European Convention on Nationality, Rec. 2009/13 and 1961 Convention reduction statelessness

Prof. Dr. Gerard-Ren de Groot25-2-2014

Council of EuropeVery active in field of nationality law: already in 1949 desirability of system of multiple nationalities1963 Convention on the Reduction of Cases of Multiple Nationality and Military Obligations in Cases of Multiple Nationality1993 Second Protocol to 1963 Convention1997 European Convention on Nationality (ECN)Recommendation 2009/13

Art. 1 (1) 1963 ConventionNationals of the Contracting Parties who are of full age and who acquire of their own free will, by means of naturalisation, option or recovery, the nationality of another Party shall lose their former nationality. They shall not be authorised to retain their former nationality.

1963 ConventionAustria 1969Belgium 1991Denmark 1972France 1965Germany 1969Italy 1968Luxemburg 1971Netherlands 1985Norway 1969Sweden 1969[Ireland; Spain; UK only chapter II on military service ]Therefore ratification by 13 States, 10 States are/were bound by chapter I

Equal treatment men and womenRealization of equal treatment in nationality law took place in most countries in the 70s and 80s

Consequence: Considerable more cases of multiple nationality iure sanguinis due to introduction ius sanguinis a matre et a patre

Question: why avoid multiple nationality in case of voluntary acquisition of foreign nationality, but accept (or even stimulate) multiple nationality in case of birth as child of parents with different nationalities

Second protocol 1993Allows exceptions on main rule of 1963 Convention: a) if a person acquires the nationality of another Contracting Party on whose territory either he was born and is resident, or has been ordinarily resident for a period of time beginning before the age of 18b) if a person acquires the nationality of his spousec) if a minor whose parents are nationals of different Contracting Parties acquires the nationality of one of his parents

Second protocol 1993Ratified by France, Italy, Netherlands

Between these countries Art. 1 1963 Convention still applied, but the States involved may provide that nationality is not lost in the cases covered by the Second Protocol

France denounced protocol 2008/ March 2009Italy in 2009/ June 2010 only Netherlands still bound but denunciation? (see bill 33 201/ R 1977)

1963 ConventionAustria (reservation: authorisation to retain nationality possible, if the other State gives consent)Belgium denounced convention in 2007Denmark denunciation in 2014?France 2nd prot./ no loss of nationality in Cc: denunciation 2008/ 5 March 2009Germany denunciation in 2001Italy 2nd prot./ no loss of nationality in Lc: denunciation 2009/ 4 June 2010Luxemburg denunciation convention 2008/ 10 July 2009Netherlands 2nd prot./ exceptions loss of nationality Norway denunciation 2014?Sweden denunciation in 2001

Compare Haydn: Farewell symphony

1963 ConventionSituation 1963 Convention illustrates an important trend: increasing acceptance of cases of multiple nationalityOnly two countries (Denmark and Norway) are bound without exceptionsTwo other contracting States provide for exceptions: Austria and NetherlandsDenmark will denounce Convention in next future; Norway perhaps also

1997 European Convention on nationalityCodification of customary international law regarding nationality: art. 3-5

Some rules on acquisition of nationality art. 6Exhaustive list of grounds for loss of nationality art. 7/ 8Neutral regarding multiple nationality

1997 European convention on nationalityRepeats the rules on military service from the 1963 convention

Allows reservation but not on art. 3-5

Popularity of ECN 2012Ratification by 20 States (13 MS EEA: 11 MS EU + Iceland and Norway), Signature 9 States

Most States ratified without reservations (9 States) or on 2-4 points (5 States)Exception: Austria (11 reservations on all points where Austrian law is not in accordance with ECN)Other States modified their nationality law in order to fulfill standards of ECN some European harmonization of nationality law

Popularity ECN 1997Important is in particular the influence of Art. 7 and 8: exhaustive list of acceptable grounds for loss

Art. 6 on the grounds for acquisition of nationality less detailed and therefore less influential (N.B. Art. 6 tries to avoid statelessness)

Art.7/8 ECN allows following grounds for lossA. Voluntary acquisition of another nationalityB. Deprivation in case of acquisition of nationality by means of fraudC. Voluntary foreign military serviceD. Conduct seriously prejudical to vital interests of the StateE. Lack of a genuine link because of permanent residence abroad

