A Child Rights-Based Approach to the Prevention of Childhood Statelessness in Europe

Transcription

1 A Child Rights-Based Approach to the Prevention of Childhood Statelessness in Europe Daniela Heerdt, AnR: Tilburg University LLM International and European Public Law Master Thesis Submitted Supervisor: Dr Laura van Waas

2 Abstract Stateless children are among the most vulnerable groups in society. They face a number of serious children s rights violations as a consequence of being stateless. First and foremost, their right to acquire nationality as guaranteed by Article 7 of the United Nation s Convention on the Rights of the Child is infringed. The continuing existence of childhood statelessness in Europe, as well as the current situation of diverse domestic nationality laws, reveals that states fail to fulfil their obligation under the Convention. Furthermore, it suggests that European states actually engage in the production of childhood statelessness. The mere fact that there is European and international legislation which requires States to prevent childhood statelessness appears to be insufficient to create a legal standard that effectively avoids statelessness for children. Using the existing legislative framework, this thesis develops a child rights-based standard, which intends the ultimate eradication of childhood statelessness. In a comparative analysis, the child rights-based standard is tested against domestic nationality laws of eight different European countries. This not only identifies a best practice example from the selected countries, but also displays different factors that influence compliance with the created standard. The findings make it possible to formulate recommendations for a reconsideration and change of current practice on the prevention of childhood statelessness in Europe. I

3 Table of Contents Introduction...1 Methodology...3 Theoretical Framework...4 1) The European Story of Childhood Statelessness ) Childhood Statelessness in Europe ) How Children Acquire Nationality in Europe ) How Children Become Stateless...9 2) The Legal Framework ) The International Legal Framework ) The UN Legal Framework ) The European Legal Framework ) European Case Law ) Children s Rights and Childhood Statelessness ) A Child Rights-Based (CRB) Approach to the Prevention of Childhood Statelessness ) A Comparative Study of Eight European Countries ) Germany ) Latvia ) The Netherlands ) Norway ) Spain ) Turkey ) Ukraine ) The United Kingdom ) Comparative Summary ) Analysis and Evaluation ) Performance Ranking ) Factors of Performance ) The Influence of Ratification of Relevant International Conventions ) The Influence of Size of Statelessness Population ) The Influence of EU Membership II

4 4.3) Best Practice Example Conclusion and Recommendations Annex I: The relevant international and European legislation Annex II: Overview of numbers of stateless populations and ratification status Annex III: Different European Nationality Laws in Compliance with a Child Rights-Based Standard Bibliography Table of Illustrations Illustration 1: Modes of acquisition of nationality in Europe...8 Illustration 2: Map of European states and their ius soli provisions...9 Illustration 3: The Child Rights-Based (CRB) Standard Illustration 4: Criteria for country selection Illustration 5: Performance ranking of the countries Illustration 6: Correlation of ratification and performance Illustration 7: Statistics of statelessness populations Illustration 8: Correlation of statelessness statistics and performance Illustration 9: Correlation of EU membership and performance III

5 Glossary ACERWC CRB CRC CEDAW ECHR EU EUDO ICCPR UN UNHCR = African Committee of Experts on the Rights and Welfare of the Child = Child Rights-Based = United Nations Convention on the Rights of the Child = United Nations Convention on the Elimination of All Forms of Discrimination against Women = European Convention for the Protection of Human Rights and Fundamental Freedoms = European Union = European Union Observatory on Democracy = International Covenant on Civil and Political Rights = United Nations = UN Refugee Agency IV

6 Introduction Article 7 of the United Nations Convention on the Rights of the Child (CRC) gives children the right to acquire a nationality. 1 Article 8 of the same Convention obliges States to undertake to respect the right of the child to preserve his or her identity, including nationality. 2 Yet, non-governmental international organisations estimate that between five and six million of all stateless people are children. 3 Statelessness, as defined by the United Nations (UN) Convention Relating to the Status of Stateless Persons, means a person who is not considered as a national by any State under the operation of its law. 4 Hence, being stateless is equal to not possessing any nationality or citizenship. However, it is through nationality that people are enabled to enjoy fundamental rights and protections vis-à-vis states. 5 The result is that stateless people and children often are not entitled to enjoy any of the rights that people with a nationality can enjoy, since the enjoyment of these rights is linked to the possession of nationality. The adverse consequences attached to being stateless are difficult to grasp, since the majority of population takes nationality for granted. For the purpose of this thesis though, it is essential to get an idea about what it means for a child to be stateless. Stateless children are among the most vulnerable groups in society. They face a number of serious children s rights violations as a consequence of statelessness. Among other basic children s rights, children are denied their rights to nationality, identity, education, health care, or social welfare, as defined under the CRC. 6 Moreover, childhood statelessness often aggravates the chances for children to become victims of exploitation, abuse, or human trafficking. 7 The significance of preventing statelessness at the childhood stage is self-evident, since it will prevent United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) UNGA Res 44/25 (CRC) art 7(1). Ibid. art 8(1). Plan and UNHCR Under the Radar and Under Protected (2012) accessed 24 August 2013; Open Society Justice Initiative Fact Sheet: Children s Right to Nationality (2011) accessed 8 November United Nations Convention relating to the Status of Stateless Persons (adopted 28 September 1054, entered into force 6 June 1960) 360 UNTS 117 art 1. Kay Hailbronner Nationality in public international law and European law in Rainer Bauboeck et al. Acquisition and Loss of Nationality: Policies and Trends in 15 European Countries (2006, Amsterdam University Press) p. 36. United Nations Convention on the Rights of the Child (n1) arts 7,8, 24, 26&28. The Council of Europe s Commissioner s human rights comment Governments should act in the best interest of stateless children (2013) accessed 5 December

7 statelessness from being passed on to future generations and eventually stop the vicious circle of passing on statelessness. Whereas childhood statelessness is a worldwide problem, the phenomenon of childhood statelessness is also spread across the European continent. The current situation of diverse domestic citizenship laws generates different legal practices among European states. The mere fact that there is European as well as international legislation which requires States to prevent childhood statelessness is obviously not sufficient to create a clear legal standard for how to prevent childhood statelessness. The current system leaves room for gaps which make it possible for childhood statelessness to still exist in Europe. This calls for a reconsideration of the existing domestic provisions on the basis of their sufficiency to prevent childhood statelessness. Moreover, the fact that childhood statelessness generates serious children s rights violations, calls for a reconsideration of existing international and European provisions under a child rights-based approach. Therefore, this thesis aims to investigate how European domestic citizenship laws on the prevention of childhood statelessness perform when tested against a child rights-based standard on the prevention of childhood statelessness and to establish what factors potentially influence this performance. Hence, a child rights-based approach is taken to the available international and European legislation, in order to create a new legal benchmark for the prevention of childhood statelessness that consequently can be tested against the domestic nationality laws of different European countries. 8 Ultimately, this serves the purpose of identifying a best practice example out of the selected European countries, which allows for the protection of children's rights at the same time as it prevents childhood statelessness as prescribed by international and European legislation. Chapter one and two of this thesis deal with theoretical aspects related to childhood statelessness. In the first chapter, general facts and aspects related to the European phenomenon of childhood statelessness are considered. Furthermore, this chapter lists different causes of childhood statelessness. The second chapter first presents the international and European legal framework on the prevention of childhood statelessness. Secondly, it identifies related children s rights and consequently formulates a child rights-based (CRB) legal standard on the prevention of childhood statelessness out of existing European and 8 The concept of child rights-based approach is derived from the human rights-based approach which means that human rights principles, or in this case children s rights principles are in focus for an approach taken to a specific matter, such as policy implementation for instance, or development of legislation (see 2

8 international legislation. Chapter three and four deal with practicalities of childhood statelessness. The third chapter entails a comparative analysis of domestic nationality laws of eight European countries: Germany, Latvia, the Netherlands, Norway, Spain, Turkey, Ukraine, and the United Kingdom. It specifically looks at how close these provisions come to the formulated child rights-based standard. The fourth chapter first evaluates the findings of the comparative analysis and subsequently analyses to what extent certain factors have the potential to influence the countries performances. Finally, the last section of this chapter identifies a best practice example of the selected countries. Based on the overall findings of this thesis, the last part summarises the main arguments and presents a set of recommendations on how to proceed with the prevention of childhood statelessness in Europe. Methodology For the purpose of the research objective, this thesis engages in qualitative, comparative and normative legal research. First of all, an inventory of international and European law on the prevention of childhood statelessness is conducted. For the international level, this thesis describes and analyses in particular the provisions of the 1954 UN Convention relating to the Status of Stateless Persons, the 1961 UN Convention on the Reduction of Statelessness, and the 1989 UN Convention on the Rights of the Child. On the European level, this thesis provides a detailed description and analysis of legislation on the prevention of childhood statelessness from the 1997 Council of Europe Convention on Nationality, and also the 2006 Council of Europe Convention on the avoidance of statelessness in relation to State succession. From the given international and European legal standards, this thesis then formulates a legal standard on the prevention of childhood statelessness, which acknowledges the protection of relevant children s rights, the so-called child rights-based (CRB) standard. This approach presupposes that children are seen as subjects under international human rights law, meaning they are in possession of their own rights. 9 In the following practical part, this thesis engages in a comparative analysis of domestic citizenship laws across Europe through applying the developed CRB standard. This is supposed to offer insight in current practices of different European countries in the area of 9 UNICEF Protecting and realizing children s rights (2005) accessed 8 December

9 preventing childhood statelessness. 10 Furthermore, this form of analysis makes it possible to compare 11 the different practices and the goal is to identify negative and positive examples of performance. The country selection is based on different criteria: firstly, the difference between common and civil law countries; secondly, EU membership; thirdly, the relevance of childhood statelessness as a problematic issue in that country; and fourthly, the ratification of the relevant European and international legislation. The comparative analysis is based on relevant provisions within the domestic nationality laws of the different countries. Additional information is retrieved from a database on the protection against statelessness, provided by the European Union Observatory on Democracy (EUDO). 12 This database contains an overview on the extent to which citizenship laws of different European countries that aim at the prevention of statelessness comply with international standards. The results of the Council of Europe s Study for the feasibility of a legal instrument in the field of nationality law and families provide useful information that further contributes to the analysis. 13 The last chapter of this thesis evaluates the results of the comparative analysis by firstly ranking the countries according to their performance when tested against the CRB standard. Whenever there is compliance of domestic law with the CRB standard, the country scores one point. A total of twelve points can be achieved. Secondly, this section engages into the question of what possibly determines or influences the countries performance. The factors used for evaluation are connected to the criteria for the selection of countries. The effect of each of the factors on the countries performance is discussed separately. Lastly, a best practice of the investigated domestic provisions with regard to the prevention of childhood statelessness in accordance with the CRB standard can be revealed. The results make it possible to formulate recommendations for a reconsideration and change of current practice on the prevention of childhood statelessness in Europe. Theoretical Framework Throughout this thesis, reference is made to general concepts such as childhood, statelessness, nationality, and citizenship, as defined by international and European law, as well as recent discussions in literature. The concepts of citizenship and nationality are used interchangeably Jennifer Rowley, Using Case Studies in Research (2002) Management Research News 25(1), 17 accessed 27 October Ibid. See Council of Europe, Study for the feasibility of a legal instrument in the field of nationality law and families (11 February 2012) CDCJ (2012) 11 Fin. 4

