4.3 Acquisition and loss of nationality under the national legal framework and the compatibility with international standards The acquisition of Swedish nationality is regulated in the Act on Swedish Citizenship and is, to a large extent, based on the principle of jus sanguinis, complemented by a few provisions reflecting the principle of jus soli. 4.3.1 Avoidance of statelessness at birth 4.3.1.1 BIRTH ON THE STATE’S TERRITORY Article 1(1) of the 1961 Convention provides: “A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless.” Importantly, the test is not whether the parents are stateless, but whether the person born in its territory is stateless. A child can be otherwise stateless even if both parents have a citizenship but cannot transmit it to the child. Such situations could arise, for example, when children cannot acquire the nationality of their mother because of gender discriminatory laws of her country of nationality, or where a country that adheres to a jus soli citizenship framework does not guarantee transmission of citizenship to children born abroad. These are but two examples of situations in which a child might have parents with a citizenship but that child might himself or herself become stateless. Article 1(1) allows a Contracting State to provide for the grant of its nationality to such a person either a) “at birth, by operation of law,” or b) by way of an application procedure.199 Where Contracting States opt to grant nationality upon application pursuant to Article 1(1)(b) of the 1961 Convention, it is permissible for them to do so subject to the fulfilment of one or more of four conditions. Permissible conditions are set out in the exhaustive list in Article 1(2) of the 1961 Convention. The four conditions are: a fixed period for application within certain rules, set forth by Article 1(2)(a); a requirement of habitual residence within the rules, set forth by Article 1(2)(b); exceptions for certain criminal offences, pursuant to Article 1(2)(c); and that the person concerned has always been stateless, pursuant to Article 1(2)(d). A Contracting State may apply a combination of these alternatives by providing different modes of acquisition based on the level of attachment of an individual to that State. For example, a Contracting State might provide for automatic acquisition of its nationality by children born in its territory who would otherwise be stateless whose parents are permanent or legal residents in the State, whereas it might require an application procedure for those whose parents are not legal residents.200 As agreed by experts convened in 2011 by UNHCR, if a Contracting State is to grant its nationality to a stateless person born in its territory pursuant to an application, as contemplated by Article 1(1)(b) of the 1961 Convention – rather than by operation of law – the State is obligated to grant the applicant nationality, provided that he or she meets the conditions permitted to be imposed pursuant to Article 1(2). The use of the mandatory “shall” (“Such nationality shall be granted…”), indicates that a Contracting State must grant its nationality to otherwise stateless children born in their territory where the conditions set forth in Article 1(2) and incorporated in their application procedure are 58 199 Article 1(1)(b) provides for the grant of nationality “upon an application being lodged with the appropriate authority, by or on behalf of the person concerned, in the manner prescribed by the national law. Subject to the provisions of paragraph 2 of this Article, no such application may be rejected.” Article 1(1)(b) also allows Contracting States that opt to grant nationality upon application pursuant to Article 1(1)(b) to provide for the automatic grant of nationality to children born in their territory who would otherwise be stateless at an age determined by domestic law. 200 UNHCR, Guidelines, para. 33. M A P P I N G S TAT E L E S S N E S S I N S W E D E N