Art.7/8 ECN allows following grounds for lossF. preconditions for acquisition are not fulfilled anymore during minorityG. adoption by foreignersH. renunciation, if person involved also possesses another nationality

Reasons in writing and judicial reviewArt. 11: All decisions on nationality should contain reasons in writingArt. 12: Access to judicial review

Some States made reservations on Art. 11/12Problematic in light of Genovese v Malta and Rottmann

New convention 2006Council of Europe Convention on the avoidance of statelessness in relation to State successionStrasbourg, 19.V.2006

Elaborates the rules on State succession and nationality of the ECN

New convention 2006In force on 1 May 2009Ratified by Austria, Hungary, Moldova, Montenegro, Netherlands and NorwaySigned by Germany and Ukraine

UN also works on Convention nationality of natural persons in case of State succession, but postponed work on this draft

Recommendation 2009/13Adopted by Committee of Ministers on 9 December 2009

23 principles

Recommendation 2009/131-10 avoidance of cases of statelessness11, 12 acquisition of nationality by ius sanguinis13-16 position of adopted children17 access to nationality of country of birth and residence18 protection of treatment as national in good faith

Recommendation 2009/1319-22 position of children in decision regarding their nationality

23 last but not least: registration of birth

Recommendation 2009/131-10 avoidance of cases of statelessness

1. No exceptions on acquisition by ius sanguinis, if statelessness would be the consequence

In particular important if child is born abroad:ECN allows exceptions on ius sanguinis

Recommendation 2009/131-10 avoidance of cases of statelessness

2. immediate acquisition of nationality of country of birth by otherwise stateless children, at least if parent has lawful and habitual residence

N.B. 1961 prescribes a) immediate unconditional acquisition orb) acquisition a.s.a.p. after birth < 5 years residence

Recommendation 2009/131-10 avoidance of cases of statelessness

8. registration of children as of unknown or undetermined nationality only for as short period as possible

Recommendation. 2009/1311. provide that children whose parentage is established by recognition, by court order or similar procedures acquire the nationality of the parent concerned, subject only to a procedure determined by their internal law;

Substantive requirements forbiddenNo discrimination of children born out of wedlockECtHR Genovese v Malta 11-10-2011

ECtHR 11-10-2011If paternity is established child must have access to his nationality under same conditions as children of a mother with this nationality

No substantive requirements

1961 Convention on reduction statelessnessTwo drafts in early 50s:Elimination statelessnessReduction statelessness

Elimination was a bridge too far

1961 Convention mixture of ius soli and ius sanguinis elements in order to avoid statelessness of children

1961 ConventionDifficult to read and understandCompromis character

2011: Dakar Expert Meeting on the interpretation of the art. 1-4 of 1961 ConventionDiscussions on basis of Background paper

1961 ConventionSummary Conclusions of Dakar

Guidelines 4 of the UNHCR are published on 21 December 2012

1961 Convention2013: Tunis Expert Meeting on the interpretation of the art. 5-9 of 1961 ConventionDiscussions on basis of Background paperOn basis of Summary Conclusions of Tunis (expected next week) Guidelines No 5 will be published

1961 ConventionArt. 1 (1) Otherwise stateless child has right to acquire the nationality of his country of birth a) either by operation of law (ex lege) at his birth (ius soli = right of the soil) OR b) later by application ORc) at certain age by operation of law (ex lege).

The grant of nationality on application may according to Article 1 (2) be subject to one or more of four conditions, but no discretionary naturalisation

Link with birth registration: birth registration mandatory under all circumstances

1961 Conventionius sanguinis acquisition of the nationality of country of the mother if the child was born there (ius soli) and otherwise would be stateless (Art.1 (3))

So already the 1930 Hague Convention

Equal treatment of women and men require to apply this rule also on children born out of wedlock on the territory of the State of their father

Compare ECtHR 11-10-2011 in re Genovese v Malta: discrimination of children born out of wedlock regarding access to nationality of father violates art. 14 in conjunction with art. 8 ECHR (citizenship is a part of the social identity of a person, which is protected as private life)

1961 Conventionius sanguinis acquisition of the nationality of a parent also in case of birth abroad in a non-Contracting State if otherwise statelessness would be caused (Art. 4). Ex lege or application procedureHowever, Article 4 (2) allows to make under some circumstances some exceptions on this rule (compare art. 1(2))

