birth on the territory of a Contracting State if a person would otherwise be stateless. If such a
child wants to benefit from this right, the fact of being ‘otherwise stateless’ needs to be
established; or, if the acquisition is delayed, the actual statelessness of a child needs to be
established. Similarly, facilitation of naturalization for stateless persons requires establishing
who is stateless and therefore entitled to facilitated naturalization.
13. Stateless person may have an interest in establishing the legal fact of their statelessness
outside of the context of accessing the 1954 Convention rights or attempting to acquire a
nationality. Statelessness might also be relevant in private law disputes, such as marriages,
divorces and laws governing (sur-)names.17 It is therefore important that identification
mechanisms for stateless persons are not strictly limited to the implementation of protection
and prevention or reduction policies on statelessness, but are widely accessible to everyone
who might want to establish the legal fact of their statelessness for whatever reason.
14. The establishment of well-functioning statelessness determination procedures are a crucial
element within the identification goal, and remains a central challenge.
15. The 1954 Convention does not impose an explicit obligation on the State Parties to establish
statelessness determination procedures. The implicit obligation to do so has, however, been
derived from the 1954 Convention by the UNHCR,18 in a similar manner to the way an
obligation to determine refugee status has been derived from the 1951 Refugee Convention
by the UNHCR.19 Indeed, it is impossible to establish who is entitled to rights listed in the 1954
and 1951 Conventions without a status determination procedure. The 1954 Convention’s aim
to regulate and improve the status of stateless persons cannot be achieved if this status is not
formalized, and access to it is not adequately regulated.20 Many States have introduced
statelessness determination procedures, or are working on introducing one, thus supporting
this interpretation with state practice. Moreover, the Human Rights Committee in its recent
decision from December 2020, Zhao v. the Netherlands, confirmed the importance of
statelessness determination procedures in safeguarding access of the children’s right to
acquire a nationality under the ICCPR.21
16. In 2014, UNHCR published the Handbook on the Protection of Stateless persons, containing
detailed guidelines on establishing and implementing national statelessness determination
procedures. Since the obligation to establish statelessness determination procedures is only
implicit in the treaties, the UNHCR acknowledges that ‘[s]tates have broad discretion in [their]
17
For example, see judgment of the Dutch Council of State (in Dutch - Raad van State) No. 201310945/1/A3
(ECLI:NL:RVS:2014:2760) of 23 July 2014.
18 UNHCR Handbook on the Protection of Stateless Persons (Geneva 2014). See also European Network on Statelessness,
Good Practice Guide on Statelessness Determination and the Protection Status of Stateless Persons, (December 2013), pp.
5-6.
19 See, for example, the UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951
Convention and the 1967 Protocol relating to the Status of Refugees, (1979, as re-edited in January 1992), No.
HCR/IP/4/Eng/REV.1, in particular para. 189.
20 It is theoretically possible to protect stateless persons without identifying them if stateless persons can be adequately
and effectively covered by protection regimes of general application. Katia Bianchini, however, shows in her thesis that
states which do not have statelessness-specific protection regimes in Europe offer a lower level of protection to stateless
persons than states which do have such specific protection regimes. See K. Bianchini, The Implementation of the
Convention Relating to the Status of Stateless Persons: Procedures and Practice in Selected EU States, PhD thesis defended
at the University of York, UK, in April 2015.
21 Zhao v. the Netherlands (2020) CCPR/C/130/D/2918/2016 (UN Human Rights Committee, 28 December 2020), para. 10.
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