most basic use of proving your right to be present or to travel. If, in addition, obtaining documentation
requires a journey to the nearest administrative centre, a long wait to be seen, a mixture of official
and unofficial fees, and at least a day’s lost income, the cost-benefit analysis looks untempting.
It is not the case that all these people are necessarily stateless as a result: but those who are in this
situation and are in addition members of a social group generally regarded as marginal – including
those described in this study -- are certainly at risk of statelessness. It is only in the effort of seeking
documents that statelessness will become apparent.
UNHCR has published a set of guidelines on statelessness, of which the first in the series considers the
definition of a stateless person.306 The definition in international law appears in Article 1(1) of the
1954 Convention relating to the Status of Stateless Persons, as follows:
For the purpose of this Convention, the term “stateless person” means a person who is not
considered as a national by any State under the operation of its law.
In its guidelines on this definition, UNHCR notes that “establishing whether an individual is not
considered as a national under the operation of its law … is a mixed question of fact and law”, thus:
[E]xamining an individual’s position in practice may lead to a different conclusion than one
derived from a purely objective 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.307
The guidelines go on to emphasise that in many states it is not one single authority that determines
whether a person has the nationality of that state, but rather a combination of many different
agencies responsible for issuing different documents and making different decisions for different
purposes. It may therefore be a cumulative rejection of applications for documents rather than one
single one that shows that a person is not regarded as a national. Where a person acquires nationality
automatically, by operation of law – as is usually the case for attribution of nationality at birth
(whether of the parents or of the state in which birth takes place) – documents are not usually issued
at that time. But it is later, when documentary proof of nationality is sought, that it may become
apparent that the state concerned does not regard the person as its national. In particular :
Where the competent authorities treat an individual as a non-national even though he or she
would appear to meet the criteria for automatic acquisition of nationality under the operation
of a country’s laws, it is their position rather than the letter of the law that is determinative in
concluding that a State does not consider such an individual as a national.308
For very many people in the groups highlighted as being at risk of statelessness in this study it is not
exactly clear if they are stateless or not: they exist in a blurred zone between clearly having a
nationality and clearly being stateless. It may be the case that some members of a community have
some (but not all) documents related to nationality (just a birth certificate, just a national identity
306
UNHCR, Guidelines on Statelessness No. 1: The definition of “Stateless Person” in Article 1(1) of the 1954
Convention relating to the Status of Stateless Persons, HCR/GS/12/01, 20 February 2012; the first three of four
Guidelines have been compiled into the Handbook on Protection of Stateless Persons under the 1954 Convention
Relating to the Status of Stateless Persons, UNHCR, 2014.
307
Handbook, para.24.
308
Handbook, para 37.
89
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