Hello, my name is Clem Johnson. I'm Head of Social Impact and Shared Value at Malacense. Welcome to Next, where we explore the intersection of business, law, community and society. In today's rapidly changing world, we need to understand not just what's happening now, but what's coming next, what's around the corner. And that's why in each episode of Next, we sit down with leading thinkers, innovators and experts to unpack complex issues and explore emerging trends that are impacting businesses, communities, legal landscapes and society as a whole. It's also a great chance to connect and to understand what drives people in different spaces be a force for good. Today we're talking about statelessness, what it is and how it fits within the ecosystem of refugees and broader displacement. We're joined by Radar Goval and Dr. Jade Roberts, both from the Peter McMullen Centre on statelessness at Melbourne Law School. Between them, they bring deep expertise in refugee protection, statelessness law and human rights, shaped by years working with UNHCR and international organisations, Ingenieva and beyond. Welcome Radar and Jade. Thank you for joining us today. Thanks, Clam. It's great to be here. Thanks so much, Clam. Radar, I'd love to start with you. What first are you to working in a refugee space and particularly focusing on statelessness? So it's interesting actually, I suppose I've always been interested in issues of human movement, being a first-generation migrant myself to Australia, but I guess my interaction with refugees and refugee legal work really actually started when I was a solicitor at Mullisons. I had the opportunity to work in a pro bono capacity, working with Barrister Debbie Mortimer, who's now at the Federal Court, and she was working on appeals to refugees who were in immigration detention and really on their last sort of opportunity to remain in the country. So I actually had the opportunity to help her with those appeals and it really sort of raised my awareness in terms of the situation of people who are in offshore or remote detention and I really, really felt strongly about addressing some of those human rights issues. In parallel to that, I was also working in a volunteer capacity at the Derribon Community Legal Centre where many of the clients were from a refugee background. So I guess this is sort of where my interest in the refugee space really stemmed from. And I think then pivoting to statelessness, I think the interest really came from this dual interest in issues around refugees. There is a connection between those two issues, but also my background in environmental law. So when I was doing my masters in public international law, I chose to write at the intersection of these two issues and ended up focusing my master's thesis on the issue of statelessness in the context of climate change, particularly as it affects small island states. And that really opened my eyes to the fact that this issue of statelessness was a separate human rights issue in and of itself, quite separate in fact from the issue of refugees. And from there I also realised that the UN Agency mandated to work on statelessness as UNHCR. So after my masters I was lucky enough to get a position working in the policy and law division at UNHCR in Geneva, focusing on issues of statelessness. I became aware that this issue was quite a niche issue, quite a sort of hidden human rights issue, but a really egregious form of human rights abuse. And I decided that this is sort of the area that I'd really like to focus in on and work in. Amazing. I can't wait to learn more from you about the issue as it was and where it stands at the moment and what the future plan could be to address it in a more full some way. And Jay, turning to you, what led you into this area of law and what perspectives or lessons from your earlier career? Have you carried into the work you do now? Yes. So I have always been interested in social justice, loitering and always knew that this is what I wanted to do when I started my law degree. And I remember learning about the decision of Alcatab and Godwin. So that was the 2004 decision of the high court finding that the indefinite detention of Mr Ahmad Alcatab, who was a stateless Palestinian man, was lawful. So it was permitted by our constitution. I just remember being stunned that that was the outcome of that decision. And that was the degree of the protection of human rights of what is the most vulnerable group in Australia. When I was doing my law studies, I had the opportunity to travel to Christmas Island and spend a month volunteering in the immigration detention centres on the island. So, ostensibly, we were there to do English language classes, we did yoga classes and arts classes, but what we were actually doing was spending a lot of time with the men and the women and the children who were detained in the various immigration detention facilities on the island. And it was really affected by those interactions, by hearing people's story about what caused them to want to leave their countries and the journey that they had been on and their experiences in this immigration detention centre. So, after having that experience, I decided this is the area that I really wanted to work in. I came back to Australia, I did a graduate certificate in Australian migration law and practice, so I could work as a registered migration agent and I worked with community law centres assisting people to apply for protection visas. And I also worked in the social justice practice at Shine Lawyers, so we were doing various kinds of work, but including assisting with a coronal inquiry into asylum-seeker deaths at sea and bringing litigation for people who experienced harm while they were detained in an immigration detention centre. After these experiences, I studied a Master of International Law at the Graduate Institute of International and Development Studies and Geneva and was really interested in, and I pursued in my thesis, the idea of the protection of the individual in international