Childhood Statelessness i European Courts: An Avoidable Crisis 23 tions, only pieces of the CRC appear in domestic law and apply to citizen children, not foreign or stateless children involved in immigration matters.164 Ensuring safeguards guaranteeing a child’s CRC Article 3 best interests are observed is key to ensuring children’s rights in litigation.165 This is consistent with the CRC Committee instructing those best interests be taken into consideration procedurally and as it pertains to substantive rights, such as securing nationality.166 As noted in Section 2.2, however, most states fall short in fulfilling these obligations. In this sample of cases, courts often relied more upon other sources of “best interests” legal arguments such as the ECHR, the EU Charter and a state’s own domestic law. Thirty-six percent of negative cases and only 30 percent of positive cases analyzed or acknowledged the CRC. Taking a closer look at certain jurisdictions may assist in understanding why the CRC appears to be an underutilized resource. In the Netherlands, for example, Dutch and international law together comprise one legal order, without legislating separate implementation of international treaties. Articles 93 and 94 of the Netherlands Constitution state that provisions of treaties may be “binding” after publication, and that domestic law shall not conflict with international law.167 Normally an explanatory memorandum explains which provisions are binding on all persons. For those not included, the Dutch still must abide by the international law, but an individual will not be able to invoke non-binding provisions in court. With respect to the CRC, not all provisions are binding. As a workaround, litigants may rely upon the ECHR or the EU Charter, both of which are accepted as legally binding and thus Articles 93 and 94 are not necessary to confront.168 However, neither of those binding instruments bestow a direct right of nationality to a child. Comparable circumstances may be found in several other European member states. The UK has “not directly incorporated [the CRC] into domestic law,” but its provisions “are often referred to by the courts when interpreting obligations imposed by human rights and other legislation.”169 The ECHR, on the other hand, has been incorporated into UK law through the Human Rights Act 1998. Similar to The Netherlands, Serbia provides in Article 16 of its Constitution that “ratified international treaties shall be an integral part of the legal system in the Republic of Serbia and applied directly.”170 However, when the Serbian Constitutional Court was pressed on the constitutionality of its birth registration procedures as required by CRC Article 7, the court failed to acknowledge the argument.171 Examples of European states that incorporated the CRC into domestic law include Norway and Sweden; there were no childhood statelessness cases in the SCLD from these jurisdictions. 4.3.2 Statelessness: Jurisdictional Matters Litigation discussed in this paper resulted from children unable to acquire a nationality. The experts interviewed echoed the literature and the “thoroughly preventable” nature of childhood statelessness,172 stating that a child without a state should not exist, and at the very least European states should give provisional nationality to stateless children in need.173 Nevertheless, the sample presents 71 percent of the negative cases resulting in children remaining stateless. At times this is due to states being “a little behind in understanding what statelessness means” which negatively affects litigation.174 In almost one-third of the negative cases, the child was a victim of an arguably arbitrary administrative rule or government mistake.175 There is a trickle-down effect from a state’s lack of process surrounding statelessness upon the court sys164 Executive A (n 70). 165 Executive B (n 72). 166 CRC Committee (n 47). 167 Constitution of the Kingdom of the Netherlands (2008). 168 Scholar B (n 69). 169 UK Joint Committee on Human Rights, ‘The UK’s Compliance with the UN Convention on the Rights of the Child: Eighth Report of Session 2014-15’ (18 March 2015), para 16 <https://publications.parliament.uk/pa/jt201415/jtselect/jtrights/144/144.pdf> accessed 17 March 2025. 170 Constitution of the Republic of Serbia (2006). 171 Case No., IUo-190/2018 (n 99). 172 ENS (n 58) 3. 173 CRC Chair (n 73). 174 Executive A (n 70). 175 See, e.g., E3 (n 82), PRCBC &O (n 98), Case No. 4 Usl-491/15-8 (2017) Croatia Administrative Court of Rijeka; Case No. II OSK 894/14 (2015) Poland Supreme Administrative Court.