolete previously important sources of recognition and identity.Footnote ²¹⁸ The state's supreme authority to evaluate and enforce identities through the official truths embodied in its documents authoritatively forecloses the possibility of officially unrecognized identities, including those that may challenge the falsehoods that are sanctified through officialdom.Footnote ²¹⁹ These documentary errors and inconsistencies are not always an outcome of a weakly bureaucratic state, but are at times an actively produced form of marginality in service of the state's political purposes.Footnote ²²⁰ Citizenship that emerges through the law, its institutions, and forensic documentation—so-called administrative citizenship—can be a highly regulated and exclusionary institution that renders stateless already marginalized groups in society.Footnote ²²¹

One of the most ambitious attempts at the “weaponization of documentary citizenship” is the effort to enumerate and comprehensively document the population of the Indian state of Assam through the implementation of a National Register of Citizens (NRC).Footnote ²²² The NRC has a long and tortured history in Indian politics, buffeted by waves of migration across the border between India and Bangladesh, leading to local Assamese anxieties about the influx of “illegal” Bangladeshi immigrants into the state across the porous border between the two countries.Footnote ²²³ The NRC process that commenced in 2015 is intended to update the 1951 NRC, which was set up as a population enumeration exercise following the first national census of independent India. Based on the Citizenship Act, 1955 and The Citizenship (Registration of Citizens and Issue of National Identity Cards) Rules, 2003, it is ostensibly a highly legalistic exercise to identify Indian citizens and weed out “illegal immigrants,” defined as those who can prove that they or their ancestors entered Assam before March 24, 1971, the eve of Bangladesh's declaration of independence from Pakistan. This proof consists of being able to furnish “legacy data”: individuals can either submit documents evidencing that their names were included in the 1951 NRC or on the electoral rolls before March 24, 1971. In addition, they can submit documentary proof, such as birth certificates or bank documents, of their family links to parents and ancestors who are included in the legacy data.Footnote ²²⁴

The requirement to provide documentary proof of residence stretching back several decades ignores the reality of documentation practices in a country like India, where a significant percentage of the population lives its life bereft of any state-produced identity and where it is relatively easy to obtain fraudulent “official” documents to serve particular purposes.Footnote ²²⁵ Indeed, many minority families that returned to Assam after the guarantee of safe passage under the 1950 Nehru–Liaquat Agreement did so only after the 1951 census and NRC exercise—that is said to have been carried out in less than a month—was completed.Footnote ²²⁶ Thus, not only does the emphasis on inclusion in the 1951 NRC exclude various individuals who had been unable to register at the time, but given the geography of Assam where property and documents are regularly lost to natural disasters such as floods and land erosion, any paperwork paints at best a partial snapshot of the population. In addition, several classes of people in Assam, such as local Indigenous communities never saw the need to acquire documents that were considered an alien, colonial, process and others, such as women who were married as minors and transgender persons, would find it nearly impossible to prove documentary links to biological family members who qualify as citizens.Footnote ²²⁷

It is not only those who lack the documentary proof required by the NRC exercise that have found themselves excluded from the final register, but also those who possess the right documents, but have the misfortune of having them recorded incorrectly. Since the transcribing, recording, and translation of the documents was done manually, modeling from previous error rates in the processing of such data in India reveals that around 5 percent of those with correct documents could have been excluded from citizenship due to something as minor as a spelling error.Footnote ²²⁸

The NRC was published in August 2019 and the 1.9 million residents who were excluded from the register and classified as “D” or “doubtful” Voters, were given 120 days to appear before “Foreigners Tribunals,” quasi-judicial bodies tasked with determining whether they are Indian nationals or illegal migrants who could be detained and subject to expulsion.Footnote ²²⁹ Several of those labeled as illegal migrants challenged the NRC process arguing that the authorities had in fact never attempted to verify their status or that they had been the victims of fraud by those who wanted to lay claim to their property.Footnote ²³⁰ The proceedings themselves were widely criticized as lacking independent and well-qualified judicial officers and procedural safeguards.Footnote ²³¹ Not only was the burden of proof placed on the supposed illegal immigrant to establish their right to citizenship, but any inconsistencies or errors in documents or testimonies were treated with suspicion, leading to persons being declared “foreigners” and placed in detention centers.Footnote ²³²

India is not the only country that has seen the production of statelessness as a consequence of a national effort at population enumeration and categorization. As scholars have noted, statelessness can be the intended as well as unintended result of state identity regularization drives, that are increasingly being undertaken by states also following sustained international pressure from agencies such as the United Nations and the World Bank that have promoted identity documents, including digital IDs, as a tool for social inclusion.Footnote ²³³ In some cases, however, the rollout of these identification programs have been plagued with logistical and technical failures, resulting in the exclusion of already marginalized groups in society such as women or the elderly as in the case of Uganda.Footnote ²³⁴ More troubling, however, for the purposes of this Article has been the deliberate effort by states to exclude minorities from these registration processes, as in the case of the Haitian migrants and Dominicans of Haitian descent mentioned previously. Recent scholarship has sought to draw a link between the advocacy of legal identity documents by international actors and the measures taken by the Dominican Republic to exclude these populations from accessing this documentation, rendering their entitlement to the rights of citizenship even more precarious.Footnote ²³⁵ As states undertake efforts to consolidate and strengthen their processes for identity management, individuals and groups who do not fall within the state's political imaginary may either be systematically left out of documentation processes, or assigned the label of “stateless” persons, thus fixing what was previously a fluid and malleable identity.Footnote ²³⁶ This is an issue to which Part III returns with a cautionary message for international policy actors.

