CITIZENSHIP AND STATELESSNESS IN THE MEMBER STATES OF THE SOUTHERN AFRICAN DEVELOPMENT COMMUNITY 2020 UNHCR has published a Handbook on Protection of Stateless Persons which considers the definition of a stateless person.365 The definition in international law appears in Article 1(1) of the 1954 Convention relating to the Status of Stateless Persons, as follows: For the purpose of this Convention, the term “stateless person” means a person who is not considered as a national by any State under the operation of its law. In its guidelines on this definition, UNHCR notes that “establishing whether an individual is not considered as a national under the operation of its law […] is a mixed question of fact and law”, thus: [E]xamining an individual’s position in practice may lead to a different conclusion than one derived from a purely objective analysis of the application of nationality laws of a country to an individual’s case. A State may not in practice follow the letter of the law, even going so far as to ignore its substance. The reference to “law” in the definition of statelessness in Article 1(1) therefore covers situations where the written law is substantially modified when it comes to its implementation in practice.366 The guidelines go on to emphasise that in many states it is not one single authority that determines whether a person has the nationality of that state, but rather a combination of many different agencies responsible for issuing different documents and making different decisions for different purposes. It may therefore be a cumulative rejection of applications for documents rather than one single one that shows that a person is not regarded as a national. Where a person acquires nationality automatically, by operation of law – as is usually the case for attribution of nationality at birth (whether the nationality of the parents or of the state in which birth takes place) – documents are not usually issued at that time. But it is later, when documentary proof of nationality is sought, that it may become apparent that the state concerned does not regard the person as its national. In particular: Where the competent authorities treat an individual as a non-national even though he or she would appear to meet the criteria for automatic acquisition of nationality under the operation of a country’s laws, it is their position rather than the letter of the law that is determinative in concluding that a State does not consider such an individual as a national.367 For very many people in the groups highlighted as being at risk of statelessness in this study it is not exactly clear if they are stateless or not: they exist in a blurred zone between clearly having a nationality and clearly being stateless. It may be the case that some members of a community have some (but not all) documents related to nationality (just a birth certificate, just a national identity card, just an electoral card – but were rejected or never applied for a nationality certificate or passport), whereas others were never registered at birth and applications for all other documents have been rejected; others may have obtained documents by paying bribes to intermediaries, and others may have travelled to a different “home” country to obtain documents there because they cannot get them where they currently live (or because they prefer to keep that affiliation). Each person has his or her own narrative, and his or her own particular circumstances (of parentage, place of birth and childhood, marriage partner, habitual residence, autonomy of social status, access to connections and money) that will explain these outcomes – but among the groups highlighted in this study are certainly people who fulfil the definition of stateless person under international law. UNHCR, “Handbook on Protection of Stateless Persons under the 1954 Convention Relating to the Status of Stateless Persons” (Geneva: United Nations, 2014). 365 366 Handbook, para. 24. 367 Handbook, para. 37. UNHCR / December, 2020 85