b)
Persons inside the State whose nationality is at issue:
i)
If the State concerned finds that the persons are its nationals, they are neither de
jure nor de facto stateless.
ii)
The persons may not possess any documentation which proves they are nationals
of the State concerned and their treatment by that State may suggest that it does
not regard them as its nationals, or that State may even have made an initial
determination that they are not its nationals. Nevertheless, UNHCR or another
State may, depending on the evidence available, consider that such persons have,
or may have, the nationality of that State. Any such finding or hypothesis would
normally have no legal consequences for that State, which will either consider the
persons to be its nationals or not. However, there may be consequences in
particular for UNHCR.
If the Office considers that the persons have, or may have, the nationality of that
State, then it may need to take action based on its mandate for the prevention of
de jure statelessness because of the risk of the State never recognizing them as its
nationals. If in fact the persons do turn out to be de jure stateless, the Office’s
mandate for the protection of stateless persons and reduction of statelessness
would be engaged.
Given that the persons concerned remain inside the State of their alleged
nationality, grounding the Office’s approach in its mandate for addressing de jure
statelessness would be much less questionable doctrinally, and no less effective in
practice, than creating a new paradigm of de facto statelessness whereby persons
can be de facto stateless inside the State of their nationality as well as outside it.
The scope of what the Office could actually set out to achieve in any given
country situation would, however, depend on how any concerns about possible
perceived interference with national sovereignty are resolved.
In conclusion, it is submitted for the reasons set out in (a) and (b) above that:
Persons who are unable to establish their nationality, or who are of undetermined
nationality, may turn out to be de jure or de facto stateless. Those who are de facto
stateless fall within the traditional conception of de facto statelessness described in Part
I above.
8.
PERSONS WHO, IN THE CONTEXT OF STATE SUCCESSION, ARE ATTRIBUTED
THE NATIONALITY OF A STATE OTHER THAN THE STATE OF THEIR
HABITUAL RESIDENCE
As mentioned above,180 UNHCR and others have used the term “de facto statelessness” to
refer to a situation where, following a succession of states, a person is attributed the
nationality of a state other than the State of his or her habitual residence. The most
comprehensive statement of the Office’s position in this respect is to be found in its 1997
180
See section 5 above.
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