1. As a general rule, non-enjoyment of rights attached to nationality does not constitute de facto statelessness.138 2. The only exception to the above rule is the non-enjoyment of diplomatic protection and consular assistance of the State of nationality in relation to other States (see Part I above). 7. PERSONS UNABLE TO ESTABLISH UNDETERMINED NATIONALITY139 THEIR NATIONALITY OR OF There is a link between persons unable to establish their nationality and persons not enjoying the rights attached to their nationality, since not being able to establish his or her nationality may be the reason why the person concerned does not enjoy the rights attached to his or her nationality. Additionally, as observed by van Panhuys: Though admitting that the main test for identifying nationals of a State, is how the individuals concerned are regarded by it, and not how they are treated, such treatment is not entirely irrelevant. In the first place their treatment, particularly in connection with political matters, may be indicative of whether the State looks upon the individuals as its own (e.g. if clear nationality legislation is lacking). In the second place, it is open to doubt whether a State, though treating an individual who nominally possesses its nationality as a foreigner, is still entitled to have him recognized as one of its nationals …140 There may thus be a fine line between being recognized as a national but not being treated as such, and not being recognized as a national at all.141 The two problems are nevertheless conceptually distinct: the former problem is connected with the rights attached to nationality,142 whereas the latter problem is connected with the right to nationality itself. The present section of this paper discusses the problem of persons who are unable to establish their nationality, or who are of undetermined nationality, and who therefore encounter obstacles in trying to exercise their right to a nationality. The section begins by listing and describing examples of different categories of persons who have a nationality but who encounter difficulties proving it. The section then examines the issue of nationality determination from the perspective of the State whose nationality is at issue, followed by a discussion of nationality determination from the perspective of other States. It is shown that in practice the declaration by a State that a particular individual is, or is not, its national may not always coincide with the findings of other States about that individual’s nationality. 138 139 140 141 142 If this rule is not accepted and alternatively it were to be argued that non-enjoyment of rights attached to nationality does constitute de facto statelessness, then the following would need to be clarified: (1) the rights attaching to nationality that are relevant to the determination of de facto statelessness; (2) the criteria establishing to what extent such rights have to be violated before the person concerned qualifies as de facto stateless; (3) whether domestic remedies have to be exhausted before such a person qualifies as de facto stateless. It is beyond the scope of this paper to enter into a detailed discussion on the term “nationality” or of the rules of evidence for establishing a person’s nationality or lack thereof. H.F. van Panhuys, “The Role of Nationality in International Law”, 1959, A.W. Sijthoff’s Uitgeversmaatschappij N.V., pp. 24 - 25. See further op. cit. at p. 78: “Let us take, e.g. the case of an individual possessing the nationality of State A. In addition he is a national of State B, but only nominally, for in fact he is treated by the authorities of that State as if he were a foreigner. Quaeritur: is State B in order to oppose a claim of State A on behalf of that person, free to plead the defence of double nationality?” Consider, for example, a person who is unable to exercise his or her rights as a national because he or she is unable to obtain a national identity card because his or her birth was never registered. See section 6 above. 40