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Birthright Citizenship

11a(4)(3)). Portugal, in 2006, not only liberalised its existing ius soli provision and added double ius soli, but also added a facilitated naturalisation provision (POR 6(2)(a).

The Spanish entitlement to naturalisation for persons born in Spain, introduced in 1982, is particularly remarkable as it virtually implies ius soli at birth, after one year residence, and is a significant addition to the simultaneously introduced double ius soli provision (Rubio Marín 2006: 496).

7 Foundlings and children who would otherwise be stateless (A03a/A03b)

Double citizenship—which may lead to conflicting claims of sovereignty—and statelessness—no state has diplomatic responsibility—are clearly two sides of the same coin, both phenomena being traditionally viewed as undesirable within the international state system. This is why Article 15(1) of the Universal Declaration on Human Rights states that everyone has the right to at least one citizenship, and Article 6(2) ECN and Article 1 of the 1961 Convention on the Reduction of Statelessness contain rules to avoid statelessness.

As a consequence, many states have ´safety´ provisions in their citizenship laws to cover persons who would otherwise be stateless. These provisions allow the acquisition of citizenship iure soli in cases of potential statelessness or the right for stateless children to register in their country of birth (De Groot 2005: 201–2). For example, even though the Netherlands does not apply ius soli at birth to first- or second-generation immigrants, children born on Dutch territory can opt to become Dutch after the age of three if they would otherwise be stateless.

In this section we discuss both generic provisions on the citizenship acquisition by persons, born in a country, who would otherwise be stateless, and the more specific rules on foundlings, who can be seen as a sub-category of the first group.

7.1 Foundlings (A03a)

The European Convention prescribes that a foundling found in the territory of a state has to acquire the citizenship of that state if he would otherwise be stateless (ECN 6(1)(b)). The wording of this provision is drawn from the 1961 Convention on the Reduction of Statelessness (Article 1). If later, but during his minority, the child’s parents are discovered, and the child derives a citizenship from (one of) these parents or acquired a citizenship because of his place of birth, the citizenship acquired because of the foundling provision may be lost (ECN 7(1)(f)).

The citizenship legislation of most countries, with regard to the acquisition of citizenship by foundlings, is in conformity with the European Convention (see Table 5). For example, in the Netherlands a child shall be deemed to be the child of a Dutch citizen if he was found on the territory of the Netherlands, the Netherlands Antilles or Aruba or on a ship or aircraft registered in one of these countries (NET 3(2)).

The acquisition of citizenship by a foundling through the presumed descent from a citizen (praesumptio iuris sanguinis), however, is often not absolute and that is where some national provisions are at odds with the Convention. In the Netherlands, for example, if it becomes apparent within five years from the day on which the child was found, that he or she does not possess Dutch citizenship, but exclusively a foreign citizenship by birth, the

RSCAS/EUDO-CIT-Comp. 2010/8 - © 2010 Authors


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