The jus sanguinis bias of Europe and what it means for childhood statelessness

Who is more Dutch: a child born to Dutch nationals in Australia (child A), or a child born to Australian nationals in the Netherlands (child B)? Chances are that if you come from Europe, you will think that child A is more Dutch than child B. This answer is supported by Dutch nationality legislation: while child A is unquestioningly Dutch, child B is only (eligible to become) Dutch under exceptional circumstances. While the Dutch laws choose to see child A as more Dutch, this is not the only possible choice to be made, perhaps not the best choice at all. It might even be perceived as unfair or racist by someone from the Americas.

There is a lot to be said about fairness of citizenship attribution at birth in general, and about the desirability of doing it on the basis of descent in particular, which is ultimately an ideological choice. In the context of the ENS conference ‘None of Europe’s children should be stateless’, we decided to approach the issue of childhood statelessness by analyzing the European tendency to embrace the jus sanguinis principle, while resisting the jus soli one.

The jus sanguinis principle has some positive effects on the prevention of statelessness: children born to European nationals anywhere in the world are at a minimal risk of statelessness. However, the same principle fosters the assumption that children born to non-European nationals in Europe should be citizens of elsewhere, leaving some of those children at risk of statelessness.

According to the EUDO-citizenship statelessness database only 18 out of 42 European states have nationality laws that comply with the requirements of the 1961 Convention on the Reduction of Statelessness to grant nationality to otherwise stateless children born in the territory of a state. A clear majority thus falls short of providing this minimalistic level of jus soli protection against childhood statelessness. The EUDO database, by the way, does not account for problems in the implementation of laws, such as the lack of a statelessness determination procedure, which can result in childhood stateless even if the laws are all looking good. In practice, therefore, the number of European states identified in EUDO as providing adequate jus soli protection against statelessness in light of the 1961 Convention might be even lower. ENS is currently conducting research, including eight country studies, which also assesses how laws/safeguards are being implemented in practice.

The national policy makers clearly have troubles thinking beyond the jus sanguinis principle when deciding who their youngest citizens are. But is the picture different at the level of the major European regional organization that deals with nationality issues, namely the Council of Europe (CoE)? Below we briefly discuss three CoE legal instruments, analyzing how they reinforce the jus sanguinis bias in Europe, but sometimes also offer opportunities to overcome it.

European Convention on Nationality

The European Convention on Nationality (ECN) sets minimum standards for the protection of individual rights in the context of acquisition and loss of nationality. As far as the position of otherwise stateless children born in Europe goes, the most striking observation is to be made when comparing the ECN to the equivalent provision in the 1961 Convention. While both conventions allow an option of granting the nationality to such children through an application procedure, the ECN allows states to require that the children in question are residing lawfully on the territory of a state. This condition is not acceptable under the 1961 Convention, as states need to grant nationality also to undocumented children born on their territory.

Good news is that this difference between the two Conventions is only relevant for Iceland and Macedonia. These are the only two European countries that have ratified the ECN without having ratified the 1961 Convention, and are therefore the only ones who can, in light of international law, require a legal residence permit of stateless children born on their territory before granting them access to nationality. Thus, where the European instruments reinforce the jus sanguinis principle and fail to provide relevant protection for stateless children born in Europe, it is worth invoking international legal provisions which are widely ratified in Europe.

European Convention on Human Rights

The right to a nationality is not directly addressed in the European Convention on Human Rights (ECHR). This omission is significant, especially compared to the ECHR’s American cousin – the American Convention on Human Rights (ACHR). In fact, the ACHR explicitly refers to the jus soli principle for the acquisition of nationality where a person has no right to any other nationality, in its Article 20(2). That there is no right to a nationality to be found in the text of the ECHR, however, does not mean that the European Court of Human Rights (ECtHR) has not dealt with issues concerning (the right to) nationality in its case law. In Karassev v. Finland, the ECtHR did not exclude that arbitrary denial of nationality might raise issues under Article 8 ECHR (the right to respect for private and family life) under certain circumstances because of the impact of such denial on the private life of an individual. In Genovese v. Malta, the ECtHR accepted that citizenship is an aspect of a person’s social identity, which is protected by the notion of private life under Article 8. This was recently confirmed in Mennesson v. France and Labassee and Others v. France.

