Reparative citizenship: A remedy for manufactured, intergenerational in situ statelessness?
Christoph Sperfeldt (Macquarie University)
David Owen and Rainer Bauböck have started a welcome conversation on ‘reparative citizenship’, which, according to their operational definition, involves the offer of citizenship status to those who live outside of a state’s territory and whose citizenship was unjustly severed – under conditions for which that state bears responsibility and/or for which it accepts remedial duties. Owen and Bauböck and the subsequent contributors provide a range of cases – mostly from the Global North (including colonial legacies) – that may be considered within the scope of reparative citizenship. Among others, this includes direct acts of injustices, such as persecution and expulsion, but also discriminatory deprivation of citizenship through past editions of nationality laws (with gender-discriminatory nationality laws highlighted as an example).
In my response, I want to contribute to this debate in two ways: firstly, by directing our attention to cases in the Global South and querying whether we need to limit the definition to those who live ‘outside of a state’s territory’; and secondly, by asking if other avenues for reparative citizenship are available when states do not accept their ‘remedial duties’. I do so by drawing on my long-term work on multi-generational in situ stateless communities, mainly in Asia.
State-manufactured statelessness as a historical injustice
In situ stateless populations refer to people who are not on the move and not regarded as nationals by any state, including their home state where they were born and have resided, often for multiple generations. Recent scholarship has tried to capture this phenomenon by drawing attention to the evolving practice of states to intentionally manufacture stateless people out of their own citizenry. Discrimination sits at the core of this practice. In many cases, this involves the arbitrary deprivation of citizenship of entire communities, often in contravention of a state’s international (human rights) obligations. While the individual contexts and circumstances differ, I argue here that such practices may amount to a historical injustice that should fall within the remit of reparative citizenship. What is more, in situ stateless people have genuine and long-standing links to their home country and no citizenship of other countries, making their normative claim arguably stronger than extraterritorial cases with longer chains of descendants. Hence, reparative citizenship as a response to in situ statelessness aligns with the genuine link requirement discussed by Lior Erez, Peter Spiro and others.
State-manufacturing of long-term – often multi-generational – residents with genuine links into non-citizens is frequently a group-based phenomenon that disproportionally affects ethnic or religious minorities. It is no coincidence that 75 percent of all stateless people globally belong to minorities. The Rohingya of Myanmar are perhaps one of the most prominent examples. Intergenerational in situ statelessness is maintained through processes of ‘othering’ and deliberate state policies that exclude affected groups from citizenship and reproduce them as ‘perpetual foreigners’. Such policies can be enacted by discriminatory laws, such as in the case of the Rohingya. However, often affected individuals may be citizens under the law, but they are simply not viewed or treated as such in practice – even across generations.
A fitting example is the intergenerational statelessness affecting populations of Vietnamese origin in Cambodia. Many individuals in this community have resided in the country at least since the 19th century but have never been recognised as citizens after the independence of Cambodia in 1953. Even though Cambodia’s nationality law confers citizenship automatically onto children born to ‘foreign’ parents who were also born in Cambodia, these legal provisions are not applied to these minority communities. Instead, discriminatory administrative practices keep these communities in a state of perpetual foreignness, where they are portrayed as ‘illegal immigrants’ across generations.
Policies of state-sponsored statelessness are frequently linked to recurrent phases of coercion and violence, including mass deportations and mass atrocities. Indeed, the treatment of Jewish citizens under Nazi Germany and the persecution of the Rohingya in Myanmar have highlighted how citizenship deprivation often precedes genocidal acts. In setting out the stages of genocide, Gregory Stanton argues that the removal or denial of citizenship is at the centre of the genocidal process. Cambodia’s Vietnamese populations also suffered different periods of violence, the worst under the Khmer Rouge regime during the 1970s. The Khmer Rouge forcibly deported an estimated 150,000 to 170,000 people across the border to Vietnam; almost all of the remaining Vietnamese were systematically killed. Most of those deported returned to Cambodia during the early 1980s, where they continued to be treated as immigrants. Forty years later, the Extraordinary Chambers in the Courts of Cambodia (ECCC), a hybrid court set up by the Cambodian government and the United Nations, convicted the senior leaders of the Khmer Rouge still alive of genocide against the Vietnamese.
Reparative citizenship for intergenerational, manufactured in situ statelessness
Considering the extent to which citizenship deprivation is frequently not only arbitrary in nature but also linked to international crimes, it is appropriate to consider the restoration or conferral of citizenship as a reparative act for the harm caused by the deprivation or denial of citizenship – more so if the combined social and legal exclusion was either a root cause or significant factor in the perpetration of atrocity crimes. The United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law recognise the restoration of citizenship as a form of restitution. No doubt, the drafters would have considered here the prominent example of Jewish citizens in Nazi Germany. Yet, the conceptualisation of reparative citizenship as ‘restoration’ or ‘restitution’ may not capture populations who have never been able to get proof of their citizenship in the first place. In such cases, the status quo ante may not be a state-affected populations want to return to. Rather, reparations take on a transformative dimension here, whereby long-term social and legal exclusion (often in contravention of a state’s own laws) is recognised as historical injustice and addressed through an act of inclusion and the conferral of citizenship to affected communities.
