The determination of statelessness
133
an absolute standard, most mandatory provisions prescribe a treatment
only on a par with ‘aliens generally’.64 So even if we accept that applicants
for stateless status should be considered as entitled to the rights defined
by the convention until the contrary is proved, this will only have a limited impact. Practical considerations may then have the final say on this
issue: it is not difficult to accept that the lack of a proper legal condition
for the applicant renders the entire identification (and protection) framework meaningless. States should aim for efficient and well-regulated procedures that can assist in determining, in a realistic time frame, who is
entitled to protection and who is not.
5.4.3
The institutional framework
As previously mentioned, when establishing the procedural machinery of statelessness determination, a number of models and sources of
guidance can be consulted. The primary institutional question is which
authority (immigration, nationality, asylum or other) ought to be in
charge of identifying, and determining the status of, stateless persons.
The answer can only be context specific. In situations where the population concerned is predominantly in its ‘own country’ authorities in
charge of nationality issues and naturalization appear to be the most
appropriate bodies for statelessness determination (given the fact that
the likely solution for statelessness will be reduction, instead of protection, by implementing the country’s own nationality legislation).65 In an
international protection context – the primary focus of this chapter – the
response may be more complex. Populations concerned may be rather
limited in countries where most stateless persons are from a migratory
background; therefore states are likely to favour the integration of statelessness determination into already existing structures. Existing protection mechanisms tend to delegate this task either to asylum authorities
(France, Spain, the Philippines) or immigration authorities (Hungary,
Moldova).
The typical procedural acts of statelessness determination are alien to
asylum procedures where some of these are even prohibited (e.g. contact
with the country of origin). Nonetheless, delegating the task of statelessness determination to asylum authorities may be the preferred option for
64
65
L. E. van Waas, Nationality Matters. Statelessness under International Law (Antwerp/
Oxford/Portland, OR : Intersentia, 2008), 391.
See Geneva Conclusions, para. 5.
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