European Convention on

Nationality, Rec. 2009/13 and

1961 Convention reduction
statelessness

Prof. Dr. Gerard-Ren de Groot
25-2-2014
Council of Europe
Very active in field of nationality law: already in
1949 desirability of system of multiple
nationalities
1963 Convention on the Reduction of Cases of
Multiple Nationality and Military Obligations in
Cases of Multiple Nationality
1993 Second Protocol to 1963 Convention
1997 European Convention on Nationality (ECN)
Recommendation 2009/13
Art. 1 (1) 1963 Convention
Nationals 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 Convention
Austria 1969
Belgium 1991
Denmark 1972
France 1965
Germany 1969
Italy 1968
Luxemburg 1971
Netherlands 1985
Norway 1969
Sweden 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 women
Realization 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 1993
Allows 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 18
b) if a person acquires the nationality of his spouse
c) if a minor whose parents are nationals of different
Contracting Parties acquires the nationality of one of his
parents
Second protocol 1993
Ratified 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 2009
Italy in 2009/ June 2010 only Netherlands still
bound but denunciation? (see bill 33 201/ R 1977)
1963 Convention
Austria (reservation: authorisation to retain nationality possible, if the
other State gives consent)
Belgium denounced convention in 2007
Denmark denunciation in 2014?
France 2nd prot./ no loss of nationality in Cc: denunciation 2008/ 5
March 2009
Germany denunciation in 2001
Italy 2nd prot./ no loss of nationality in Lc: denunciation 2009/ 4 June
2010
Luxemburg denunciation convention 2008/ 10 July 2009
Netherlands 2nd prot./ exceptions loss of nationality
Norway denunciation 2014?
Sweden denunciation in 2001

Compare Haydn: Farewell symphony
1963 Convention
Situation 1963 Convention illustrates an
important trend: increasing acceptance of
cases of multiple nationality
Only two countries (Denmark and Norway)
are bound without exceptions
Two other contracting States provide for
exceptions: Austria and Netherlands
Denmark will denounce Convention in next
future; Norway perhaps also
1997 European Convention on
nationality
Codification of customary international law
regarding nationality: art. 3-5

Some rules on acquisition of nationality art.
6
Exhaustive list of grounds for loss of
nationality art. 7/ 8
Neutral regarding multiple nationality
1997 European convention on
nationality
Repeats the rules on military service from
the 1963 convention

Allows reservation but not on art. 3-5
Popularity of ECN 2012
Ratification 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 1997
Important 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 loss
A. Voluntary acquisition of another nationality
B. Deprivation in case of acquisition of nationality
by means of fraud
C. Voluntary foreign military service
D. Conduct seriously prejudical to vital interests of
the State
E. Lack of a genuine link because of permanent
residence abroad
Art.7/8 ECN allows following
grounds for loss
F. preconditions for acquisition are not
fulfilled anymore during minority
G. adoption by foreigners
H. renunciation, if person involved also
possesses another nationality
Reasons in writing and judicial
review
Art. 11: All decisions on nationality should
contain reasons in writing
Art. 12: Access to judicial review

Some States made reservations on Art.
11/12
Problematic in light of Genovese v Malta
and Rottmann
New convention 2006
Council of Europe
Convention on the avoidance of
statelessness in relation to State succession
Strasbourg, 19.V.2006

Elaborates the rules on State succession
and nationality of the ECN
New convention 2006
In force on 1 May 2009
Ratified by Austria, Hungary, Moldova,
Montenegro, Netherlands and Norway
Signed 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 2009/13
Adopted by Committee of Ministers on 9
December 2009

23 principles
Recommendation 2009/13
1-10 avoidance of cases of statelessness
11, 12 acquisition of nationality by ius
sanguinis
13-16 position of adopted children
17 access to nationality of country of birth
and residence
18 protection of treatment as national in
good faith

Recommendation 2009/13
19-22 position of children in decision
regarding their nationality

23 last but not least: registration of birth

Recommendation 2009/13
1-10 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 2009/13
1-10 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 or
b) acquisition a.s.a.p. after birth < 5 years
residence
Recommendation 2009/13
1-10 avoidance of cases of statelessness

8. registration of children as of unknown or
undetermined nationality only for as short
period as possible
Recommendation. 2009/13
11. 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 forbidden
No discrimination of children born out of wedlock
ECtHR Genovese v Malta 11-10-2011
ECtHR 11-10-2011
If 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
statelessness
Two drafts in early 50s:
Elimination statelessness
Reduction 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 Convention
Difficult to read and understand
Compromis character

2011: Dakar Expert Meeting on the
interpretation of the art. 1-4 of 1961
Convention
Discussions on basis of Background paper
1961 Convention
Summary Conclusions of Dakar

Guidelines 4 of the UNHCR are published
on 21 December 2012
1961 Convention
2013: Tunis Expert Meeting on the
interpretation of the art. 5-9 of 1961
Convention
Discussions on basis of Background paper
On basis of Summary Conclusions of Tunis
(expected next week) Guidelines No 5 will
be published
1961 Convention
Art. 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 OR
c) 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 Convention
ius 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 Convention
ius 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 procedure
However, Article 4 (2) allows to make
under some circumstances some
exceptions on this rule (compare art. 1(2))
1961 Convention
acquisition 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 Convention
Article 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 Convention
Article 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 lakes
Not only if birth during flight, but also if plane is
on an airport. Idem for ships
1961 Convention
No loss or deprivation of nationality is, if this would cause
statelessness (Art. 5-8), BUT three exceptions
1) 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 Convention
3) 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 Convention
Art. 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 these
N.B. Art. 8(4): fair hearing by court or other
independant body

1961 Convention
Art. 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
Renunciation
Art. 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 Convention
Renunciation should be conditional on naturalisation within
a certain period (e.g. 1 year)
1961 Convention
Deprivation 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 Convention
Scope 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/ evidence
Statelessness determination procedure
Undetermined nationality only brief period (not more
than 5 years? Compare art. 1(2)(a))
Determination of statelessness
Often no special procedure

Only incidental decision (preliminary
decision)

Special procedure with erga omnes effect
desirable
1961 Convention
Scope 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 State
De 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 Convention
Article 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, or
b) 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 Convention
Application 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/details
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;

6 ECN: < 5 years
7 CRC: as soon as possible
1961: at least one year independent decision
and possible application until age of 21
1961 Convention
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;
Habitual very factual, NOT lawful/
permanent residence
ECN: < 5 years lawful residence ECN -
1961 Convention
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;

Art. 7 CRC: asap acquisition art. 1 (2) (c)
not important
Also for ECN not important
1961 Convention
d) that the person concerned has always
been stateless

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

Not allowed to require that parents are
stateless
What matters is that child is stateless
1961 Convention: ius soli stronger
than ius sanguinis
1) 1 (3) cumulation of ius soli and ius sanguinis a
matre
2) Ius soli (ex lege or on application)
3) 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 provisions
Art. 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 6
Art. 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 fulfilled
Quasi-loss of nationality
What with protection of legitimate
expectations?

Relationship with (arbitrary?) loss of
nationality?
Quasi loss of nationality
Not mentioned/ regulated in 1961
Convention

Many different types of quasi loss
Types of quasi loss of nationality
Non-naturalisation because of identity fraud
Non-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 filiation
Non-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 remedy
Non-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 nationality
International rules should be developed

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

Masters thesis on these issues are very
welcome