10 in this thesis. The theoretical framework used for the creation of the child rights-based standard is composed of related children s rights and the existing international and European legislation on the prevention of childhood statelessness. This framework is further supported by legal guidelines, comments, and explanatory reports of relevant international organisations and committees, such as the Council of Europe, the Committee on the Rights of the Child, or the UN Refugee Agency UNHCR. Consequently, the theoretical framework for the comparative analysis of different European practices is the formulated child rights-based legal benchmark, as well as the domestic nationality laws of the selected countries. For the evaluation of the different practices, this thesis assumes that there are several factors that influence the countries performances with regard to the created standard. 5

11 1) The European Story of Childhood Statelessness It is a habit for most people to take citizenship for granted. Fortunately, the majority of people do not face any challenges when acquiring nationality since in most cases the acquisition has taken place automatically after birth. As the existence of statelessness however proves, the acquisition of nationality is not a pre-given for everyone. Concerns over nationality laws and statelessness populations in Europe rose again in the 1990s, which can be seen as a result of increasing levels of mobility, decreasing fertility, increasing life expectation, changing family norms and practices as well as legal and policy responses to all these issues. 14 However, this quote does not cover all reasons for the existence of statelessness in Europe. After the dissolution of the Soviet Union and former Yugoslavia, the issue of statelessness significantly grew. Furthermore, Roma people are deemed to be stateless as a result of ethnic discrimination. 15 Thus, stateless people in Europe can be divided in two different groups: statelessness populations resulting from migratory backgrounds and stateless people that do not have a migratory background and hence, are stateless in their own country to which they are strongly attached. 16 Stateless children are part of both groups. This Chapter first presents a brief overview of facts and dates of the phenomenon of childhood statelessness in Europe and subsequently identifies different ways for children to become stateless under current European state practice. 1.1) Childhood Statelessness in Europe According to an online population database provided by the UN Refugee Agency (UNHCR), more than people from different European countries were under the UNHCR s statelessness mandate by the end of The problem with this number and other statistics on statelessness populations is that they only account for those cases that are reported. However, in many cases stateless people live an invisible life and are never recorded or reported by authorities or organisations. Moreover, available statistics do not entail separate statistics on stateless children. UNHCR estimates that the actual number of stateless people Council of Europe Study for the feasibility of a legal instrument in the field of nationality law and families (11 February 2012) CDCJ (2012) 11 Fin. European Network on Statelessness (2012) accessed 10 November Gabor Gyulai Statelessness in the EU Framework for International Protection (2012) European Journal of Migration and Law , 280. UNHCR 'Table 7. Persons under UNHCR's statelessness mandate (2012) w=1 accessed 5 November

12 and children living in Europe exceeds by far, which is significantly more than the officially reported Even though the reported and estimated numbers differ, the numbers provided by the UNHCR database can be used as an indication of the acuteness of statelessness within a country or region, also for the purpose of comparing different countries. International organisations researched that about half of the stateless people worldwide are minors. 19 Applied to Europe, this would amount to more than stateless children, keeping in mind that these numbers only account for reported cases. 20 These children are deprived of a number of social, economic, and cultural rights that children with a nationality can enjoy. Thus, stateless children are basically denied right to have rights. 21 Besides these major children s rights violations, it has to be pointed out that statelessness in Europe does not necessarily appear to be a massive problem when comparing the numbers of stateless people living in Europe to statelessness populations living on other continents. This could be related to the fact that Europe is a rather small continent and yet, there is no European country where statelessness is not an issue. The numbers indicate that within Europe, countries such as Estonia, Latvia, or Russia are most affected by the phenomenon of statelessness. The different situations of different European countries can be seen as a result of specific situations, such as specific historicalpolitical factors as for instance state dissolution, migration, and dysfunctional mechanisms within a country s nationality law that do not prevent statelessness at birth. This thesis focuses mainly on the latter situation. It can be argued that through not preventing statelessness at birth, European states actually engage in the practice of producing childhood statelessness. 1.2) How Children Acquire Nationality in Europe Children can acquire nationality in two ways: either through being born within the territory of a certain State and receiving the nationality of that State, which accounts for the doctrine of ius soli, or through being born by citizens of a certain state and receiving the nationality of that person, which accounts for the doctrine of ius sanguinis. The most wide-spread practice in Europe is to acquire nationality on the basis of parentage, hence the doctrine of ius UNHCR Statelessness in Europe (2013) accessed 5 November UNHCR and Plan International Under the Radar and Under Protected (2012) accessed 5 November UNHCR Stateless People (2013) accessed 10 August The Council of Europe s Commissioner s human rights comment Governments should act in the best interest of stateless children (2013) accessed 5 December

13 sanguinis. 22 However, more and more European states adopt different forms of ius soli. 23 As the chart below demonstrates, it is common practice by most European countries to apply a combination of the two doctrines. Yet, it becomes also clear that acquisition through ius sanguinis is the primary factor taken into consideration in all member states. 24 Illustration 1: Modes of acquisition of nationality in Europe 25 The problem of ius sanguinis is that in cases where the parents are non-citizens or stateless, there is no nationality that can be transferred. Therefore, ius soli nationality attribution can serve as a safeguard to prevent the child from becoming stateless in cases where ius sanguinis fails. However, European states often impose a number of conditions on the application of ius soli. The illustration below shows in what ways the different European states grant citizenship under the ius soli doctrine Adviescommissie voor Vremdelingenzaken No Country of one s own (2013) accessed 7 December 2013, p Iseult Honohan Ius soli citizenship - EUDO Citizenship Policy Brief No.1 (2010) accessed 13 September Council of Europe (n14) p.67. Ibid. 8

14 Illustration 2: Map of European states and their ius soli provisions 26 In general it has to be mentioned that there seems to be a general trend of European countries to follow a restrictive policy in granting nationality. A report by Boriss Cilevicy that has been adopted by the Legal Affairs Committee of the Parliamentary Assembly of the Council of Europe, states that the trend in several Council of Europe member states in recent years has been to make it more difficult to acquire nationality, although the right to a nationality is enshrined in several international legal instruments. 27 This shows that instead of making the acquisition of nationality easier, which might eventually also reduce the number of stateless people and children living in Europe, the opposite happens. Thus, it is not surprising that children in Europe can become stateless in a number of ways. 1.3) How Children Become Stateless The most common reason for a child to be stateless is when the parents have no nationality and there is no nationality that can be transferred. This hints at the multi-generational nature Iseult Honohan (n23) p. 5. Parliamentary Assembly Eliminating statelessness and strengthening the right to nationality [2013] last accessed 31 October

15 of statelessness and its vicious circle. 28 Being born to stateless parents, growing up as a stateless child, being a stateless adult and conceiving a child most certainly creates yet another generation of stateless people. What would prevent the child to be born from becoming stateless is the application of ius soli. Another common reason for a child to be stateless is when the attribution of nationality is made impossible due to the fact that the parents are illegal immigrants. As a child of illegal immigrants, nationality determination might become problematic because the nationality of the parents is not clear and cannot be proven due to missing or forged documents, or the fact that nationality laws of the origin country of the parents prevents the transfer of nationality under certain circumstances. 29 This scenario is not limited to illegal immigrants. The same can happen in the case of legal immigrants. Moreover, it is often claimed that the lack of birth registration, resulting out of the fear of the parents of being caught and consequently deported when approaching the authorities, can leave the child stateless. 30 However, even though the International Parliamentary Union in a handbook on childhood statelessness for parliamentarians stresses that without a recognized birth registration, it is almost impossible for a child to establish his/her identity and thus to acquire a nationality, this is not completely correct. 31 Being registered after birth does not automatically give the child a nationality. There can be cases where children are registered after birth but the space for filling in the nationality is left blank. 32 Vice versa, not being registered after birth does not mean that the child is left stateless. Nationality attribution usually works automatically and in most cases, a child will have a nationality even before it is registered. Nevertheless, there are other causes that can leave children stateless. In cases of foundlings for instance, the attribution of nationality is often problematic. In general, a foundling means a child with unknown parents. In such cases, there is no certainty about which nationality the child should be granted. Moreover, another difficulty lies in the definition of a foundling. The classic picture of a foundling is painted by a new-born baby left in front of a doorstep or on the open street, being found by uninvolved pedestrians. However, a foundling can also be a Sebastian Kohn Stateless Children: Denied the right to have rights (2009) accessed 30 August UNHCR and Plan International (n19) p. 7. Laura van Waas The Children of irregular immigrants: a stateless generation? (2007) Netherlands Quarterly of Human Rights 25/3, , 453. Inter Parliamentary Union Nationality and Statelessness: A handbook for parliamentarians (2005) accessed 5 August According to a recording official at the registry office of a German city, this is possible under German law for instance. 10

16 year old boy or girl that reports him- or herself to the authorities. States adopt different definitions of foundlings which can lead to a situation in which a child that would count as a foundling in one country would be able to receive nationality, whereas in a different country it would not fall under the definition of a foundling and therefore would be left stateless. There are also more substantial difficulties inherent to the legal provisions of the domestic nationality law of countries. Some national legal systems have gaps that under certain circumstances leave a child without any nationality. These gaps are related to the principles of ius soli and ius sanguinis. State practice can differ for instance with regard to the attribution of nationality to children born outside of their territory. Moreover, there are states that adopt different practices with regard to granting nationality to a child born by a mother who is a national, or a mother who is a foreigner. In Denmark for instance, if only the father of the child is Danish and the parents are not married, plus the child was born outside of the country, the child cannot automatically acquire nationality at birth. 33 Lastly, there is a more theoretical issue that generates childhood statelessness. Next to the term stateless, a child with unknown nationality can also acquire the status of undetermined nationality. This is a unique status provided for under Estonian law. A similar provision exists in Latvia, where many stateless people are not termed stateless but noncitizens. The problem with these two terms is that for children who are stateless but registered as non-citizen or with undetermined nationality, important safeguards that would apply to stateless children cannot operate. Nevertheless, this issue of different denominations cannot be seen as a direct cause of childhood statelessness. It is important to realize that this list of ways for a child to become stateless is far from complete. It only resembles common and wide-spread factors that can leave a child without a nationality. All these factors have one thing in common though: it is never the fault of the child that he or she is stateless. Children inherit circumstances that limit their potential and provide, at best, an uncertain future. 34 This points out the long-term consequences of childhood statelessness: children often only have a limited perspective for their future; in the worst case, stateless children are not registered at birth, live an invisible life and eventually die unnoticed Council of Europe (n13) 89. Lynch and Teff Childhood Statelessness accessed 10 June 2013, 1. Ibid. 11

17 2) The Legal Framework In the sphere of international and European law, there are a number of different legal provisions that aim at the prevention of childhood statelessness. This chapter first outlines the existing international and European legal framework, including relevant case law. The following section presents those children s rights that are related to provisions on the prevention of childhood statelessness. This is done to be able to establish the child rightsbased standard on the prevention of statelessness for children in Europe in the last section of this chapter. 2.1) The International Legal Framework As defined above, statelessness refers to a person s situation of not holding any nationality or citizenship. 36 The same definition also applies to minors, as defined under Article 1 of the CRC: For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier. 37 Besides Article 7 of the CRC, there is also Article 24 of the International Covenant on Civil and Political Rights (ICCPR) from 1966, which explicitly provides for the right to nationality of children: Every child shall have, without any discrimination [ ] the right to such measures of protection as are required by his status as a minor, on the part of his family, society and State. Every child shall be registered immediately after birth and shall have a name. Every child has the right to acquire a nationality. 38 Moreover, there are a number of other international human rights documents that in general provide for the right to acquire nationality for all human beings, such as the Universal Declaration of Human Rights in Article 15, or the International Convention on the Protection United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) UNGA Res 44/25 (CRC) art 7; United Nations Convention relating to the Status of Stateless Persons (adopted 28 September 1054, entered into force 6 June 1960) 360 UNTS 117 art 1; Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession (adopted 19 May 2006, entered into force 1 May 2009) CETS 200 art 1(c). United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) UNGA Res 44/25 (CRC) art 1. International Covenant on Civil and Political Rights (adopted 19 December 1966, entered into force 23 March 1976) 999 UNTS 171 art

