CRINMAIL 1190

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Editorial: Children and Statelessness

This week's editorial is dedicated to children's rights and statelessness. The issue has come to the fore in the press recently as stateless Roma people find themselve being deported from countries across Europe as highlighted in the latest human rights comment by the Commissioner for Human Rights at the Council of Europe. We also hope it will serve to bring attention to our website on children's rights and discrimination.

Our guest editor is Sebastian Kohn who works at the Justice Initiative. Sebastian wrote this article in a personal capacity.

Introduction

For most of us, citizenship (1) is something we take for granted. Rarely do we reflect on the particular rights and responsibilities that citizenship conveys, and consequently we often fail to understand the unique problems that non-citizens face. Recognition of nationality serves as the key to a host of other rights, including education, health care, employment, and social services. Because of this, people without citizenship – people who are stateless – are among the most vulnerable in the world.

There are an estimated 15 million stateless persons around the world and, given current population trends around the world, it would be fair to assume that at least one third of all stateless persons in the world are minors. The consequences of statelessness among children are numerous and severe and often start before they are even born: stateless pregnant women are frequently denied adequate pre-natal and post-natal care. As a result, many stateless infants and children do not receive immunisations and other essential medical care which means their health may be seriously compromised. A few years down the line, many stateless children are denied access to primary education, and in most countries around the world secondary education is out of the question. Other key consequences of statelessness for children include greater likelihood of growing up in extreme poverty, restricted freedom of movement, arbitrary deportations, social exclusion, and in some cases greater vulnerability to trafficking and exploitation.

International law and the special protected status of children

Under international law, nationality is defined as the juridical expression of the legal, political and social bond which connects the individual with a particular country. This bond of citizenship allows the individual to acquire and exercise certain rights and responsibilities vis-à-vis their country of nationality. Precisely what makes up this bond of nationality differs from country to country, but it typically includes factors such as descent or ancestry, habitual residence, family ties, place of birth, cultural and linguistic ties, centre of personal interests (economic or otherwise), and participation in public life.

The right to a nationality is protected under international law. The Universal Declaration of Human Rights provides a general right to nationality under article 15, and human rights mechanisms in Europe and the Americas give a more practical meaning to this principle at the regional level.

The Convention on the Rights of the Child (CRC) guarantees children's right to nationality under article 7 which provides that 'States Parties shall ensure the implementation of these rights [rights to a name, nationality, and to know and be cared for by parents] in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.' In practice, this means that children who would otherwise be stateless have a right to nationality in the State in which they are born.

The International Covenant on Civil and Political Rights (ICCPR) recognises the right of '[e]very child...to acquire a nationality,' in article 24.3 but lacks any specific prescription for assigning responsibility to a particular State for any given stateless child. Along the same lines, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families states in article 29 that '[e]ach child of a migrant worker shall have the right to...a nationality.'

The Committee on the Rights of the Child could further expand on States obligations to stateless children by drafting a General Comment on article 7. Such a comment could clarify States' obligations to children born on their territory by, for example, defining what is meant by children 'who would otherwise be stateless.' In addition, an optional protocol on an individual complaints procedure would help protect the rights set out in the Convention.

At the regional level, at least three key treaties provide strong protections against statelessness among children. In Europe, the European Convention on Nationality requires States Parties to provide in law for its nationality to be acquired by children born on their respective territories who would otherwise be stateless.

In the Americas, the American Convention on Human Rights provides for a right to nationality in article 20. Here, too, children who would otherwise be stateless have a right to nationality in the country where they are born.

In Africa, the African Charter on the Rights and Welfare of the Child (ACRWC) states in article 6.4 that: 'States Parties...shall undertake to ensure that their Constitutional legislation recognise the principles according to which a child shall acquire the nationality of the State in the territory of which he has been born if, at the time of the child's birth, he is not granted nationality by any other State in accordance with its laws.'

To date very few individual complaints have been submitted to the African Committee of Experts on the Rights and Welfare of the Child, but one of those pending concerns stateless children. This complaint submitted by the Justice Initiative to the Committee on behalf of Nubian children in Kenya who are stateless as a result of the Kenyan government's refusal to grant them nationality.

Due to the large number of international and regional treaties that recognise children's right to nationality, one may argue that the obligation to ensure that every child has a nationality, including the obligation to grant citizenship to children born on the territory who would otherwise be stateless, is now part of customary international law which is binding on all States, whether they have ratified the relevant treaties or not.

