II. COUNCIL OF EUROPE STANDARDS THE 1997 EUROPEAN CONVENTION ON NATIONALITY The 1997 European Convention on Nationality19 is the first regional instrument that specifically and exclusively deals with the issue of nationality. The Convention sets forth important principles relevant to the subject in focus, namely:20 »» Every person’s right to a nationality; »» That statelessness shall be avoided; and »» The prohibition of discrimination in nationality matters. Article 6 (2) of this convention – echoing the 1961 Convention – includes technical provisions specifically aiming at avoiding statelessness at birth. Under these rules, States parties shall grant their nationality to any child born on their territory who do not require at birth any other nationality. States may choose between: »» Granting their nationality in such cases already at birth, ex lege; or »» Granting it later, upon application. In this second case, the only condition States may prescribe is a maximum of five years of lawful and habitual residence, before lodging the application. Therefore, on one hand, the 1997 Convention contains higher standards than the 1961 Convention, as it allows much fewer conditions that can be required for the grant of nationality to children born on the territory of the state party who did not obtain any other nationality. On the other hand, it is stricter than the universal treaty, as it allows states to require not only habitual, but also lawful residence. For states that ratified both conventions, the stronger obligation (i.e. the higher human rights standard) always applies. The following table sets out what this means in practice, in case a State opts to not grant nationality ex lege at birth, but rather later, upon application: Types of conditions States may stipulate Obligations for States that only ratified the 1961 Convention Obligations for States that only ratified the 1997 Convention Obligations for States that ratified both conventions Timeframe to lodge application for nationality A period that starts before the applicant’s 18th birthday and ends after her/his 21st birthday Any time after the child has met the residence requirement Any time after the child has met the residence requirement, in case of an upper age limit, it cannot be before her/his 21st birthday Residence requirement Max. 5 years of habitual residence before applying, max. 10 years of habitual residence in total Max. 5 years of habitual and lawful residence Max. 5 years of habitual residence None Not possible Other possible conditions No conviction for national security reasons or serious crime The applicant has always been stateless In addition to the relevant principles and technical rules, the 1997 Convention also sets forth important procedural safeguards with regard to all nationality-related procedures, namely that:21 »» Applications shall be processed within a reasonable time; »» Decisions shall contain reasons in writing; »» Administrative or judicial review against rejections shall be available. 19 20 21 At the time of writing, 20 states have ratified the 1997 Convention, among which 12 EU Member States (all of which have also ratified the 1961 Convention). 1997 European Convention on Nationality, Art. 4-5. 1997 European Convention on Nationality, Art. 10-12. 5