38.2 (7) TEMPROSA.DOCX38.2 (7) TEMPROSA.DOCX (DO NOT DELETE) 2020] STATELESSNESS AS RHETORIC 1/16/2021 12:59 PM 253 This abbreviated history reveals decisions that were path-determinative for the contemporary understanding of statelessness. The decisions taken, among others, conceptually defined refugees separately from stateless persons. States also took a very particular approach to defining statelessness that would later have implications on the interpretation and application of the definition, which is discussed in Part II.C of this Article. International Law's Definition The stateless individual has been compared to a res nullius (a thing that does not belong to anyone), a flotsam, a vessel on the open sea not sailing under the flag of a State, a caput lupinum (an outlaw), a bird that flies alone, and an international vagabond. 68 Under international law, however, a person is stateless when they are "not considered as a national by any State under the operation of its law." 69 All States are generally bound by this definition as a matter of customary international law. 70 States opted for the de jure definition of statelessness over what was perceived to be an unclear, ambiguous de facto one. 71 According to Edwards and van Waas: Despite the preceding work of the ILC to deal with the distinctions between de jure and de facto statelessness, and the passionate appeal by the Special Rapporteur Roberto Cordova to include both categories in any instrument, the Conference decided only to cover 'de jure' stateless persons. As discussed further herein, this definition requires establishing a negative condition, which can make it particularly complex to apply in practice. Nevertheless, the non-binding Final Act of the Conference called on States parties to accord to persons who have 68. Myers McDougal, Harold Lasswell & Lung-chu Chen, Nationality and Human Rights: The Protection of the Individual in External Areas, 83 YALE L. J. 900, 961 (1974). 69. 1954 Statelessness Convention, supra note 16, at art. 1(1). 70. International Law Commission, Draft Articles on Diplomatic Protection with Commentaries, U.N. Doc. A/61/10, at 49 (2006). Although this statement was made when there was comparatively less State action on statelessness, to the ILC's mind, the definition expressed a customary rule probably because of the action of States in ratifying and accepting the definition that did not allow reservations. To contextualize this, however, the ILC made this statement in the articles on diplomatic protection. Customary law is established from a widespread, consistent State practice and opinio juris. Opinio juris is the manifestation of the normative legal force of a principle. See North Sea Continental Shelf (Ger. v. Den.; Ger. v. Neth.), Judgment, 1969 I.C.J. 3, 44 (Feb. 20) [hereinafter "North Sea"]. Before a treaty provision can create a customary norm, there are a number of conditions that must be established, including the normative character of the treaty provision; widespread and representative participation in State practice, especially the most affected States; and the extensiveness of the practice and virtual uniformity. Id. at ¶¶ 73–74. 71. Edwards & van Waas, supra note 30, at 295–96. For a brief discussion of the other categories of persons who are excluded from the application of the 1954 Convention, see Budislav Vukas, International Instruments Dealing with the Status of Stateless Persons and of Refugees, 8 REV. B.D.I. 143, 168–70 (1972).