Why are children stateless?

States which grant citizenship according to country of birth are few and far between; most countries grant citizenship by descent, that is, to the children of citizens. Children's stateless status is therefore often a direct result of their parents' own statelessness, which is in turn frequently caused by deeply entrenched discrimination against persons of particular racial, ethnic, national, and linguistic origins. Thus, in most cases statelessness is a multi-generational issue. It is a vicious circle in which parents hand down their own lack of legal status to their children, which severely compromises their childhood as well as their opportunities to live full, dignified lives as adults.

Statelessness caused by gender discrimination also severely affects children. Many countries around the world still do not have gender-neutral citizenship laws, and leave women unable to pass their citizenship to their children and foreign spouses. In some places the situation is improving, however. Several North African countries – Algeria, Egypt, Morocco and Tunisia – have taken significant steps in the last 15 years to end government-sanctioned gender discrimination by amending their citizenship laws to give women the ability to pass their citizenship to their children. Nevertheless, there is a long way to go in many countries around the globe.

Many children are also stuck in legal limbo due to state secession. Children who belong to ethnic minority groups are particularly vulnerable to statelessness when States break up and new States are created. In recent history we have seen this in places such as the Former Soviet Union, the Balkans, Eritrea and Ethiopia, and Pakistan and Bangladesh. Today, standards on avoidance of statelessness in cases of State secession exist although many of these situations are only very slowly beginning to be resolved. Countries such as Slovenia, Estonia and Latvia have made significant progress recently, but in both Eritrea and Ethiopia tens of thousands of children are still denied nationality rights on the basis of their parents' national or ethnic origins.

Consequences of statelessness for children

One of the most abstract of human rights – the right to an identity and a name – is intrinsically linked to nationality. For many if not most stateless people around the world, their statelessness means they have no legal identity and have little or no voice in influencing the society in which they live.

The protections afforded by the Universal Declaration of Human Rights (UDHR) and the Convention on the Rights of the Child (CRC) apply to all children regardless of their nationality. While this is true in theory, the reality is quite different. Not all countries provide free education, health care, social security, and effective protection from exploitation to stateless children. In addition, there are supplementary rights not covered by the principal human rights conventions that are only available to citizens. These include education beyond primary level, some forms of health or social care, employment once the child has attained the minimum age for admission to work, and various other economic, social and cultural rights.

Perhaps the most apparent obstacle stateless children face is in access to education. While some countries do offer educational opportunities to stateless children, many do not. In Malaysia, stateless children of Indian, Filipino or Indonesian descent in Selangor and Sabah are frequently denied access to basic education in state schools (2): if a child's birth certificate has 'foreigner' written on it, or if the child does not have a birth certificate at all, the child is simply unable to enrol. (3). Similarly, in the Inter-American Court of Human Rights case of Yean and Bosico v. The Dominican Republic, the two applicants – both children – had been arbitrarily denied Dominican nationality. As a result they were barred from going to school since identity documents were a pre-requisite for enrolment. Denying children the right to education can cripple entire communities for generations to come. The Yean and Bosico case also reflects a much larger problem in the Dominican Republic where children of Haitian descent born in the Dominican Republic are denied nationality despite being constitutionally guaranteed citizenship by virtue of the country's jus soli citizenship regime.

Few stateless children are able to obtain passports or other travel documents. This has serious implications for their right to freedom of movement, and bars them from travelling abroad to visit relatives or pursue educational opportunities. Similarly, the right to healthcare and social security is severely compromised for many stateless children. Statelessness jeopardises their parents' economic opportunities, and many grow up under conditions of extreme poverty, where access to medical treatment and immunisations are scarce.

Evidence from some parts of the world suggests that stateless children are at greater risk of human trafficking and other forms of exploitation. This connection is evident in the case of the Hill Tribes in Thailand, for example, who - because they are not ethnic Thais - have struggled with statelessness for generations. There is some connection between exploitation and statelessness – in particular de facto statelessness – in the West as well. The case of Siliadin v. Francevii (4), before the European Court of Human Rights, concerned an unaccompanied minor asylum seeker from Togo who 'unlawfully present in [France] and in fear of arrest by the police...was...subjected to forced labor...[and] held in servitude.' The Court ruled that the applicant 'was entirely at [her employers'] mercy, since her papers had been confiscated...[S]he had no freedom of movement or free time. As she had not been sent to school...the applicant could not hope that her situation would improve.' (5). Although the applicant in theory may have had Togolese nationality, it is reasonable to assume that this nationality was ineffective – in particular in the absence of documents to prove her legal status. The applicant was thus de facto stateless, which contributed to her extreme vulnerability.

