Why Union Law Can And Should Protect Stateless Persons 105 We want to stress that our proposal for EU legislative action is both modest and realistic in scope. It respects, first, the division of competences between the EU and the Member States. It only focuses on the identification and protection of stateless persons and accordingly does not intervene in Member States’ prerogatives in the field of determining who its nationals are. Second, the primary aim of our proposal for EU legislative action lies in consolidating, modernizing and effectuating the obligations that are already incumbent on a majority of EU Member States by virtue of the 1954 Convention. In working out these international obligations, we draw on existing practices in several EU Member States and the guiding work of UNHCR. Third, we discuss only the legal position of stateless persons de jure, i.e. persons without a nationality, and do not engage with statelessness de facto—a term which most commonly refers to persons without an effective nationality. Although de facto statelessness raises many issues worth addressing, we deem it wise not to conflate the two categories as they require separate legal solutions.10 Fourth, it transpires from experiences in States that do operate meaningful protection mechanisms that fears of such mechanisms attracting large numbers of stateless persons must generally be considered to be unfounded.11 By way of background to our proposal, we first summarize the obligations of States towards stateless persons under international law, thereby identifying a number of protection gaps and issues related to interpretation and implementation (section 2). Next, a few general observations are made on the predicament of stateless persons in Europe—in terms of numbers and categories of stateless persons as well as identifiable common failures in protecting stateless persons (section 3). Sections 4 and 5 explain the potential of the European Union in addressing these failures, taking into account the division of competences between the EU and the Member States and discussing what the legal basis of an EU legislative instrument should be. On the basis of this analysis, section 6 outlines the key legal elements of our proposal, namely the setting of common criteria for i) a fair procedure for determining whether a person is stateless; ii) the standard of treatment to be accorded to stateless persons; and iii) the conditions of residence for stateless persons. Our proposal is based on the worrying observation that the post-war international legal regime for protecting stateless persons has failed to take root in many European countries. In practice, many stateless persons do not have procedural rights to have their status determined and the absence in many States of a route by which stateless persons can regularize their status leaves them at 10 See below, section 2. 11 See for data section 3.3. European Journal of Migration and Law 19 (2017) 101–135