Chapter 3. The Council of Europe
Below, the ECHR and key articles relevant to the prevention of and solutions to
statelessness are introduced. Furthermore, the broader work of the CoE on the
protection of human rights and minorities are considered for its relevance to the topic
of this study, particularly looking at the FCNM.
European Convention on Human Rights
The first main instrument of the CoE, the Convention for the Protection of Human
Rights and Fundamental Freedoms (ECHR) of 1950, has proven to be relevant in
nationality matters – as this chapter demonstrates.620 The ECHR is the CoE’s main
human rights document, which is of great importance in Europe. The ECHR was
adopted in 1950 in the aftermath of World War II. Currently all 47 Member States of the
CoE are party to this Treaty. Moreover, the ECHR has a supervisory mechanism: the
European Court of Human Rights (ECtHR). This ECHR and the Court have been quite
influential in developing the respect for human rights and supplementing constitutional
guarantees in the Member States.621
When considering the topics of nationality and statelessness under the Convention,
it is first relevant to note that the rights set forth in the ECHR apply also to stateless
people in Europe. They can submit an application to the ECtHR claiming that one of
the States Parties to the Convention has violated (one of) the rights guaranteed by the
ECHR or its Protocols.622 Case law evidences that, indeed, the Court has protected the
rights of stateless people, also rights that relate specifically to their statelessness.623
That nationality matters have found a place within the ECHR might at first sight
be surprising: the ECHR does not contain a right to a nationality624 or any reference
to nationality matters. It was only later, in 1988, that the Committee of Experts for the
Development of Human Rights considered the issue of the right to a nationality as a
human right. It was discussed whether such right should be added to the ECHR using
a ‘Protocol on the Right to Nationality’.625 This idea was, however, abandoned in 1989.
According to Johannes Chan, the reasons for this were political: “States are not prepared
to forgo their sovereignty and submit themselves to the supervision of the European
620
621
622
623
624
625
Please refer also to section 3.3.
Christoph Grabenwarter, for instance, shows how the ECHR and the interpretations thereof by the
ECtHR have influenced the development of human rights and supplemented constitutional assurances
in Austria: Christoph Grabenwarter, ‘The Significance of the European Convention on Human Rights
in the Development of Human Rights’ in Renate Kicker (ed), The Council of Europe. Pioneer and
Guarantor for Human Rights and Democracy (Council of Europe Publishing 2010) 39–42.
Art 34 ECHR.
See for instance Andrejeva v Latvia App No 55707/00 (ECHR, 18 February 2009) ECLI:CE:ECHR:200
9:0218JUD005570700 and Kim v Russia App No 44260/13 (ECHR, 17 July 2014) ECLI:CE:ECHR:2014:
0717JUD004426013.
Cf X v Austria App No 5212/71 (ECHR, 5 October 1972) ECLI:CE:ECHR:1972:1005DEC000521271.
Johannes Chan, ‘The Right to a Nationality as a Human Right. The Current Trend towards
Recognition’ (1991) 12 Human Rights Law Journal 1, 7.
Intersentia
119
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