law. And I guess reflecting on these experiences, what I'm doing now and what I really like to think about and to do in my work is to bring together the practical work and the practical role of lawyers, the ability to directly assist individuals and help individuals directly through assisting with legal processes, but also choosing litigation that can lead to systemic change for a group of people. But at the same time, I'm really interested in pursuing the bigger questions, the more theoretical questions like how to narrow the gap between Australia's international law commitments and its practical treatment of vulnerable people. And also the question of how can international law better centre and protect the human person instead of serving the interests of states? So those are the two areas that I bring together in the work that I do currently. What extraordinary careers you have both had and no doubt had an impact and sort of provided thought leadership across Australia and both having some time in Geneva as well, so really keen to hear a little bit more about that later. And for listeners who might be new to this topic, how would you explain what statelessness means? Maybe if rather you can answer that. But if you can think about why it's so important that we understand and address it within the broader refugee and displacement context. Sure thing. So statelessness can sound like a very foreign concept. We have our world basically organised in nation states and everyone thinks, well, you live in one of those nation states so you must belong somewhere. But in a nutshell, statelessness is a situation of not belonging to any country at all. And most of us take our nationality for granted and it's a key part of our identity, but a stateless person does not have the nationality of any country in the world. There is actually an international legal definition for this word statelessness and it comes from the 1954 convention relating to the status of stateless persons. The legal definition is a person who's not recognised as a national by any state under the operation of its law. Now that sounds quite complicated, but what it means is that a person who does not have the nationality of any country. Statelessness might surprise you, nor is actually quite a significant phenomenon even though people may not have heard of it. The numbers are really sketchy because countries typically don't collect data on stateless persons, but according to UNHCR, which as I mentioned before, is the UN Agency mandated to address statelessness. Their most recent reporting indicated that there were at least 4.5 million stateless people or those with an unknown nationality around the world, but by its own acknowledgement this is a very serious undercount. The likely numbers are much, much higher because there are countries in which we know significant stateless populations exist, but which do not report any numbers to UNHCR. And to your question about why is it important that we understand this issue and address it within the broader refugee and displacement context? Well, the two issues can be quite closely related. There's an important overlap between stateless persons and refugees. So statelessness which predominantly affects minority groups around the world can lead to severe forms of discrimination and persecution, which in turn can cause people to flee across an international border and become a refugee. So of population that your listeners might be familiar with are the Rohingya from Myanmar, who have faced that kind of severe persecution and who do not have the nationality of the country in which they're from, which is Myanmar, and many of them have fled across an international border to the point where actually the number of stateless refugee, Rohingya outside the country exceeds those that are now in Myanmar itself. And of course in Australia, we also predominantly see the stateless population that exists here wearing that double hat of being a refugee and a stateless person or a displaced person and refugee. And I think it's also important to remember that even if you are a refugee and not stateless, you're not a refugee.
you've fled across an international border from persecution, but you have a nationality. If you're in a protracted situation of displacement or if you become a refugee in a protracted situation, that can lead to a risk of becoming stateless because you lose your ties to your country over time. You might lose crucial documentation, the point that you've fled or because you've been overseas for a long time. And those important pieces of documentation be it your passport or be it a birth certificate. If you don't have those identity markers that help you establish your nationality, it can be really hard to prove that you are a national of a particular country. So being a refugee can also put you at risk of statelessness. That's the link between the two. Yeah, yeah. I'm sure there's all sorts of layers in terms of sense of self and identity when a person is stateless as well, which can be really confronting and confusing. Absolutely. You've both been involved in developing the world's first global statelessness case law database. What gap is this project responding to? And why does it matter for practitioners and researchers working in this space? Yeah, so the global case law database on statelessness responds to a gap in access to global jurisprudence on statelessness. So we recognize that strategic litigation has been a really powerful way for addressing statelessness in various different legal contexts and across the world. But until now, there hasn't been a central resource compiling case law on statelessness. And this lack of access to case law, as well as a lack of funding for people working in this sector and lack of resources in general for statelessness work, has been a barrier to bringing more strategic litigation. And pursuing hopefully more positive outcomes for stateless people. So we think that this database will have value for different people working in different roles in the