18 of the Rights of All Migrant Workers and Members of their Families in Article The fact that childhood statelessness is still an issue hints at the weak compliance with and enforcement of this right of children to have a nationality. However, next to the CRC and the ICCPR, the UN adopted two legal documents that entail more explicit provisions related to statelessness in general and the prevention of childhood statelessness in more detail ) The UN Legal Framework In 1954, the UN adopted the Convention Relating to the Status of Stateless Persons, followed by the adoption of the Convention on the Reduction of Statelessness in Furthermore relevant for the issue of preventing childhood statelessness is the ICCPR as mentioned above, as well as the 1979 UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). Moreover, it has to be argued that the CRC belongs to this UN legal framework on the prevention of childhood statelessness. However, its provisions are of relevance also with regard to the development of the child rights-based standard. Therefore, the CRC is dealt with in a later section, immediately preceding the section in which the standard is established. The earliest of the documents, the 1954 Convention, includes no provision that specifically relates to the prevention of childhood statelessness. It is nonetheless of great importance due to its general definition of statelessness in Article 1, which also applies to statelessness among children even if it is not explicitly mentioned: For the purpose of this Convention, the term stateless person means a person who is not considered as a national by any State under the operation of its law. 41 Besides this general definition, this Convention does not include any more provisions that relate to the protection of children from becoming stateless. In contrast, the 1961 Convention on the Reduction of Statelessness entails a number of detailed provisions on the prevention of childhood statelessness. Whereas Articles 1 to 3 mainly apply to cases where a child is born within the territory of a state, Article 4 explicitly deals with the situation where a child is born abroad Van Waas (n30) 439. UNHCR UN Conventions on Statelessness (2013) accessed 3 May United Nations Convention relating to the Status of Stateless Persons (adopted 28 September 1054, entered into force 6 June 1960) 360 UNTS 117 art 1. For the original text of the articles discussed in this section, see Annex I. 13

19 Article 1 comprises five paragraphs dealing with how a child born on the territory of the state can be granted nationality under certain conditions. 43 Paragraph 1 obliges State parties to grant its nationality to a person in its territory who would otherwise be stateless. 44 This is further specified in Article 1(1)(a)&(b), which states that nationality shall be granted at birth, by operation of law or upon an application being lodged under certain conditions that are expressed in paragraph 2. There are four conditions in total: lodging of the application during a period beginning not later than at the age of eighteen years and ending not later than at the age of twenty-one years (2)(a), habitual residence in the state s territory before the application for not more than 5 years (2)(b), having no criminal records (2)(c), and the permanent status of statelessness (2)(d). 45 Even though this list of conditions is exhaustive and states may not impose any conditions exceeding those mentioned, the existing conditions can be criticized on different grounds. The first condition obliges States to grant a window of at least three years for applying to be granted nationality. This provision ensures that persons who reached the age of majority can apply for nationality and there is no limitation of this provision to children. 46 The period for required habitual residence may not exceed five years under the condition expressed in (2)(b). Even five years seems quite lengthy when considering the special status of the child being stateless. As the guidelines of the UN Commission on the Rights of the Child express, States are generally encouraged to keep the required period as short as possible. 47 Another problematic aspect is the condition that an applicant has to always [have] been stateless. 48 This condition excludes cases in which a child was born stateless, acquired nationality, and at a later point in time lost this nationality. Thus, if a child has not always been stateless, it would fall out of the scope of Article 1(1)(b) according to the condition under Article 1(2)(d). As a result, the child is not prevented from being stateless. Paragraph 3 of Article 1 provides for the right to acquire nationality at birth for children who would otherwise be stateless, and in cases where they are born in wedlock in the territory of the State and whose mother is a national of that State. The problem with this provision lies United Nations Convention on the Reduction of Statelessness (adopted 30 August 1961, entered into force 13 December 1975) 989 UNTS 175, art 1. United Nations Convention on the Reduction of Statelessness (adopted 30 August 1961, entered into force 13 December 1975) 989 UNTS 175 art 1. United Nations Convention on the Reduction of Statelessness (n44) art 1(2)(a). UN High Commissioner for Refugees (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 (2012) HCR/GS/12/04 accessed 5 November 2013, 38&39. Ibid. 40&41. United Nations Convention on the Reduction of Statelessness (n44) art 1(2)(d). 14

20 in its limited scope. It only enables children that were born in wedlock and whose mother is a national to acquire nationality. Clearly, this excludes children that are born out of wedlock, or where the mother is a foreigner. It has to be mentioned though, that this provision has been superseded by the CEDAW from Article 9 of this Convention obliges states to guarantee women the right to grant their citizenship to children on an equal level with men. Even though this provision does not directly apply to children, it is of great importance for the prevention of childhood statelessness with regard to equality of the parents in their ability of transferring citizenship to their child. Paragraph 4 of Article 1 of the 1961 UN Convention entails for the possibility of children to acquire nationality if they would otherwise be stateless due to inability of fulfilling the conditions set out under Article 1(2), if at the time of birth of the child, the nationality of one of the parents has been that of the State party in question. 49 If the parents did not have the same nationality at the time of birth, it is up to national law to decide whether the child may acquire the nationality of the father or the mother. Paragraph 5 entails the conditions for Article 1(4), amounting to the fact that the person who applies for nationality may not exceed the age of 23 (5)(a), the fact that the child is habitually resident in the state (5)(b), and the fact that the child has always been stateless (5)(c). 50 Again, especially this last condition presents a rather exclusionary condition that is not fulfilled if a child once had a nationality. Article 2 of the Convention deals with the acquisition of nationality for foundlings. 51 It requires States to consider a foundling as being born by nationals of the State party and on the territory of that State if there is no proof for the opposite. The term foundling however is not defined in more detail, which can lead to diverse state practices, thus creating a lack of clear standard practice. In contrast, for children being born on a ship or an airplane, the provision is quite straightforward. Such a child shall be deemed to have been born on the territory of the state where the airplane is registered or under which flag the ship operates, as stated in Article Article 4 obliges States to grant nationality to children not born on the State s territory if at the time of birth of the child one of the parents was a national of the respective state and the child would otherwise be stateless. Again, if the child should receive the nationality of the mother or father may be decided by national law. 53 Paragraph 2 of Article 4 specifies the United Nations Convention on the Reduction of Statelessness (n44) art 1(4). Ibid. art 1(5). Ibid. art 2. Ibid. art 3. Ibid. art 4. 15

21 conditions which may be applied by States. These are limited to the application being lodged before the age of twenty-three (a), habitual residence being no more than three years (b), and no history of conducts against national security (c), and again the permanent status of statelessness (d). 54 To these conditions, the same discussion and criticism applies as to the conditions set out under Article 1(2). Besides Articles 1 to 4, there are further articles in this Convention that relate to the prevention of childhood statelessness. Articles 5 and 6 also relate to the prevention of childhood statelessness, but in a more indirect way. Those two articles concern the loss of nationality. In both articles it is clearly stated that State parties may only allow for the loss of nationality of children if it is certain that the child possesses or acquires another nationality. 55 Article 5, paragraph 2 specifically states that for a child born out of wedlock, in case of recognition of affiliation that child may regain the nationality upon application. 56 Furthermore, article 17 of the Convention prohibits states to make reservations to Articles 1 to Despite the fact that the 1961 Convention entails a number of detailed provisions, the challenges that all these documents face are not only their lack of clear definitions of terms such as foundling for instance, but also their acceptance among states. From the treaties mentioned above, the CEDAW enjoys the greatest ratification status with 187 ratifications, followed by the ICCPR with 167 parties. In contrast, the 1954 Convention has only been ratified by 78 parties and the 1961 Convention only by 55 states. 58 This relatively low ratification status can hint at lack of willingness of states to access to these treaties on the one hand, and problems of implementation and enforcement that arise due to a lack of clarity of the provisions on the other hand ) The European Legal Framework On the European level, legal documents on the issue of statelessness only emerged more than 30 years later than the two UN Conventions. It is mainly the Council of Europe that is active in this matter and not so much the European Union (EU). Since the Treaty of Amsterdam in 1997 there have been greater attempts of harmonising asylum and immigration policies also Ibid. art 4(2). United Nations Convention on the Reduction of Statelessness (n44) art 5&6. United Nations Convention on the Reduction of Statelessness (n44) art 5(2). UNHCR (n47). United Nations Treaty Collection (2013) last accessed 12 December Laura Van Waas Statelessness: A 21st century challenge to Europe (2009) Security and Human Rights 2, , 139&

22 with the intent to protect stateless people. However, the EU focus is on the protection of stateless people and not prevention of statelessness as such. Moreover, it considers statelessness matters mainly in connection to refugee statuses. 60 Nevertheless, a trend can be observed within Europe that limits states within their sovereignty and freedom in nationality matters. 61 The European legal framework on statelessness can be reduced to two Conventions initiated by the Council of Europe: the 1997 Convention on Nationality and the 2006 Convention on the Avoidance of Statelessness in relation to State Succession. Of the two, it is the 1997 Convention that entails specific provisions for the prevention of childhood statelessness. 62 First of all, it entails a definition of a child in Article 2(c) which is equal to the definition expressed by the CRC. 63 Moreover, in the explanatory report of the Convention, the Council of Europe clearly states that the overall provisions are supposed to reinforce the principles of the CRC. 64 Under Article 6, children can acquire nationality if their parents possess at the time of birth the nationality of the state party and if the child is born in the territory of the state. 65 However, this provision gives states leeway to make exceptions for children born abroad. 66 Furthermore, Article 6(1)(b) applies to foundlings. It states that foundlings found on the territory of the state party shall receive the nationality of that state party, but the term foundling is not further defined. According to the explanatory report, the Council of Europe defines foundlings as new-born infants found abandoned in the territory of a state, which is a very narrow definition and results in the exclusion of older children and children that approach authorities themselves. 67 Subsequently, the Convention entails the provision that children who do not acquire another nationality at birth shall receive the state party s nationality at birth by operation of law, or in case a child remains stateless, upon an application. 68 The conditions for such an application to be granted are lawful and habitual residence of not more than five years and a Gyulia (n16). Laura van Waas Fighting Statelessness and Discriminatory Nationality Laws in Europe (2012) European Journal of Migration and Law 14, , p For the original text of the articles discussed in this section, see Annex I. Council of Europe Convention on Nationality (adopted 6 November 1997, entered into force 1 March 2000) CETS 166 art 2(c). Council of Europe, European Convention on Nationality Explanatory Report accessed 29 October 2013, 15. Council of Europe Convention on Nationality (n63) art 6. Ibid. art 6(1a). Council of Europe (n64) 48. Council of Europe Convention on Nationality (n63) art 6(2). 17