To overcome the lack of a (human) right to a nationality in the European legal system, we should therefore turn to the ECtHR. A number of arguments under the ECHR regarding statelessness and the problems that stateless persons face on a daily basis have been set out in this ENS discussion paper. Could statelessness itself raise an issue under Article 8? On the basis of ECtHR’s Article 8 case law on nationality, the Discussion Paper argues that it could indeed. The ECtHR established time and again that private life is a concept that cannot be defined. The case law regarding nationality under Article 8 demonstrates that the ECtHR is not afraid to bring relevant issues within its scope. Why should this not include (childhood) statelessness in the future?!

Recommendation (2009)13? 

The last document we will briefly look at is not an international treaty, but a non-binding recommendation by the Committee of Ministers of the Council of Europe, the Recommendation (2009)13. It deals specifically with the nationality of children, and can therefore not be omitted here. The Recommendation includes a number of principles that aim to reduce statelessness of children. The first two principles appear to be the most important ones, in particular because other principles refer back to them. The first principle says that Member States should provide for the acquisition of nationality by right of blood by children without any restriction which would result in statelessness. Hence, we see explicit reference to the jus sanguinis principle, which reaffirms the jus sanguinis bias of Europe. The second principle states that children born on their territory who otherwise would be stateless acquire their nationality subject to no other condition than the lawful and habitual residence of a parent. Here, we see the problematic formulation from the ECN which includes lawful residence again. To make matters worse, the condition of lawful residence does not relate to the child him- or herself, but to the parent.

As the CoE Commissioner for Human Rights, Nils Muižnieks, said at the Global Forum on Statelessness in September 2014, “states limit themselves to putting the blame for the statelessness of children on their parent”. This demonstrates that awareness and perhaps even possibilities for rethinking the rigid jus sanguinis ideology are present within the CoE system. The important next step would be to make sure that children who are at risk of statelessness at birth acquire the nationality of the state in which they are born. One possible vehicle to consider this further is the recently adopted motion on the need to eradicate statelessness of children which will result in a new resolution by the Parliamentary Assembly of the Council of Europe which is expected later this year. The Commissioner for Human Rights has also affirmed the above sentiments in his speech on the occasion of the 1st meeting of the Committee of Experts on the CoE Strategy for the Rights of the Child. This Committee is involved in the development of a new Strategy. It is interesting to know that the current Strategy for the Rights of the Child only refers to Recommendation (2009)13.

But what if the (new) strategy were to include a more concrete reference to every child’s right to a nationality, for children who are at risk of statelessness to be acquired at birth in the state in which they are born? This could absolutely move this issue forward within the context of the CoE. Also, it may give the Recommendation more meaning.

Of course, the CoE framework has more to offer on the matter of childhood statelessness than the few – but in our mind, key – instruments discussed above. An example in this regard is the European Social Charter. This Charter complements the ECHR and contains specific rights relating exclusively to children, in particular Article 17; it ensures the right of children and young persons to social, legal and economic protection. Such provisions may be useful when considering (strategic) litigation or lobbying, including through the ENS campaign, on the matter of childhood statelessness and the necessity of the acquisition of a nationality by every child in Europe.

This piece is one of a series of ENS blogs themed around its campaign “None of Europe’s Children Should be Stateless”. It is based on a presentation by the authors at ENS’s conference in Budapest on 2-3 June 2015. Visit the ENS website here if you wish to access ENS country studies or other conference papers, including the resulting action statement which is intended as a guide for collective efforts to end the scourge of childhood statelessness.