15
person” in a report on Nationality, Including Statelessness submitted by a Special
Rapporteur of the International Law Commission, which read as follows: “Stateless
persons in the legal sense of the term are persons who are not considered as nationals by
any state according to its law”. The wording used by the Special Rapporteur was also
adopted in the British and Australian proposals. This definition clearly referred to de jure
stateless persons only, because if a person was only stateless de facto he was still
considered a national by a state. The definition also had the disadvantage that it may not
have taken into consideration those cases where the government was given latitude in the
application of the law, particularly where it was authorized to deprive a person, under
certain conditions, of the nationality at its own discretion.
The opposition toward the inclusion of de facto stateless persons in the definition of a
“stateless person” to be inserted in the Convention came in the main from the British,
Yugoslav, German, Belgian, and Norwegian representatives. The British representative
argued that the Refugee Convention defined the extent to which the Contracting Parties
were willing to accord the benefits of the Convention to persons who, owing to fear of
persecution, refused to avail themselves of the protection of their national authorities. The
inclusion of all de facto stateless persons under the Protocol (Conventions) would be
tantamount to granting certain persons benefits from which they were excluded as
16
refugees. The Belgian representative was most concerned because the inclusion of de
facto stateless persons per se would benefit persons who renounced their nationality for
17
personal reasons. On the other hand, most of the representatives to the conference were
conscious of the fact that de facto stateless persons were in most instances legally in the
same position as de jure stateless persons and required a firm legal status. Thus the
Belgian representative was prepared to consider as “stateless persons” those “who invoke
reasons recognized as valid by the State in which they are resident for renouncing the
18
protection of the country of which they are nationals”. This would, in fact, grant every
state the right to extend the provisions of the Convention to certain de facto stateless
persons, such inclusion making them subject to all the provisions of the Convention,
including those which go beyond the authority of the state of their residence. Somewhat
broader, although within the same “optional” category, was the suggestion of the German
representative to include a clause giving the Contracting States the option of granting the
benefits accorded to de jure stateless persons to any person who renounced his
19
nationality.
The restriction to de jure stateless persons is the formal sense of the word could mean that
many persons who were actually regarded as stateless in a certain state under domestic
rules might not acquire this status under the Convention when the Convention was
acceded to by that state, if they did not fit the de jure test. To alleviate such a situation (and
to simplify proof of statelessness, as described below), the Israel representative proposed
a definition which consisted of two parts: one a “conservative” (covering all persons who,
on the effective date of the Convention, were treated as stateless by a Contracting State)
and another a legal (relating to persons who lost their nationality under the operation of the
national laws applicable to them).
The conference decided to apply the Convention, as a rule, to de jure stateless persons
only and to provide the possibility of extending its benefits to de facto stateless persons.
The Drafting Committee made several alternative proposals regarding de facto stateless
persons all of which were in substance based on the Belgian proposal, viz.:
15
A/CN.4/50
16
SR.3, pp. 2-3.
17
SR.4, p. 3.
18
Belgian proposal concerning the definition of the term "stateless person" E/CONF.17/L.3; cf. also SR.4, p. 2.
19
SR.4, p. 4.