8
this issue therefore account for some 30% of the total
worldwide tally.
The Committee has been most active in raising this issue
over the past 5 years, adopting relevant recommendations
in its Concluding Observations in respect of more than
50% of European state party reports. Even so, within
this period too, the Committee has missed several
opportunities to provide recommendations in respect
of law and practice which is problematic in terms of
childhood statelessness. For instance, at the time of their
latest review, Denmark and Austria maintained nationality
laws that discriminate against children born out of wedlock;
while Norway lacks any safeguard to grant nationality
to children born stateless in the territory and numerous
other countries have only partial safeguards which do not
comply with their international obligations.49 The lack of
Concluding Observations addressing these gaps, in spite of
the Committee’s evident interest in promoting children’s
right to a nationality, demonstrates that more effort
is needed to ensure that relevant information reaches
the Committee and is taken into account in its work, in
order to make better use of this important advocacy
opportunity and to remind states of their international
commitments. This is also one of the areas for increased
engagement identified in the “Action Statement” adopted
at the regional conference on preventing childhood
statelessness in Europe, convened by ENS in June 2015.50
The European Convention on Human Rights (ECHR) lies
at the heart of human rights protection in Europe. While
this instrument does not explicitly recognize a right to
a nationality, or prescribe the prevention of childhood
statelessness, nationality has been recognized as an element
of a person’s social identity in the case law of the European
Court of Human Rights. As such, in some situations, the
denial of citizenship51 or uncertainty as to the possibility of
obtaining recognition of citizenship52 can cause a violation
of the right to respect for private life, which is protected
under article 8 of the ECHR. In European jurisprudence,
the principles of best interests of the child53 and of nondiscrimination54 have also emerged as key interpretative tools
in ascertaining when an interference with nationality rights
indeed amounts to an interference with the right to private
life. Case law of the European Court of Human Rights has
also demonstrated that the circumstance of statelessness is
significant when considering whether a state has overstepped
the permissible limits of its margin of appreciation. 55
THE 1961 STATELESSNESS CONVENTION
AND THE 1997 EUROPEAN CONVENTION
ON NATIONALITY
Human rights and child rights frameworks are not the only tools
in the arsenal when it comes to protecting the right of every child
to acquire a nationality. States have also concluded international
and regional agreements which set out in more detail how
childhood statelessness is to be tackled. Since, in principle, it is
for each state to set the conditions for acquisition and loss of
nationality under its own domestic law, different approaches to
this question inevitably create conflicts of laws which could lead to
statelessness.56 Settling such conflicts by establishing which state,
in these cases, is responsible for attributing nationality – and thus
preventing statelessness – is a central aim of these more elaborate
international norms. The two most important instruments in
this respect are the 1961 UN Convention on the Reduction
of Statelessness (1961 Convention)57 and the 1997 European
Convention on Nationality (ECN).58
The 1961 Convention and ECN both outline a number of
concrete safeguards that states must integrate within their
nationality legislation,59 to ensure that children acquire a nationality
in situations where they would otherwise be stateless.60 Neither
convention obliges state parties to adopt, as standard, a particular
approach to the granting of nationality at birth – they accept both
parentage or descent-based (jus sanguinis) and birthplace-based
(jus soli) systems for conferral of nationality as legitimate. However,
crucially, both conventions establish the duty of states to confer
nationality to those children born on their territory who do not
acquire any other nationality at birth. This principle is contained
in article 1 of the 1961 Convention and article 6(2) of the ECN.61
The 1961 Convention also prescribes the conferral of nationality
by descent, from a citizen parent, to a child born abroad where
that child would otherwise be stateless (for instance, where the
child is born in the territory of a non-contracting state).62 Both the
1961 Convention and the ECN also have specific provisions aimed
at safeguarding the right to a nationality for foundlings,63 as well as
preventing children from being rendered stateless as a result of
loss or deprivation of nationality.64
MAP 1
1961 CONVENTION
ECN
BOTH
At the time of writing, a total of 31 states in Europe are state
parties to either, or both, the 1961 Convention and ECN. As
shown on map 1, the 1961 Convention has 29 states parties
and the ECN 20, with significant overlap between the two.65
Evidently, more needs to be done to promote accession to
these two instruments in order to strengthen the framework
for the prevention of childhood statelessness in the region.
Nevertheless, these concrete standards already form an
important complement to the more general commitment
made by European states – through their human rights
obligations – to fulfilling children’s right to a nationality, offering
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