23 specific timeframe for lodging the application that may be specified by internal law. 69 Both conditions give a lot of margin of appreciation to States, since they do not provide for one common standard. Under Article 6 (4) the acquisition of nationality shall be facilitated by states for children of one of the nationals of that state (b), for children whose parents acquired or are in the process of acquiring nationality of that state (c), and for children that have been adopted by one of the nationals of the state (d). This list excludes children whose parents are both nonnationals, meaning that the acquisition of nationality for children of (illegal) immigrants which have not acquired the state s nationality will not be facilitated. Article 7 of the Convention deals with the loss of nationality. 70 State parties are generally not allowed to provide in its internal law for the loss of nationality but there are a number of exceptions, which also make it possible for children to lose their nationality. 71 According to these provisions, children may lose their nationality in cases where the preconditions that led to the acquisition of nationality in the first place are not fulfilled anymore and only if such a situation does not result in statelessness of the child, or when a child has been adopted and received the nationality of one or both of its foreign parents. 72 However, it is possible for children to definitely lose their nationality in cases where the parents lose their nationality as a result of fraudulent acquisition of the nationality, without the need to ensure that the child has acquired another nationality. 73 As a safeguard for the prevention of loss of nationality by children, Article 10 of the 2006 Convention on the Avoidance of Statelessness in relation to State Succession prevents childhood statelessness at birth in cases where the parent lost its nationality as a result of state succession. 74 In these cases, nationality shall be granted ius soli and not dependent on whether one of the parents has the nationality of the new state. This however is the only provision from the 2006 Convention that relates to the issue of preventing childhood statelessness. The Council of Europe itself admits that the current European legal framework is not sufficient with regard to the prevention of childhood statelessness and states that further Ibid. Ibid. art 7. Ibid. Council of Europe (n64) 73. Council of Europe Convention on Nationality (n63) art 7(2). Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession (adopted 19 May 2006, entered into force 1 May 2009) CETS 200 art

24 developments are required. 75 It becomes clear that some of the outlined provisions are not in line with the provisions formulated in the UN 1961 Convention. Moreover, the ratification status of the European Conventions is in its quantity also not comparable with the UN documents. With 20 ratifications, the 1997 Convention has more than three times as many state parties as the 2006 Convention, which implies a wider acceptance, but maybe also a wider relevance of this treaty. 76 However, one may not disregard the fact that the latter is a very new document and in contrast to the 1997 Convention, so far no reservations or declarations have been made by a ratifying State. Even though it can be argued that these two European Conventions and the UN documents provide for specific means for states to prevent childhood statelessness, they also lack clear standards and mechanisms for enforcement. 77 The normative weaknesses with regard to provisions on the prevention of childhood statelessness that could be found in UN legal documents are also visible in the European documents ) European Case Law Until now, no significant role has been given to the European Court of Human Rights (hereinafter referred to as the Court ) as the judicial institution of the Council of Europe, in the context of childhood statelessness. Nevertheless, the Court has dealt with cases that to a certain extent touch upon the issue of childhood statelessness in more detail. This is in particular surprising since the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) does not cover the right to a nationality. 78 With this in mind, it is even more startling that in 2011 the Court in Genovese v. Malta decided that the issue of nationality is within its jurisdiction and also within the jurisdiction of the Court of Justice of the EU. 79 The facts of the case were that a British woman requested Maltese nationality for her son, which was denied on the grounds that the child was born out of wedlock to a father that has Maltese nationality. The Court stated that this practice of Malta created a situation where children born out of wedlock to a Maltese father were treated differently from children born out of wedlock to a Maltese mother, and from children born within wedlock. In the end, the Court decided that discriminatory practices with regard to the Council of Europe, Study for the feasibility of a legal instrument in the field of nationality law and families (11 February 2012) CDCJ (2012) 11 Fin 7. Council of Europe Council of Europe Treaty Office (2013) accessed 5 November Van Waas (n59) ; Lisa Pilgram EUDO Citizenship Policy Brief No. 4 European Convention on Nationality (ECN) 1997 and European nationality laws accessed 5 November Van Waas (n61) 244. Genovese v. Malta (App No /09) ECHR

25 acquisition of nationality by descent are not allowed. 80 This case is perceived to be of great significance for not only the Courts future willingness to accept cases on this matter, but also for the meaning of the judgement in relation to the Court s general viewpoint and reasoning on this matter, which seems to be promoting non-discrimination in the enjoyment of the right to a nationality and the avoidance of statelessness. 81 Just as the Genovese case was based on alleged infringements of Article 8 and 14 of the ECHR, in the case of Karassev and Family v. Finland it was claimed on behalf of the applicant Parsi Karassev, who was a minor at the time of application, that through not granting him Finnish citizenship, the Finnish government has infringed his rights under the same articles. 82 These two articles deal with the right to private and family life and the right to be free from discrimination. 83 The Finnish government did not grant him citizenship because they believed that at the time he was born his parents were still Russian citizens, which would have given him Russian nationality. However, this was not the case, leaving Parsi Karassev de jure stateless. Besides the fact that this case in contrast to the later Genovese case has been ruled as being inadmissible, the Court in Karassev and Family v. Finland nevertheless decided that none of his rights have been violated by the Finnish government, since the decision by the Finnish government of not granting him citizenship was not arbitrary. The Court did not only look at the act of denial of citizenship, but they also considered the consequences of leaving Parsi Karassev stateless. The Court stressed that the applicant does not face any harm or threats as a consequence of him not being regarded as a Finnish citizen, since he still enjoys social benefits and he and his family are not threatened by being deported. 84 With this procedure, the Court established a two-pronged test of arbitrariness in relation to on the one hand, the decision of denial of citizenship and on the other hand, the consequences of the denial. 85 It is remarkable that even though Parsi was de jure stateless, he was still able to enjoy benefits under the Finnish social and health care system. This does not resemble the majority of cases in relation to childhood statelessness, as can be seen by the numerous cases where Prof. Dr. de Groot & Dr. O. Vonk Non-discriminatory access to the nationality of the father protected by the ECHR - A comment on Genovese v. Malta (European Court of Human Rights (2011) accessed 25 November 2013, p. 2. Van Waas (n61) 245. Karassev and Family v. Finland (App No /96) ECHR Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) CETS 005 art 8&14. Karassev and Family v. Finland (n82). Van Waas (n61)

26 stateless children are deprived of a number of their rights, for instance the right to health care or social services. 86 Thus, this European case rather points out a rare exception. Nonetheless, it is possible to argue that by not granting him citizenship, the Finnish government did not act in the best interest of the child at that point and hence, possibly violated an essential right of the child ) Children s Rights and Childhood Statelessness The CRC applies non-discriminatory to all children within a state s jurisdiction, after that state has ratified the CRC. This includes children that are nationals as well as children that are not nationals of any state. 88 The Convention entails a number of relevant provisions that relate to the prevention of childhood statelessness. Moreover, the main argument of this thesis is that the fact of being stateless as a child deprives children of their right provided for by Article 7 of the Convention: The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. 89 It is a rather straight-forward provision aiming at the prevention of childhood statelessness, through making the child s right to acquisition of nationality, as well as the right to registration immediately after birth, a positive obligation for state parties. Still, every year there are 51 million new-born babies worldwide that remain unregistered. 90 When a child is deprived of its right to name and nationality, it is most likely that it is also deprived of its right to preservation of identity. 91 The right to preserve his or her identity, including nationality, name and family relations is provided for by Article 8 of the Convention. This provision relates to preventing statelessness among children in so far as it obliges States to ensure that children can preserve their identity, of which nationality presents an essential part. In addition, there are two general principles included in this Convention which stand in connection to the prevention of childhood statelessness. The principle of non-discrimination is Plan International Stateless children deprived of their basic rights (2013) accessed 25 November United Nations Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) UNGA Res 44/25 (CRC) art 3. Sebastian Kohn Stateless Children: Denied the right to have rights (2009) accessed 30 August CRC (n87) art 7. Plan and UNHCR (n88) 12. Council of Europe (n75)

27 highly relevant, in particular with regard to conditions that states impose upon the acquisition of nationality for children. Obliging states to acknowledge the principle of nondiscrimination means that differential treatment on unreasonable grounds is prohibited. 92 Article 2 of the Convention provides for this principle to be adhered to by all state parties that ratified this Convention. It also applies to Articles 7 and 8 of the Convention and provides for non-discrimination with regard to the status of the child s parents or legal guardian. 93 Making provisions for the acquisition of nationality conditional upon the child being born in or out of wedlock, or the fact that certain provisions only apply if the child in question has been stateless since birth, does not respect this principle. The Committee on the Rights of the Child declares that The right to non-discrimination is not a passive obligation, prohibiting all forms of discrimination in the enjoyment of rights under the Convention, but also requires appropriate proactive measures taken by the State to ensure effective equal opportunities for all children to enjoy the rights under the Convention. This may require positive measures aimed at redressing a situation of real inequality. 94 With this statement, the Committee also confirms a link between the principle of nondiscrimination on the one hand, and the principle of the child s best interest on the other hand. This principle is enshrined in Article 3 of the Convention. 95 In the words of the Committee, The concept of the child's best interests is aimed at ensuring both the full and effective enjoyment of all the rights recognized in the Convention [ ].The full application of the concept of the child's best interests requires the development of a rights-based approach, engaging all actors, to secure the holistic physical, psychological, moral and spiritual integrity of the child and promote his or her human dignity. 96 Moreover, the Committee stresses that this principle has three dimensions. Firstly, it has to be regarded as a substantive right for children. Secondly, it provides a fundamental, interpretative legal principle which obliges states to rely on the interpretation which most effectively serves the child s best interests. 97 Thirdly, considering the child s best interest presents a rule of procedure for decision-making processes. 98 Applied to the prevention of childhood statelessness, it can be argued that this principle indicates that all domestic Daniel Moeckli et al., International human rights law (2010) Oxford University Press, 190. UNHCR (n46) 4,10. Committee on the Rights of the Child General comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration ( art. 3, para. 1 ) CRC/C/GC/14, p. 6. CRC (n87) art 3. Committee on the Rights of the Child (n94) p. 2. Ibid. Ibid. 22

28 provisions relating to the acquisition of nationality for children should be formulated and implemented in the child s best interest. The African Committee of Experts on the Rights and Welfare of the Child (ACERWC) basically approves this connection when it decided in the case of Nubian minors v. Kenya that a violation of the right of the child to nationality is the antithesis of the best interest of the child. 99 The situation for Nubians in Kenya has been difficult for more than 100 years now. They are generally regarded as aliens. This affects children in the way that their Kenyan citizenship is not recognized at birth. In its final Communication on this case, the Committee stated that current practice applied to children of Nubian descent in Kenya, and in particular its subsequent effects, is a violation of the recognition of the children s juridical personality, and is an affront to their dignity and best interests. 100 Though an African case, this ruling shows the interrelation of the right to nationality and the obligation of States to take into account the child s best interest. In its recommendation on the nationality of children, the Council of Europe uses the CRC as reference. It confirms that in compliance with Article 7 of the CRC, every child has the right to nationality and birth registration. 101 With regard to birth registration, the Council even stresses that this right should be ensured by states irrespective of the fact that the parents are illegal immigrants. This underlines the importance and significance of the principle of nondiscrimination. 102 Furthermore, the Council points out another very essential right of children: the right to be heard in cases concerning them. 103 This right is enshrined in Article 12(2) of the Convention, which states that the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child. 104 The Council of Europe continues with arguing that infringing the right of the child to be heard in cases concerning its nationality, violates not only Article 12 of the Convention, but under certain circumstances also Article 8(2), which requires states to give assistance and protection to the child in cases of loss of identity Open Society Foundation Nubian Minors v. Kenya (2011) last accessed 26 November African Committee of Experts on the Rights and Welfare of the Child No.Com/002/2009 (2011), Council of Europe The nationality of children (2009) M/Rec(2009)13 and explanatory memorandum, 9& Ibid Ibid. 104 CRC (n87) art Council of Europe (n101)

