to implement their obligations under international law by not indefinitely leaving the nationality status of an individual as undetermined. The Recommendation was prepared by the Council of Europe’s Group of Specialists on Nationality, in which UNHCR participated as an observer. The description of de facto statelessness as provided in the draft Explanatory Memorandum is flexible and rightsoriented on the one hand, yet cautious on the other hand: de facto stateless persons are described as “persons [who] do possess a certain nationality, but where either the state involved refuses to give the rights related to it, or the persons involved cannot be reasonably asked to make use of that nationality”, yet “it has to be underlined, that it is up to the states to determine what de facto statelessness is and thus which persons are to be covered by [principle 7].” After the Recommendation was adopted in draft by the Group of Specialists, it passed through the Bureau of the Council of Europe’s European Legal Committee on Cooperation (CDCJ), which commented as follows: De facto statelessness is a sensitive issue but it should nevertheless not be ignored by the Recommendation, which furthermore leaves considerable discretion to the member states which should “as far as possible” treat factually stateless children as legally stateless ones […] The Bureau of the CDCJ believes that the formulation of this principle is flexible enough to allow States to appreciate to which extent they will apply the equal treatment principle …106 Inter-American Court of Human Rights The Inter-American Court of Human Rights held in 2005 that: States have the obligation not to adopt practices or laws concerning the granting of nationality, the application of which fosters an increase in the number of stateless persons. This condition arises from the lack of a nationality, when an individual does not qualify to receive this under the State’s laws, owing to arbitrary deprivation or the granting of a nationality that, in actual fact, is not effective.107 Thus, according to the Court – whose comments on the point should be considered obiter – statelessness comprises not only the lack of a nationality, but also the granting of a nationality which is ineffective.108 UNHCR UNHCR has not been entirely consistent in its own approach towards de facto statelessness. In 1995 the Office referred to de facto stateless persons in a Note to the Sub-Committee of the Whole on International Protection as “those with an ineffective nationality or those who cannot prove they are legally stateless” and as “individuals whose nationality status is unclear”.109 That same year, ExCom Conclusion No. 78 on Prevention and Reduction of 106 107 108 109 Council of Europe, “Position Paper of the Bureau of the European Committee on Legal Cooperation on the Draft Recommendation on the Nationality of Children”, CDCJ-BU (2009) 8, 4 June 2009, p. 4. Inter-American Court of Human Rights, Case of the Yean and Bosico Children v. The Dominican Republic, Judgment of 8 September 2005, para. 142. See also International Law Reports, Perez v. International Olympic Committee, Court of Arbitration for Sport, CAS Arbitration No SYD 5, 19 September 2000, para.’s 33 to 46. The Court found that Mr. Perez was at least de facto stateless because Cuba apparently withheld from him “the benefits of fundamental civil rights, such as those of freedom of movement and respect for property.” UNHCR, “Note on UNHCR and stateless persons”, footnote 48 above, para.’s 6 and 11. On the issue of unclear nationality status, see also UNHCR, “Information and Accession Package: The 1954 Convention 30