2022 Statelessness & Citizenship Review 4(1) Regarding the issue of determining who is a stateless person, the HRC relied on the 1961 Convention on the Reduction of Statelessness (‘1961 Convention’) — ratified by the Netherlands — and the UNHCR Guidelines on Statelessness No 4.7 Regrettably, the decision does not mention the 1954 Convention relating to the Status of Stateless Persons (‘1954 Convention’) — to which the Netherlands is also a party — which contains the internationally accepted definition of a stateless person and provides a number of essential rights to those recognised as stateless.8 Relying on the UNHCR Guidelines No 4,9 the HRC noted that a person would not be considered as a national of a particular state if ‘the authorities of that state refuse to recognize that person as a national’.10 The Guidelines state that such a refusal may materialise when the authorities expressly recognise a person as a nonnational, but it could also occur if they fail to ‘respond to inquiries to confirm an individual as a national’.11 In succinctness: there is no need for conclusive proof to establish that a person lacks a given nationality. A fortiori, the repeated refusal of the Chinese authorities to issue any proof of DZ’s nationality would suffice to establish that they were not a Chinese national. On this point, the HRC could have elaborated further on how these criteria fit in the definition established in art 1(1) of the 1954 Convention, according to which a person is stateless when ‘not considered as a national by any State under the operation of its law’,12 but failed to do so. Moreover, in view of the practical difficulties surrounding the determination of whether an individual has in fact acquired a nationality, the UNHCR Guidelines No 4 advise that the ‘burden of proof must be shared between the claimant and the authorities of the Contracting State’.13 This seems to be the adequate approach, for stateless individuals are often simply unable to substantiate their claims with much — if any — documentary evidence. The UNHCR Handbook on the Protection of Stateless Persons (regrettably not used by the HRC) also adopts this understanding, according to which ‘both the applicant and examiner must cooperate to obtain evidence and to establish the facts [in the case of statelessness determination]’.14 Regarding the use of ‘nationality unknown’ in DZ’s civil records, the HRC stressed that under the 1961 Convention, states are required to ‘determine whether a child would otherwise be stateless as soon as possible so as not to prolong a child’s status of undetermined nationality’.15 Resorting to the UNHCR Guidelines No 4 once again, the HRC pointed out that such a period should not exceed five years during which these children are to ‘enjoy human rights (such as health and education) on equal terms as children who are citizens’.16 7 8 9 10 11 12 13 14 15 16 See generally Guidelines on Statelessness No 4: Ensuring Every Child’s Right to Acquire a Nationality through Articles 1–4 of the 1961 Convention on the Reduction of Statelessness (UNHCR Report HCR/GS/12/04, 21 December 2012) (‘Guidelines on Statelessness’). See Convention relating to the Status of Stateless Persons, opened for signature 28 September 1954, 360 UNTS 117 (entered into force 6 June 1960) art 1 (‘1954 Convention’). Communication No 2918/2016 (n 1) 7 [8.3]. ibid. ibid. 1954 Convention (n 8) art 1(1) (emphasis added). Guidelines on Statelessness (n 7) 5 [20]. Handbook on Protection of Stateless Persons (UNHCR Report, 2014) 34 [89] (‘UNHCR Handbook’). Communication No 2918/2016 (n 1) 7 [8.3]. ibid. 166