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Statelessness: The Enigma of the International Community

Statelessness: The Enigma of the International Community

Author: William E. Conklin
Publisher: Hart Publishing
ISBN: 9781849469692

Published In: August 2015
Format: Paperback
Jurisdiction: International ? Disclaimer:
Countri(es) stated herein are used as reference only
Hardback Edition ISBN: 9781849465076

List Price: HKD 454.87

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Description
Contents

Details

'Statelessness' is a legal status denoting lack of any nationality, a status whereby the otherwise normal link between an individual and a state is absent.

The increasingly widespread problem of statelessness has profound legal, social, economic and psychological consequences but also gives rise to the paradox of an international community that claims universal standards for all natural persons while allowing its member states to allow statelessness to occur.

In this powerfully argued book, Conklin critically evaluates traditional efforts to recognize and reduce statelessness. The problem, he argues, rests in the obligatory nature of law, domestic or international. By closely analysing a broad spectrum of court and tribunal judgments from many jurisdictions, Conklin explains how confusion has arisen between two discourses, the one discourse inside the other, as to the nature of the international community.

One discourse, a surface discourse, describes a community in which international law justifies a state's freedom to confer, withdraw or withhold nationality. This international community incorporates state freedom over nationality matters, bringing about the de jure and effective stateless condition.

The other discourse, an inner discourse, highlights a legal bond of socially experienced relationships. Such a bond, judicially referred to as 'effective nationality', is binding upon all states, and where such a bond exists, harm to a stateless person represents harm to the international community as a whole.

Introduction

I. Two Communities
II. Who is Stateless?
III. The Extent of Statelessness
IV. Efforts to Eradicate Statelessness
V. Legal Obligation and an International Community
VI. My Approach
VII. Overview of the Book

1. Two International Communities
I. What is an International Community?
II. The International Community as the Aggregate of the Wills of States
III. Destabilization of the International Community as the Aggregated Wills of State Members
IV. Legal Obligation and Statelessness
V. Conclusion

2. The Discursive Contingency of an International Community
I. The Emergence of an Early International Community of States
II. The Role of the Natural Person in the Early Modern International Community
III. The Bounded Residuary
IV. The Emergence of the Judicial Doctrine of Reserved Domain
V. The Content of the Reserved Domain
VI. Conclusion

3. The Consequences of Statelessness
I. Consequences of the 'Operation' of Nationality Law
II. The Absence of Legal Protection
III. The Consequences for Three Groups
IV. Social, Economic and Psychological Consequences
V. Conclusion

4. The Reserved Domain for the Treaty Right to Nationality
I. Introduction
II. The Statelessness Treaties
III. The Human Rights Treaties
IV. The Priority of the Reserved Domain over the Right to Nationality
V. The Limitations Clauses
VI. The Non-derogation Clauses
VII. Conclusion

5. Customary Norms and a Right to Nationality
I. A Sense of Obligation
II. State Practices
III. The Problem of an Empty International Community
IV. The International Community as a Whole
V. Conclusion

6. The Legal Bond
I. Legal Obligation
II. The Discursive Struggle
III. The Legal Bond as a Social Bond: Nottebohm
IV. The Discursive Tradition of Effective Nationality
V. Evidence of Social Bonds as Legal Bond
VI. The Judicial Scrutiny of Social Relationships
VII. Conclusion

7. Does a Stateless Person have a Country?
I. Habitual Residence
II. One's Own Country as the Place of One's Social Bonding
III. Conclusion

8. The State Obligation to Protect Stateless Persons
I. Legal Obligation and the Aggregated International Community
II. The Displacement of the Boundary
III. The Role of the Courts with Regard to Stateless Persons
IV. What is 'the Operation of Its Law'?
V. The Legal Obligation to Protect Stateless Persons
VI. Conclusion

9. The International Community as a Whole
I. The Character of the International Community as a Whole
II. A Community
III. The Existence Conditions of the International Community as a Whole
IV. Legal Objectivity
V. Legal Subjectivity
VI. Harm to Stateless Persons as Harm to the International Community as a Whole
VII. Conclusion

Conclusion
I. The Territorial Knowledge of Legal Space
II. The Obligatory Character of Nationality Law
III. The International Community as a Whole