Acquisition through naturalisation

Naturalisation, meaning the granting of nationality to an alien by a formal act, is also generally recognised as a mode of acquiring nationality. There are many reasons why naturalisation may be granted, ranging from service for a state or ethnic or other group affiliations to residence, this being the most common reason for voluntary acquisition of nationality. Municipal law is different, not only regarding the conditions for acquisition of nationality by naturalisation, but it also distinguishes frequently between naturalisation as an individual right and naturalisation by discretion. With increasing recognition of the human rights implications of nationality, there is clearly a trend within most European states to grant certain categories of foreigners an individual, judicially enforceable right to acquire nationality by naturalisation. The European Convention on Nationality is careful to avoid any language which could be interpreted as a clear individual right to acquire nationality for the persons mentioned in art. 6, para. 4. However, the duty to facilitate acquisition of nationality must have some individual rights connotations since art. 12 of the Convention obliges each state party to ensure that decisions relating to the acquisition, retention, loss, recovery or certification of its nationality be open to an administrative or judicial review in conformity with its internal law. Admittedly, this does not amount to a change of substance of the obligations laid down in art. 6. It does imply, however, that the discretion of states cannot be considered as unlimited and that individuals are entitled to challenge a decision taken on such grounds.

Statelessness

The avoidance of statelessness is probably the oldest and most commonly recognised principle of nationality law. Prior to the recognition of the fact that nationality is an essential element of the possession of individual rights, states have recognised the need to avoid statelessness since unprotected stateless persons may feel obliged to move from the territory of one state to that of another state and therefore might become a burden for these states.62 In addition, statelessness raises questions of legal certainty and a clear attribution of responsibility in international relations.

The issue of statelessness has been of great concern to European states. A number of treaties deal with the legal status of stateless persons, as well as various recommendations by the Council of Europe, the most recent being the Recommendation no. R (99.18) on the avoidance and reduction of statelessness.63 Stateless persons have been defined by the Convention relating to the status of stateless persons of 28 September 1954, as well as by the 1961 UN Convention on the reduction of statelessness, as persons who are not considered as nationals by any state under the operation of its law. Persons may become stateless at birth or later, as a consequence of the loss of nationality. They may become stateless against their will or they may have renounced their nationality without having acquired a new nationality. Statelessness occasionally arises as a consequence of conflicting legislation. Generally speaking, a number of conventions contain obligations to avoid statelessness.

The Convention on the status of stateless persons as well as conventions such as the 1957 UN Convention on the status of married women, the 1966 International Covenant on Civil and Political Rights and the 1966 Convention on the Elimination of all Forms of Racial Discrimination, the 1979 Convention on the Elimination of all Forms of Discrimination against Women and the 1989 UN Convention on the Rights of the Child all try to reduce cases of statelessness, particularly by providing for an obligation to grant nationality to a person who, under the operation of its regular provisions would otherwise be stateless. The treaties are binding upon only a restricted number of states and deal only with specific instances of statelessness with respect to special requirements and conditions.

Although it is correct to say that statelessness as such is not contrary to customary international law (Randelzhofer 2000: 508) the principle of avoiding statelessness laid down in art. 4 is enshrined in numerous international treaties and recommendations. Therefore, it seems correct to note that it has become part of customary international law.64 The European Convention contains a number of provisions which seek to prevent statelessness. Nationality under art. 6, para. 1 shall be acquired ex lege by foundlings found on the territory who would otherwise be stateless. In addition, state parties shall provide for the acquisition of nationality by children born on its territory who do not acquire another nationality by birth. Art. 6, para. 2 stipulates that the child concerned may submit an application for the acquisition of nationality. Nationality must be granted to children who remained stateless upon an application being lodged with the appropriate authority, by or on behalf of the child concerned. It can only be made subject to the lawful and habitual residence on the territory for a period not exceeding five years immediately preceding the lodging of the application. Facilitated acquisition of nationality must be provided in spite of the general freedom of states to regulate the nationality of stateless persons. Facilitation does not mean an unconditional duty, but implies that there must be more favourable conditions than for other persons resident on the territory. Recommendation no. R 99 of 15 September Nationality in public international law and european law 65 1999 of the Committee of Ministers describes a number of potential requirements in order to acquire nationality, including knowledge of language. The Recommendation indicates that, as far as stateless persons are concerned, an adequate knowledge of the language should be sufficient. This concept is regarded as relative and should be determined in accordance with the specific circumstances of the case. Oral knowledge of the language could be considered sufficient, the exact level, however, must be judged in the light of the social and economic conditions of the stateless person concerned as well as of his or her age and medical condition.

Regarding the criminal record, the Recommendation notes considerable differences in the states' practice. In the case of stateless persons, the Recommendation underlines the need to find a balance when evaluating a criminal record between the gravity of the offence committed and the negative consequence of statelessness (principle of proportionality).

Account has also to be taken of the need to respect the fundamental right of individuals to possess a nationality.

Persons who have deliberately become stateless, disregarding the principles of the ECN, shall not be entitled to acquire nationality in a facilitated manner.

The principle avoiding statelessness is also contained in the provisions on loss of nationality. Art. 7, para. 3 ECN stipulates that a state party may not provide in its internal law for the loss of its nationality if the person concerned would thereby become stateless. Statelessness is tolerated, however, when the nationality has been acquired by fraudulent conduct, false information or concealment of any relevant facts attributable to the applicant. The provision, therefore, goes further than that provided under art. 8 of the 1961 Convention on the reduction of statelessness. The principle is also contained in art. 8, para. 1, that each state party shall permit the renunciation of its nationality provided the persons concerned do not thereby become stateless.

Problems may arise where persons are allowed or required to renounce their nationality before they have acquired the nationality of another state. If the acquisition of nationality is subject to certain conditions which have not been fulfilled and the persons concerned fail to acquire the new nationality, the state whose nationality has been renounced

must allow them to recover their nationality or must regard them as never having lost it, in order to avoid statelessness.

In art. 18 on state succession and nationality, avoidance of statelessness is also mentioned as a general principle that must be respected in matters of nationality.

In conclusion, this principle is considered as a common European standard. It is reflected in a number of conventions and recommen­dations that have been codified in the European Convention on Nationality.