area of statelessness. So for lawyers, it creates more easily searchable database of cases. So lawyers can search via theme or via topic or via case name. Also, it can select cases from a particular regional country so that it can directly assist lawyers as they sit down to plan for and to prepare to bring litigation to advance the rights of stateless people. Another goal of the database is to support research and future scholarship on statelessness. So it's really easy for researchers to search a recent litigation via theme or via topic. And we also provide some additional details. So we summarising a lot of cases. We also provide a commentary section where we identify the key journal articles in peer-reviewed academic journals, which discuss the case. And we provide a summary of the arguments made in those journal articles and link to the journal articles, which is just going to make it a lot easier for researchers to find relevant academic commentary about cases. And we also think the database will have value in the context of advocating for policy change or law reform. Because again, you can access cases easily, find commentary, but you can also find where judgments have referred to UNHCR statelessness guidelines, which help illuminate how courts are interpreting this guidance that's been provided by the UNHCR. And our database also links to it in existing database, a European network on statelessness case law database, which helps researchers look at other forms of resources to access thematic legal briefings or other resources. So we're hoping that this is not just a repository of different cases, but a resource that can strengthen advocacy, litigation and research on statelessness. That sounds like an amazing resource. And I love the fact that you called out the sharing of knowledge and information in order for lawyers and UN agencies and other stakeholders to do their work and be more effective when they're working for individuals or communities, what an amazing piece of work. Rather, why does access to case law matter so much when we're thinking about system change or strategic litigation? What does it enable that policy or legislation alone might not? I think Jade probably agrees with me on this. And I think many statelessness practitioners would that there's been a bit of an undervaluation in the role that litigation has and can play in addressing statelessness. So if we look back at history, there have been numerous cases around the world, which have been instrumental in bringing to an end longstanding cases of protracted statelessness. For example, in the early 2000s, there were cases brought to the Bangladesh High Court, which served as a catalyst for ending the statelessness of 300,000 stateless Urdu speakers, a really massive result for a group that had been without nationality and without basic rights for a long time. In Europe, we've seen cases that creatively use the right to private and family life, to either prevent statelessness or to protect stateless persons from detention or deportation. So the problem to date has been that there hasn't been a concerted effort to bring all this important jurisprudence under one roof. At the end of the day, as we all know, lawyers and judges and other practitioners remain really busy people, and statelessness is a bit of a niche human rights issue. And because they're so busy, they may not have the time or the wearable to sort of forensically collect these cases and examine them in as much detail as we've been able to. So having access to these important cases as well as the summaries of those judgments and commentary of those cases can play a really important role in advancing litigation as an additional tool, in addition to law and policy reform, to change things for the better for those who are stateless. And I think for those of us who work in common law jurisdictions, we have the principle of using precedent, what has come before informs what comes after. So if you can look at how cases on similar matters have been addressed, in other cases, be those in Australia or in other common law jurisdictions, it can really be informative and instructive as to how you can either bring a case or achieve a positive result if you have a stateless client. So I think that those are the really valuable, additional tools that this database sort of add to the arsenal of what's available for those who are trying to work to resolve this issue. Amazing, amazing. Well, information is absolutely power and this database sort of, you know, obviously skills people up to have a look at what's happening elsewhere and what's come before and how we can imagine a better future. Jade, as you've brought together decisions from across different jurisdictions, what patterns or insights have emerged and other common themes in how courts approach statelessness or other areas where approaches diverge quite significantly? Yeah, that's a great question, Clem, and it's been such a joy to have the database now and to begin to reflect on these questions of trends. So just to explain the database has 100 cases and 50 countries across the world are represented in the database at least once. And so the majority of those cases, 55 come from Europe, 25 come from Africa and then there is smaller number, nine each coming from both Asia and from North America. And I think that that geographic division reflects the influence of the regional courts operating in those regions. So of course in Europe we have the oldest, the most established regional court, the European Court of Human Rights as well as the Court of Justice of the European Union. And then we have the region with the greatest number and also the most recent regional courts, Africa featuring prominently. So we see a significant number of cases before the African Commission on Human and People's Rights and the African Court on Human and People's Rights. So the database uses 15 themes to tag the cases. And I think just the usage of these tags reflects the facts that courts are increasingly approaching statelessness