is a national, consider sympathetically the possibility of according to that person
the treatment which the Convention accords to stateless persons,
Recommends further that, in cases where the State in whose territory the person
resides has decided to accord the treatment referred to above, other Contracting
States also accord him the treatment provided for by the Convention.
Since the facultative provision of the draft of Article 1 was, by its very nature, not
obligatory, the transfer to the Final Act did not change its character: it is not a
binding provision but only a suggestion and an appeal to the states to extend the
benefits of the Convention to de facto stateless persons.
4.
As pointed out, the range of de jure stateless persons (and thus the extent of the de facto
statelessness) depends in part on the definition. The definition of the Special Rapporteur was
purely objective: to qualify as stateless, a person must not be considered as a national by any
state. Objectively, this is a correct definition because if a person is regarded as a national by any
country in the world he could not be legally stateless. But translated into actuality and taken
literally, it could mean that the person would have to prove that none of the existing states of the
world recognizes him as its national or all these states would have to declare so-a rather
impossible undertaking. The aforementioned Israel proposal sought to alleviate this negative
aspect of the definition by reducing the proof to the “nationality law applicable to him”, which
would mean the law of the country of origin and/or permanent residence.
The Norwegian representative thought that Article 1 could be drafted so that the term
“stateless person” should be interpreted as meaning persons not found to be nationals of
24
any state (meaning that if the state of residence has no proof that the person seeking
recognition as a “stateless person” actually possessed a nationality); he was supported by
25
the Yugoslav representative.
These proposals were not adopted and the “universal” definition and the negative aspect
(“not considered as a national by...”) were maintained, although the members of the
conference were aware of the difficulties involved in proving this negative characteristic.
26
The German representative said that no country of residence could dispute the
declaration of a country of origin that it has deprived a person of its nationality-these cases
are clear; the difficulty arose where no definite resolution of the question of the status
existed, owing to the unwillingness of the country of origin to reply to inquiries or for other
reasons. He felt, however, that it would be dangerous to define such persons as stateless.
27
The records do not show in detail how the conference viewed the question of proof. The
only explanation given was that by the President who said that the word “operation” had
been used to cover the cases both of persons who lost their nationality automatically as a
result of the application of the law, and of those who lost it through the application of a rule,
i.e., by an act of the executive authorities.
28
In general, all the definitions suggested during the conference were regarded as liberal,
apparently in the sense that all that was required was lack of nationality; consequently,
whenever proof is available that the person in question does not possess the nationality of
any state, he is a “stateless person” within the meaning of the Convention. As said, the
conference did not deal with proofs. Nor does the Convention establish how statelessness
24
SR.4, p. 7.
25
Ibid.
26
SR.4, p. 4.
27
SR.10, p. 14. This is what the Israel proposal sought to achieve. See above.
28
See, for instance, the statement by the British representative that "when the members of the conference had discussed
the definition of a stateless person they had shown a liberal spirit and had been prepared to extend the benefits of the
proposed instrument to as many persons as possible". (SR.7, p. 3.)