27. The position of so-called “sinking island States” raises questions under Article 1(1), as the permanent disappearance of habitable physical territory, in all likelihood preceded by loss of population and government, may mean the “State” will no longer exist for the purposes of this provision. However, the situation is unprecedented and may necessitate progressive development of international law to deal with the preservation of the identity of the communities affected. II. De facto stateless persons The participants broadly agreed that some categories of persons hitherto regarded as de facto stateless are actually de jure stateless, and therefore particular care should be taken before concluding that a person is de facto stateless rather than de jure stateless. This is particularly important as there is an international treaty regime for the protection of stateless persons as defined in Article 1(1) of the 1954 Convention and to prevent and reduce statelessness (most notably the 1954 and 1961 Statelessness Conventions). However, there is no similar regime for de facto stateless persons. A number of participants referred to gaps in the existing international protection regime that affect de facto stateless persons in particular. On the other hand, some participants expressed the view that the concept of de facto stateless persons is problematic. Reference was made in particular to some extremely broad interpretations of the term. A) Definition of “de facto statelessness” 1. De facto statelessness has traditionally been linked to the notion of effective nationality4 and some participants were of the view that a person’s nationality could be ineffective inside as well as outside of his or her country of nationality. Accordingly, a person could be de facto stateless even if inside his or her country of nationality. However, there was broad support from other participants for the approach set out in the discussion paper prepared for the meeting which defines a de facto stateless person on the basis of one the principal functions of nationality in international law, the provision of protection by a State to its nationals abroad. 2. The definition is as follows: de facto stateless persons are persons outside the country of their nationality who are unable or, for valid reasons, are unwilling to avail themselves of the protection of that country. Protection in this sense refers to the right of diplomatic protection exercised by a State of nationality in order to remedy an internationally wrongful act against one of its nationals, as well as diplomatic and consular protection and assistance generally, including in relation to return to the State of nationality. 3. It was agreed that there are many de facto stateless persons who are not refugees, contrary to the presumption that was widely held in the past. While refugees who formally possess a nationality are de facto stateless, participants indicated that it was not useful to refer to them as such because this could create confusion. 4. It was also agreed that a person who is stateless in the sense of Article 1(1) of the 1954 Convention cannot be simultaneously de facto stateless. 4 The Final Act of the 1961 Convention links the two when it recommends that “persons who are stateless de facto should as far as possible be treated as stateless de jure to enable them to acquire an effective nationality”. Small Changes ‫ ـ‬Big Gains: An Action Plan to Prevent and Reduce Statelessness in the Kyrgyz Republic 85