On statelessness: What does it actually mean to be a citizen?

In September 1991, two German tourists in the Tyrolean Alps came across a human corpse so intact that they initially believed they had found a fellow mountaineer who had been killed in an accident — not, as it turned out, the oldest natural mummy ever discovered. The excitement of the discovery was laced with controversy: was the body, and the unprecedented knowledge it contained, Austrian or Italian?

The most obvious answer is that when the man who came to be known as “Ötzi” bled out in that frigid mountain pass, it was thousands of years before concepts like “Austria” or “Italy” existed. It was roughly 5,000 years before the border between the two countries took its current shape, and roughly 2,500 years before the ancient Greeks are thought to have started formalising the idea of a particular status relating to the bond between an individual and the place they were born.

For a human to be “stateless”, then, is a concept that relies on many others to mean anything at all. It is either a very new idea, or a very, very old one.

Late last year, Australia’s High Court overturned decades of precedent in declaring indefinite detention constitutionally invalid, resulting in the release of asylum seekers in detention who had no reasonable prospect of being deported. While it does not only impact stateless people in Australia, the decision has huge implications for them.

According to the Department of Home Affairs, there were 7,700 stateless people in Australia as of 2022. However, as the United Nations High Commissioner for Refugees’ indicates, this figure is such a vague estimate as to be almost meaningless. Australia has no specific statelessness determination procedure. A stateless person as defined by the UN is “a person who is not considered as a national by any state under the operation of its law”. Indeed, it’s only in the past five years or so that Australia has started reporting to the UN that there were any stateless people here at all. The figure above is made up of either stateless people held in detention or those who have been issued or applied for an Onshore Humanitarian Visa and have self-reported as stateless.

Professor Michelle Foster, director of the Peter McMullin Centre on Statelessness at Melbourne Law School, said there are problems with the statistics regarding statelessness worldwide.

“It is widely accepted that the numbers the UN High Commissioner on Refugees puts out [around 4 million] are a vast underestimation,” Foster told Crikey. “The World Bank says that a billion people don’t have legal identity.” 

“Now obviously, not everyone without legal identity is stateless. But it does mean that the true number of statelessness is somewhere between 4 million and a billion, which is not a very accurate estimate.”

Katie Robertson, coordinator of the Stateless Children Legal Clinic, said the system stateless people have to navigate in Australia is riddled with gaps and inconsistencies.

“A child born on Australian soil to stateless parents has a clear pathway towards citizenship, but their parents don’t,” Robertson told Crikey. “Similarly, in a situation where, say, a stateless Rohingya family comes to Australia — if they have one child born in Myanmar and one child born in Australia, that second child will have a pathway to citizenship but their sibling won’t.”

Stateless people in Australia are subject to the vagaries of the refugee visa system, Robertson said. To access services like medical care, they will have to renew their right to be in Australia every five years, or three years, or even every six months, depending on the type of temporary refugee visa they are on. 

“This temporary existence has a huge impact on people’s ability to build a life in Australia, especially for stateless people with children,” she said. “Many feel like they exist in a state of limbo; that no country recognises them as belonging.”

Foster said laws concerning refugees and stateless persons often overlapped, but were far from identical, particularly in Australia.

“So if a stateless person comes to Australia and they meet the refugee definition, let’s say they have a well-founded fear of being persecuted on return home, then they can be considered a refugee and protected in the protection system,” she said. “However, you can be stateless but not a refugee. You can be stateless on the basis of discrimination, for example, but that might not be enough to show that you have a well-founded fear of being persecuted.”

This is where stateless people in Australia can get “stuck”, Foster said.

Helen Irving, Professor Emerita at the Sydney Law School, said there had been a major shift since the turn of the century toward “law being the primary consideration in defining ‘citizenship’ — rather than seeing it in normative or moral/cultural terms”.

“The major shift in concept, I think is pretty clear, has been in response to 21^st century terrorism,” Irving told Crikey. “New laws defining terrorism and listing terrorist organisations have appeared, and their integration into citizenship revocation laws has grown.”

It is in this context that the “multicultural framework” is under review by the federal government.

“Of course, the review of multiculturalism doesn’t necessarily presage a rejection of the concept and its institutions,” Irving said.

“But as I observe things, suspicion and a sense of ‘citizenship’ as specifically belonging under law — and as something that can be revoked under law if a person does not adhere to allegiance to Australia — are getting the upper hand.”

Foster said that prior to WWI migration was far less restricted than it currently is. Around this time, nation-states began to place far greater restrictions on who could and couldn’t enter their borders. At the same time, Foster said “denationalisation starts being used as a weapon” in instances like the Bolshevik Revolution and the breakup of the Austro-Hungarian and Ottoman Empires.

This led to early solutions aimed at rectifying specific instances. Then came the huge displacement brought about by WWII and the horrors of the Holocaust.

“The Nazis denationalised millions of Jews,” Foster said. “Often it is said that denationalisation was the first step in the genocide.”

It was in the aftermath of this that international law began to truly wrestle with the notion of statelessness. In 1954 the United Nations created the first legal definition of statelessness in international law, and in 1961 it created a further treaty on reducing statelessness “by requiring states to grant citizenship to children born on their territory … who would otherwise be stateless”.

Since then, Australia has a mixed record on the protection of stateless people, Foster said.

“In respect of the 1961 convention and the right to nationality, you probably could say Australia ranks quite highly. However, in relation to the protection of stateless people, I’d say, we rank quite poorly compared to many other liberal democracies .”

She cited the UK and US as having “definitely taken more action to protect stateless people”.

“So that’s why one of the aims of our work at the Peter McMullin Centre on Statelessness is to undertake research to provide an evidence base for the Australian government to introduce better measures to protect stateless people,” she said. “There are still so many gaps.”