UNHCR’s mandate has since been progressively developed to the point where it currently stands in ExCom Conclusion No. 106 of 2006 on “Identification, Prevention and Reduction of Statelessness and Protection of Stateless Persons”, as endorsed by the UN General Assembly in resolution 61/137 of 2006. Conclusion No. 106 lists a number of measures to be taken by UNHCR, States and other actors with respect to: • • • The identification of “stateless persons and individuals with undetermined nationality”; The protection of “stateless persons”; and The prevention and reduction of “statelessness”. Like other ExCom Conclusions, Conclusion No. 106 does not explicitly distinguish between de jure statelessness and de facto statelessness.4 UNHCR has therefore tended to assume that it has a mandate for de facto stateless persons who are not refugees just as much as it has a mandate for de jure stateless persons who are not refugees. UNHCR has accordingly required its Country Operations to address problems of de facto statelessness and to report annual statistics on de facto stateless persons. However, the Office has never clearly defined what de facto statelessness is, nor what the legal and operational responses to de facto statelessness should be. In this respect, it should be noted that whereas an international treaty regime has been developed for addressing problems of de jure statelessness – including most notably the 1954 and 1961 Statelessness Conventions – there is no such legally binding regime at the global level for de facto stateless persons who are not refugees.5 Whereas the absence of such a regime does not mean in and of itself that UNHCR cannot address problems of de facto statelessness, it does mean that if UNHCR does indeed have a mandate to address such problems, the range of protection tools on which the Office can rely will necessarily be more limited than when addressing problems of de jure statelessness. The present paper seeks to answer the question what de facto statelessness is. The meaning of the term “de facto stateless” can only be properly understood by comparing it with the meaning of the term “de jure stateless”, and thus Part I explores the origins of the international statelessness regime and shows how efforts to create such a regime for de facto stateless persons were, with the notable exception of refugees, rather less successful than they were for de jure stateless persons. Part I also shows how the term “de facto stateless” was traditionally reserved for persons who are outside the State of their nationality and lacking in that State’s protection, the protection in question being diplomatic and consular protection and assistance (as opposed to protection on the territory of the State of nationality itself). Part II discusses how in the 1990s – with the dissolution of the Soviet Union, Czechoslovakia and the former Socialist Federal Republic of Yugoslavia – UNHCR and others began to 4 5 Note, however, the possible exception of ExCom Conclusion No. 90 on International Protection (2001), which expresses concern that “many victims of trafficking are rendered effectively stateless [emphasis added] due to an inability to establish their identity and nationality status” and calls upon States “to cooperate in the establishment of identity and nationality status of victims of trafficking so as to facilitate appropriate resolutions of their situations, respecting the internationally recognized human rights of the victims”. However, this refers not to action to be taken by UNHCR, but to action to be taken by States. See further the discussion in section 5 below about ExCom Conclusions and UNHCR’s position on de facto statelessness. The situation is slightly different at the regional level. See section 11.3 below. ii