Statelessness: The Enigma of an International Community

ISBN-13: 9781849465076 / Angielski / Twarda / 2014 / 380 str.

William E. Conklin

Opis

This book poses the enigma of a widespread absence of membership in an international community claiming universal standards for all natural persons. After identifying profound legal, social, and economic consequences of the enigma, the book critically evaluates the traditional efforts to recognize and reduce statelessness. The problem, the book argues, rests in the obligatory nature of a law, domestic or international. By closely analyzing a remarkably broad spectrum of court and tribunal judgments from many jurisdictions across the globe, Statelessness explains how two international law discourses - the one discourse inside the other - struggle as to the nature of an international community. The legal bond of the one community rests in a state's determination of one's allegiance to the state. Such a bond justifies the state's freedom to confer, withdraw, or withhold one's nationality. This international community hereby incorporates a state's freedom over nationality matters, risking statelessness. The other international community highlights a legal bond of socially experienced relationships. Such a bond, judicially named 'effective nationality, ' exists independent of allegiance. Because the legal bond as social bonding exists independent of the wills of states, all states are legally obligated to protect stateless persons. Harm to a stateless person represents harm to the international community as a whole. The book will be of interest to all those working in the fields of human rights and public international law. (Series: Studies in International Law) Subject: Public International Law, Human Rights Law, Comparative Law

Spis treści

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