not just as a narrow technical legal issue about nationality but as a multi-dimensional human rights issue. So it affects individuals' sense of dignity, their family life, their political participation, their migration status and their socio-economic exclusion. And this is really interesting because in the literature and the way at least traditionally we think about nationality and I think the way that states think about nationality is that they've thought that it's been entirely within their domestic jurisdiction to determine who they can grant nationality to and who they can take it away from. But I think what this is showing is that it's beyond doubt that in international law and as applied by the courts, decisions to grant or to take away or to withhold nationality must comply with international human rights norms. And those obligations are heightened when the person or the decision involved is a person who is stateless or could become stateless. So just briefly I'll talk about three key trends that we've seen across the database. So we see courts across jurisdictions are very willing to intervene where the statelessness affects children. So this appears in the Inter-American Court of Human Rights domestic cases such as in Spain and decisions of the committee on the rights of children. So these courts are concerned when children cannot obtain another nationality or their administrative barriers preventing their birth registration and courts often referred to the principle of the best interests of the child and the importance of access to birth registration. Another trend we're seeing is this rapid growth in litigation concerning the deprivation of citizenship in cases involving terrorism or foreign fighters. So in the database we have cases from Australia, from the UK, from the Netherlands and France which these involve this decision. We see courts as a trend courts are often deferring to the executive with their decision to deprive someone of nationality in case
is where there is a second nationality. So the person involved has dual nationality, but there are differences in courts approach to whether the question of citizenship deprivation is punitive, so is a punishment. And also the degree of obligation that governments are under to determine the person's second nationality. So that's a difference in approach. And just thirdly, I think something that surprised me was the importance of procedural base claims. So we see a lot of the claims made in the cases in the database focused on fair procedure, access to evidence, burden of proof, and questions about proportionality was the deprivation of citizenship proportional. So we see this emerging in statelessness, determination, procedures, and in decisions to deport. So it seems that because statelessness obviously creates such severe vulnerability for the affected person that courts require states to be especially careful with their procedures before denying nationality or removing someone's status. So we see domestically there's a lot of variation in courts approach to decisions involving statelessness, but we do see some trends at the regional level in the European system. There's a strong use of the right to private life and family against decisions to deprive someone of their nationality. And in the Inter-American system and the African regional system, we see interestingly a lot of cases proceeding with respect to the right to dignity and the right to personhood in international law. So we have more analysis to do, but I think those are some high level trends that we've detected so far. It's really, really interesting to learn about kind of what you're seeing and different approaches and different levers and opportunities, first stronger advocacy. And rather, this project is a really good example of collaboration between the community sector and the legal profession. From your perspective, what have been the most valuable elements of that partnership? And for those working in law firms or businesses, what are some practical ways that they can meaningfully contribute or get involved in this type of work? Yeah, it's been one of the real joys of this project actually is how well very different sectors have come together. So there was a university-based research center that's us, an NGO being the European Network on Statelessness, which has already developed a similar database but just for Europe. So they had some experience. An international organization being UNHCR and a private commercial law firm acting in a pro bono capacity being Malacens. And I think the most valuable aspects of this partnership have really been the coming together of different skill sets. So we've had the legal research and analytical skills, the experience in building online public databases and the global advocacy reach all kind of coming together to build something that's been quite unified. One of the beauties of this project has been that there's been a really clear and simple common goal and that everyone's understood and gotten behind, which is to build capacity by making complex information easily and readily available to those who are in a position to make a difference if they get access to that information. So in this case, the statelessness jurisprudence, which can be complicated, but we've tried to make it accessible, simplify it by providing summaries and make it freely available to lawyers and others who might be able to use it to great effect. And in terms of what businesses and law firms who might look at this project and think, well, how could I get involved in something similar? I think it really begins with having interest and curiosity and having a conversation because you never know what hidden skills you might actually have to offer. When we put this proposal to Malacens lawyers, we actually expected that it would be the most junior lawyers who would want to get involved. Instead, we were really surprised that the response overwhelmingly came from the more experienced senior associates and special counsel who were clearly thirsty