12 Africa and further afield, the number of people making the journey across the Mediterranean has increased dramatically over the past two years.96 This prompts questions as to the nationality status of children born during the crossing as well as children who are found at sea in international waters. Malta has already seen a number of court cases relating to such situations, which have exposed certain shortcomings in the Maltese legislative approach to the prevention of statelessness. The Maltese Office of the Commissioner for Children has therefore recommended that the law be amended to ensure that children born in international waters, on an unregistered vessel, and brought to Malta are protected from statelessness by allowing for access to Maltese nationality.97 These issues warrant a closer investigation across Southern Europe – especially given that the number of maritime arrivals in Italy, Greece and Spain far exceeds those in Malta. REQUIREMENTS UNDER THE 1961 CONVENTION AND ECN Aware of the fact that statelessness can also arise among children whose parents hold a nationality, international law now prescribes safeguards to ensure the enjoyment of the right to a nationality by focusing on the situation of the child. In other words, these safeguards simply kick in where the child would otherwise be stateless, regardless of the situation of the parent(s). As already mentioned in the previous section, article 1 of the 1961 Convention and article 6(2) of the ECN are the most important of these norms for the European context. Both oblige the conferral of nationality to children born on the territory if they would otherwise be stateless, but allow some leeway in how states transpose this safeguard into their domestic systems. The first, and optimal, method – as it is all-encompassing and does not tolerate even a temporary period of statelessness – is to grant nationality to otherwise stateless children automatically, at birth.98 The second option available to states is to offer otherwise stateless children born on the territory the opportunity to acquire nationality through a simple, non-discretionary application process which may only be made subject to one or more of a limited set of conditions that are outlined in the 1961 Convention and the ECN. These are broadly similar, but there are some distinctions, as shown in the table below. Under the 1961 Convention, there is also a prescription with regard to the timeframe: the application procedure must be accessible no later than when the person attains the age of 18 and be open until at least the age of 21. Nevertheless, given the recognition of the child’s right to a nationality in the CRC, which is to be read in light of the principle of best interests of the child, “it follows from articles 3 and 7 of the CRC that a child must not be left stateless for an extended period of time: a child must acquire a nationality at birth or as soon as possible after birth”.99 It is therefore important that where a state elects for an application procedure for the conferral of nationality to a stateless child, this procedure is accessible as soon as possible after birth and certainly long before the child reaches 18 (and is, thereby, no longer a child). ASSESSING HOW EUROPEAN STATES ARE PERFORMING Below, these international standards will be used as the framework in which to assess where Europe stands in terms of guaranteeing the right to acquire a nationality for children born within European territory. Complementing the ENS country studies and to ensure a more complete picture of the status of this key safeguard in the region, a detailed analysis was conducted of the legislation in 45 countries.100 The purpose of this was to identify gaps, discover patterns and assess compatibility of European legislation with states’ international obligations. The findings of this analysis of states’ legislative performance is interspersed with examples of state practice which highlight either further gaps or good practices, identified in the ENS country studies. As a first step in the analysis, a broad division was made between states with a “full safeguard”, “partial safeguard” and “no/minimal safeguard”.101 These have been defined as follows: • Full safeguard: the law contains a safeguard that covers all otherwise stateless children born in the territory and is in compliance with international law. • Partial safeguard: the law contains a safeguard for otherwise stateless children born in the territory that falls short of the standard set by international law, due to additional procedural and/or substantive requirements that do not comply with the 1961 Convention or ECN, such that not all otherwise stateless children benefit. • No/minimal safeguard: the law does not contain a safeguard specifically directed towards ensuring that otherwise stateless children born in the territory acquire a nationality. There may be other provisions facilitating access to nationality (e.g. facilitated naturalisation for stateless). As shown on map 2, the laws of 21 countries include a full safeguard for otherwise stateless children born in the territory. In the two problematic categories, where the legislation falls short of the standard generally set out under international law, 1961 Convention, Article 1(2) ECN, Article 6(2b) Habitual residence of not more than 10 years total, nor more than five years immediately preceding the application Lawful and habitual residence of not more than five years immediately preceding the application The person has always been stateless The person has always been stateless Not convicted of offence against national security or sentenced to five years or more imprisonment