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24.
Applying this approach of examining an individual’s position in practice
may lead to a different conclusion than one derived from a purely
formalistic analysis of the application of nationality laws of a country to
an individual’s case. A State may not in practice follow the letter of the
law, even going so far as to ignore its substance. The reference to “law”
in the definition of statelessness in Article 1(1) therefore covers situations
where the written law is substantially modified when it comes to its
implementation in practice.
25.
The majority of States have a mixture of automatic and non-automatic
modes for effecting changes to nationality, including through acquisition,
renunciation, loss or deprivation of nationality.17 When determining
whether someone is considered as a national of a State or is stateless, it
is helpful to establish whether an individual’s nationality status has been
influenced by automatic or non-automatic mechanisms or modes.
26.
Automatic modes are those where a change in nationality status takes
place by operation of law (ex lege).18 According to automatic modes,
nationality is acquired as soon as criteria set forth by law are met, such
as birth on a territory or birth to nationals of a State. By contrast, in nonautomatic modes an act of the individual or a State authority is required
before the change in nationality status takes place.
PART ONE
(i) Automatic and non-automatic modes of
acquisition or withdrawal of nationality
(ii) Identifying competent authorities
27.
To establish whether a State considers an individual to be its national, it is
necessary to identify which institution(s) is/are the competent authority(ies)
for nationality matters in a given country with which he or she has relevant
links. Competence in this context relates to the authority responsible for
conferring or withdrawing nationality from individuals, or for clarifying
nationality status where nationality is acquired or withdrawn automatically.
The competent authority or authorities will differ from State to State and in
many cases there will be more than one competent authority involved.19
17
Please note that the terms loss and deprivation are used here in the same manner as in the
1961 Convention: “loss” refers to withdrawal of nationality by operation of law (ex lege) and
“deprivation” refers to withdrawal of nationality initiated by the authorities of the State.
18
Please note in this regard that the phrase “under the operation of its law” in Article 1(1) is
not synonymous with “by operation of law”. The latter is a term of art (used, for example, in
the 1961 Convention) which signifies a mechanism that is automatic in nature. The stateless
person definition encompasses nationality that may have been acquired or withdrawn
through non-automatic as well as automatic mechanisms.
19
It follows from the above that the views of a State body that is not competent to pronounce
on nationality status are irrelevant.
13