Committee on Refugees or the Study of Statelessness. This is because inability to avail oneself of protection includes not only a situation of being refused protection by one’s country of nationality but also a situation whereby one’s country of nationality is itself unable to provide protection, for example because of a state of war and/or absence of diplomatic relations.34 Nevertheless, the refugee definition does not encompass all persons who de jure or de facto lack national protection – i.e. who are de jure or de facto stateless – since to be a refugee the person concerned must also have a well-founded fear of being persecuted for one of the reasons enumerated in the definition. However, as noted in UNHCR’s Handbook on Procedures and Criteria for Determining Refugee Status (hereinafter “RSD Handbook”), lack of protection may sometimes itself contribute to the fear of persecution: denial of protection [by the country of nationality] may confirm or strengthen the applicant’s fear of persecution, and may indeed be an element of persecution.35 Note nevertheless that UNHCR considers that there may be situations where denial of protection does not constitute persecution. As the RSD Handbook says regarding applicants for refugee status who have dual nationality: There will be cases where the applicant has the nationality of a country in regard to which he alleges no fear, but such nationality may be deemed to be ineffective as it does not entail the protection normally granted to nationals … As a rule, there should have been a request for, and a refusal of, protection before it can be established that a given nationality is ineffective. If there is no explicit refusal of protection, absence of reply within reasonable time may be considered a refusal.36 1.5 Work of the International Law Commission on the topic of nationality, including statelessness In 1949, the International Law Commission (ILC) placed “nationality, including statelessness” on a list of topics tentatively selected for codification. One year later, ECOSOC adopted Resolution 319 B III (XI) requesting that the Commission “prepare at the earliest possible date the necessary draft international convention or conventions for the 34 35 36 See UNHCR, “Handbook on Procedures and Criteria for Determining Refugee Status”, para. 98: “Being unable to avail himself of such protection implies circumstances that are beyond the will of the person concerned. There may, for example, be a state of war, civil war or other grave disturbance, which prevents the country of nationality from extending protection or makes such protection ineffective. Protection by the country of nationality may also have been denied to the applicant … ” See also Grahl-Madsen, “The Status of Refugees in International Law”, Vol. I, A.W. Sijthoff-Leyden, 1966, p. 256: “If there is no diplomatic or consular relations between the country of origin and the country of refuge, a person will, as a rule, be unable to avail himself of the protection of the former country. This is particularly true in the case of war between the two countries, or when the country of refuge has not recognized the country of origin or its government.” See further Grahl-Madsen’s observations on governments in exile and on divided countries where the government of either part pretends to represent the whole country (op. cit., pp. 258 – 260). See further the discussion in section 10 below. Handbook on Procedures and Criteria for Determining Refugee Status, op. cit., para. 98. See also Discussion note on stateless persons submitted by UNHCR to the Working Group on Solutions and Protection, Doc. No. WSGP/12, 10 April 1991 (annexed to EC/1992/SCP/CRP.4, 1 April 1992), para. 7: “De facto as well as de jure statelessness can be the intended result of a policy of discrimination. The ethnic origin or religious persuasion of groups of persons has been the reason for actual, though not specific legislative, denial of assistance and protection by States to certain of its nationals. Passports have not been extended, for example, or embassies of that State in other countries have refused any association with the individuals or groups being discriminated against.” Handbook on Procedures and Criteria for Determining Refugee Status, op. cit., para. 107. 11