29 It becomes clear that the different children s rights that are connected to the issue of statelessness are also interconnected with each other. Not only are they interrelated in their content, but it is also remarkable that whenever one of the relevant rights might be violated, the violation of one of the two principles is very likely. This certainly calls for strict compliance of states to avoid a spiral of children s rights violations from being started. It also points out that state parties to the CRC should take these rights specifically into account when formulating and implementing domestic nationality legislation to avoid any children s rights violations ) A Child Rights-Based (CRB) Approach to the Prevention of Childhood Statelessness As the previous section has pointed out, a number of children s rights and principles are connected to the prevention of childhood statelessness. Moreover, some of these rights are even violated as a result of the fact that childhood statelessness still exists in all European countries even though the CRC enjoys almost universal ratification. 106 All states that acceded to the 1961 Convention and the 1997 Council of Europe Convention are also parties to the CRC. Hence, for these States it should be self-evident that the provisions in both Conventions on the prevention of childhood statelessness should be interpreted and implemented in line with their obligations under the CRC. However, current state practice shows that not all European States follow this approach. This might be related to the fact that even though these Conventions can be perceived as being complementary, it might not be clear for States how to combine the different provisions. A reason for this can be that even though all the Conventions mentioned do entail provisions that aim at the prevention of childhood statelessness, there are still substantial flaws, especially with regard to the 1961 UN Convention and the 1997 Council of Europe Convention, that do not ensure the respect and fulfilment of related children s rights to the fullest extent possible. The fact that states may make the granting of nationality under ius soli conditional upon the fact that a child has always been stateless can discriminate against those children that once had a nationality but lost it at some point. Still, it is the Council of Europe itself which stresses that We are determined to effectively promote the rights of the child and to fully comply with the obligations of the United Nations' Convention on the Rights of the Child. A 106 The United States and Somalia are the only two UN Member States that did not ratify this Convention. See UNTS Convention on the Rights of the Child (2013) 24

30 child rights perspective will be implemented throughout the activities of the Council of Europe and effective coordination of child related activities must be ensured within the Organisation 107 Moreover, with specific regard to the prevention of childhood statelessness and the connection to children s rights, the Council of Europe s Commissioner for Human Rights opined: There should be no stateless children in Europe. The UN Convention on the Rights of the Child, ratified by every Council of Europe member state, provides that all children have a right to a nationality. The Convention s overarching principle is that In all actions concerning children [ ] the best interests of the child shall be a primary consideration. It is clearly in the best interest of the child to have citizenship from birth. 108 This statement points out that the best interest of the child is one of the most important principles when it comes to the implementation of children s rights and other policies related to children. Moreover, it confirms that when a country implements nationality laws, it should consider relevant international and European provisions in combination. The interpretation and combination of the different international and European legal documents exposes potential for a standard that entails clear provisions with regard to state obligations and acknowledges the protection of relevant children s rights at the same time. So far, the existing legal framework seems to rather be in support of restrictive citizenship and immigration laws sustained by countries, instead of protecting rights of vulnerable groups in our society, such as those of children. It is the aim of this thesis to take a child rights-based (CRB) approach to existing legislation on the prevention of childhood statelessness to create a legal standard that ultimately prevents children from becoming stateless. This new legal standard has to address the shortcomings of the current legal framework that still enable the phenomenon of childhood statelessness to further spread in Europe. The first set of shortcomings relates to the numerous conditions that states may apply when deciding who and how to grant citizenship. These conditions are in many instances discriminatory. For instance, according to the articles in the 1961 UN Convention, States are allowed to make the granting of nationality dependent on a number of conditions, such as the fact that a child is born in or out of wedlock, the time of habitual residence of the child, or the 107 Council of Europe (n75)p The Council of Europe s Commissioner s human rights comment Governments should act in the best interest of stateless children (2013) 25

31 permanent status of statelessness. 109 Moreover, the 1961 does not oblige states to adopt an unconditional ius soli form for children that would otherwise be stateless. 110 The Council of Europe Convention of 1997 adds to this long list of conditions that the status of the parents under the state s nationality laws may be considered, which again can lead to discriminatory practices by States. Furthermore, it adds the condition of lawful residence of the applicant on top of habitual residence. The most straight-forward provision is the obligation for states to fully respect the right to nationality of every child in order to prevent childhood statelessness and states must grant this right to children without making it dependent on any further conditions. But it is not as simple as that. Legal standards for the prevention of childhood statelessness under a CRB approach must be formulated non-discriminatory, as well as clear and consistent in order to allocate precise responsibilities to states. This means for instance that such provisions must grant nationality to children independent of the status of the parents under domestic nationality laws, or the fact that a child was born in or out of wedlock. This applies to the different modes of nationality acquisition, the application of principles of ius soli and ius sanguinis, and also the process of granting children nationality that are not covered by any other safeguards against statelessness. Neither when applying ius sanguinis, nor when applying ius soli should a State impose conditions that discriminate against a certain group of children in order to reach the ultimate goal of preventing childhood statelessness for every child and hence, respecting the right to nationality of every child. Another shortcoming connected to the existing legal framework is the lack of clear definitions of terms such as foundling. It is addressed by the 1961 UN Convention as well as the 1997 Council of Europe Convention but currently still leading to a non-consistent statepractice. This creates confusion and legal uncertainty. In addition, none of the documents acknowledge the need to provide a definition that is formulated in the best interest of the child. The definition implied by the 1997 Convention is too narrow and limited with the result of excluding children form a certain age onwards. Hence, a CRB standard has to provide for definitions of terms related to the prevention of childhood statelessness that reflect the obligation of states to also consider the best interest of the child next to the principle of non-discrimination. This implies that provisions for granting nationality to foundlings must not be limited to newborn children and children found on the 109 See Section 2.1.1). 110 Ibid

32 territory, but rather to children of all ages within the general definition of a child 111, which are found or report themselves, and whose parents are unidentifiable. This does not only apply to the definition of terms, but rather to all decisions taken where children play a role. Hence, all government policies and programmes relating to the prevention of childhood statelessness need to always consider the best interest of the child. Another category of shortcomings is composed of the provisions that make it possible for children to lose their nationality. Naturally, preventing children from losing their nationality also prevents children from becoming stateless. Therefore, it should be impossible for children to lose their nationality, under any circumstances, if the result is that the child will be left stateless. In total, four standards that provide for the prevention of childhood statelessness in accordance with children rights can be identified: Illustration 3: The Child Rights-Based (CRB) Standard 1) States shall grant children the right to acquire nationality immediately after birth or as soon as possible after birth under the doctrine of ius sanguinis to prevent the child from becoming stateless or of undetermined nationality. 1.1) When applying ius sanguinis, states shall not make the acquisition of nationality for the child conditional upon a. the fact whether the child is born in or out of wedlock, b. the fact whether the child is born abroad or within the territory of the country, 1.2) States shall provide for equal treatment of mother and father with regard to their right to transfer their nationality to the child, also in cases of mixed marriage. 2) Where the application of ius sanguinis is not sufficient to equip the child with a nationality, states shall automatically apply the doctrine of unconditional ius soli to prevent the child from becoming stateless. 3) For children who are not covered by any other mode of protection against statelessness, states should provide for other means of granting nationality to otherwise stateless children, such as registration, declaration, or naturalisation. The access to such means have to be equal for all children. 3.1) When an otherwise stateless child tries to acquire nationality by one of those means, states shall not make the granting of nationality dependent or conditional in particular upon a. the permanent status of statelessness since the child s birth, b. the relationship to the parents, the fact whether the parent has legal capacity, or the nationality or the residence status under domestic nationality law of the parents or legal representative of the child. 3.2) States may only make the naturalisation of a stateless child conditional upon the length and form of residence of the child, where such conditions are limited to a sufficiently close link of the child to the country and in particular consider that a. children in general only need a short amount of time to establish such a link, b. the child in question otherwise remains stateless. 111 CRC (n87) art 1. 27

33 4) States shall automatically grant foundlings the nationality of the country in which it was found or reported him- or herself to the authorities. 4.1) When defining a child as a foundling, states shall always consider the best interest of the child and not impose any further age limitations to the identification of foundlings, than the limitation included in the general definition of a child. 5) States must not make it possible for children to lose their nationality under any circumstances when this results in the child being stateless or of undetermined nationality. This standard has to be perceived as an ideal situation, or a best practice example for the prevention of childhood statelessness from a child s rights based approach. It is this standard that will be used as a checklist when analysing the different nationality laws and evaluating the different countries performances in the following case study. 28

34 3) A Comparative Study of Eight European Countries This part of the thesis investigates eight different European domestic citizenship laws to test their fulfilment of the provisions set out by the CRB standard. The comparative analysis focuses in particular on those domestic provisions which aim at the prevention of childhood statelessness in connection to the most common ways of children to become stateless. 112 The selection of countries is based on different criteria summarized in the illustration below. On the one hand, there are general features of the selected countries that play a role. The most obvious criterion for selecting countries for a research on childhood statelessness in Europe is for the country to be located in Europe. However, even though the geographical location is not the most important factor, selecting countries that are located in the same region might imply a similar culture and maybe also similar legal systems. Therefore, in order to receive a broader picture, countries which are geographically and culturally distinct have been selected. In addition, one country with a common law background is examined. In total, the comparative study comprises five countries that are members of the EU and three countries that are not members of the EU. On the other hand, more substantial factors related to the specific issue of preventing childhood statelessness in Europe are taken into consideration. For instance, the fact whether childhood statelessness is an issue at all in that country is considered through examining the estimated number of stateless people living in that country. Of the selected countries, some have a high number of stateless people living in the country and others show rather low numbers. The numbers can be seen as indication of the efficiency of domestic legal provisions on the prevention of childhood statelessness. However, it is important to acknowledge that these numbers are taken from statistics developed by UNHCR on the basis of how many stateless people are under their mandate. Again, these numbers certainly do not account for the total number of stateless people living in a country. Furthermore, the selection of countries takes into account the different ratification of the relevant international and European legislation from which the child rights-based standard has been developed. The case study considers two countries that ratified all the relevant European and international legislation, two countries that signed but not ratified the relevant legislation, three countries that ratified most of the relevant legislation and one country that shows a 112 See Section

35 rather weak ratification practice with regard to the relevant legislation on childhood statelessness. Illustration 4: Criteria for country selection Criteria 1: Law system Countries Criteria 2: EU Membership Countries Civil Law Germany, Latvia, the Netherlands, Norway, Spain, Turkey, Ukraine EU Member State Germany, Latvia, the Netherlands, Spain, the United Kingdom Common Law The United Kingdom Non-EU Member State Norway, Turkey, Ukraine, Criteria 3: Level of stateless population 113 High level of stateless population (>10.000) Medium level of stateless population (<10.000) Countries Latvia, Ukraine Germany, the Netherlands, Norway Low level of stateless population (<1000) Turkey, the United Kingdom Insignificant level of stateless population (<100) Spain Criteria 4: Ratification of relevant legislation 114 Countries Ratified all relevant European and international legal documents The Netherlands, Norway Signed, but not ratified all relevant European and international legal documents Germany, Ukraine Ratified five or more of the relevant European and international legal documents Latvia, Spain, the United Kingdom Ratified four or less of the relevant European and international legal documents Turkey On the basis of these criteria, the countries that are covered alphabetically in the following case study are Germany (see section 3.1.1), Latvia (see section 3.1.2), the Netherlands (see section 3.1.3), Norway (see section 3.1.4), Spain (see section 3.1.5), Turkey (see section 3.1.6), Ukraine (see section 3.1.7), and the United Kingdom (see section 3.1.8). The data used for this case study is mainly taken from primary sources, meaning the domestic legal text of the respective countries. However, to complement the research the database on the protection of statelessness, provided by the EUDO platform, which presents the level of protection against statelessness for a number of European countries based on relevant international and European provisions, is also considered. 115 Moreover, a study 113 A tabular overview of the numbers of stateless populations in all studied countries is provided in Annex An overview of which country ratified which Convention is provided in Annex EUDO Database Protection Against Statelessness accessed 31 October

