PART II: SHIFTING PARADIGM OF DE FACTO STATELESSNESS 5. EXPANDING THE BOUNDARIES OF “DE FACTO STATELESSNESS” With the dissolution in the 1990s of the Soviet Union, Czechoslovakia and the former Socialist Federal Republic of Yugoslavia, UNHCR and others began to expand the concept of de facto statelessness into new areas, not all of which can be fully reconciled with the traditional view described above. Academic literature For example, in 1995 Carol Batchelor wrote: Those who cannot establish their nationality and those without an effective nationality, referred to as de facto stateless persons, are not included in the definition of a de jure stateless person [in Article 1 of the 1954 Convention] … Given the developments in practice relating to asylum seekers over the years, and the number of persons who do not receive citizenship in their country of habitual residence but continue to live there, it has become clear that not all de facto stateless persons are refugees. This is complicated by the various positions adopted by States on nationality status, the State of residence, for example, insisting that the persons concerned have nationality in the State where a previous generation held citizenship, while the latter State refuses to grant nationality insisting that the persons concerned should have nationality where they were born or reside. The ‘grey zone’ of de facto statelessness has grown substantially, and today may include, persons who are confirmed de jure stateless in their country of long-term habitual residence but treated as if they held another State’s nationality, for example, because they might have the technical possibility of applying for naturalization, notwithstanding the absence of any effective link or ancestral connection; persons who have the nationality of a country but who are not allowed to enter or reside in that country; persons who following a succession of States or transfer of territory, do not receive nationality in the State where they were born, where they reside, work, own property and have all their links but, rather, receive nationality in the successor State with which they have no genuine or effective connection (the result being they are no longer able to work, own property, have healthcare, education, and so on in the only place of residence they have known); persons who have the theoretical right to the nationality of a State but who are unable to receive it owing to administrative and procedural hurdles, excessive registration or naturalization fees, or other criteria which block access to the nationality. The majority of de jure and de facto stateless persons requiring assistance on their nationality status are not, today, refugees. Moreover, persons defined as de jure stateless under the 1954 Convention, stateless, by reference to national law, today fall into the grey area of de facto statelessness, because of the lack of the lack of agreement between States on their de jure stateless status. Nonetheless, if stateless persons are really to benefit from the provisions of international or regional instruments developed to resolve cases of statelessness, they must be able to show de jure statelessness.102 Some of these scenarios beg a number of questions. For example, it would seem selfcontradictory to say that “persons who are confirmed de jure stateless” may at the same time be de facto stateless, or that “persons defined as de jure stateless … fall into the grey area of de facto statelessness”. Additionally, it is not clear why “persons who have the theoretical 102 Carol Batchelor, “Statelessness and the Problem of Resolving Nationality Status”, International Journal of Refugee Law, Volume 10, 1998, p. 173 - 174. This passage has been picked up by a number of commentators. See, for example, Human Rights Council, “Complementary International Standards: Report on the study by five experts on the content and scope of substantive gaps in the existing international instruments to combat racism, racial discrimination, xenophobia, and related intolerance”, A/HRC/4/WG.3/6, 27 August 2007, para. 64: “Most experts in the field agree that today de jure statelessness is overshadowed by the even greater crisis caused by de facto statelessness resulting from irregular migration, which contributes to the evolution of a ‘grey zone of de facto statelessness.’ The experts are of the opinion that this problem should be examined by the human rights treaty bodies, both in their general comments and concluding observations.” 27