3 DETERMINATION OF STATELESSNESS AND RIGHTS ATTACHED TO THE STATUS 3.1 Introduction As noted in Chapter 1.3.1, a stateless person is defined in Article 1(1) of the 1954 Convention as “a person who is not considered as a national by any State under the operation of its law.” The International Law Commission has concluded that Article 1(1) definition of a “stateless person” is part of customary international law.136 The definition identifies the persons who are entitled to the core protection of the 1954 Convention, with additional convention rights depending on the individual’s residence status, as discussed below. While ultimately only the acquisition of a nationality will end a person’s statelessness, in situations where this is not yet possible, it is necessary to protect stateless persons. A formal statelessness determination procedure makes it possible to identify those persons who are entitled to the protection regime of the 1954 Convention. For a statelessness determination procedure to be fair and efficient, a number of procedural safeguards must be implemented. The procedure must be accessible for stateless persons,137 and while the procedure is underway, applicants should be entitled to certain rights.138 During the procedure, stateless persons may not be detained for reasons relating to their statelessness. Where they are detained, it must be a measure of last resort and the person may not be held with convicted criminals or individuals awaiting trial.139 Moreover, pending the outcome of the procedure, the applicant may not be expelled from the State where the procedure is ongoing.140 The 1954 Convention guarantees rights to stateless persons on a gradual, conditional scale, with some protection applicable to all stateless persons and others dependent on the precise legal status of the individual.141 The 1954 Convention foresees that stateless persons who are “lawfully in” a State party (in French “se trouvant régulièrement”), are entitled to, inter alia, protection from expulsion (Article 31).142 For stateless persons to be “lawfully in” a State party, their presence in the country needs to be authorized by the State. The concept encompasses both presence, which is explicitly sanctioned and that which is known and not prohibited, taking into account all personal circumstances of the individual. The duration of presence can be temporary. This interpretation of the terms of the 1954 Convention is in line with its object and purpose, which is to assure the widest possible exercise by stateless persons of the rights contained therein. As confirmed by the drafting history of the Convention, applicants for statelessness status who enter a determination procedure are therefore “lawfully in” the territory of a State party. By contrast, an individual who has no immigration status in the country and declines the opportunity to enter a statelessness determination procedure is not “lawfully in” the country.143 42 136 See the International Law Commission, Articles on Diplomatic Protection with commentaries, 2006, p. 49 (stating that the Article 1 definition can “no doubt be considered as having acquired a customary nature”), available at: http://www.refworld.org/docid/525e7929d.html. 137 UNHCR Handbook on Protection of Stateless Persons, paras. 68-70. 138 Ibid, paras. 144-146. 139 Ibid, paras. 112-115. 140 Ibid, paras. 72 and 145. 141 For a detailed discussion, see ibid, paras. 132-139. See also ibid, paras 14 and 16 (on the status of a stateless person and attendant rights even prior to a formal determination of his or her statelessness). 142 UNHCR, Handbook, para 134. 143 Ibid, para 136. Mapping Statelessness in Denmark