“Everyone has the right to a nationality”

Birthright citizenship and children born in a conflict zone

5 February 2020 | Eva Ersbøll – Lawyer and Senior Researcher, ENS Associate Member

As of 1 February 2020, an amendment to the Danish citizenship act means that a child born to a Danish parent who has unlawfully entered or stays in a ‘conflict zone’ will not acquire Danish citizenship by birth. A conflict zone is defined in Danish criminal law as an area where a terrorist organisation is party to an armed conflict and where there is a ban on entry and stay without prior permission or creditable purpose.

While the Danish government has decided that the rule does not apply if the child would otherwise end up stateless, it is not clear whether occurrence of statelessness will be prevented in practice. This blog looks at potential risks of statelessness raised by the new amendment after exploring the reasoning behind it and the human rights concerns it gives rise to.

Explanatory note

The explanatory notes to the bill state that the Danish government does not want for children born in ’conflict zones’ to automatically acquire Danish citizenship at birth. The reasoning given is that ‘[t]hese children are born to parents who have turned their back to Denmark and Danish values, and they cannot be expected to grow up under circumstances that will provide for their attachment to Denmark and Danish values’. Moreover, the government wants to further deter  people from entering areas classified as ‘conflict zones’.

Based on the media reports, we know that many women with children in Kurdish camps in Syria want to return to Denmark, and that Danish family members have tried to get them home. The barrier for their repatriation is to a large extent that Denmark like many other European countries do not want to facilitate their return.

Human rights concerns

On the face of it, the new law deprives children of their birthright citizenship only because they are born in the wrong place. This raises serious questions about the best interests of the child and on compliance with the general nationality law principle that the impugned conduct of parents should have no adverse consequences on children.

The rule also contradicts other general nationality law principles, including the principle of family unity and non-discrimination. In all probability, the rule may lead to arbitrariness and violation of the European Convention on Human Rights article 8 and/or article article 14 in conjunction with article 8.

To quote the European Court in Mennesson v. France (judgment of 26 September 2014 concerning children born abroad as the result of a surrogacy agreement):

Whilst Article 8 of the Convention does not guarantee a right to acquire a particular nationality, the fact remains that nationality is an element of a person’s identity (see Genovese v. Malta, no. 53124/09, § 33, 11 October 2011). As the Court has already pointed out, although (the applicants’) biological father is French the third and fourth applicants face a worrying uncertainty as to the possibility of obtaining recognition of French nationality under Article 18 of the Civil Code ... That uncertainty is liable to have negative repercussions on the definition of their personal identity.

Risk of statelessness?

As mentioned in the introduction, the new rule stops short of rendering children stateless. Therefore, it is the view of the Danish Government that it does not raise any issues in relation to Denmark’s international obligations to avoid statelessness.

While the rule does not, in principle, leave children without a nationality, any risk of statelessness depends on practice and circumstances. What happens in actual life, when a child of a Danish parent is born in a conflict zone? Who is responsible for securing that the child has a citizenship from birth? Does the child’s Danish mother or father have knowledge or access to the procedures required to register the child? Does the Danish parent have ability to fulfil the administrative steps needed to confer the other parent’s citizenship to the child? This may be especially troubling when compliance with such formalities is a precondition for the child’s acquisition of the citizenship of the other parent. Evidently, this may cause particular problems in cases where the other parent is disappeared or dead – let alone cases where both parents die.

Such risks are particularly high when a child’s parent is affiliated with a terrorist organisation. Moreover, some women fear the stigmatisation of having married (or being forced to marry) a member of a terrorist organisation, and women whose children are born of rape may for the same reason not seek to register their children (in particular see page 45 of the recent UN Counter-Terrorism Centre’s publication: Children affected by the foreign-fighter phenomenon: Ensuring a child rights-based approach).   

What to do now?

According to the 1961-convention on reduction of statelessness, Denmark must secure that a child born to a Danish parent does not end up stateless. To guarantee this, the newly adopted provision should be repealed. This, however, may be too much to hope for right now taking into consideration that already before the rule was presented in Parliament, the Danish Institute for Human Rights, civil society organisations and others advised against its adoption. Supposedly, the Danish authorities will monitor the implementation of the rule to ensure that children born in a conflict zone do not end up stateless. To some extent at least, this should be manageable, since the Danish security service closely follows Danish citizens who have joined militant Islamist groups in Syria and Iraq, and the recent estimate is that 21 Danish citizens are staying in the conflict zone or in neighbouring countries and among them, 12 are detained and 9 at liberty.

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