3. Bureaucratic Statelessness

Even for individuals who are entitled to claim citizenship in a state, access to citizenship is not merely a matter of formal laws or policy; rather, conferral of citizenship involves the conferral of belief by officials tasked with administering these laws. The processing and evaluation of citizenship claims is thus contingent not only on the strength of the evidence that the claimant can provide, but also on the individual judgment and discretion exercised by the official in charge. This valuation will not always produce citizenship but may reinforce or prolong statelessness.Footnote ²³⁷

Recent legal developments at the international and regional human rights bodies display greater awareness and heightened scrutiny of the role of bureaucracy in the creation of statelessness.Footnote ²³⁸ The case of the Nubians of Kenya before the African Commission on Human and Peoples’ Rights illustrates the uphill battle faced by communities and groups seeking to prove evidentiary statelessness based on everyday bureaucratic state practices.Footnote ²³⁹ Described as a “subject race turned ethnic stranger,” the Nubians were conscripted from Egypt and Sudan into the British colonial armed forces and migrated to Kenya as part of the British colonization effort in East Africa. Having been categorized as “detribalized natives” who were subject to native local laws during the colonial era, the Nubians found themselves in a politically challenging and legally uncertain post-independence environment due to their previous association with the colonial administration.Footnote ²⁴⁰ The Nubians were in principle entitled to claim Kenyan nationality at the time of Kenya's independence in 1963 on the basis of the jus sanguinis principle. However, in practice, many of them were excluded from obtaining citizenship since Kenya did not include the Nubians amongst one of the forty-two official ethnic groups and few Nubians had documentary proof that would allow them to establish citizenship by descent from individuals living in Kenya over two generations.Footnote ²⁴¹

Given the difficulties in establishing their citizenship based on descent, the Nubians have been relegated to seeking citizenship status through naturalization and registration. These processes lack detailed procedural safeguards and rules to orient administrative decision making, resulting in significant discretion being exercised by administrative officials.Footnote ²⁴² Perceived by many Kenyans, including Kenyan officials, as “foreigners” lacking a recognized homeland and land tenure in the manner of the official tribes, the Nubians have been subjected to additional vetting procedures to obtain important documents such as national ID cards, which are amongst the most important official markers of Kenyan citizenship.Footnote ²⁴³ The vetting procedures have been criticized as highly discriminatory and prone to corruption, with the Muslim identity of the Nubians being treated as a ground for suspicion and demands for additional documentary proof of ancestral ties to Kenya, such as birth certificates of parents and grandparents.Footnote ²⁴⁴ Commentators have noted that since these acts of discrimination that produce evidentiary statelessness do not stem from any identifiable law or official policy but are rather the result of fragmented decisions made by state agents on an individual basis, they are harder to prove and challenge before courts and other bodies.Footnote ²⁴⁵

The African Commission's decision in the Nubian Community in Kenya is one of the rare examples where these claims were in fact successful, though only after significant advocacy and a string of failed efforts at the domestic level. The Commission held that the exercise of administrative decision making in the issuance of identity documents was not only arbitrary and burdensome for the Nubians, but that the overt discrimination against the Nubians on the basis of their ethnic and religious identity was a clear violation of their dignity and the right to equality and non-discrimination under the African Charter.Footnote ²⁴⁶ In addition, these discriminatory practices, procedural hurdles, and delays in the acquisition of identity documents prevented the Nubians from exercising the rights associated with citizenship and rendered them effectively stateless, violating the right to recognition of legal status guaranteed under Article 5 of the Charter.Footnote ²⁴⁷

While the decision has led to a few concrete changes at the domestic level, including the presence of Nubians on the vetting committees and acceleration in birth registrations and issuance of identity documents, administrative discretion in the process has been retained. The applicant still bears the burden of proof to establish citizenship before the vetting committees, which operate with few procedural rules and without any possibility of an appeal against their decisions.Footnote ²⁴⁸ Neither is the situation of bureaucratic statelessness experienced by the Nubians entirely exceptional, whether in Kenya or beyond. In the African context, scholars have argued that notwithstanding ostensibly neutral citizenship laws, various groups associated with the colonial legacy or living in border regions have had their citizenship status challenged and been required to prove their entitlement to nationality.Footnote ²⁴⁹ A less well-known example from Kenya itself are the Makonde, descendants of migrant farm workers who were brought to Kenya from Mozambique beginning in the 1930s to work on sisal plantations. While they were not automatically entitled to Kenyan citizenship at the time of independence due to the restrictive requirements of jus sanguinis, they would have been eligible for citizenship through registration, a procedure that most of them failed to go through due to lack of information, cost, or the assumption that they will be returned to Mozambique.Footnote ²⁵⁰ After decades of being denied or facing discrimination in the acquisition of birth certificates and identity documents, it is only after extensive lobbying that they obtained a directive for their naturalization and registration as Kenyan citizens in 2016, a move that was interpreted as politically expedient for the government given the impending national elections.Footnote ²⁵¹ As recently as last year, the Kenyan biometric ID scheme that aims to provide every Kenyan with a unique identification number was accused of “digitizing discrimination” by systematically making it more difficult for minorities such as Nubians and Kenyan Somalians to apply for a digital ID.Footnote ²⁵²