A - Stateless persons and undocumented nationals: Avoiding the term “de facto stateless” People who appear to be nationals of a country according to the letter of the law, but are not treated as such by the authorities, are sometimes described as “de facto stateless”. There is, however, no recognised definition of a “de facto stateless person”.5 In its Handbook on Protection of Stateless Persons, UNHCR refers simply to “stateless persons”, advising that statelessness is a “mixed question of fact and law”, and warning that using the term “de facto stateless” may lead to a person not receiving the protection that should be due.6 The lack of a definition of “de facto statelessness” makes the term especially likely to be problematic in litigation. If it is argued that a person is a national under the law of the state where litigation is being considered, then recognition of that nationality is the remedy, accompanied by the issue of the relevant identity documents. If the person is not a national of that state, and as a matter of law and fact nationality is not recognised by the authorities of any other relevant country, the person is simply “stateless”, and international law provides the right either to acquire the nationality of the state of birth, or to protection as a stateless person. If a child born in the country cannot acquire the nationality of either parent (or the parents are stateless or of unknown nationality), then grant of nationality of the country of birth is the required remedy under the 1961 Convention on the Reduction of Statelessness, the American Convention on Human Rights, the European Convention on nationality, the African Charter on the Rights and Welfare of the Child, the Protocol to the African Charter on Human and Peoples’ Rights relating to the Specific Aspects of the Right to a nationality and the Eradication of Statelessness in Africa, and, arguably, customary international law (u section 7.2: The right of every child to acquire a nationality). If a person outside the country of birth is not recognised by the state of birth (nor by any other country) as its national, and requires protection of the state of residence, then legal recognition of stateless person status is the remedy, or, if that does not exist in national law, some other form of legal residence permit; in both cases with a pathway to acquire nationality. If the stateless person is a child, it may be argued that immediate grant of nationality is in the child’s best interests. The term “de facto statelessness” is also often not a helpful term in other advocacy. Although “de facto statelessness” may convey an idea of the lived reality of those affected, it blurs the question of responsibility to resolve the situation. On the one hand, it may confirm a prejudice that those affected are “really” foreigners, even if they should under the law be recognised as nationals or have a right to acquire nationality. On the other hand, for those who do not have a provable claim to nationality anywhere, it may obscure the recognition of their very real statelessness, and block their protection as stateless persons.7 2.2. Nationality The Convention on Certain Questions Relating to the Conflict of nationality Laws adopted by the League of Nations in 1930 (hereafter the “1930 Convention on the Conflict of nationality Laws”) provides in its Article 1 that: “It is for each State to determine under its own law who are its nationals”. The Convention did not, however, define “nationality”. The definition most commonly used today in international law (but not established by any UN treaty) is provided by the European Convention on nationality adopted in 1997: “‘nationality’ means the legal bond between a person and a State and does not indicate the person’s ethnic origin”. This definition has been adopted by the Inter-American Court on Human Rights in its jurisprudence, and by the African Union in the Protocol to the African Charter on Human and Peoples’ Rights relating to the Specific Aspects of the Right to a nationality and the Eradication of Statelessness in Africa adopted in 2024 (hereafter “the Protocol to the African Charter on the Right to a nationality”). 5 The only mention of “de facto statelessness” in an international legal instrument is in the Final Act adopting the 1961 Convention on the Reduction of Statelessness, in which the conference adopting the treaty “Recommends that persons who are stateless de facto should as far as possible be treated as stateless de jure to enable them to acquire an effective nationality.” The original application of the term was in relation to those who are “outside the country of their nationality but cannot avail themselves of its protection” (and are thus in a similar position to refugees, except that they do not have a “well-founded fear of persecution”). This definition dates back to a 1949 “Study of Statelessness” adopted by an “Ad Hoc Committee on Refugees and Stateless Persons” established by the UN in the aftermath of World War II, https://www.refworld.org/docid/3ae68c2d0.html. The terminology was reviewed at a UNHCR Expert Meeting held in 2010. This led to the abandonment of the term “de facto stateless” in the Guidelines on Statelessness No. 1, on the definition of stateless person, adopted in 2012, and later incorporated into the Handbook on Protection of Stateless Persons, supra n 2. (For background, see the discussion paper for the meeting: Hugh Massey, “UNHCR and De Facto Statelessness”, UNHCR, April 2010; and its conclusions: “The Concept of Stateless Persons under International Law” (the “Prato Conclusions”), UNHCR, May 2010, http://www.refworld.org/docid/4ca1ae002.html). Handbook on Protection of Stateless Persons, supra n 2, paras 7. and 23. UNHCR does still use the term “de facto stateless”, but in more limited contexts with reference to refugees, especially if there is no recognised refugee status in the state where they are resident, because they are outside their country of nationality and cannot avail themselves of protection of that state. The Handbook also uses the term “de facto” stateless persons in part 3, in relation to migrants who cannot return to a country of nationality; for example, because of a (temporary) lack of consular assistance: Handbook on Protection of Stateless Persons, supra n 2, para. 166. 6 Discussed in: Bronwen Manby, “Schrödinger’s Citizenship: What’s at Stake in the Terminology of Statelessness”, Statelessness and Citizenship Review, Vol.6, no. 1 (2024), pp. 5-37. 7 U N H C R | L I T I G AT I N G T H E R I G H T T O A N AT I O N A L I T Y: A G U I D E F O R P R AC T I T I O N E R S 15