18
NO OR MINIMAL SAFEGUARDS
The final category into which some of Europe’s legislative fall
is that of “no / minimal safeguard”. Encouragingly, there are
just four countries in this group: Cyprus, Norway, Romania
and Switzerland.144 Of these, Norway and Romania are
directly violating specific international obligations that they
have taken on by maintaining such a gap in their laws. Cyprus,
however, has the most problematic legislation as it is the only
European state that lacks even a safeguard to ensure that
foundlings acquire a nationality.145
In Norway, stateless children born in the country must rely
on a general application procedure to acquire a nationality.
Positively, this procedure is facilitated for anyone who is
stateless (regardless of place of birth) – e.g. they can already
apply before the age of 12 and do not have to fulfil the same
requirements relating to length of residence. Still, the further
conditions are in conflict with international standards in
respect of stateless children born in the territory and can be
difficult to fulfil. These include, most notably, the requirement
of lawful, permanent residence as well as the possibility
for the application to be refused if granting nationality is
“contrary to the interests of national security or to foreign
policy considerations”.146 Romanian nationality law only offers
an application process that is very similar to the standard
naturalisation procedure, with many conditions having to be
fulfilled.149 Swiss nationality law similarly has what is effectively
a facilitated naturalisation procedure: it allows applications only
from persons under 18 years old, who are integrated in the
country, who abide the law and are no threat to the State.148
In its most recent review before the Committee on the
Rights of the Child, the Committee picked up on this gap
and expressed “[concern] that children born in the State party,
who would otherwise be stateless, are not guaranteed the right
to acquire Swiss nationality”.149 Thus, given that all four of these
countries have an obligation under the CRC to ensure that
children can enjoy the right to a nationality – and two of
these states have made additional commitments to this cause
through their accession to both the 1961 Convention and ECN
– these laws are in urgent need of reform. It is noteworthy
that, in Romania and in Norway, international conventions
to which the state is a party are directly enforceable and can
be invoked before the national courts.150 Moreover, a draft
bill has already been forwarded to the Ministry of Justice for
consideration, but if passed in its current form it would only
move the country up to the category of “partial safeguard”
as it would grant nationality to children “born on Romanian
territory from stateless parents”.151
Further education and advocacy is evidently needed to
ensure that lawmakers fully understand the contexts in
which childhood statelessness can arise and the obligations
that international law imposes to ensure that comprehensive
(“full”) safeguards are introduced – not just in Romania, but
also in the other countries identified in this section where the
law only offers a partial solution.
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