THE RISK OF STATELESSNESS 82 YALE HUMAN RIGHTS & DEVELOPMENT L.J. 2017 [Vol. 19 Generally, the literature on statelessness has accepted van Waas’s contention that statelessness protection is inappropriate in cases of ineffective nationality, and that this challenge is better raised with the country of nationality as a violation of human rights.239 Meanwhile, the other two de facto statelessness scenarios where citizenship is disputed or cannot be established echo the “risk of statelessness” that triggered statelessness protection in the Inter-American Court decision. In that case, the Inter-American Court highlighted the ambiguity in how different rules under Haitian constitutions and decrees would be resolved, raising concerns about the need to establish filiation in order to qualify for nationality.240 This is clearly a case of disputed nationality, which falls into the second category of de facto statelessness described by van Waas. According to van Waas, the appropriate next step would be a statelessness determination to decide whether international protection under the law of statelessness is appropriate.241 Similarly, the charge in the cases of “risk of statelessness” would be to complete a statelessness determination. When the Inter-American Court extended statelessness protection to persons who were arguably de facto stateless, it extended the protection of that body of law beyond its well-settled limits. The next step for the InterAmerican Court after identifying the Jeans’ “risk of statelessness” should have been to make a determination of statelessness. If it had found the Jeans to be stateless at birth, then the Dominican Republic—by its own admission—would have been obliged to provide them with nationality documents. As an explanation for why it did not take this course of action, the Inter-American Court only noted that the Dominican Republic had the burden to prove that the Jeans could acquire Haitian nationality, and had failed to meet this burden due to potentially conflicting, or ambiguous, Haitian laws.242 The Court thus fell short of disproving Haitian nationality, or explicitly demonstrating statelessness. As such, it lacked the proper basis under the international law of statelessness to compel Dominican nationality. The next section provides a framework for considering the statelessness determination that the Inter-American Court failed to make. The goal of this section is both to advance the argument that a statelessness determination is necessary in order to extend statelessness protection to Dominican-born persons of Haitian descent, and to recognize the potential Senior Legal Advisor at UNHCR Geneva, who writes that “there is no need for a special statelessness regime to address the problem of denial of rights attached to nationality as such problems are already covered by the international human rights regime.” Massey, supra note 28, at 39. 239. See e.g., Tucker, supra note 224, at 277-278; Massey, supra note 28, at 39-40. 240. Case of Expelled Dominicans and Haitians v. Dominican Republic, Preliminary Objections, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 282, ¶ 297 (Aug. 28, 2014). 241. VAN WAAS, supra note 80, at 25-26. 242. Expelled Dominicans and Haitians ¶ 297 (finding that the Dominican Republic had not proven that the Jeans were able to obtain Haitian nationality as a matter of fact). Electronic copy available at: https://ssrn.com/abstract=3111529