38 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 the naturalization of stateless persons, which can provide an avenue for stateless children to acquire a nationality along with their stateless parents where the problem is an intergenerational one. This instrument was adopted within the framework of the Council of Europe, which has also adopted a specific Convention on the Avoidance of Statelessness in Relation to State Succession, including a provision aimed at avoiding statelessness at birth among children born after the succession of states (article 10). Within the auspices of the Council of Europe, numerous recommendations and resolutions touching on the prevention of statelessness, including childhood statelessness, have also been adopted. These include Council of Europe, Recommendation CM/Rec (2009) 13 of the Committee of Ministers to member states on the nationality of children, 9 December 2009. See also G. de Groot, “Children, their right to a nationality and child statelessness” in A. Edwards and L. van Waas (eds) Nationality and Statelessness under International Law, Cambridge University Press, 2014, pp. 144-168. The necessity of adopting specific legislative safeguards against statelessness points to an important role for national parliaments in protecting children’s right to a nationality. In this respect, a useful tool available in several different European languages, is UNHCR and IPU, Nationality and Statelessness: Handbook for Parliamentarians No. 22, July 2014. Both instruments also address situations in which statelessness may arise that do not relate (specifically) to children, such as with respect to the loss or deprivation of nationality, but these norms are largely outside the scope of the present report. See further section 3 of this report for the details of – and differences between – these safeguards in the 1961 Convention and ECN. See article 4 of the 1961 Convention, as well as article 1(4). The ECN does not contain an equivalent provision, but does promote jus sanguinis transmission of nationality through the more generally formulated clauses found in article 6(1) and 6(4b), which should be read in light of the principle that “statelessness shall be avoided” as found in article 4(b). See further section 4 of this report. Children who have been abandoned, whose parents and possibly even place of birth are not known. See further section 5 of this report. Articles 5 and 6 of the 1961 Convention; article 7(3) of the ECN. See further section 4 of this report. See Annex 1 for a list of state parties to both conventions, as well as an indication of which states have signed – but not completed the accession/ ratification process of one or both of these instruments. The (further) pursuit of strategic litigation in order to expose, clarify and address gaps in domestic legal frameworks relating to the prevention of childhood statelessness was another area in which participants of the June 2015 regional conference convened by ENS identified opportunities for increased engagement. See Annex 3, sections 4 and 5. This statement was presented on the occasion of the First Global Forum on Statelessness, the Hague, 15-17 September 2014. See for an assessment of engagement of NHRIs on issues of statelessness to date, including a number of European NHRIs, L. van Waas and M. Neal, Statelessness and the Role of National Human Rights Institutions, 2013. See L. van Waas, Fighting for children’s right to nationality in Europe, Blog for ENS, 5 June 2015. See also Annex 3. Article 24 of the Charter of Fundamental Rights of the European Union. Article 20 of the Treaty on the European Union. Court of Justice of the European Union, Rottmann v. Freistaat Bayern, Case C-135/08, 2 March 2010, para. 44. Ibid, paras. 56, 39 and 48. K. Swider, Litigating Strategically: Stateless children born in the EU, ENS Blog, 12 November 2014. Directive 2011/36/EU of the European Parliament and of the Council on preventing and combating trafficking in human beings and protecting its victims, 5 April 2011. Directive 2008/115/EC of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals, 16 December 2008. 9th European Forum on the rights of the child, Coordination and cooperation in integrated child protection systems: Reflection paper, 30 April 2015. Ibid. See, for instance, the European Commission Recommendation, Investing in children: breaking the cycle of disadvantage, 2013/112/EU, 20 February 2013. From the multimedia piece by Greg Constantine, Nationality Unknown. Stateless in Holland, 2014. Above n6. That the jus soli principle is widely embraced across the Americas is seen as an important factor for the relatively low incidence of statelessness there and has contributed to comments in some quarters that it has the potential to be the first continent to eradicate statelessness. See, for instance, F. Quintana and L. Gamboa, Four reasons why the Americas could become the first region to prevent and eradicate statelessness, ENS Blog, 11 March 2015. Nevertheless, jus soli systems are not without their challenges. See C. Becker, Jus Soli: A miraculous solution to prevent statelessness? ENS Blog, 9 April 2015. C. Vlieks and K. Swider, The jus sanguinis bias in Europe and what it means for childhood statelessness, Blog for the European Network on Statelessness, 17 June 2015. This assumption that a child must (have) acquire(d) the nationality of his or her parents creates a challenge, in practice, in the implementation of safeguards for otherwise stateless children born in the territory – a problem which came to light in several of the ENS country studies, including for instance ENS, Ending Childhood Statelessness: A Study on Slovenia. 