11. The exclusion provisions set forth in Article 1(2)2 of the 1954 Convention
relating to the Status of Stateless Persons limit the scope of the obligations of
States under the 1954 Convention. However, they are not relevant for
determining the personal scope of the 1961 Convention. Rather than excluding
specific categories of individuals who are viewed as undeserving or not
requiring protection against statelessness, the 1961 Convention adopts a
different approach. It allows Contracting States to apply certain exhaustively
listed exceptions with regard to individuals to whom they would otherwise be
obliged to grant nationality.3
Focus on the situation of the child
12. The concept “otherwise stateless” requires evaluating the nationality of a child
and not simply examining whether a child’s parents are stateless. Children can
also be “otherwise stateless” if one or both parents possess a nationality but
cannot confer it upon their children. The test is whether a child is stateless
because he or she acquires neither the nationality of his or her parents nor that
of the State of his or her birth; it is not an inquiry into whether a child’s
parents are stateless. To restrict the application of the safeguards against
statelessness to children of stateless parents is therefore insufficient in light of
the different ways in which a child may be rendered stateless and the
obligations of States under the 1961 Convention.
Determination of the non-possession of any foreign nationality
13. A Contracting State must accept that a person is not a national of a particular
State if the authorities of that State refuse to recognize that person as a
national.4 A Contracting State to the 1961 Convention cannot avoid its
2
Article 1(2) of the 1954 Convention states as follows:
This Convention shall not apply :
(i) To persons who are at present receiving from organs or agencies of the
United Nations other than the United Nations High Commissioner for
Refugees protection or assistance so long as they are receiving such protection
or assistance;
(ii) To persons who are recognized by the competent authorities of the
country in which they have taken residence as having the rights and obligations
which are attached to the possession of the nationality of that country;
(iii) To persons with respect to whom there are serious reasons for considering that :
(a) They have committed a crime against peace, a war crime, or a crime against
humanity, as defined in the international instruments drawn up to make
provisions in respect of such crimes;
(b) They have committed a serious non-political crime outside the country of
their residence prior to their admission to that country ;
(c) They have been guilty of acts contrary to the purposes and principles of the
United Nations.
3
The Convention also establishes exceptions to the general rule that individuals should not lose or be
deprived of their nationality if this results in statelessness. This was not within the purview of this
Expert Meeting, however.
4
A State can refuse to recognize a person as a national either by explicitly stating that he or she is not
a national or by failing to respond to inquiries to confirm an individual as a national. This issue was
explored in greater detail in Summary Conclusions of the Expert Meeting on the Concept of Stateless
4