Council of Europe On 9 December 2009 the Committee of Ministers of the Council of Europe adopted Recommendation CM/Rec(2009)13 on the Nationality of Children, which recommends that Member States of the Council of Europe should: 7. treat children who are factually (de facto) stateless, as far as possible, as legally stateless (de jure) with respect to the acquisition of nationality; 8. register children as being of unknown or undetermined nationality, or classify children’s nationality as being ‘under investigation’ only for as short a period as possible The Explanatory Memorandum to the Recommendation articulates the rationale behind these two principles: Principle 7 De facto statelessness 19. The application of any rules avoiding statelessness depends on the definition of statelessness itself. As already mentioned above a person is regarded to be legally (de jure) stateless, ‘who is not considered as a national by any State under the operation of its law.’ In addition to cases of de jure statelessness, states also may be confronted with cases where persons do possess a certain nationality, but where either the state involved refuses to give the rights related to it, or the persons involved cannot be reasonably asked to make use of that nationality. In both cases the persons involved do not benefit of an effective nationality and are in fact stateless. 20. According to Resolution I … of the Final Act of the 1961 Statelessness Convention, 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. This is repeated in this principle. 21. Factual or ‘de facto’ statelessness implies that a person theoretically possesses a certain nationality, but no relevant tie exists (anymore) between the person and the state concerned and consequently the person involved will not enjoy the protection of this state. De facto statelessness is closely related to the definition of statelessness and to proof of statelessness. E.g., a person could be considered as de facto stateless if he or she possesses solely the nationality of the state, which he or she has left as a refugee, while he or she is recognised by his or her country of habitual residence as a de jure refugee. The state of habitual residence should apply its rules on avoiding statelessness on the children born to such persons, in particular principles 1 and 2 [of the Recommendation]. That could also happen if a state continues to hesitate about whether a child is de jure or de facto stateless. However, it has to be underlined, that it is up to the states to determine what de facto statelessness is and thus which persons are to be covered by this principle. Principle 8 Unknown or undetermined nationality 22. A case on the borderline of de jure and de facto statelessness exists if authorities register a person as being of unknown or undetermined nationality or classify the nationality of a person as being ‘under investigation’. Such classification is only reasonable as a transitory measure during a brief period of time. This is in line with the spirit, for example, of Article 8 of the Convention on the avoidance of statelessness in relation to state succession, requesting states to lower the burden of proof. It urges states High Commission for Refugees has ‘identified many instances throughout the world in which individuals may be physically present in a country, even for generations, but cannot normalize their stay nor establish lawful residence. This, in turn, means they can never aspire to full integration through naturalization.’” Note, however, that the reference to UNHCR is misleading, since UNHCR is here talking about de jure statelessness, not de facto statelessness, as is clear from the reference to “naturalization”. 29