84 Article 15 of the convention. 85 UNHCR, Background Note on Gender Equality, Nationality Laws and Statelessness 2015, 6 March 2015; See also Action 3 of the UNHCR Global Action Plan to End Statelessness: 2014-2024. 86 See also the IVF case outlined in section 5. 87 See, for instance, B. Fisher, “Why non-marital children in the MENA region face a risk of statelessness” in Harvard Human Rights Journal Online, January 2015. 88 UNHCR, Statelessness in the Canadian context: An updated discussion paper, March 2012. 89 Such requirements are in place, for instance, in a number of Latin American countries. See, for instance, the case of Rosa later in this section. 90 See for a discussion of this challenge in a specific national context, for instance, G. Gyulai, Nationality Unknown? An overview of the safeguards and gaps related to the prevention of statelessness at birth in Hungary, Hungarian Helsinki Committee, January 2014. 91 Worldwide, it is estimated that at least 1.5 million refugees are also stateless. Institute on Statelessness and Inclusion, The World’s Stateless, 2014, section 3(VII) on stateless refugees. 92 See further on the nexus of statelessness and displacement, Norwegian Refugee Council and Tilburg University, Statelessness and Displacement. A scoping paper, 2015 93 See the case of Rosa later in this section. 94 See further section 6 of this report. 95 See further section 6 of this report. 96 In 2013, there were approximately 60,000 boat arrivals. In 2014, nearly 220,000 people arrived in Europe by sea and in the first six months of 2015, a further 137,000 people crossed the Mediterranean to Europe by boat. See further UNHCR, The sea route to Europe: The Mediterranean passage in the age of refugees, 1 July 2015. 97 Commissioner for Children, Manifesto for Children 2013, Section 2.1.3: Right to a Nationality (informal translation), as cited in UNHCR, Mapping Statelessness in Malta, August 2014, page 52. Note that this situation also exposes a potential gap within the international legal framework for the prevention of statelessness, since the 1961 Convention only prescribes that birth on a ship which flies the flag of a contracting state shall be treated – for the purposes of application of the safeguards in the convention – as birth within the territory of that state (article 3). It does not account for or suggest a solution for cases in which a child is born on a vessel which is unregistered. 98 Article 1(1a) of the 1961 Convention; article 6(2a) of the ECN. 99 UNHCR, Guidelines on Statelessness no. 4 (HCR/GS/12/04 21 December 2012) para. 11. See also the views of the Human Rights Committee on the application of article 24(3) of the International Covenant on Civil and Political Rights, which has expressed that “States are required to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he is born”. Emphasis added, Human Rights Committee, General Comment No. 17: Article 24 (Rights of the Child), 7 April 1989, para. 8. 100 A more comprehensive report of the findings of this analysis is provided in the separate ENS publication Ending Childhood Statelessness: A comparative study of safeguards to ensure the right to a nationality for children born in Europe, 2015. 101 Annex 2 offers a full overview of countries by category and a summary of the main details relating to the safeguard in each law. 102 As indicated in section 1, Latvia and Estonia are home to 7,846 and 936 stateless children respectively. See above at n20 and n21. 103 Details of this survey and the reasons given by parents as to why they would not apply for nationality for their child can be found in ENS, Ending Childhood Statelessness: A Study on Latvia, 2015, page 10. 104 Ibid, page 9. 105 See S. Djackova, Statelessness among children in Latvia: current situation, challenges and possible solutions, Blog for ENS, 29 September 2014. 106 ENS, Ending Childhood Statelessness: A Study on Estonia, 2015. 107 See Annex 2 for details. 108 Section 9(1)(3) of the Finish Nationality Act. 109 Article 19-1(2) of the French Code Civil; Article 1(1b) of the Italian Citizenship Act. 110 “Establishing whether an individual is not considered as a national under the operation of its law requires a careful analysis of how a State applies its nationality laws in an individual’s case in practice”, it is “a mixed question of fact and law”. UNHCR, Handbook on Protection of Stateless Persons, 30 June 2014, page 12. 111 See UNHCR, Recommendations on the relevant aspect of the protection of stateless persons in Italy, October 2014. 112 This case demonstrates how even when the legislation appears to provide for automatic conferral of nationality to otherwise stateless children at birth, the practice can unfold very differently. It is featured in ENS, Ending Childhood Statelessness: A Study on Italy, 2015. 113 See further on difficulties surrounding the implementation of the safeguard