is to be proven. Thus it is left to the government of the state of residence to decide whether
the person in question has proven the lack of nationality. Although the definition on its face
may appear to have such a meaning, it certainly was not the intention of the conference to
require a formal proof from states with which the person had no intimate relationship. This
would reduce the proofs to the country of origin and/or former permanent residence. Once
these countries have certified that the person is not a national of theirs, he would come
within the definition of Article 1. If, however, no such certification could be obtained
because the relevant authorities refuse to issue it or do not reply to inquiries, the state of
residence is expected to accept other proofs, either documentary (for instance, papers
showing that the person lived as a foreigner in the country of his origin) or reliable
witnesses. The liberal definition follows particularly from the above-quoted
recommendation contained in the Final Act. As may be seen, this recommendation relates
exclusively to persons who have renounced (obviously, freely) the protection of the state of
which they were nationals. If the definition of Article 1 were not to cover all instances in
which the person involved actually lost or was deprived of nationality but has no official
confirmation, the Convention would contain a discrimination against those persons whose
claims to the status of a “stateless person” is stronger than that of persons who gave up
the protection freely-an alternative for which no basis exists. It must therefore be assumed
that the definition contained in Article 1 covers, in substance, all persons who either never
possessed or lost their nationality; the question of proof is to be adjusted to this intention.
5.
The Convention does not provide for a supranational body to pass upon the eligibility of a
person as a “stateless person”. Thus the determination must ordinarily be made by the authorities
of the country where the person resides. As will be seen, the determination may have extraterritorial effects (see, for instance, Art. 14, Art. 16 (3), Art. 28). The question may properly be
asked whether the other Contracting States are bound by the determination made. In regard to
travel documents, para. 7 of the Schedule attached to Article 28 clearly establishes the obligation
of all Contracting States to recognize the validity of the documents issued in accordance with the
provisions of that Article, i.e., the states may not question the eligibility of a person to enjoy the
status of a stateless person so far as his right to possess the travel document goes, except
insofar as the problem may arise whether the document was issued in accordance with the
29
provision of Art. 28. (For further details see comments to Article 28 below.) It would appear that,
although this is not stated explicitly, the same principle must apply to the determination insofar as
the rights accruing from Articles 14 and 16 (3) are concerned: it is a general rule of international
courtesy that acts of one government are given credence else where except when there are valid
30
reasons to assume an error or abuse.
This principle also follows from the above quoted recommendation: only in regard to de
facto stateless persons are the other Contracting States requested to recognize the
eligibility decided upon by the state of residence of the person. However, if such a
stateless person changes his residence from one country to another, he may be subjected
to a new eligibility determination because it could hardly be assumed that any state is
bound forever by the determination made by another State, although the State of he new
residence is expected not to challenge the former determination, except for valid reasons.
As said, no state is prohibited from extending the rights accorded to de jure stateless
persons under the Convention to de facto stateless persons; on the contrary, they are
asked to do so. Therefore, every State may, at its own discretion, grant these rights to
persons not coming within the purview of Article 1, but falling within the purview of the
recommendation of the Final Act. However, this assimilation to de jure stateless persons
has not the same effect outside the country of assimilation, as a determination in
accordance with Article 1. The recommendation only suggests that other Contracting
29
The question of who decides the eligibility was raised in the Ad Hoc Committee in connection with war criminals but no
decision was taken. The United States representative's view was that the interpretation of that clause would be a matter to
be decided eventually by the reception States (SR.18, para. 3).
30
This view was taken by the Israel representative at the Refugee Conference and was not challenged (SR.8, p. 12).