At the core of the regional human rights system in Europe are the Council of Europe (CoE) and the European Convention on Human Rights (ECHR), adopted in 1950. The CoE has 47 member states, all of which are parties to the ECHR. The ECHR enshrines basic human rights and fundamental freedoms of everyone within the jurisdiction of any member state and offers protection of these rights to everyone within the territory of Europe, including stateless persons, before the European Court of Human Rights (ECtHR) in Strasbourg, France. There are numerous cases in which stateless persons have succeeded in appealing to the Court to address a human rights violation suffered.
While the right to a nationality is not contained as a provision in the ECHR, the Court has discussed citizenship on several occasions when the circumstances for or consequences of the denial of nationality violated a separate provision under the ECHR. The Court has recognised nationality as an element of the social identity of a person, which forms part of private life as protected by Article 8 of the ECHR. This is a developing area of jurisprudence by the Court, with cases delivered to date focusing on the application of the principles of non-discrimination and of the best interests of the child in access to nationality .
In 1997, the CoE adopted the European Convention on Nationality, consolidating in a single, regional document a variety of international legal norms on nationality. This instrument contains several important safeguards directed towards the avoidance of statelessness, along similar lines to the 1961 Convention on the Reduction of Statelessness. It attracted sixteen states parties within the first decade after its adoption, but by the end of 2016, this number had only climbed by a further four ratifications. A separate CoE Convention relevant to statelessness is the Convention on the Avoidance of Statelessness in relation to State Succession. This relatively young regional Convention (from 2006) regulates the prevention of statelessness in the specific context of state succession, but has yet to attract many states parties. The Committee of Ministers of the CoE has also adopted numerous Recommendations outlining further normative guidance on issues relating to nationality and the prevention of statelessness. Although there have been no new standard-setting initiatives in recent years, the CoE continues to maintain an interest in nationality questions. In March 2016, the Parliamentary Assembly of the Council of Europe adopted a Resolution on the need to eradicate statelessness of children.
The Council of Europe Commissioner for Human Rights, Nils Muižnieks, has been a strong advocate for addressing statelessness in Europe. Muižnieks has, in fact, made this one of the priorities of his work since taking up his post in 2012. He has spoken passionately about the need to protect children, in particular, from statelessness, participating in numerous conferences and meetings to lend his voice to the cause. Moreover, he has also devoted attention to reviewing domestic laws and practices relating to statelessness when making country visits. For instance, following his visits in 2016, he recommended to Latvia that the law be reformed to allow stateless children born in the country to automatically acquire nationality and to Croatia that it redouble its efforts to ensure access to documentation and address the risk of statelessness for members of the Roma community.
Besides the CoE, there is the European Union (EU), which currently has 28 member states. The EU has its own human rights document: the Charter of Fundamental Rights of the European Union. The Charter does not contain a provision guaranteeing the right to a nationality, but does provide a set of rights which are attached to EU citizenship, the special supra-national legal status enjoyed by everyone who is a national of an EU member state. EU member states maintain competence in the field of nationality law and can set their own rules for acquisition and loss of nationality. Due to the connection between nationality of a member state and EU citizenship, however, the Court of Justice of the European Union (based in Luxembourg), has affirmed that in relation to the loss of EU citizenship and even when setting the conditions for acquisition of nationality, “Member States must, when exercising their powers in the sphere of nationality, have due regard to European Union law”. While further jurisprudence has yet to be developed in this area, EU law may therefore have some influence on the nationality policy and practice of EU member states, including in respect of the avoidance of statelessness. The EU could potentially also play a part in ensuring adequate protection for stateless persons on the territory of its member states through the establishment of common standards for statelessness status determination or the regulation of a residence status for stateless persons. To date, concrete measures have yet to be taken in this regard, but interest in the issue of statelessness at the level of the EU has been growing.
European states at the Universal Periodic Review
Within the framework of the Universal Periodic Review (UPR) statelessness does not frequently come up in relation to European countries. Latvia and Estonia received the most recommendations on this issue: 17 and 12 recommendations respectively during the second UPR cycle. The recommendations to Latvia dealt with four issues: access to nationality for stateless children, improving the enjoyment of rights by stateless persons, resolving existing cases of statelessness, and judicial review of naturalisation applications which are denied. Estonia received recommendations on facilitating the resolution of existing cases of statelessness, strengthening the safeguards against statelessness for children and more generally improving the nationality law. Several other countries also received specific recommendations on strengthening the protection of the right to nationality and addressing statelessness. For instance, Austria received the recommendation that it address the limitations in access to nationality for children born out of wedlock and Georgia received the recommendation that it strengthen the safeguards to allow stateless children born in the territory to acquire a nationality. Many of the other recommendations made to European states during the second cycle concerned accession to the statelessness conventions.