F. STATELESSNESS DETERMINATION WHERE
THE 1954 CONVENTION DOES NOT APPLY
44
122.
Many stateless persons who meet the 1954 Convention definition find
themselves in countries not bound by this treaty. Nevertheless, a number
of non-contracting States have introduced some form of statelessness
determination procedure to address the situation of such persons in their
territories, given their commitments under international human rights
law. With respect to the latter, statelessness is a juridically relevant fact,
for example in relation to protection against arbitrary detention (Article
9(1) of the ICCPR), the right of women to equal treatment with men with
regard to nationality (Article 9 of the 1979 Convention on the Elimination
of All Forms of Discrimination against Women) and the right of every child
to a nationality (Article 24(3) of the ICCPR and Article 7(1) of the 1989
Convention on the Rights of the Child).
123.
De facto stateless persons also fall outside of the protection of the 1954
Convention.74 Some States have incorporated the concept of de facto
statelessness (in substance, if not always in name) into their statelessness
determination procedures, examining eligibility for protection on that
basis alongside the 1954 Convention criteria.
124.
States are encouraged to provide protection to de facto stateless persons
in addition to 1954 Convention stateless persons. Often de facto stateless
persons are in irregular situations or in prolonged detention because they
are unable to return to their country of nationality. States will take a variety
of factors into account when deciding the type of procedure in which de
facto statelessness will be determined. One consideration is that it will not
be clear at the outset, even in the view of the applicant, whether he or she
is stateless as per the 1954 Convention or within the de facto concept.
Irrespective of where de facto statelessness is determined, the procedure
must not prevent individuals from claiming protection as a refugee or as a
stateless person in terms of the 1954 Convention, as recognition as such
would trigger greater obligations for the State under international law than
recognition as a de facto stateless person.
74
As noted in paragraph 7 above there is no international definition of the term de facto
stateless person. Section II.A. of the Prato Conclusions, note 4 above, proposes the
following operational definition for the term: 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.