Several cases in European states have litigated the situation of the children born abroad of nationals who have joined the Islamic State or similar groups, including where the parent’s nationality has been deprived on national security grounds (either before or after the birth). In cases brought to the European Court of Human Rights217 and the Committee on the Rights of the Child218 the key issues have, however, been the question of extraterritorial jurisdiction of the state of (former) nationality of the parents and their obligations to repatriate the children rather than the question of nationality itself.219  A number of countries with laws that attribute nationality to almost all children born in the territory have restrictions on transmission of nationality to children born outside the territory. These restrictions had a particularly severe effect on children of parents who fled Chile and Brazil during the military dictatorships in those countries. When democracy was restored, both countries reformed their constitutions and laws to ensure access to nationality for children born abroad, processes in which litigation at national level also played an important role.220 Adopted children and children born through assisted reproductive technologies The 1961 Convention does not consider the nationality of adopted children; nor are there any explicit provisions in the human rights treaties. The Hague Convention on Intercountry Adoption221 also does not explicitly consider the question of acquisition of nationality by a child adopted from one country to another.222 The European Convention on nationality, however, establishes that acquisition of nationality shall be facilitated for adopted children, as does the European Convention on the Adoption of Children. A recommendation adopted by the Committee of Ministers of the Council of Europe provides for a distinction between those adopted children where no continuing relationship exists with the birth parents, and those where the parental link is not broken. In the first case, no additional conditions should be applied than those generally applicable to establish the legal connection between parent and child (that is, generally an entry in the civil register of that state); whereas facilitated acquisition of nationality is appropriate in the latter case. In its General Comment on Article 6 of the African Charter on the Rights and Welfare of the Child, the African Committee of Experts endorsed similar principles to those in the Council of Europe Recommendation, while recognising the very varied traditions in relation to care of non-biological children within the African continent. The Protocol to the African Charter on Human and Peoples’ Rights on the Right to a nationality establishes that nationality law should provide for acquisition of nationality for children who are adopted or looked after under the Muslim principle of kafala. The recognition of the nationality of children born in another country through surrogacy arrangements has also been the subject of litigation.223  The European Court of Human Rights found in the Mennesson case that France had violated a child’s right to private life by completely precluding the establishment of a legal relationship between children born as a result of lawful surrogacy treatment abroad and their biological fathers. The court held that the uncertainty as to legal status, including their French nationality, was “liable to have negative repercussions on the definition of their personal identity.”224  In the case of Paradiso and Campanelli the ECtHR ruled that Italy had violated the right of a child to family life by refusing to recognise a birth certificate issued in Russia recording as the ”biological parents” the intended parents of a child born through a surrogacy agreement with a Russian woman. The child had been removed from the care of the intended parents, who were both Italian, and issued a birth certificate saying that he had been born to H.F. and Others v. France, Applications nos. 24384/19 and 44234/20, European Court of Human Rights [GC], Judgment of 14 September 2022, https://hudoc. echr.coe.int/eng?i=001-219333. 217 F.B. et al. and D.A. et al v. France, UN Committee on the Rights of the Child, CRC/C/89/D/77/2019, CRC/C/89/D/79/2019, and CRC/C/89/D/109/2019, 9 March 2022, https://digitallibrary.un.org/record/3995705/. 218 Discussed in Saeed Bagheri and Alison Bisset, “International Legal Issues Arising from Repatriation of the Children of Islamic State”, Journal of Conflict and Security Law, Vol. 27, no. 3, 2022, pp.363–85; Annick Pijnenburg, “HF and Others v France: Extraterritorial Jurisdiction without Duty to Repatriate IS-Children and their Mothers”, EJIL: Talk! 14 October 2022, https://www.ejiltalk.org/hf-and-others-v-france-extraterritorial-jurisdiction-without-duty-to-repatriate-is-children-and-their-mothers/. 219 220 Gabriel Echeverria, “Report on Citizenship Law: Chile”, GLOBALCIT, European University Institute, 2016, http://hdl.handle.net/1814/40849 ; Patrícia Jerónimo, “Report on Citizenship Law: Brazil”, GLOBALCIT, 2016, http://hdl.handle.net/1814/38885. Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, adopted by The Hague Conference on Private International Law, 29 May 1993. 221 222 An issue discussed in relation to Korean children adopted by US citizens in: Jay Milbrandt, “Adopting the Stateless”, Brooklyn Journal of International Law Vol.39, no. 2 (2014), pp. 695–743. 223 The Hague Conference on Private International Law established a project in 2011 to consider the possibility of a legal instrument regulating recognition of legal parentage in cases of surrogacy. An expert group established under the project considered that it would not be feasible to include issues of nationality within such an instrument. See in particular “Final Report: The feasibility of one or more private international law instruments on legal parentage”, Experts’ Group on the Parentage / Surrogacy Project, Hague Conference on Private International Law, Document Prel. Doc. No 1 of November 2022, available at the webpage for the Project on Parentage and Surrogacy, https://www.hcch.net/en/projects/legislative-projects/parentage-surrogacy. 224 Mennesson v. France, supra n 162, paras 96–97. 62 U N H C R | L I T I G AT I N G T H E R I G H T T O A N AT I O N A L I T Y: A G U I D E F O R P R AC T I T I O N E R S