Part II. European Law on Nationality and Statelessness
concerned the refusal of the French authorities to register the births of children born to
French nationals in India, because they were suspected to have been born as the result
of a surrogacy agreement. As such, the case indeed presents a similar situation as in
the Mennesson and Labassee cases. The ECtHR therefore explicitly refers to these two
cases and sees in the circumstances of this case no reason to conclude differently than
in these cases.711 Accordingly, the Court finds a violation of the right to private life as
regards the children in this case. This confirmation reaffirms the Court’s commitment
to the best interests of the child under Article 8 of the Convention.
Various legal instruments regarding the nationality and statelessness of children are
thus available in the context of the CoE. These reinforce and elaborate the dominant jus
sanguinis principle for acquisition of nationality by newborn children, but also try to
mitigate the problems that arise from this by introducing jus soli elements as additional
safeguards, or elaborating on application of jus sanguinis in situations that are less
straightforward, for instance in cases of surrogacy. As mentioned in paragraph 3.2.2, there
has also been some attention paid to childhood statelessness specifically by PACE and in
the CoE Action Plan on Protecting Refugee and Migrant Children in Europe. Concrete
further guidance or next steps have as of the time of writing not (yet) been introduced.
Nonetheless, childhood statelessness remains an issue that is on the agenda of the CoE.
3.3.2. CONFLICTS OF NATIONALITY LAW, LOSS AND
DEPR IVATION OF NATIONALITY
The legal bond between a person and a state may be lost or may cease to exist at some
point, which could, if a person has no other nationality, result in statelessness. The ECN
sets out a number of relevant standards that help to prevent statelessness in such situations.
As regards the loss of nationality, the ECN is clear. Article 7, paragraph 1, of the
ECN says that a state party may in its laws not provide for the loss of its nationality ex
lege or at the initiative of the state except in an exhaustive number of cases.712 Also,
according to Article 7, paragraph 2, ECN, states may include in their national legislation
rules for the loss of its nationality by children whose parents lose that nationality, except
for cases that concern voluntary service in a foreign military force or conduct that is
seriously prejudicial to the vital interests of the state. A child shall, however, not lose
that nationality if one of the parents retains it.713
711
712
713
134
Ibid, para 47.
Art 7(1) ECN; CoE, Explanatory Report to the European Convention on Nationality (Strasbourg,
6 November 1997, CETS No. 166) para 58. For a more elaborate overview of the cases of loss of
nationality included in Article 7(1) ECN, please consult for instance: Sandra Mantu, Contingent
Citizenship. The Law and Practice of Citizenship Deprivation in International, European and
National Perspectives (Ipskamp Drukkers 2014) 60–64; Roland Schärer, ‘The European Convention
on Nationality’ (1997) 40 German Yearbook of International Law 438–459, 448–452; Gerard-René
de Groot, ‘The European Convention on Nationality: A Step towards a Ius Commune in the Field of
Nationality Law’ (2007) 7 Maastricht Journal of European and Comparative Law 117–157, 139 ff.
Art 7(2) ECN.
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