THE EUROPEAN CONVENTION ON HUMAN RIGHTS The European Convention on Human Rights22 does not include the right to a nationality as such.23 However, since the late nineties, the European Court of Human Rights has been repeatedly referring in its jurisprudence to the link between the access to nationality and the person’s ability to exercise her/his right to private life (Article 8 ECHR). The Court first explicitly addressed this issue in the 1997 Karassev judgment, pointing out that ‘[…] the Court does not exclude that an arbitrary denial of a citizenship might in certain circumstances raise an issue under Article 8 of the Convention because of the impact of such a denial on the private life of the individual.’24 Most of the subsequent judgments that evoked the link between nationality and the right to private life concerned cases of stateless persons, whose access to nationality was denied (typically as a result of state succession).25 The Court went further in its 2011 milestone judgment in the Genovese case, when it pointed out that […] the denial of citizenship may raise an issue under Article 8 because of its impact on the private life of an individual, which concept is wide enough to embrace aspects of a person’s social identity. While the right to citizenship is not as such a Convention right and while its denial in the present case was not such as to give rise to a violation of Article 8, the Court considers that its impact on the applicant’s social identity was such as to bring it within the general scope and ambit of that Article.26 Mr. Ben Alexander Genovese was neither stateless, nor threatened with expulsion, but as a child born out of wedlock to parents of different nationalities he was adversely affected by discriminatory nationality laws in Malta, which denied him access to the country’s nationality by birth. By ruling that this form of discrimination constitutes a breach of Article 14 of the ECHR (non-discrimination) in conjunction with Article 8 (right to private life), and by evoking the concept of social identity in the reasoning, the Court lowered its previous threshold, opening avenues for a more extensive interpretation of the link between the right to private life and nationality, even in cases not resulting in statelessness. It is particularly interesting that the Court established a violation of Article 14 in conjunction with Article 8, without finding a violation of Article 8 per se, concluding that the denial of nationality in this particular case was not such as to constitute a violation of the right to private life, in itself (the child as an EU citizen had ample residential and free movement rights in Malta, even without acquiring Maltese nationality at birth). This judgment therefore emphasises the particular importance of the ECHR’s non-discrimination provision in relation to nationality matters. The Court confirmed its line taken in Genovese in the 2014 Mennesson judgment.27 This case concerned the two children of a French couple, born via surrogacy in the United States. France, although aware that the two children were already identified in the US as the children of the Mennesson couple, it nonetheless denied them that status under French law. The ECHR considered that ‘a contradiction of that nature undermines the children’s identity within French society’. In addition, the Court specifically emphasised that the fact that the children were facing ‘a worrying uncertainty as to the possibility of obtaining recognition of French nationality’ was ‘liable to have negative repercussions on the definition of their personal identity’.28 In the Court’s assessment, this – together with other concrete consequences of the non-recognition of the legal parent-child relationship, such as the negative impact on inheritance rights – infringed the children’s right to respect for their private life. Considering that an arbitrary or discriminatory denial of nationality can result in the breach of Article 8 and 14 of the ECHR, Article 13 of the ECHR – the right to an effective remedy – is also applicable, provided that 22 23 24 25 26 27 28 Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950 – (hereinafter ‘ECHR’). This constitutes a major difference in comparison with, for instance, the inter-American regional framework. Cf. 1969 American Convention on Human Rights, Art. 20. Karassev v. Finland, Application no. 31414/96, Admissibility decision of 12 January 1999. See in particular Slivenko and Others v. Latvia, Application no. 48321/99, Admissibility decision of 12 January 1999, Para. 77; Kuduzović v. Slovenia, Application no. 60723/00, Admissibility decision of 17 March 2005, Para. 2; Kurić and Others v. Slovenia, Application no. 26828/06, Chamber Judgment of 13 July 2010; Kurić and Others v. Slovenia, Application no. 26828/06, Grand Chamber Judgment of 26 July 2012, Para. 336. Genovese v. Malta, Application no. 53124/09, 11 October 2011, Para. 33; see also Gerard-René de Groot, Olivier Vonk, Non-discriminatory access to the nationality of the father protected by the ECHR – A comment on Genovese v. Malta, EUDO Citizenship, 2012, available here: http://bit.ly/2lNuaW4. Mennesson v. France, Application no. 65192/11, Judgment of 26 September 2014, see in particular Paras 96-102. Emphasis added. 6