What makes reparative citizenship another productive lens is that such group-based exclusion may be more appropriately addressed through special legislation and procedures that target harmed communities as a group, rather than individuals. While states usually prefer to address in situ statelessness through case-by-case naturalisation, the associated administrative processes are cumbersome, discretionary in nature and often require documentary or other evidence that affected communities cannot provide. Special legislation that acknowledges the link between the harm and the remedy combined with a lower burden of proof and simplified procedures that account for the reality in affected communities may be a more appropriate solution to the conferral of citizenship as reparation in such circumstances.
The case of in situ stateless communities provides an interesting counterpoint to the cases of voluntary citizenship refusal by Indigenous peoples, especially in settler colonial contexts, discussed by Jocelyn Kane and Patti Lenard. Kane and Lenard argue that such refusal may amount to a type of voluntary statelessness as reparation (if one only follows the international statelessness definition) and demand state acceptance and protections for such reparative non-citizenship. The argument is persuasive and recognises that citizenship in modern nation states has, in effect, become a gateway for accessing services, protections and opportunities and that any negative effects of citizenship refusal would have to be addressed for it to maintain its reparative effect.
The sentiments among many non-indigenous in situ stateless minority communities I have worked with are somewhat different from the cases described by Kane and Lenard. Rather than voluntary citizenship refusal, most people experience involuntary citizenship denial. In response, stateless communities of Vietnamese origin in Cambodia pursue Cambodian citizenship for both moral and pragmatic reasons. Moral, because they consider Cambodia – the place where they were born and where the graves of their parents and grandparents are – to be their home. Citizenship is seen as a means to end a situation where they are marked, through state-sponsored classification and identification, as outsiders or foreigners (at the same time, they are realistic about the extent to which the grant of citizenship alone would overcome historical discrimination). They also pursue citizenship for pragmatic reasons because many states across Asia have expanded their reach through new service provision and enhanced digital identification management systems, making exclusion from (any) citizenship ever more costly and a significant barrier to development. Hence, contexts differ, and so does the case for and the formulation of reparative citizenship.
Demanding reparative citizenship before international courts?
Even if we accept that reparative citizenship could be one way to frame a response to intergenerational in situ statelessness, such acts require state acknowledgement and political will to address historical injustices – which often may not exist. In such situations, can affected people turn to other fora, such as international courts?
It was one of the interesting features of the ECCC in Cambodia that it allowed victims to participate as civil parties and request ‘collective and moral’ reparations. In their reparations requests, a group of stateless civil parties of Vietnamese origin had initially asked for the recognition of or access to Cambodian nationality – a request of unprecedented nature in an international(-ised) criminal justice setting. In brief, the civil party lawyers argued that the crimes caused, in part, their clients’ present-day harm in that, during their forced displacement by the Khmer Rouge, victims were forced to leave behind, destroy, or otherwise lost, documentary proof demonstrating their ties to Cambodia. As a result of this loss, these civil parties suffered harm because, upon their return to Cambodia, they could not establish their identities and were, instead, treated as ‘immigrants’ or ‘foreign residents’ by Cambodian officials. This situation has resulted in continuous harm from a lack of access to basic social, economic, political and human rights. It also expands to intergenerational harm, as the long-term consequences of these crimes continue to affect the survivors’ children and grandchildren, perpetuating the cycle of lack of citizenship in new generations.
However, the ECCC judges made it clear that, as a hybrid criminal court, they would not infringe on areas of state responsibility, which includes the grant of citizenship. Hence, the civil parties eventually sought only a small civic and legal education project to raise awareness among civil parties of the legal and administrative framework surrounding nationality and civil registration. In their judgment in Case 002/02, the trial judges recognised the project as a reparative measure, finding that “Civil Parties… suffered harm including psychological trauma, discrimination, material deprivation and, importantly in this context, the loss of legal status due to the loss of documentation showing their ties to Cambodia, as a result of the crimes related to the treatment of which they were victims.” While the judges were able to recognise the harm, they were unable to provide the remedy participating stateless civil parties had initially hoped for, namely reparative citizenship. The case shows that international criminal courts, which have no leverage over questions of citizenship that are the prerogative of the state, are a difficult forum for considering reparative citizenship. Yet, such courts may be a platform for exposing the historical injustices that form part of the structural causes of manufactured statelessness. After all, reparative citizenship frequently involves a long, sometimes decade-long, process of advocacy and struggle for affected people.
Conclusion
Framing solutions to state-manufactured in situ statelessness in terms of reparative citizenship directs attention to the underlying injustice perpetrated by the (arbitrary) deprivation or denial of citizenship to populations with long-standing and genuine links to the state in which they have lived, often for generations. While discriminatory nationality laws or discriminatory practices account for the persistence of the phenomenon and might in themselves be a case for reparative citizenship, the case is even stronger in situations where the arbitrary deprivation of citizenship and statelessness is associated with genocide. I am aware that we all have different cases in mind when thinking through the rationales and scope of reparative citizenship. In my response, I have considered the case of in situ stateless people, including those who suffered genocide in the past. In such circumstances – and reflecting on Erez’s contribution – reparative citizenship may be not only permissible but required.