Challenging statelessness and realising children's right to nationality

Statelessness among children can be addressed and challenged in many different ways, including birth registration campaigns, pressure from the international community, and litigation.

Birth registration is the single most important means to providing children with a legal identity. Sometimes, birth registration alone saves children from a life as a de facto stateless person. However, as noted above, in many cases – especially where ethnic discrimination is involved, and in countries which grant citizenship by descent from citizens – a birth certificate does not convey nationality. In fact, there are cases where governments use birth certificates to ensure that certain children remain stateless by explicitly stating on the certificate that the individual in question is a non-citizen. For example, a child of Indonesian descent in Sabah in Malaysia with 'foreigner' written on her birth certificate is unlikely to be able to enrol in school. Hence, while birth registration is tremendously important in terms of giving children a legal status, it must be carried out in such a way that it does not perpetuate statelessness, since this will affect children's access to a whole range of rights for years to come.

Organisations such as Plan International have carried out birth registration campaigns around the world for many years in order to ensure that children obtain a legal identity, which in turn secures protection before the law, access to a range of social and economic rights, and makes children less vulnerable to abuse. However, governments need to improve their record of birth registration – not just in terms of numbers but also in terms of substance; ensuring that children who would otherwise be stateless obtain nationality when their births are registered. This is, as argued above, now a universal customary law obligation which applies to all States.

The international community can put more pressure on States through the current international human rights system. This includes reports to the United Nation's treaty bodies, which issue recommendations on the basis of the human rights conventions. It may also involve cooperation with UN agencies such as the UNHCR, UNICEF or the OHCHR to ensure that their respective mandates are effectively implemented in this field. Special Rapporteurs of the UN and various regional bodies also have some leverage which can be used to put pressure on governments.

In some countries litigation is also an option. One of the most important regional decisions in the area of children's right to nationality was the previously mentioned 2005 case of Yean and Bosico v. The Dominican Republic, where the Inter-American Court of Human Rights ruled that the Dominican Republic had breached the right to nationality, among other rights, of the American Convention. In Europe, the case of Makuc v. Slovenia, pending before the European Court of Human Rights, challenges Slovenia's erasure of 18,305 citizens in 1996, including a large number of children. As mentioned above, at the African regional level the African Committee of Experts on the Rights and Welfare of the Child has recently received a complaint concerning the right to nationality (and access to associated rights) of Nubian minors in Kenya.

Litigation can go a long way in obtaining remedies for individuals, clarifications on ambiguous points of law, and – if pursued strategically – policy change beyond the court room. However, in order to resolve statelessness among children a combination of these different advocacy instruments need to be utilised.

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References

1. For the purpose of this briefing, citizenship and nationality are used interchangeably.

2. 'School kids expelled for not having birth certs', Malaysiakini, June 17, 2008.

3. Maureen Lynch and Melanie Teff, 'Childhood Statelessness', Forced Migration Review, April 2009, p.32.

4. Siliadin v. France, ECHR, 2005, Application No. 73316/01 paras. 118-121

5. Siliadin v. France, ECHR, 2005, Application No. 73316/01 paras. 126-128

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LATEST NEWS AND REPORTS

The turning tide

Kenya: The new Constitution adopted this month protects every person from corporal punishment, making Kenya the second African state this year to legally protect children from all corporal punishment in all settings, including the home, reports the Global Initiative to End All Corporal Punishment of Children.

Tunisia banned all forms of corporal punishment in July.

The new Constitution states in article 29 that every person "has the right to freedom and security of the person, which includes the right not to be ... (c) subjected to any form of violence from either public or private sources; (d) subjected to torture in any manner, whether physical or psychological; (e) subjected to corporal punishment; or (f) treated or punished in a cruel, inhuman or degrading manner". Article 20(1) states: "The Bill of Rights applies to all law and binds all State organs and all persons." And article 53 confirms that every child has the right "to be protected from abuse, neglect, harmful cultural practices, all forms of violence, inhuman treatment and punishment, and hazardous or exploitative labour".