36 conducted by the Council of Europe, where it compared the different Member States nationality laws with special attention given to the issue of statelessness of children offers further insight into the domestic practices. 116 The study has been conducted from 2011 until The last amendment to the domestic nationality laws of the selected countries has been made by Latvia in October Still, the study offers valid information for the case study since the amendment is not relevant for the prevention of childhood statelessness. 3.1) Germany In the context of Europe, Germany is often perceived to be a leading country in many aspects. This perception changes when considering the German practice on the prevention of childhood stateless. Germany ratified all relevant international and European Conventions on statelessness, but one. The 2006 Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession has only been signed by Germany. 118 According to UNHCR statistics, at the end of 2012 there were stateless people living in Germany. 119 Compared to the size of the country and total population being just over 81 million, this is a relatively low number. 120 Section 4 of the German Nationality Act deals with the acquisition of nationality through ius sanguinis. 121 Within this section, clear distinctions for the acquisition of nationality is made between children that are born in and children that are born out of wedlock, as to for children born out of wedlock the burden to acquire nationality is higher. In the second case, the process of recognition of paternity has to begin before the child turned 23 and for children born before 1993, the child must have been legally resident in Germany. 122 This means that in cases where paternity is not established before the child reached the age of 23, there is no safeguard against statelessness anymore. Since at the age of 23, the person would not be 116 Council of Europe, Study for the feasibility of a legal instrument in the field of nationality law and families (11 February 2012) CDCJ (2012) 11 Fin. 117 Latvian Citizenship Law, as amended October 2013, retrieved from See Annex UNHCR 'Table 7. Persons under UNHCR's statelessness mandate (2012). w=1 accessed 5 November CIA World Factbook Germany, estimates from July accessed 01 November German Nationality Act, as amendend 2012, Sect.4 (English version: blob =publicationfile). 122 Ibid. Sect. 4(1). 31

37 considered a child anymore, this does not generate childhood statelessness but still leaves people at risk of statelessness in general. Furthermore, Section 4 and Section 5 point out that there are differences in the acquisition of nationality for children born abroad and for children born within a territory. 123 There is automatic granting of citizenship to a child that was born abroad when one parent is a citizen and the child has been born before A child born abroad can also acquire German nationality through registration within one year after birth, under the same conditions as mentioned above. According to the EUDO database, the doctrine of ius soli is only applicable to children that have been stateless since birth and habitually resident in the country for five years. 124 It is furthermore remarkable that under Section 17, sub-section 2, it is possible for children to lose nationality in case where the parents lost the nationality due to fraudulent acquisition. 125 Children over the age of five years are excluded from this provision, which is based on the argument that children under the age of five do not have an understanding of their German nationality. 126 Thus, the scenarios under which children are not prevented from being stateless in Germany are limited but still likely. For instance, it is possible under German national law for a child to be stateless as a result of the parents conduct of fraudulently acquisition of nationality. Moreover, a child that was born stateless in Germany and eventually acquired nationality which it lost again, for instance as a result of the parents loss of nationality, will not be covered by the ius soli doctrine in Germany and therefore left stateless. Comparing these provisions with the established standard shows that Germany s nationality law does not fulfil all provisions. In particular the distinctions that are made between children born abroad and within the country, and children born in and out of wedlock, deviate from standard 1.1. Moreover, German nationality law does not provide for unconditional ius soli for otherwise stateless people, which opposes standard 2. Furthermore, standard 5 is not fulfilled since children can actually lose their nationality in Germany. This again also violates Germany s obligations under international law, since according the 123 Ibid. Sect. 4& EUDO Database Protection Against Statelessness, Germany, many accessed 31 October German Nationality Act, as amendend 2012, Sect. 17(2). 126 Kay Hailbronner EUDO Citizenship Obervatory Country Report Germany (2012) accessed 01 November 2011, p

38 Articles 5 and 6 of the 1961 UN Convention children may never lose their citizenship if the result is statelessness ) Latvia Statelessness is a widespread phenomenon in Latvia. Out of a total population of only a little more than 2 million people, people are estimated to be stateless. 128 With this number, Latvia, it is the country with the largest stateless population out of the selected countries. 129 Latvia has been chosen as a country to investigate due to the fact that within the country the existence of statelessness and the vulnerability of stateless populations are enduring concerns. 130 This can be linked to the particular history of Latvia, affected by invasion and state succession. 131 Having this in mind, it is surprising that Latvia did not ratify the Council of Europe Convention on the Avoidance of Statelessness in Relation to State Succession from It also only signed the 1997 Council of Europe Convention on Nationality. All other relevant international legislation has been ratified, though. 132 Another interesting fact about Latvia is that it distinguishes by law two specific groups of people, stateless people and non-citizens. 133 The creation of non-citizens has to be seen as a result of the specific historical and political circumstances mentioned above and it applies to those people that used to be citizen of the former Soviet Union and that received a permanent residence registration in Latvia. 134 The Latvian government itself claims that these people are not stateless people even though they lack citizenship just like stateless people in Latvia. The problem that arises is that these people fall out of the scope of the 1954 Convention Relating to the Status of Stateless Persons. 135 As can be expected from the high numbers of stateless people living in the country, as well as the lacking ratification of European legislation, certain provisions of Latvian nationality laws do not live up to the proposed CRB standard. Latvian laws on the acquisition of 127 Ibid. 128 Total population: CIA World Factbook Latvia, based on estimates from July Statelessness population: UNHCR (n119). 129 UNHCR (n119). 130 Laura van Waas Statelessness: A 21st century challenge for Europe in Security and Human Rights no. 2 (2009) accessed 01 November 2013, p Inga Reine Protection of Stateless Persons in Latvia (2007) accessed 27 November 2013, p See Annex Inga Reine (n131) p Ibid. p Ibid. p

39 nationality for children do not discriminate on the basis of a child being born in or out of wedlock when one of the parents is a Latvian citizen. However, they do discriminate with regard to the place of birth. Sections 2 and 3 of the Latvian Citizenship Law create the condition that in order to receive nationality when born abroad, either both parents have to be citizens, or one has to be citizen and the other stateless, or one has to be a citizen and residing in Latvia. 136 Furthermore, according to Latvian Nationality Law, facilitated naturalization for stateless children is conditional upon two things. Only those children under the age of sixteen, and those children that have been adopted by a married couple of whom one parent is Latvian or foreign but permanently resident in Latvia, are exempted from the five years residence requirement. 137 On the positive side, there is the provision under Section 2, sub-sections 3 and 4, which states that children who have no parents and who live in an orphanage or a boarding school in Latvia are considered to be Latvian citizens. 138 This provision is not designed for foundlings, since there is a specific provision for that in the Latvian Law. It deals with children that have lost their parents, hence the wording children who have no parents, and it presents a unique provision when compared to the domestic citizenship laws of the other countries. Yet, one can conclude that with these provisions, Latvian citizenship law deteriorates from the child rights-based standards in many aspects. As has been shown, it imposes discriminatory conditions for the granting of nationality with regard to birth abroad and birth within Latvia, which is contrary to standard 1.1b. Furthermore, the numerous conditions that are attached to the ius soli acquisition of nationality oppose standard 2 and are also not in line with international standards. 139 The fact that only adopted children under the age of sixteen can access facilitated naturalization undermines standard 3. With regard to the provision on granting children with no parents citizenship, it is not clear whether those children are considered as foundlings in Latvia. Therefore the relation to standard 4 is difficult to establish. However, Latvia has a provision for granting children who are found in the territory of Latvia and whose parents are unknown citizenship and this provision is not limited to a certain age and thus, in compliance with standard EUDO Database Protection Against Statelessness, Latvia, ia last accessed 31 October Latvian Citizenship Law, as amended 2013, Sect.15(3). 138 Ibid. Sect. 2(4). 139 EUDO (n136). 140 Ibid. Sect. 2(3). 34

40 Whereas a child not born and resident in the Latvia after August 21, 1991 and not stateless since birth cannot acquire Latvian nationality and will be left stateless, it is possible for a child having one parent being a Latvian citizen and the other parent being stateless to receive Latvian nationality. If however there is no stateless parent, but only the one parent citizen, this parent would have to be resident in Latvia in order to grant the child Latvian nationality. In some cases this could prevent the child from being stateless. In other cases, the child might be able to receive the nationality of the country where it is resident with the parent. It is positively remarkable that in the case of Latvia, no provision could be found that clearly makes it possible for a child to lose Latvian nationality under any circumstances. Section 15 (4) only states that in case of an annulment of an adoption, citizenship of the child may be changed. 141 It gives no further explanation on whether this also entails the loss of Latvian citizenship without a safeguard against statelessness. 3.3) The Netherlands The Netherlands belongs to the smaller sized countries in Europe. It has almost 17 million inhabitants. 142 A little more than 2000 of these inhabitants are stateless people according to UNHCR statistics. 143 It ratified all the relevant European and international legislation on the prevention of childhood statelessness. Still, there are a number of provisions in the Dutch Nationality Act from 2010 that do not prevent childhood statelessness as foreseen by the CRB standard, but there are also provisions that are in line with the developed standard. Article 3 and 4 of the Netherlands Nationality Act provide for non-discriminatory granting of nationality with regard to birth abroad or within the Netherlands. In addition, there is also no discrimination based on gender of the parents meaning that the child can acquire Dutch nationality from either parent. This equality has only been introduced in On the other hand, there is for instance the provision that for a child born out of wedlock, the descent of nationality from the father who has to be a citizen has to be proven by a DNA test if the child has passed the age of seven. This limits the safeguard against statelessness and it is not in line 141 Latvian Citizenship Law, as amended 2013, Sect.15(4). 142 CIA World Factbook, estimates from July UNHCR (n119). 144 Ricky van Oers, Betty de Hart, Kees Groenendij EUDO Citizenship Obervatory Country Report Netherlands (2013) last accessed 01 November 2011, p

