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European Court of Human Rights and nationality law

It is easy to mix up the European Union and the Council of Europe. Even Jeremy Corbyn was confused earlier this year, claiming in an interview that the European Court of Human Rights (ECtHR) was “in part an EU institution”. Founded in 1949 by the same leaders who would admittedly later set up the European Coal and Steel Community (1950) and the European Economic Community (1957), the Council of Europe itself notes on its website that it is “a separate organisation from the 28-member EU. No country has joined the EU without first joining the Council of Europe”. We have previously seen that while the EU has no explicit competence in matters of nationality, the Court of Justice of the EU has handed down a number of influential judgments on the subject, including Micheletti, Kaur, Rottmann and most recently Tjebbes.

The Council of Europe is best known to the general public for having drafted the European Convention on Human Rights (ECHR) in 1950. In matters of nationality the European Convention on Nationality (ECN), drafted by the Council of Europe in 1997, deserves special mention. Although it provides in Article 4 that everyone has the right to a nationality, this right is not protected under the ECHR. A general right to nationality, therefore, is not part of the human rights catalogue of the ECHR.

Case law of the ECtHR has nonetheless brought nationality within the scope of the ECHR by relying on Articles 8 (“right to respect for private and family life”) and Article 14 (“prohibition of discrimination”) of the convention. On 11 October 2011, the Court decided in the case Genovese v. Malta that access to the nationality of the father affects the social identity of a person, which in turn is part of that person’s private life as protected by Article 8. Consequently, it was forbidden for states to apply discriminatory rules as regards the acquisition of the father’s nationality when born out of wedlock. The potential implications of Genovese are still unclear but if nationality, as part of a person’s social identity, falls within the scope of Article 8 of the Convention, this may also have consequences for cases dealing with naturalisation or situations in which nationality is lost.

In 2012, before handing down Genovese v. Malta, the Court had hinted at the importance of Article 8 for nationality law in the case Kuric and others v. Slovenia. This case concerned the Slovenian “erasure” of certain individuals from the Civil Register. More particularly, as noted by Jelka Zorn, “the term ‘erasure’ describe[s] a measure whereby, following [Slovenia’s] independence, some 25 671 persons who did not opt to become Slovene citizens or had been refused citizenship were secretly erased from the Register of Permanent Residents of the Republic of Slovenia by the Ministry of the Interior and, subsequently, deprived of their acquired rights”. Relevant is that the ECtHR already held in this case that

the regularisation of the residence status of former [Socialist Federal Republic of Yugoslavia] citizens was a necessary step which the State should have taken in order to ensure that failure to obtain Slovenian citizenship would not disproportionately affect the Article 8 rights of the “erased”. The absence of such regulation and the prolonged impossibility of obtaining valid residence permits have upset the fair balance which should have been struck between the legitimate aim of the protection of national security and effective respect for the applicants’ right to private or family life or both (par. 359).

It has been speculated in the literature that Genovese v. Malta anticipates a growing role of the ECtHR in respect of nationality law – a role which Marie-Bénédicte Dembour rightly observes has thus far been very limited:

The fact that the European Convention [on Human Rights] elected not to include any provision on nationality has made it possible for the Strasbourg Court, even in extreme circumstances such as those of the “erased” in Slovenia, to refuse to be drawn into issuing rulings directly concerning citizenship law. No doubt this is because the Strasbourg Court considers nationality to constitute a matter of near-absolute state sovereignty upon which it cannot encroach, bar absolutely exceptional circumstances. This attitude, however, denotes a conspicuous, if largely unnoticed, closure of the European system to what could, or arguably should, be considered a vital area of human rights law.

Article 8 ECHR also played a role in the decisions of 26 June 2014 in Sylvie Mennesson v. France and Francis Labassee v. France. In these judgments (in particular paragraphs 97-98) the Court stipulated that aspects relating to one’s social identity need to have consequences for the nationality position of children born from cross-border surrogacy arrangements.

In another episode we will pay attention to the first advisory opinion of the ECtHR, again dealing with nationality and surrogacy, since the Court was granted this power under Protocol no. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms on 1 August 2018.

Author: Dr. Olivier Vonk

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