THE DE FACTO STATELESS PERSON - A MYTHOLOGICAL REALITY?
Dr. Tamara Joan Duraisingam & Dr. Rohaida Nordin
Stateless persons are categorised as de facto or de jure. The de jure stateless person has convention rights assured by virtue of the provisions within the Stateless Persons Convention 1954. As such international law comes to the aid of the de jure stateless person. The de facto stateless person however is not similarly protected by any convention. Although there is mention of inclusion of de facto statelessness in the Stateless Persons Convention 1954 and the Reduction of Statelessness Convention 1961, this inclusion of de facto statelessness is located within the Final Acts of both conventions and is therefore nonbinding. There is in fact no clear definition of who a de facto stateless person is. Nevertheless regardless of whether a stateless person is de facto or de jure, the consequences of statelessness are indeed grave. In Malaysia there are communities that have de facto stateless persons in their midst. These communities include the stateless children of Sabah, the undocumented Orang Asli and Indians in Peninsular Malaysia amongst others. Traditional approaches to de facto statelessness have been more inclusive compared to the more recent attempts at defining this category of statelessness. The contemporary exclusive approach leaves quite a few groups of de facto stateless persons out of this category of statelessness and as such they do not fall within the purview of international law. The paper examines both traditional and contemporary approaches to de facto statelessness within the Malaysian context and provides justification for a more inclusive definition of de facto statelessness, thereby allowing more stateless persons within a municipal system to benefit from international law protection.