Saturday, February 23, 2019

Hoda Muthana, Shamima Begum, Said Imasi, and You

"Because it claims she is a dual citizen of Bangladesh. Britain’s Home Secretary (or interior minister) Sajid Javid says he was legally entitled to strip Begum of her British citizenship because she already has Bangladeshi citizenship via her Bangladeshi-born mother. However, Bangladesh’s ministry of foreign affairs insists she is not a citizen, and that there is “no question” of her being allowed into the country. She has never lived in Bangladesh."

Quick, can you list all the countries to which you have an "effective link?" Where were you born? Where do you reside? Where were your parents born? What about your grandparents? Where were you educated? Have you ever served in the military? What's your religion?

Ok, so maybe you have links to 3 different countries. Or maybe 5. Or maybe just 2. Now, answer this question: Which of these links are "genuine"? Sure, maybe you've been living in Canada for the last 10 years, but do you really feel like you have a genuine link to Canada? Do you even like maple syrup? Have you ever even watched a hockey game? Do you feel like you are more closely connected to Canadians than with any other people?

Maybe you were born in Gabon, but you left as a little baby. How genuine is your link to Gabon? Do you even know how to make baton de manioc? Have you ever even eaten manioc? Maybe your parents were born in the United States, but you've never been there. Are you American? You could very well be! Are you entirely sure that you're NOT American?

What is nationality? The International Court of Justice says it's a social fact of attachment. A genuine connection of existence. So that clears THAT up.

The UK passed a law saying that "terrorists" can be stripped of their citizenship. Who is a terrorist? Whomever the UK says is a terrorist. And so, through this circular logic, the UK has decided it can take citizenship away from anyone at any time.

But doesn't international law prohibit creating statelessness by taking citizenship away from someone who doesn't have another citizenship? Sure, but who's to say someone is stateless? The UK says that Shamima Begum is a citizen of Bangladesh, but this seems to be news to Bangladesh. Both countries are now pointing fingers at each other with no solution in sight. The Statelessness Conventions define stateless persons as those "not considered to be a national" by any country "under the operation of its law." But there's no final arbitrator of statelessness, so the UK is free to declare someone is not stateless after all.

Many stateless people find themselves in immigration detention for years, waiting to be deported because the country detaining them will not admit that they are stateless. Just ask Said Imasi, detained in Australia for 8 years. He is not sure where he was born, but he thinks his mother comes from Western Sahara. That country refuses to accept him. The logical conclusion is that Said Imasi is stateless, but the Australian government will not agree. Instead, they recently tried to determine where Imasi is from by recording his voice and sending it to an expert on accents. It may take forever, but the Australian government is going to deport him, somewhere.

These cases highlight perhaps the biggest challenge facing efforts to resolve statelessness. There is no international mechanism for establishing someone's nationality. If you are stateless, there is no international forum where you can establish that. If your country decides you are not a national, there is literally nothing you can do, yet at the same time, your country can continue to deny that it has made you stateless. Yesterday, Mike Pompeo stated that a woman with an Alabama birth certificate was not born in Alabama. How he arrived at this conclusion is not clear, but before other Americans decide to leave the country, maybe they should ask themselves how well they've been getting along with Mike Pompeo. Because you're country can pretty much decide you're not a citizens whenever it wants to, and who is to stop it? Sure, Mike Pompeo may get schooled on this case by the US Supreme Court. There is a pretty strong precedent against denaturalization in Trop v. Dulles. But are you sure you want to take that risk?

Not only can your country wake up one day and decide that you are not a national, other countries may refuse to offer you protection because they may refuse to accept that you are, indeed, stateless. Determinations of statelessness often require one state, such as the UK, to interpret the nationality laws of another state, such as Bangladesh. Good luck with that! Of COURSE other states will be happy to accept any person deported by the UK, particularly so that the UK can score a political win. Of course.

The international laws of nationality and statelessness are like an endless hall of mirrors, each reflecting back a door that can never be opened, because it's not really a door, it's just a mirror. We all deserve better, but in a system of sovereign nation states, what authority is going to tell the UK, the US and Australia no? Who is going to force them to take back their citizens, or to resolve a case of statelessness created by other countries?

So next time you're planning a trip abroad, make sure you're in good with Mike Pompeo.

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