41 with international standards. 145 Moreover, when ius sanguinis fails to equip the child with nationality in the Netherlands, ius soli only applies if the child has been stateless since birth and lawfully resident in the territory of the country for a minimum of three years. 146 The condition of lawful residence presents an additional condition to the list provided by the 1961 Convention. According to Article 1(2)(b), granting nationality under ius soli may only be made conditional upon habitual residence and therefore, in this regard the Netherlands breaches its obligations under international law. 147 With regard to loss of nationality, there is no safeguard for children to be prevented from statelessness when their descent from a citizen is annulled or when they are adopted by a foreign citizen. 148 Thus, with regard to the CRB standard the Netherlands do well in respect of standard 1 besides the fact that imposes conditions for children born out of wedlock. However, the provisions do not live up to standard 2, since it requires conditions to be fulfilled for a child to acquire nationality if it would otherwise be stateless. The specific conditions imposed also oppose international standards that require granting nationality to children born in the country if they would otherwise be stateless. 149 Furthermore, the Netherlands does not ensure that no child can lose its nationality, which opposes standard 5, as well as Article 5 and 6 of the 1961 Convention. 150 Due to this lack, a child that has been adopted legally by a foreign citizen will lose Dutch nationality even though it is not secured that it receives the nationality of the adopting parent. In addition, there are other scenarios under which a child can be left stateless in the Netherlands, such as the fact that a child has not been resident in the country for three years, or has not been stateless since birth. 3.4) Norway In contrast to the Netherlands, Norway belongs to the bigger countries in Europe, at least with regard to its surface. However, it only counts less than 5 million inhabitants. 151 Therefore, in 145 Netherlands Nationality Act, as in force since April 2010, Art. 3&4; EUDO Database Protection Against Statelessness, The Netherlands, herlands last accessed 31 October Ibid. Art. 6(1)(b). 147 United Nations Convention on the Reduction of Statelessness (adopted 30 August 1961, entered into force 13 December 1975) 989 UNTS 175 art 1(2)(b); Adviescommissie voor Vremdelingenzaken No Country of one s own (2013) p Ibid. Art.14(1). 149 EUDO (n145). 150 United Nations Convention on the Reduction of Statelessness (n147) arts 5& CIA World Factbook Norway, estimates from July accessed 01 November

42 relation to the total population, the number of a little more than stateless people living in Norway is relatively high. Furthermore, in contrast to the majority of investigated countries, Norway is an interesting candidate since Norway is not a member of the European Union. Still, Norway is the only country out of the selection that ratified all relevant international and European legislation on the prevention of statelessness without any reservations. This is also reflected in Norway s performance when testing the fulfilment of the CRB standard. There seem to be no conditions within the Norwegian Nationality Act on granting children nationality through ius sanguinis that amount to a discrimination of children based on the facts of being born in or out of wedlock, as well as being born abroad or within the territory of Norway. 152 However, Norwegian law also does not provide for ius soli acquisition of nationality for children that would otherwise be stateless. It only applies the granting of citizenship under ius soli to foundlings. 153 Hence, there is no prevention of statelessness for children who would otherwise be stateless which is contrary to international standards, as well as contrary to standard 2 of the formulated standards. 154 On the positive side, the provisions on the loss of nationality under Norwegian rules do not contain any possibilities for children to lose their nationality if the result is statelessness. This is in line with international standards as well as the formulated CRB standard. 155 Hence, in the case of Norway, it seems as if the only way a child is not prevented from being stateless, is a child that is born in Norway and cannot acquire nationality through ius sanguinis and has to rely on ius soli. If the child is not a foundling, there is no provision under Norwegian law that equips a child with nationality, even though the result is statelessness for the child. As we have seen above, the fact that a child cannot acquire nationality through ius sanguinis is not that unlikely. Therefore, this lack of ius soli provision appears to be rather problematic. 3.5) Spain From all selected countries, Spain is the country with the lowest number of stateless people. UNHCR published that by the end of 2012, only 36 stateless people residing in Spain were 152 EUDO Database Protection Against Statelessness, Norway, way last accessed 31 October Council of Europe (n116) p EUDO Database Protection Against Statelessness, Norway (n152). 155 Norwegian Nationality Act, as amended 2006, Sect. 6&23. 37

43 under the UNHCR mandate. 156 Compared to a population of over 47 million people, it seems as if statelessness is not really any issue in Spain. 157 Therefore, the Spanish nationality law is in particular interesting to investigate. Due to the low numbers, it appears even more surprising that in addition to not having ratified the 2006 Council of Europe Convention, Spain also did not ratify the two most relevant Conventions, namely the UN 1961 Convention and the Council of Europe 1997 Convention. Having this in mind, it is even more surprising that the Spanish laws on acquisition of nationality perform very well with regard to the created standard on the prevention of childhood statelessness. The only condition for the application of ius soli in cases where ius sanguinis fails, is that the child is not able to acquire any other nationality. According to Article 17 (1)(c), Spanish [at] birth are [ ] those born in Spain to foreign parents, if both lack a nationality or if the legislation of the State of either of the parents does not give the child a nationality. 158 Since there are no other conditions attached to this ius soli doctrine, the provision grants nationality to children that would otherwise be stateless automatically. Thus, it can be concluded that this provision in the end prevents childhood statelessness in any case and thus fulfils standard 2. Also with regard to the other standards, the Spanish Civil Code, Book One, Title 1 does not entail any provisions which are not in line with the created CRB standard. It is also not possible for children to lose their Spanish nationality under any circumstances, as provided for by standard 5. Thus, Spanish nationality laws not only comply with the created CRB standard, but are also in line with international standards. However, since Spain did not ratify the relevant international Conventions, there is no responsibility for Spain under international law to comply with a certain standard. 3.6) Turkey Turkey is a very distinct European State. Due to the fact that it has a European and an Asian part, it is an interesting candidate to investigate. The investigation and following analysis does not provide for specific evaluation of the Asian influence. Still, it might be possible to draw 156 UNHCR (n119). 157 CIA World Factbook Spain, estimates from July accessed 01 November Spanish Civil Code, Book One, Title One, Article 17(1)(c). 38

44 conclusions from the overall performance of Turkey in comparison to the other investigated countries, which do not have the same influence. With a statelessness population of 780 people and a total population of almost 81 million people, the issue of statelessness does not appear to be very acute in Turkey. 159 With regard to ratification of relevant international and European legislation, it is remarkable that Turkey did neither ratify the UN 1961 Convention, nor the Council of Europe 1997 Convention. Still, it is party to other relevant international legal documents that are somewhat related to the prevention of childhood statelessness. According to Turkish Citizenship Law, the acquisition of nationality for children born in and children born out of wedlock is not the same. Article 7(3) says that A child born through a Turkish father and to an alien mother out of wedlock acquires Turkish citizenship if the principles and procedures ensuring the establishment of descent are met. 160 However, the principles and procedures are not further specified under Turkish nationality law. The application of ius soli is limited to cases where the parents are foreign nationals. 161 It is not specified whether this also includes stateless parents. On top of that, where parents lose their nationality based on the false acquisition of such, also the child loses its nationality, even if this results in the child being stateless. 162 Both of these provisions are not only noncompliant with the formulated CRB standard. The last provision also opposes international standards on the prevention of childhood statelessness, which however does not amount to a violation of international law since Turkey did not ratify the relevant document. 163 Turkish nationality law seems to provide for a number of situations in which children are not prevented from becoming stateless. The result is that Turkish provisions are not in line with the created standard when it comes to non-discriminatory practices of ius sanguinis, and unconditional application of ius soli when the former fails. This opposes standards 1.1.a, 1.2, and 2. Furthermore, through allowing the loss of nationality for children, standard 4 is not fulfilled by Turkish nationality laws. 159 Total population: CIA World Factbook Turkey, based on estimates from July Statelessness population: UNHCR (n119). 160 Turkish Citizenship Law, as amended 2009, Article 7(3). 161 Ibid. Article 8(1). 162 Ibid. Article EUDO Database Protection Against Statelessness, Turkey, key last accessed 31 October

45 3.7) Ukraine From the selected countries, Ukraine has the second highest statelessness population inhabitants out of a total of more than 44 million inhabitants are under the UNHCR statelessness mandate. 164 The Ukraine ratified almost all relevant international and European legislation, with the exception of the 2006 Council of Europe Convention. Still, Ukrainian law seems to provide for several loopholes that make it possible for childhood statelessness to still exist. When going through Ukrainian nationality laws, it is striking that a number of provisions explicitly deal with the situation of stateless parents. For instance, article 7 of the Ukrainian laws on citizenship states that when a child is born to stateless people who decided to reside in the Ukraine, there is no difference in granting a child nationality that was born abroad or within the Ukraine. The requirement however is that the stateless parents must lawfully reside in Ukraine. 165 This requirement is also the decisive element for granting children Ukrainian nationality under ius soli. In any case, whether both parents are stateless, foreigners, or one is stateless and the other foreigner, the parents have to be lawfully resident in Ukraine. The only exception is when refugee or asylum seeker status has been granted to one of the parents. In such cases, there is no requirement for lawful residence. 166 With regard to foundlings, Ukrainian law limits the granting of nationality to new-born babies. 167 This is not in line with Article 2 of the UN 1961 Convention; however, it complies with the provision stated in the 1997 Council of Europe Convention. Articles 18 and 19 of the Ukrainian citizenship laws deal with the loss of nationality. Since there is no specific provision excluding children from any of the modalities of how Ukrainian nationality can be lost, it is not certain whether it is actually possible for a child to lose its nationality even if the result is statelessness. All these provisions point out that there can be cases, in which Ukrainian laws do not prevent childhood statelessness as provided for by the created standard. The lack of safeguard for children to lose their nationality is difficult to bring in line with standard 5. Moreover, the fact that childhood statelessness is not prevented if an abandoned child that has been found on Ukrainian territory is not a new-born anymore, deviates from standard 4. The conditions 164 Total population: CIA World Factbook Urkaine, based on estimates from July accessed 01 November 2013; Statelessness population: UNHCR (n119). 165 Law of Ukraine on the Citizenship of Ukraine, as amended 2005, Art Ibid. 167 Ibid. 40

46 attached to the ius soli doctrine undermine the provision in standard 2. Thus, according to Ukrainian law, a child that is born on the territory of Ukraine, to parents that are stateless, foreigners, or a mix of both, may only be granted the Ukrainian citizenship if these parents are residing in Ukraine on lawful grounds. If this is not the case, the child will stay stateless. 3.8) The United Kingdom Nationality law in the United Kingdom (UK) is of particular interest since it is based on a common law system, rather than on a civil law system as all the other nationality laws of the investigated countries. However, this is not the only aspect that makes the UK an interesting candidate for investigation. The UK has an overall population of 63 million people. 168 The number of stateless people living in the country is only at a little more than 200 people. Furthermore interesting is the fact that whereas the UK ratified the most relevant UN documents on the prevention of childhood statelessness, it did not ratify the two relevant Council of Europe documents. British laws on the acquisition of nationality can be found in the British Nationality Act of In granting citizenship through ius sanguinis, differences are made for children born within, and children born outside of the territory of the UK. For a child born abroad, British nationality can only be acquired if the application has been made within the period of twelve months after the child s birth. Moreover, stateless children may only be granted citizenship if one of his or her parents was a British citizen by descent at the time of the birth ; and (b) that the father or mother of the parent in question - (i) was a British citizen otherwise than by descent at the time of the birth of the parent in question ; or (ii) became a British citizen otherwise than by descent at commencement, or would have become such a citizen otherwise than by descent at commencement but for his or her death. 169 This condition appears to be very specific and setting out a high threshold to be fulfilled, reaching as far back as to make the acquisition of nationality of the child conditional upon the means of acquisition of nationality of the grandparents. For children born within the United Kingdom and who cannot acquire nationality through ius sanguinis, ius soli acquisition of nationality only works if the child has been stateless since birth and resident in the country for five years, without having been absent for a total of more than 450 days. 170 Furthermore, it is 168 CIA World Factbook United Kingdom based on estimates from July accessed 01 November British Natioanlity Act, 1981, Part I, Sect. 2& Ibid. 41