for this kind of social impact kind of work, but probably also recognized that they had the advanced legal analytical skills needed to develop the kind of high-quality case summaries that you can now find in the database. So I do think that having that initial conversation and just being quite open and exploratory can really help to sort of identify those skill sets that you can bring to a project like this. It's certainly been an extraordinary opportunity for our people to contribute. And importantly, to learn alongside experts like yourselves and in collaboration with those other extraordinary organisations. So thanks so much for the opportunity. And Jade, looking beyond this project, how could the approach you've taken here, or the lessons you've learned, be applied more broadly across other areas of refugee or displacement law? Yeah, thanks, Glenn. So I just want to reflect also on Radar was saying here because my comments are really similar. I think that the lesson is that it's possible to build a tool that can help the sectors, or whether it's statelessness or refugee or displacement more broadly, that can help the sector in various ways. But building such a large database, or 100 cases, requires a really large team. So I think the lesson has just been the incredible value and the incredible experience it's been to work with medicines and team of lawyers. And it is not just that the work that they've done, but the application of their insight and their skills and their expertise that may the case summaries such a high quality and made it possible to produce this product or this end goal in the period of time that we did it in. So I think there could be more reflection about application to other areas, but I think it's just been an incredible experience of seeing what we can produce when we work together. It's been very positive. I can just jump in and add to that. We've actually done some analytics on the database already and in the first week alone, there were 2,300 hits on the database, which for us is a huge number of eyeballs on it and not just eyeballs on the front page, but we could see that people were playing and exploring it. And in conversations with people from academics through to lawyers that I've had in the last couple of weeks, many of them have commented, "Oh, we thought you had just put together a list, "but when we clicked on and found that there were summaries, "we were just really amazed "because this really changes the game for us. "We can now actually sit down and get a grapple "with these cases in a way that we didn't have the time to do before." So that's coming from the feedback that we've had so far. And, Ryder, thinking about this work and the intersection of legal doctrine and lived experience, how do you see tools like this database helping to better connect legal reasoning with real world impact for people affected by statelessness? Sometimes the story of individuals is so powerful. It needs to be very sort of carefully and respectfully told and I guess shared, but how do you see that the database providing that opportunity for sort of raising people's understanding and bringing in the sort of legal background or doctrine? Yeah, it's a really good question. And one that I think, perhaps we didn't have quite at the forefront when we were developing this, but I think in reading how the summaries have been done, what you'll find if you go into the database is that there's first a sort of summary of the facts of the case. And sometimes those facts, when you read them in the legal judgment, can go on for pages and pages. And sometimes the real human story is lost. So I think what we've really tried to do in the summaries is really tell that compelling human story of why statelessness has devastated someone's life or has the potential to devastate someone's life. And although the case is deal with sometimes very complicated legal doctrine, I think when you read the summaries, you realize that what these cases are trying to do at the end of the day is resolve the situation of real people with real families, with real lives to live. So there's something very, almost the summary form gives you that real kind of condensed sense of why this is an important issue. I think the other thing to bear in mind, you'll see this in the summaries as well, because we do highlight who the parties to the case cases are. In some of the most important cases, they were actually brought by those who were directly affected by statelessness. And where stateless communities themselves have played a role in the case, you can actually see how the legal reasoning is impacted by the understanding of the judge in that particular case or the decision maker, that these are not just technical rules, governing a theoretical situation of lack of nationality, that these are communities who are really sort of begging in a way to be recognized, to be seen, to be given that legal status that allows them to live just as any other human with a nationality would. So I think you see sometimes in the comments even made it by judges, they make some really profound statements. They talk about, you know, Jade mentioned how one of the themes has been tackling childhood statelessness. And in doing that, judges have come out with really sort of pithy statements saying that statelessness is the antithesis of the best interests of the child. You know, you can't get something more stronger than that saying this phenomenon is really counter to what we believe so fundamentally is important as the principle of the best interests of the child. So I don't think judges would come out with those really kind of heartfelt statements if they didn't truly understand the human impact of statelessness. And I think that finally sort of to answer your point about how we sort of connect legal reasoning with real world impact, I think. Our hope is that the database will eventually be a basis for lawyers to really understand how they might be able to advance legal arguments and strategies that have been used successfully