etc.) worldwide,13 and the variety of international legal instruments and recommendations that stipulate the necessity to avoid statelessness,14 it may be concluded – borrowing the words of Nils Muižnieks, Council of Europe Commissioner for Human Rights15 – that it is in the child’s best interest to have a nationality.16 PREVENTION OF STATELESSNESS AT BIRTH The 1961 Convention on the Reduction of Statelessness was the first international treaty specifically aimed at avoiding future cases of statelessness. Article 1 of the Convention sets forth a complex list of rules meant to minimise the possibility of any child born in a contracting state remaining stateless after birth. In brief, these rules stipulate that: »» States shall grant their nationality to any person born on their territory if that person would otherwise be stateless; »» States may grant their nationality in such cases (a) at birth ex lege, or (b) later, upon application; »» States choosing option (b) can only prescribe the following conditions and cannot reject the grant of nationality on any other ground: »» That the application is lodged within a limited period of time, which should begin before the person’s 18th birthday and should finish after her/his 21st birthday (thus leaving at least three years to complete this procedure after reaching the age of majority); »» That the person has habitually17 resided in the territory of the state for a period fixed by the state itself, not exceeding 5 years directly before the lodging of the application, nor 10 years in all; »» That the person has never been convicted of an offence against national security and has never been imprisoned for 5 years or more on a criminal charge; »» That the person has always been stateless. In a typical case of a stateless refugee child born in a State party to this convention these rules would mean that:18 »» Either the State grants its nationality to the stateless refugee child at birth, automatically; »» Or it allows the child to register as a national from the age of five, with this option being available at least until the child turns 21. Nationality registration in this case is a non-discretionary procedure. At the time of writing, 71 states have ratified the 1961 Convention (including 19 EU Member States), and there is a notable trend of more States ratifying in recent years. 13 14 15 16 17 18 See for example: UN Secretary General, Impact of the arbitrary deprivation of nationality on the enjoyment of the rights of children concerned, and existing laws and practices on accessibility for children to acquire nationality, inter alia, of the country in which they are born, if they otherwise would be stateless, A/HRC/31/29, 16 December 2015, available here: http://bit.ly/2n50xAz. See for example: 1961 Convention on the Reduction of Statelessness; 1997 European Convention on Nationality, Art. 4 (b) and 6 (1)-(2); UN General Assembly Resolution No. A/RES/68/141, 18 December 2013, Para. 9; UN Human Rights Council Resolution No. A/HRC/RES/20/4, The right to a nationality: women and children, 16 July 2012, Preamble and Para. 3; Council of Europe Committee of Ministers, Recommendation No. R (99) 18 of the Committee of Ministers to member States on the avoidance and reduction of statelessness, 15 September 1999; etc. Keynote address by Nils Muižnieks, Council of Europe Commissioner for Human Rights, at the First Global Forum on Statelessness, The Hague, 15-17 September 2014 (CommDH/Speech(2014)8). This line of thinking finds further support in: Council of Europe Parliamentary Assembly, The need to eradicate statelessness of children, 16 February 2016, Paras 16-17. Habitual residence is to be understood as factual, stable residence, and not as a matter of a particular legal status (residence permit, domicile, etc.). Cf. UNHCR, Guidelines on Statelessness No. 4: Ensuring Every Child’s Right to Acquire a Nationality through Articles 1-4 of the 1961 Convention on the Reduction of Statelessness, 21 December 2012, Paras 40-41; Council of Europe Committee of Ministers, Resolution (72) 1 On the Standardization of the Legal Concepts of ‘Domicile’ and of ‘Residence’, 18 January 1972, Paras 7 and 9. Supposing that such a young child cannot constitute a national security risk, nor can she/he commit a serious crime, as well as that she/he is residing habitually in the country of refuge. 4