Section 3: Proving Statelessness A. Definition of a Stateless Person19 Article 1(1)20 of the 1954 Convention21 sets out the definition of a stateless person as follows: “The term ‘stateless person’ means a person who is not considered as a national by any State under the operation of its law.”22 Similar to a refugee, an individual is a stateless person from the moment that the conditions in Article 1(1) of the 1954 Convention are met and remains so until she acquires a nationality. Thus, any finding by a State or UNHCR that an individual satisfies the definition under Article 1(1) is declaratory, rather than constitutive, in nature. While the 1954 Convention is binding only on its State parties, it is important to note that the definition embodied under Article 1(1) is customary international law.23 Article 1(1) applies in both migration and non-migration contexts. It is possible to be stateless in situ, meaning that a stateless person may never have crossed an international border, having lived in the same country for his or her entire life. Other stateless persons, however, may be encountered outside their country of birth or last habitual residence. Because of jus soli—commonly referred to as “birthright”— citizenship, the United States does not typically create statelessness; thus, the United States does not typically face in situ statelessness. Rather, stateless persons in the United States typically were born elsewhere and migrated to the United States, often prior to becoming stateless. Practice Point It is important to remember that if the individual is still considered a citizen or national of a State, then that person has nationality and is not stateless. As a general rule, possession of a nationality is preferable to recognition and protection as a stateless person. Therefore, it is important to take care that individuals with a nationality are so recognized and not mistakenly identified as stateless. Those who possess a nationality, , but are unable to be returned to their home country, do not fit the definition of a stateless person and are outside the scope of this manual. B. Interpretation of the Terms To assist adjudicators in determining when an individual is stateless, UNHCR has developed legal and procedural guidance to inform the interpretation and application of the Article 1(1) statelessness definition This section draws from UNHCR’s Handbook on the Protection of Stateless Persons. The UNHCR Statelessness Handbook is “intended to assist governments, policy makers, administrative adjudicators, the judiciary, NGOs, legal practitioners, UNHCR staff and other actors with interpreting and applying the 1954 Convention so as to facilitate the identification and proper treatment of its beneficiaries. In addition, this Handbook will be relevant in a range of other circumstances, such as the interpretation of other international instruments that refer to, but do not define, ‘stateless persons’, ‘statelessness’, or related terms.” See UNHCR Statelessness Handbook, supra note 12, at ¶ 6. 20 Note that this Manual does not address Article 1(2) of the 1954 Convention, which sets out the circumstances in which persons who fall within the “stateless person” definition are nevertheless excluded from protection under the treaty. 21 UNHCR, GUIDELINES ON STATELESSNESS NO. 1: THE DEFINITION OF "STATELESS PERSON" IN ARTICLE 1(1) OF THE 1954 CONVENTION RELATING TO THE STATUS OF STATELESS PERSONS, U.N. DOC. HCR/GS/12/01 (Feb. 20, 2012), [hereinafter Guidelines on Stateless No. 1], available at http://www.refworld.org/docid/4f4371b82.html. 22 Id. The Convention does not permit reservations to Article 1(1), thus evincing the primacy and immutability of the definition that is binding on all State Parties to the treaty. The U.S. is not a signatory to either convention. 23 The International Law Commission (ILC) has concluded that the definition in Article 1(1) is part of customary international law. The text of Article 1(1) of the 1954 Convention is used in the Articles on Diplomatic Protection to provide a definition of a stateless person. See ILC, ARTICLES ON DIPLOMATIC PROTECTION WITH COMMENTARIES at 49, (2006) (stating that the Article 1 definition can “no doubt be considered as having acquired a customary nature”), available at http://www.refworld.org/docid/525e7929d.html. 19 6