47 remarkable that according to British nationality law, only new-born infants are regarded as foundlings and thus granted British nationality. 171 This deviates from international standards as formulated in the 1961 UN Convention. However, it is compliant with the 1997 Council of Europe Convention, which the UK did not ratify though. The British provisions generate several scenarios under which children are not protected from becoming stateless. For instance, a child that is found on British soil, which does not count as a new-born infant anymore, is not prevented from being stateless. Moreover, when a child at some point in his or her life acquired a nationality, but lost this nationality again, it will not be granted British nationality since it has not been stateless since birth. 172 Statelessness is also not prevented for a child that was born abroad to a British citizen, when the child is not registered within one year after the required three year period of residence. Thus, also British laws on nationality entail loopholes which do not completely prevent statelessness for children. 3.9) Comparative Summary Several general conclusions can be drawn from the investigation of the different nationality laws. First of all, based on this study it becomes apparent that in all countries but Spain, there are different situations that will in the end leave a child stateless. Spanish nationality law when tested against the created standard does not reveal any provisions that deviate from the recommended CRB standard. However, in several other countries, such as Germany, Latvia, or the Netherlands, the chances of a child to be left stateless appear to be more likely. From the perspective of standard 1.1 and 1.2, it can be summarized that Ukrainian law is the most deviant law, followed by countries such as Turkey, Germany, Latvia, and the Netherlands. With regard to standard 2, it is Latvia that imposes the greatest barriers on the application of ius soli. In Germany, Latvia, the Netherlands, and in the UK, ius soli acquisition of nationality is limited to the fact that the child must have been stateless since birth. As another study on nationality attribution through ius soli in Europe has pointed out, there are only some European countries that apply ius soli to children that would otherwise be stateless. Still, in the past years a trend towards wider availability of the ius soli doctrine 171 British Nationality Act, 1981, Part I Sect.1(2). 172 The child must have lost the nationality under a different law than British law, since British law does not entail any possibility for children to lose their nationality. 42

48 could be observed in Europe. 173 Including the countries examined, there are in total 21 European states that claim to grant citizenship automatically to children that would otherwise be stateless. 174 Nevertheless, besides Spain there is no European state that operates with a form of ius soli that does not impose any further conditions on the granting of nationality to children that would otherwise be stateless. Instead, numerous conditions are attached 175 The country of Latvia has the most deviant laws in relation to standard three. Facilitated naturalization for stateless children is only limited in that country. In other countries, such as Germany, the Netherlands, or the UK, naturalisation requirements are facilitated insofar as the required years of residence are reduced. Norway in contrast requires permanent residence of the child in question. The UK also grants stateless children to be naturalised an exemption from language and citizenship test. With regard to the fourth standard, it is important to realize that none of the investigated countries provide for the acquisition of nationality for children that are in theory foundlings, but are not found and rather turn themselves in to the relevant authorities, since all related provisions make use of the word found. Disregarding this minor aspect, the majority of domestic laws of the investigated countries provide for a definition of foundling that is not limited to a certain age or stage. The only two exceptions are the United Kingdom and Ukraine. In those two countries the found child has to be a new-born. Lastly, when considering the country practices in respect to standard five, it is only Latvia, Spain, and the United Kingdom that do not allow for the loss of citizenship by children. All other countries adopted provisions that make it possible for children to become stateless as a result of the loss of nationality. In Germany and Turkey, this can happen due to the loss of nationality by their parents because they initially acquired nationality by fraud. In the Netherlands, the loss can be a result of an adoption and Dutch law does not require the proof of acquisition of another nationality before a child loses its nationality. In the case of the Ukraine, it is not certain whether a child can really lose its nationality law. However it is certain that the domestic provisions do not entail a specific regulation which excludes children from losing Ukrainian citizenship. Overall, it can be summarised that least compliance is given for standard two. Only the country of Spain provides for an unconditional ius soli acquisition of nationality for otherwise 173 Iseult Honohan Ius soli citizenship - EUDO Citizenship Policy Brief No.1 (2010) accessed 13 September Ibid. p Ibid. p. 2 43

49 stateless children. In addition, the investigation points out that the differences in ratification status and size of statelessness population might have a bigger influence on performance for some countries than it does for other countries. The following chapter provides a more specific evaluation of the performance of the different countries in relation to factors that potentially influence this performance. 44

50 4) Analysis and Evaluation The investigation of the different nationality laws has definitely pointed out one thing: to become stateless as a child is easily possible in the majority of investigated countries. The converse argument is that none of the domestic nationality laws of the countries in question but one, provide for the prevention of childhood statelessness as required by the created child rights-based standard. Reasons for this can be manifold. This part of the thesis first evaluates the findings of the case study through presenting a ranking of performance of the investigated countries, and secondly analyses to what extent certain factors can be seen as influential upon the domestic provisions, hence the performance of the countries. 4.1) Performance Ranking The standards generate twelve provisions in total. In the case study it has been investigated to what extent the domestic nationality law systems comply with every single one of these provisions. When ranking the countries, the actual fulfilment of the formulated standard is the decisive aspect. Thus, whenever there is fulfilment, the respective country scores. As can be seen in the illustration below, this ranking system generates Spain as the country with the highest level of fulfilment of the formulated standards, closely followed by Norway. In contrast to Spain, Norway does not provide for the unconditional ius soli nationality attribution when a child would otherwise be stateless. The third place is shared by three countries: the Netherlands, Turkey, and the United Kingdom. Their fulfilment of standards varies, meaning that they comply with the same amount of standards but not with the same standards. On fourth place, there are Germany and Latvia. Again, they are not compliant with the same standards but in total they comply with an equal amount of standards. Ukraine is the country with the least conform provisions. Its domestic nationality laws only generate conformity for half of the formulated standards. 45

51 Illustration 5: Performance ranking of the countries 4.2) Factors of Performance In general, there are different reasons for why certain countries perform better than others when examining their compliance with a legal standard. It is difficult if not even impossible to formulate universal factors that influence the countries performance equally for each country, since every country faces individual challenges and is affected by distinct historical, political, economic, and social factors. Still, it can be assumed that there are determining factors that in general influence how well countries perform with regards to a legal standard. This can also be done for analysing the performance of European countries when tested against the CRB standard on the prevention of childhood statelessness. The potentially determining factors are formulated in connection to the criteria that influenced the selection of the countries. However, the comparison of common and civil law countries is left out of this evaluation, since only one common law country has been investigated, which makes it impossible to draw conclusions as to what extent following a common law system might potentially influence the performance of a country. Thus, the evaluation focuses on firstly, the potential influence of ratification of relevant international and European legislation, on secondly, on the influence of the actual acuteness of childhood statelessness within the country based on the size of statelessness populations living in the country, and on thirdly, to what extent EU-Membership can be seen as influential. This is 46

52 supposed to show how and if the elements of criteria for the country selection have an influence on the countries performances. The second factor of the acuteness of childhood statelessness within a country is of different character than the other two factors. It is shown that this factor can be seen as an influential factor to a certain extent, but also as an explanation and reflection of performance at the same time. Low numbers of stateless people living within one country can on the one hand indicate that there is no need for a country to effectively implement laws on the prevention of childhood statelessness. On the other hand, it can imply that the laws within that country on the prevention of childhood statelessness are efficient to prevent high numbers of stateless children and adults. At the same time, high numbers of stateless people living within one country does not necessarily have to prove that the laws are inefficient and thus, performance when tested against the standard is poor. There can be many reasons for a country to have a large statelessness population, for instance state succession, as is the case with Latvia. The analysis of this second factor takes both characteristics into account. The approach taken to analyse and evaluate the countries performance with regard to the created standards resembles a realistic approach as opposed to an institutionalist or liberalist approach when considering compliance theories, since it takes into account factors such as political, economic, and social aspects of the countries ) The Influence of Ratification of Relevant International Conventions The first factor that is assumed to have an influence on the countries performance is the ratification of relevant international and European legislation. For evaluating the countries performance in correlation with ratification of the relevant legislation on the prevention of childhood statelessness, three legal documents are of particular importance: the UN Convention on the Reduction of Statelessness from 1961, the Council of Europe Convention on Nationality from 1997, and the UN Convention on the Rights of the Child from Signing and ratifying international human rights treaties does not automatically mean that there has to be no concern left if the ratifying State will comply with the provisions therein. 177 Vice versa, if a state did not ratify an international human rights treaty, this does not automatically mean that this State violates the provisions therein. One example to prove this 176 W.J.M. van Genugten et al., Loopholes, risks and ambivalences in international lawmaking: the case of a framework convention on victims rights, Netherlands yearbook of international law [2006], pp last accessed 29 Ocotber Daniela St.Pierre Respecting Human Rights: Does Treaty Ratification Lead to Compliance? (2012) in the Agora Political Science Undergraduate Journal Vol. 2 No. 2, p

53 theory is the country of Spain. It did ratify the CRC, but it neither ratified the UN Convention on the Reduction of Statelessness from 1961, nor did it ratify the Council of Europe Convention on Nationality from Still, the domestic provisions of Spain on the acquisition of nationality for children perform best when tested against the CRB standard on the prevention of childhood statelessness. In contrast, Ukraine did ratify all the relevant international and European legislation, but its internal provisions have the lowest level of compliance with the CRB standard. However, there are also cases where the lack of ratification correlates with a low performance, such as the case of Turkey. The Turkish government did not ratify the most of the relevant conventions. Turkish provisions on the acquisition of nationality for children only generate a rather moderate performance when tested against the CRB standard on the prevention of childhood statelessness. The graph below illustrates the findings of the correlation. Illustration 6: Correlation of ratification and performance It is not possible to identify a pattern of correlation. Therefore, it cannot be established that the ratification of relevant international and European legislation on the prevention of childhood statelessness has a positive or negative influence on the performance of the countries when tested against the CRB standard. But it can also not be denied that there is the possibility that ratification influences the performance since national provisions have to be adapted with the ratified international legal provisions. 48

54 4.2.2) The Influence of Size of Statelessness Population The second factor that is assumed to be of determining or influential character to the performance of the investigated countries is the acuteness of childhood statelessness. This acuteness is derived from the numbers of all stateless people residing in a country. Since around half of the world s stateless people are children 178, it is assumed that when there is a high number of stateless people living in a country, statelessness in general and childhood statelessness in particular can be seen as a problematic issue in that country. However, it is not possible to automatically conclude that there is or is no effective regulation. Low numbers can certainly indicate efficiency of the domestic legal system on the prevention of childhood statelessness and high numbers can indicate the opposite. Moreover, it is also possible that low numbers do not create a need for the country to have efficient domestic legislation on the prevention of childhood statelessness. In addition, high numbers can be caused by other factors, not only inefficient legislation. It is important to not see the absolute numbers on statelessness populations isolated from the total population within the respective countries. How serious the issue of childhood statelessness really is within country becomes clearer when the numbers are expressed as a percentage to the total population. The illustration below compares the absolute numbers of stateless people living in the investigated countries to the percentage of this number in relation to the total population. 178 Plan and UNHCR Under the Radar and Under Protected (2012) accessed 24 August 2013; Open Society Justice Initiative Fact Sheet: Chidren s Right to Nationality (2011) accessed 8 November

55 Illustration 7: Statistics of statelessness populations 179 The result of the correlation of performance with the size of statelessness population reflects that it is not possible to determine whether this second factor has to be perceived as an explanation of or as an influence on performance. As demonstrated in the graph below, no pattern can be deducted that could lead to conclusions on positive or negative correlation. Illustration 8: Correlation of statelessness statistics and performance 179 For the precise percentage of stateless people living in each of the eight countries, see Annex I. 50