Soumis par Louise le
Contents: Introduction - International law and the special protected status of children - Why are children stateless? - Consequences of statelessness for children - Challenging statelessness and realising children's right to nationality
Introduction
For most of us, citizenship is something we take for granted – a status we rarely think about. Rarely do we reflect on the particular rights and responsibilities that citizenship conveys, and because of this, 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 effective citizenship– people who are stateless – are among the most vulnerable in the world.
Among the more than 15 million stateless persons around the world, stateless children are among the most vulnerable of all. 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.
The consequences of their statelessness often start before they are even born: stateless pregnant women are frequently denied adequate pre-natal as well as post-natal care. As a result, many stateless infants and children do not receive immunizations and other essential medical care – something which can seriously compromise their health. A few years down the line, stateless children are sometimes 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 her country of nationality. ( Precisely what makes up this bond of nationality differs between different countries, 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) is particularly important to the protection of children’s rights, given that nearly every country has signed and ratified it. Children’s right to nationality is guaranteed under article 7 of the CRC, 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 CRC has contributed enormously to the development of this norm. The International Covenant on Civil and Political Rights (ICCPR) recognizes the right of ‘[e]very child…to acquire a nationality,’ii 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 that ‘[e]ach child of a migrant worker shall have the right to…a nationality.’iii
However, in order to further solidify the principle, the Committee on the Rights of the Child should adopt 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, the Human Rights Council should adopt an optional protocol on individual complaints and inquiry procedures in order to provide better protection of Convention rights.
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.2
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 that ‘States Parties…shall undertake to ensure that their Constitutional legislation recognize 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.’iv So far 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 does concern stateless children. This was 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 recognize 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?
Granting citizenship according to country of birth is in fact a minority regime among the world’s countries; most countries grant citizenship by descent, that is, to the children of citizens. Thus, children’s stateless status is often a direct result of their parents’ own statelessness, which is in turn frequently due to 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. This is why it is essential to address statelessness and provide children with effective nationality as early as possible – it is not just about the children of today, but also about their future children and grandchildren.
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 with respect 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:v 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.vi 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 jeopardizes 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, 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.’viii 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 realizing 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 utilized 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 been seized of a case 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 utilized.
Footnotes
1. For the purpose of this briefing, citizenship and nationality are used interchangeably.
2. ICCPR, art. 24(3).
3. International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, art. 29.
4. ACRWC, article 6(4).
5. ‘School kids expelled for not having birth certs’, Malaysiakini, June 17, 2008.
6. Maureen Lynch and Melanie Teff, ‘Childhood Statelessness’, Forced Migration Review, April 2009, p.32.
7. Siliadin v. France, ECHR, 2005, Application No. 73316/01 paras. 118-121
8. Siliadin v. France, ECHR, 2005, Application No. 73316/01 paras. 126-128
Owner: By Sebastian Kohn for CRIN