(2) Issues of proof
87.
Authorities undertaking statelessness determination procedures need to
consider all available evidence, oral and written, regarding an individual’s
claim.
88.
The stateless person definition in Article 1(1) of the 1954 Convention
requires proof of a negative – that an individual is not considered as
a national by any State under the operation of its law. This presents
significant challenges to applicants and informs how evidentiary rules in
statelessness determination procedures are to be applied.
(3) Burden of proof
89.
The burden of proof in legal proceedings refers to the question of
which party bears the responsibility of proving a claim or allegation.
Typically in administrative or judicial proceedings, a claimant bears
an initial responsibility in substantiating his or her claim. In the case of
statelessness determination, the burden of proof is in principle shared, in
that both the applicant and examiner must cooperate to obtain evidence
and to establish the facts. The procedure is a collaborative one aimed
at clarifying whether an individual comes within the scope of the 1954
Convention. Thus, the applicant has a duty to be truthful, provide as full
an account of his or her position as possible and to submit all evidence
reasonably available. Similarly, the determination authority is required
to obtain and present all relevant evidence reasonably available to it,
enabling an objective determination of the applicant’s status. This nonadversarial approach can be found in the practice of a number of States
that already operate statelessness determination procedures.
90.
Given the nature of statelessness, applicants for statelessness status are
often unable to substantiate the claim with much, if any, documentary
evidence. Statelessness determination authorities need to take this
into account, where appropriate giving sympathetic consideration to
testimonial explanations regarding the absence of certain kinds of
evidence.51
(4) Standard of proof
34
91.
As with the burden of proof, the standard of proof or threshold of evidence
necessary to determine statelessness must take into consideration the
difficulties inherent in proving statelessness, particularly in light of the
consequences of incorrectly rejecting an application. Requiring a high
standard of proof of statelessness would undermine the object and
51
Further flexibility is also warranted where it is difficult for individuals to obtain documents
originating from a foreign authority properly notarized or fixed with official seals.