This implication must be considered in relation to the protection against statelessness in Article 5(1) of the 1961
Convention and Article 7(1)(f) of the ECN. 291
Article 2 of the 1961 Convention, by its plain text, requires not only that a State Party presume that a foundling was
born to parents possessing the nationality of that State, but also that the foundling was born within that territory.
Thus, even if it were, eventually, proved that a foundling had been born to non-Danish nationals, Article 2 still
requires that a State Party presumes – absent evidence to the contrary – that the foundling was born within that
State’s territory.292
Assumedly, Danish law will be interpreted in accordance with the requirements of Article 2 of the 1961 Convention,
establishing a safeguard against statelessness for foundlings.
4.2.2 Birth on a ship or aircraft
Article 3 of the 1961 Convention provides that a “birth on a ship or in an aircraft shall be deemed to have taken
place in the territory of the State whose flag the ship flies or in the territory of the State in which the aircraft is
registered, as the case may be.” The provision should be interpreted as referring to all vessels registered in the
state. In addition, the provision applies equally to ships that are within the territorial water or a harbor of another
state as well as to an aircraft at an airport of another state.293
No provision governing births aboard a ship or aircraft exists in Danish law. According to the Ministry of Justice294,
no such situation has ever occurred in practice,295 but that if such a case should present itself, there is “every
probability” that it would be dealt with in accordance with the 1961 Convention.296
It is therefore assumed here that Denmark would interpret its own laws in accordance with Article 3 of the 1961
Convention and thus deem a birth aboard a Danish-flagged ship or aircraft as having occurred on Danish territory,
although there seems to be a gap in Danish law with respect to such births.
A related problem concerning birth during a journey has been dealt with in Danish practice. A stateless woman
gave, prematurely, birth to a child on a one-day trip from Denmark to Sweden. The mother and the child returned
to Denmark the day after the birth, and the child’s birth registration was deleted from the Swedish registers. The
child did not acquire a nationality from the father either. The Danish Minister of Justice did not find that the child
was comprised by the CRC since the birth had not taken place in Denmark, while the Naturalization Committee of
the Parliament later granted the child Danish nationality in line with the object and the purpose of the CRC and the
1961 Convention.
70
291
Article 5(1) of the 1961 Convention allows loss as a consequence of a change in personal status as long as it does not lead to
statelessness. Article 7(1)(f) of the ECN allows for the loss of nationality on this ground but Article 7(3) ECN states that such loss of
nationality may not take place if it leads to statelessness.
292
Such a presumption would trigger the Article 1 requirements if the foundling were stateless.
293
UNHCR Guidelines No. 4, paras. 62 and 63.
294
As of 28 November 2016 the Nationality Division is part of the Ministry of Immigration and Integration.
295
This information was given during an interview with employees in the Nationality Division of the Ministry of Justice.
296
This information was given during an interview in August 2012 with the Nationality Division of the Ministry of Justice.
Mapping Statelessness in Denmark
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