1961 Conventionacquisition to the nationality of a parent via application procedure in case of birth abroad in a Contracting State if child stays otherwise statelessness (Art. 1 (4)). However, Article 1(5) allows to make under some circumstances an exception on this rule (compare art. 1(2))

1961 ConventionArticle 2. A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that State.- who is foundling? Also small children? need also protection- what if evidence of place of birth abroad?- what if parentage is discovered? only loss if child has/ acquires another nationality

1961 ConventionArticle 3: Birth on a ship or in an aircraft shall be deemed to have taken place in the territory of the State whose flag the ship flies or in the territory of the State in which the aircraft is registered

What is ship? Boat? Sea-ship? all ships registered in Contracting State, also on international rivers and lakesNot only if birth during flight, but also if plane is on an airport. Idem for ships

1961 ConventionNo loss or deprivation of nationality is, if this would cause statelessness (Art. 5-8), BUT three exceptions1) Loss of nationality by a naturalised person because of residence abroad for a period not less than seven consecutive years if he fails to declare to the appropriate authority his intention to retain his nationality (Art. 7 (4))2) Loss of nationality by a national born abroad, if he did not take residence in the territory of the State before the expiry of one year after attaining the age of majority or if he did not register before the expiry of that period

(= loss because of lack of a genuine link).

1961 Convention3) art. 8 (2)(b): deprivation of nationality with as consequence statelessness, if the nationality has been obtained by misrepresentation or fraud

Art. 8(4): fair hearing by court or other independant body implies that hearing takes places before the deprivation

Compare art. 7 European Convention on Nationality (ECN) and European Court of Justice in case: Janko Rottmann 2-3-2010 (proportionality test)

1961 ConventionArt. 8 (3): Possibility of retention of three specific grounds for deprivation of nationality even with statelessness as consequence, if A) these grounds exist in the nationality law of that State at the time of signature, ratification or accession and B) the State reserves expressly the right to maintain theseN.B. Art. 8(4): fair hearing by court or other independant body

1961 ConventionArt. 8 (3): Possibility of retention of three specific grounds for deprivation of nationality even with statelessness as consequence:1) rendering services to or receiving emoluments from another State against an express prohibition;2) conduct in a manner seriously prejudicial to the vital interests of the State;3) an oath or a formal declaration of allegiance to another State, or definite evidence of the repudiation of allegiance

RenunciationArt. 7 (1): only allowed if person possesses or acquires another nationality

Art. 7 (2): application of naturalisation in another country no ground for loss of nationality unless acquisition or assurance of acquisition of the new nationality

Problem: what if renunciation after assurance of acquisition of new nationality and nevertheless no naturalisation violation of the spirit of the 1961 ConventionRenunciation should be conditional on naturalisation within a certain period (e.g. 1 year)

1961 ConventionDeprivation of nationality on racial, ethnic, religious or political grounds is absolutely forbidden (Art. 9)

State succession (Art. 10)

1961 Convention

Position UNHCR (Art. 11): is the body to which a person claiming the benifit of the Convention may apply for examination of his claim and for assistance in presenting to the appropriate authority amicus curiae?Jurisdiction ICJ (Art. 14); no special tribunal no cases decided

1961 ConventionScope of application ratione personae:

Definition statelessness 1954 Convention: a person who is not considered as a national by any State under the operation of its law

Determination of the non-possession of any foreign nationality burden of proof/ evidenceStatelessness determination procedureUndetermined nationality only brief period (not more than 5 years? Compare art. 1(2)(a))

Determination of statelessnessOften no special procedure

Only incidental decision (preliminary decision)

Special procedure with erga omnes effect desirable

1961 ConventionScope of application ratione personae:

Possibility to acquire the nationality of a parent by registration responsibility of (State of) parents exception allowed, but not if it is not reasonable to require the parents to contact their StateDe facto stateless persons e.g. children of refugees. If not de iure stateless: application procedure parents/ children should have the possibility not to acquire nationality of country of birth

DETAILED COMPARISON OF OBLIGATIONS 1961 CONVENTION AND 1997 EUROPEAN CONVENTION ON NATIONALITY

1961 ConventionArticle 1. -1. A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless. Such nationality shall be granted:a) at birth, by operation of law, orb) upon an application being lodged with the appropriate authority, by or on behalf of the person concerned, in the manner prescribed by the national law.

