The International Law Commission considers this definition to be part of customary international law.179 As observed in UNHCR’s Handbook on Protection of Stateless Persons: Establishing whether an individual is not considered as a national under the operation of its law requires a careful analysis of how a State applies its nationality laws in an individual’s case in practice and any review/ appeal decisions that may have had an impact on the individual’s status. This is a mixed question of fact and law.180 Thus, it is necessary to analyse not only the law, but also its application in practice by the competent authorities for nationality matters in any given state. This interpretation of the 1954 Convention definition has been accepted by a number of national apex courts.181 This analysis can, however, be a complex exercise to which the answer is not clear. There may be situations where different state authorities treat the same person as a citizen or non-citizen, or the practice of non-state actors should be included, if they are authorised by the state in nationality matters, for example to verify identity.182 In the context of a determination as to whether a child born in the territory is stateless, the UNHCR Guidelines on Statelessness No. 4 note that: 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…. A Contracting State must accept that a person is not a national of a particular State if the authorities of that State refuse to recognise that person as a national. A State can refuse to recognise 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. A Contracting State to the 1961 Convention cannot avoid the obligations to grant its nationality to a person who would otherwise be stateless … based on its own interpretation of another State’s nationality laws where this conflicts with the interpretation applied by the State concerned.183 The African Committee of Experts on the Rights and Welfare of the Child has adopted a General Comment on the right to birth registration and a nationality, in which it drew on the UNHCR Guidelines to affirm that states must accept that a child is not a national of another State if the authorities of that state indicate that the child is not a national or fail to respond to inquiries.184 In a comprehensive resolution on the right to a nationality adopted in 2023, the Inter-American Commission on Human Rights stated that the standard of proof in statelessness determination procedures should be that it is proven to a „reasonable degree” that a person is not considered a national by any state, according to its legislation, while the burden of proof should be shared, whereby both the applicant and the authorities of the examining State must cooperate to obtain the evidence and establish the facts.185 A recommendation on the nationality of children adopted by the Council of Europe Committee of Ministers urges states to ensure that children who cannot reasonably be expected to acquire another nationality to which they appear to be entitled are not excluded from protections against statelessness in the country of birth.186 Although it is accepted by courts and treaty bodies that states may properly require a person claiming to be stateless to seek recognition of the nationality of another state if that appears to be an entitlement in law, such requirements must be reasonably possible to fulfil. The application of such requirements is particularly problematic in the case of children of refugees, who cannot generally approach the authorities of their country of origin, since to do so would put their refugee status at risk, or (even if not officially recognised as refugees) they may be afraid of the consequences.187 International Law Commission, Draft Articles on Diplomatic Protection with commentaries, 2006, commentary to article 8, https://www.refworld.org/docid/525e7929d.html. 179 180 Handbook on Protection of Stateless Persons, supra n 2, para 23. For example: by the Supreme Court of Hungary in Judgment no. Kfv.II.37.715/2021/6 of 25 May 2022, supra n 117; and by the Italian Court of Cassation in Sentenza N. 28873 del 09.12.2008, http://www.apolidia.org/index.php/giurisprudenza/44-corte-di-cassazione/114-cassazione-civile-sez-unite-sentenzan-28873-del-09-12-2008 and Sentenza N. 25212 del 08.11.2013, http://www.apolidia.org/index.php/giurisprudenza/44-corte-di-cassazione/98-sentenzacassazione-civile-n-25212-del-08-11-2013. See also Gabor Gyulai, “Should nationality have a ‘minimum content’? – Italian Supreme Court passes landmark decision” (blog post) European Network on Statelessness, 19 September 2014, https://www.statelessness.eu/updates/blog/should-nationality-have-minimumcontent-italian-supreme-court-passes-landmark-decision; and discussion in footnote 1. 181 182 Handbook on Protection of Stateless Persons, supra n 2, paras 22–56. 183 UNHCR, Guidelines on Statelessness No. 4, supra n 102, paras 18–19. 184 ACERWC General Comment on Article 6, supra n 55, para. 100. 185 Resolution on the right to nationality, prohibition of arbitrary deprivation of nationality and statelessness supra n 10. Council of Europe, Recommendation CM/Rec(2009)13 and explanatory memorandum of the Committee of Ministers to member states on the nationality of children, 9 May 2009, CM/Rec(2009)13, https://www.refworld.org/docid/4dc7bf1c2.html. 186 187 UNHCR, Guidelines on Statelessness No. 4, supra n 102, para. 27–28. 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