CONVENTION RELATING TO THE STATUS OF ... - Refworld

his proposal of September 21, 1954, 10 to revert to the exclusion of “refugees” (his proposal
read: “This Convention shall not, however, be applied to any person in the above
category(ies) to whom the Convention of July 1951 Relating to the Status of Refugees is
being applied”) but the Conference as a whole disregarded this addition, so that the
present article does not refer to “refugees” at all. In other words, this Convention per se
covers all “stateless persons” within the definition of this term in the Convention, regardless
of whether the person is, in addition, a “refugee” in the terms of the Refugee Convention or
earlier agreements or not. Thus in states which adhere to this Convention only, all
stateless persons within the adopted definition will be covered by its provisions. If a state
adhered to both Conventions it would - as stated above - treat all refugees, within the
definition of the Refugee Convention, in accordance with its provisions, regardless of
whether they are “stateless persons” (within the definition of this Convention) or not and
apply the provisions of this Convention to such stateless persons only who are not at the
same time “refugees” within the meaning of the Refugee Convention. 11
3. Article 1 deals with the question basic to the whole Convention, viz., who is a “stateless
person” to whom the Convention should apply. The Draft Protocol simply referred to “stateless
persons” as if this term had an established meaning. The real difficulty in establishing who is a
“stateless person” is that statelessness, which is the reverse of nationality, is a negative concept
and therefore difficult to prove and define. In simple words, a stateless person would be a person
who possesses no nationality, but the lack of nationality must be provable and proven. It may be
easy if the person was born of, or married to, a stateless person and did not acquire a nationality
by birth, or lose it by marriage. It is somewhat more difficult but still possible if the person
possessed a nationality but lost it, particularly if he possesses or may obtain proof of expatriation;
still missing would be the proof that between the expatriation and the time of eligibility he has not
acquired another nationality. Quite different is the position of persons who have no proof of
expatriation and cannot obtain such evidence and those who have not, either in law or in fact, lost
or been deprived of their nationality but refuse to avail themselves of the protection of their former
home country for whatever reason. The first category of persons (i.e. those who actually lack a
nationality) are called stateless persons de jure. The others are, in fact, in the same position as
de jure stateless persons because they have no state to turn to for protection, but legally they are
nationals of a certain state although they do not derive any benefits therefrom. These persons are
called de facto stateless persons. There may be an intermediate case of statelessness, viz.,
when the person does not have a nationality, but - as mentioned above - proof of loss or lack of
nationality cannot be adduced for whatever reason. While formally this person is stateless de
jure, he may not qualify under this definition for lack of proof.
One of the most debated questions in connection with Article 1 was whether only stateless
persons de jure or also stateless persons de facto should be eligible for benefits under the
Convention. As mentioned, the Draft Protocol contained no definition of “stateless person”
at all. This would have left it to the various states to decide who comes under the
Convention as a “stateless person” and who does not. It would have meant that the
Convention would be differently applied by different Parties. 12 It was for this reason that the
French in their observations on the Draft Protocol 13 suggested that it would be advisable to
include a definition of the term “stateless person” in the preamble to the Protocol and that
the afore-mentioned British and Australian proposals contained definitions of a “stateless
person” for the purposes of the Protocol. The Secretary-General in his memorandum on
the Draft Protocol Relating to the Status of Stateless Persons, submitted to the
Conference, 14 drew the attention of the conference to a definition of the term “stateless
10 E/CONF.17/L.21. For the discussion on this proposal see SR.13, p. 5 ff
11 The President held that the most advantageous provisions were to apply (SR.13, p. 11).
12 See on this question the statement by the Israel representative in SR.3, pp. 10-11.
13 E/2373/Add.4.
14 E/CONF.17/3.