ECN: same posibilities

1961 ConventionApplication procedure may provide for following conditions:a) that the application is lodged during a period, fixed by the Contracting State, beginning not later than at the age of eighteen years and ending not earlier than at the age of twenty-one years, so, however, that the person concerned shall be allowed at least one year during which he may himself make the application without having to obtain legal authorization to do so;b) that the person concerned has habitually resided in the territory of the Contracting State for such period as may be fixed by that State, not exceeding five years immediately preceding the lodging of the application nor ten years in all;c) that the person concerned has neither been convicted of an offence against national security nor has been sentenced to imprisonment for a term of five years or more on a criminal charge;d) that the person concerned has always been stateless.

1961 Convention/detailsa) that the application is lodged during a period, fixed by the Contracting State, beginning not later than at the age of eighteen years and ending not earlier than at the age of twenty-one years, so, however, that the person concerned shall be allowed at least one year during which he may himself make the application without having to obtain legal authorization to do so;

6 ECN: < 5 years7 CRC: as soon as possible1961: at least one year independent decision and possible application until age of 21

1961 Conventionb) that the person concerned has habitually resided in the territory of the Contracting State for such period as may be fixed by that State, not exceeding five years immediately preceding the lodging of the application nor ten years in all;Habitual very factual, NOT lawful/ permanent residenceECN: < 5 years lawful residence ECN -

1961 Conventionc) that the person concerned has neither been convicted of an offence against national security nor has been sentenced to imprisonment for a term of five years or more on a criminal charge;

Art. 7 CRC: asap acquisition art. 1 (2) (c) not importantAlso for ECN not important

1961 Conventiond) that the person concerned has always been stateless

Idem art. 6 ECN

Focus on position childAll conditions listed in art. 1 1961 Convention or 6 ECN focus on child not on parents!

Not allowed to require that parents are statelessWhat matters is that child is stateless

1961 Convention: ius soli stronger than ius sanguinis1 (3) cumulation of ius soli and ius sanguinis a matreIus soli (ex lege or on application)A) If birth in CS and no acquisition ex 1 (1) obligation country parent 3) (B) If birth in non CS, obligation of country parent: ex lege on on application

In ECN / Recommendation 2009/13 stronger obligation of country parent (ius sanguinis)

1961 Convention: loss provisionsArt. 7, 8 and 9 already mentioned above

Q: is loss because of lack of genuine link with statelessness as consequence still acceptable

ECN: no (furthermore in casu check of lack of link ex lege loss problematic)

1961 Convention: art. 5 and 6Art. 5 (1) change in personal status of person should not cause statelessness (e.g. marriage, termination of marriage, legitimation, recognition or adoption)

also applicable in case of annulment of affiliation compare art. 7 ECN: preconditions of acquisition are no longer fulfilled during minority of person

Preconditions no longer fulfilledQuasi-loss of nationalityWhat with protection of legitimate expectations?

Relationship with (arbitrary?) loss of nationality?

Quasi loss of nationalityNot mentioned/ regulated in 1961 Convention

Many different types of quasi loss

Types of quasi loss of nationalityNon-naturalisation because of identity fraudNon-acquisition because of retro-active annulment of filiation (e.g. denial of paternity or non-recognition of maternity after surrogacy construction)Non-acquisition because of discovery of non-existence of filiationNon-acquisition because registration as national was a mistake

Remedies?Recommendation 2009/13:Principle 18 recommends that States provide that children who were treated in good faith as their nationals for a specific period of time should not be declared as not having acquired their nationality

Focus on children, but mutatis mutandis also applicable on adults

Which remedies?Protection of legitimate expectations Vertrauensschutz

Special construction like possession of status of being a national: quasi-prescription (possession property)possession nationality: possession dtat de nationalit

Special remedyNon-acquisition because of discovery of non-existence of filiation or lack of proof of establishment of filiation

If there is a birth certificate with alleged affiliation and corresponding treatment as child possession dtat Affiliation can not be challenged by anybody else (only child involved)

Quasi-loss of nationalityInternational rules should be developed

Research in 2014 in ILEC project (togetheer with Prof. Wautelet in Lige)

Masters thesis on these issues are very welcome