38.2 (7) TEMPROSA.DOCX38.2 (7) TEMPROSA.DOCX (DO NOT DELETE) 258 BERKELEY JOURNAL OF INTERNATIONAL LAW 1/16/2021 12:59 PM [Vol. 38:2 Under this second approach, statelessness is a mixed question of law and fact, putting greater value on the "operation of law" clause of the definition.104 This approach takes into account the law as applied to a specific case and rejects a purely formal analysis. Law refers to legislation, decrees, regulations, orders, and case law. 105 The law is not just the constitution or citizenship statute of a State. According to UNHCR, the word "operation" in the definition of statelessness "requires a careful analysis of how a State applies its nationality laws in an individual's case in practice and any review/appeal decisions that may have had an impact on the individual's status." 106 This approach reflects the general principles of law set out in Articles 1 and 2 of the 1930 Hague Convention on Certain Questions Relating to the Conflict of Nationality Laws. 107 To illustrate, if A's status is under determination by State Y, the determination officers of State Y would have to check the laws of relevant States to know if A is not considered a national under the laws of those States. If State X's law provides that all persons born in its territory are citizens, and A was born in the territory of State X, it cannot be readily concluded that A is not stateless by being a citizen of State X. It may well happen that despite the provision of the law of State X, A is not considered a citizen by State X. To be determined stateless, other evidence would have to show that State X does not consider A as its citizen under the operationalization of its law and that no other State in the world considers them a citizen. Stated otherwise, there must be some negative evidence to show and prove that A is stateless. UNHCR explains that a State may not follow the letter of the law in practice. 108 In fact, a state may ignore the law's substance. 109 There is, however, a problem with proving "nothing." What counts as negative evidence is not clear. UNHCR tells us that the evidence can be one of two kinds: evidence relating to the individual's personal circumstances or evidence concerning the laws and other circumstances in the States concerned. 110 In its determination, the State does not look to its own laws, but primarily looks at the 104. UNHCR, HANDBOOK, supra note 80, at 12. See Betsy Fisher, The Operation of Law in Statelessness Determinations under the 1954 Statelessness Convention, 33 WIS. INT'L L. J. 254 (2015) (contending that "operation of law" is not just nationality law, but also other legal provisions including civil registration law and state practice, and that a totality approach is necessary). 105. See, e.g., European Convention on Nationality, art. 2(d), Nov. 6, 1997, E.T.S. No. 166. 106. UNHCR, HANDBOOK, supra note 79, at 12. 107. Accordingly, the Hague Convention provides: Article 1. It is for each State to determine under its own law who are its nationals. This law shall be recognised by other States in so far as it is consistent with international conventions, international custom, and the principles of law generally recognised with regard to nationality. Article 2. Any question as to whether a person possesses the nationality of a particular State shall be determined in accordance with the law of the State. Convention on Certain Questions Relating to the Conflict of Nationality, arts. 1–2, Apr. 13, 1930, 179 L.N.T.S. 89. 108. UNHCR, HANDBOOK, supra note 79, at 13. 109. Id. 110. Id. at 32.