in other important cases, particularly when they come across a client or a person who they think, oh, I can go to the database and see if anyone else been detained for years and years just because there was nowhere to which they could be removed. Oh, here is the case that's. similar, maybe I can look at the legal reasoning that allowed this person to be freed from a situation of arbitrary detention. So that's how we sort of see the two being connected. That's amazing, absolutely brilliant. And if you look ahead in sort of three to five years time, what does success look like for this project? You mentioned obviously lawyers who are acting for individuals having access to better tools and arguments and, you know, to sort of expand or support their thinking and approach, but in terms of how the database is used and more broadly and how statelessness is understood and addressed globally. And I think that there's a lot of potential applications for this database. I think Jade has alluded to sort of the different uses that it could be put to both from a sort of practical perspective, but also from a more academic building knowledge and understanding perspective. But I suppose my aims and my hopes for the database are somewhat humble in that I hope that in a few years it really becomes the grocery resource for a wide range of practitioners who are either interested in bringing a statelessness case to the courts or those who are just simply seeking to understand the issue a bit better. And I suppose what would be amazing to see is perhaps a bit more of a degree of comfort in the legal sector about using litigation wisely as an effective tool to create that kind of catalytic change that can lead to broader systemic change for stateless groups. So it would be wonderful to see, you know, if there are statelessness cases that are heard around the world that they can really rely on the database for concise, for useful and accurate information that really helps them to build a successful case. That would be real market for success for me. Amazing. Jade, I'd love to hear from you. What's one thing you wish more people understood about statelessness? Reflecting on this database, I think what it shows us is that courts are really approaching statelessness as a purely narrow, technical or legal problem or a problem of there being an accidental gap occurring in state's nationality laws. I think the cases show really clearly that statelessness is a result of discrimination and exclusion from laws and discrimination and exclusion through bureaucratic procedures and policies. So it's almost a deliberate creation of states. And I think that this is different to the way that statelessness has historically been framed and been talked about at the international level as something that is accidental or anomalous even, just something that occurs one off is an isn't structural. So alongside the work I'm doing with their case law database, I have a book coming out which addresses different ways of thinking about statelessness through international law. And it really engages with this idea that statelessness is not accidental and it's not anomalous. In fact, I think it's a structural feature of the system of nation states. So while it's extremely important for lawyers and advocates and researchers to pursue nationality as the solution to statelessness and I really believe there is great value in strategic litigation and we know and we hope that the database will contribute to that. I think there's also value in thinking about actors beyond states that could play a role in addressing the rights deprivations that stateless people experience. So in my book, beyond the state approaches to statelessness and international law, I look at the role of some actors like international organisations and the role they were historically planned to have for stateless people and reflect on whether this role could be resumed and they could continue to provide a status, a document and rights directly to stateless people. And there are other actors that historically and again currently in certain contexts, contexts play a role in providing legal status to stateless people or irregular migrants like cities. So I look at the role of international organisations, cities and other actors to play a role in addressing statelessness. So I think that that could sit alongside the really important role in pursuing nationality as the solution to statelessness. That sounds amazing and when is beyond the state out? It will be out in 2027. How exciting, that sounds like a fantastic book and I love the fact that you call out that there's structural and system challenges and that's where this comes from. As you say, it's not an anomaly or someone's just been forgotten, something has happened in an individual's life, but rather there's a system failure and we need to be thinking about that. Well, thank you both. It was obviously a lot of work. It will be useful for many years to come and we'll look forward to seeing how it does evolve and the impact that it has. Thank you so much both for joining us today. Thank you, Clem. Thank you so much, Clem. That brings us to the end of this episode of Next. Malacen's Responsible Business Podcast Series. If you're loving this podcast, then leave a review on Apple or Spotify. It'll really help get our show out there. Be sure to subscribe to Next wherever you get your podcasts so you don't miss an episode. Thank you to our incredible guests for sharing their expertise and perspectives today. Thank you to our executive producer and editor, Peria, to Hazardette and our wonderful Tanya Windlaw, as well as our co-producers, Elise Perrie, and myself, Clem Johnson. We encourage you to continue the conversation online, share your thoughts and questions with us via
[email protected]. Remember, the future is not something that happens to us. It's something we create. By staying informed, embracing innovation and acting with purpose, we can all shape a better tomorrow.
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