Rising Statelessness Due to Disappearing Island States II STATELESSNESS — THE DEFINITION DILEMMA At the outset of the discussion, it is of primary importance to settle the definition of statelessness. It will be shown that the well-known problem of distinguishing between de jure and de facto stateless persons is still not resolved. Subsequently, the legal differences between falling in the category of stateless persons and the ‘mere’ reliance on international human rights regimes will be examined in more depth in Part V(B). The 1954 Convention contains a legal definition of who may be considered stateless. 15 According to art 1, a stateless person is ‘a person who is not considered a national by any State under the operation of its laws’. 16 There are different ways in which someone might become stateless within the meaning of art 1. A person might not have acquired the nationality of one state automatically at their birth and was not awarded one afterwards. Alternatively, a person might have lost their nationality, eg the state revoked their citizenship at a later stage in life (this could be due to memberships in subversive groups, serving in the armed forces of a foreign state etc). 17 In principle, states have sovereignty over the act of granting citizenship to a person. 18 International law poses few restrictions (eg the prohibition of discrimination) in this regard. 19 Although not having absolute discretion, it thus predominantly depends on the will of states if they recognise someone as a national. 20 With regard to granting citizenship at birth, national legislation will generally either require a person to have a link through jus soli and/or jus sanguinis to the state. 21 Different to the granting of citizenship, protection standards with regard to the deprivation of nationality limit the 15 16 17 18 19 20 21 For instance, the 1961 Convention (n 3) does not itself contain a definition on statelessness. It is however recognised that the art 1 1954 Convention definition is applicable. Carol Batchelor, ‘The 1954 Convention Relating to the Status of Stateless Persons: Implementation within the European Union Member States and Recommendations for Harmonization’ (2005) 22(2) Refuge 31, 53. See also Laura van Waas, ‘The UN Statelessness Conventions’ in: Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (Cambridge University Press 2014) 64, 72. According to the International Law Commission this definition has become part of customary international law, see International Law Commission, Report of the International Law Commission, UN GAOR, 58th sess, Supp No 10, UN Doc A/61/10 (1 May 2006) 48–49 (‘ILC Articles on Diplomatic Protection’); Alice Edwards, ‘The Meaning of Nationality in International Law in an Era of Human Rights’ in Alice Edwards and Laura van Waas (eds), Nationality and Statelessness under International Law (2014) 11, 27. Eric Fripp, Nationality and Statelessness in the International Law of the Refugee Status (Hart 2016) 95. See also art 1 of the 1930 Convention on Certain Questions Relating to the Conflict of Nationality Laws, opened for signature 13 April 1930, 179 LNTS 89, entered into force 1 July 1937 (‘1930 Hague Convention’), which explicitly states that ‘it is for each State to determine under its own law who are its nationals’. States also have to comply with applicable human rights obligations with regard to the granting of nationality: United Nations Human Rights Council, Human Rights and Arbitrary Deprivation of Nationality: Report of the Secretary-General, 13th sess, Agenda Item 3, UN Doc A/HRC/13/34 (14 December 2009) [20]. See also Walter Kälin and Jörg Künzli, The Law of International Human Rights Protection (Oxford University Press 2010) 500. Walter Kälin and Jörg Künzli (n 19) 500. Jus soli means to acquire nationality when being born on the territory of a state. Jus sanguinis confers nationality via descent. For a detailed analysis on the different modes of nationality acquisition (the jus solis and jus sanguinis principle etc): Eric Fripp (n 17) 25–30. 45