By: Taryn Marks
William E. Conklin. Statelessness: The Enigma of an International Community (Hart Publishing, 2014). 366 p. Hardcover $120.00.
Statelessness is an enigma, William Conklin writes, due to an assumption and a claim. The international community assumes that all persons are members of that community through the state of which they are a national. The international community claims that it provides protection for all members. The enigma arises because millions of persons are stateless, are not nationals of any state and thus are excluded from the international community, leaving them unprotected.
For those interested in the history of statelessness and in a thorough explanation of how and why the international community has created (or simply allowed to exist) such a large, unprotected population, Conklin’s book will be well received. Conklin’s passion for the subject is clear and his points are well-supported. However, for those hoping Conklin will present a definitive (or even a pie-in-the-sky) answer to the question of how to solve this enigma, the book may leave you frustrated.
Statelessness begins by explaining that the international community has two discourses. In the first discourse, the international community exists as the aggregate will of the states, the traditional definition of the international community. Under this view, the state is the primary actor and member of the international community; most importantly, the states always maintain independent power over domestic affairs, what Conklin call the “boundary of the reserved domain”—the boundary of power that the international community cannot touch. In the second discourse, Conklin’s implicitly preferred view, there is the international community as a whole. In the international community as a whole, the individual person is the actor and can access that community without state intervention. According to Conklin, statelessness is inevitable when the world is viewed as the aggregate will of the states because the ultimate decision as to whether to recognize the nationality of a person will always reside with the executive branch of a state. Under the international community as a whole, however, the person’s social and cultural bonds determine nationality.
Statelessness focuses on the status of those persons who, for whatever reason, no longer have a state in which they may legally live. Conklin focuses the first part of the book on the concept of statelessness, explaining how statelessness developed under the aggregate will of the states before discussing the consequences of statelessness and the reasons why statelessness has not been protected as a human right. Conklin provides numerous, often moving examples of those who are stateless: refugees from ISIS living in camps in Turkey, those who live in Palestine, nationals of the former USSR. The sources he uses are wide and varied, including international treaties, General Assembly documents, and fundamental sources of international law (such as jus cogens) to document and explain this enigma. He also pulls in sovereign and international court decisions from a variety of sources. But the strength of his analysis is significantly diminished by the repetitiveness of the first half of the book.
One almost forgets the repetitiveness of the first half of the book, however, when you reach the end of the book. In the last chapters, Conklin’s clear passion for those who have been rendered stateless stands out, and the book becomes much less repetitive. Conklin focuses on defining the social and cultural bonds that should exist between a person and her “state,” before shifting to his main question, whether the traditional sources of international law can be used to obligate states to protect a stateless person, regardless of the will of the state. Drawing a parallel to international criminal law, particularly to the ad hoc tribunals that were set up after Rwanda and Yugoslavia, Conklin argues that, like international criminal law, protecting stateless persons is implicit in international treaties. When an executive arbitrarily expels or refuses to grant a person nationality and when statelessness is recognized as a basic human right that is self-executing, the boundary of the reserved domain can be pierced. Being able to penetrate a state executive’s decisions means that the shift from an aggregate will of the states to the international community as a whole has started. That, it seems, is one of Conklin’s points: that statelessness arose because of the aggregate will of the states discourse, and that it is a good thing that the shift to the international community as a whole has begun.