The effect of the prohibition in the new Constitution is immediate: article 2(4) renders void any law, including customary law, that is inconsistent with the Constitution. There are various provisions in Kenyan law which justify or authorise corporal punishment, in conflict with the new Constitution. These will need to be reviewed and amended, including repeal of "the right of any parent or other person having the lawful control or charge of a child to administer reasonable punishment on him" from article 127 of the Children Act 2001 and of the authorisation of corporal punishment in schools in article 11 of the Education (School Discipline) Regulations.

Kenya is the 29th State worldwide to prohibit all corporal punishment of children. See the Global Initiative's updated global progress chart

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Tarred image

Gender and tobacco: The tobacco industry is increasingly targeting women and girls in its advertising, according to a factsheet published by the World Health Organisation (WHO). The article, which marks this year's "World No Tobacco Day", explains how the strategies used to promote smoking among women over the last century are now being unleashed in developing countries.

Among methods used to attract female consumers, tobacco companies use "brand stretching" (i.e. marketing of other products such as clothing under tobacco brand names) and design packets and cigarettes to appeal to women and girls, such as "light", "slim", "super-slim" products. In Russia, for example, where smoking among women is rocketing, 100 brands have been introduced specifically for women's use, says the report's author, Margaretha Haglund, from the National Institute of Public Health in Stockholm.

Bulletin of the World Health Organisation 2010;88:563-563. doi: 10.2471/BLT.10.080747. Full factsheet. 

Japan: Protesters have carried out a series of demonstrations against minority groups, including Korean school children over the last year, reports the New York Times this week. The group, known as the 'Net far right' because it organises online, first assembled at the school gates of a Korean Elementary School last December calling the students "cockroaches" and "spies". Their protests have since expanded to encompass Chinese and other Asian workers, Christians and Westerners in Halloween costumes, according to the newspaper.

The group, which is comprised largely of young men in low-paying jobs is thought to be venting frustration over economic problems. Full story (New York Times, 28 August 2010).

In its latest Concluding Observations to Japan, the UN Committee on the Rights of the Child expressed concern that growing numbers of Korean school children are changing their names and rejecting their national dress out of fear of being identified as Korean.

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Time to break vows of silence

Disappearances: The United Nations Working Group on Enforced or Involuntary Disappearances commemorated the International Day of the Disappeared on 30 August in a statement. The Working Group noted that a number of countries have recently stepped up efforts to investigate disappearances and secure convictions. However, it urged States to do more to prosecute perpetrators, provide reparations to victims and family members, and to preserve the memory of those who have disappeared. Full statement.

Ireland: Drug trials were allegedly carried out in church-run children's homes in Ireland in the 1960s, revealed a child abuse victim this month. Hundreds of children were given experimental vaccinations for tetanus, diphtheria and whooping cough, reports the Irish Independent.

Legal action is now being planned against GlaxoSmithKline and the Sacred Heart Order, which allowed the tests at the Bessborough Mother and Baby Home in Cork. (Irish Independent, 21 August 2010). Full story.

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Crises: highs and lows

Sudan: The army in Southern Sudan has committed to demobilising all child soldiers by the end of the year, reports the BBC. UNICEF estimates that the Sudan People's Liberation Army (SPLA) has retained 900 children in its ranks despite having discharged thousands already.

South Sudan will hold a referendum on independence from the north of the country in January. (BBC, 31 August 2010) Full story.

Sudan's report to the UN Committee on the Rights of the Child is due to be examined this month.

Meanwhile, in Pakistan, a month after the onset of the floods, 2.4 million children under the age of five have still not been reached with desperately needed food aid, Save the Children reports today. An estimated 20 million people in Pakistan have been displaced and are in need of urgent support. Full story.

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Children's rights by the book

A new textbook details best practices and policy approaches in the field of children's rights education for adults. The report, by Democracy and Human Rights Education in Europe (DARE) Network, provides educational materials such as ideas for teacher trainings and a toolbox for practitioners. Country reports and case studies include Austria, Belgium, Bulgaria, Germany, Hungary, the Netherlands and Slovenia. Full story.

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States meet on disability rights

The Convention on the Rights of Persons with Disabilities was adopted by the General Assembly in its resolution 61/106 of 13 December 2006. Article 40 of the Convention stipulates that "The States Parties shall meet regularly in a Conference of States Parties in order to consider any matter with regard to the implementation of the present Convention."

The third Conference of State Parties to the Convention is set to open in New York today with the election of new members to serve on the Committee on the Rights of Persons with Disabilities. The meeting will consider how the inclusion of people with disabilities might be facilitated with the UN Convention. Full story.

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The last word

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