The Right to nationality

Article 7 of the Convention on the Rights of the Child (CRC) obliges States Parties to realise every child’s right to acquire a nationality. Even though most human rights should be enjoyed by all persons, regardless of whether they have a nationality or not, in our modern world, nationality often operates as a legal or practical gateway to the enjoyment of other rights. The realisation of Article 7 is therefore fundamental to children’s ability to exercise many of the other rights provided for by the CRC.

There are a variety of circumstances that give rise to statelessness at birth or in later life, and there is often an element of discrimination and/or arbitrariness at play, when individuals or entire groups become stateless. It is important to remember that while States do have significant freedom to set out their own membership criteria, they also have a responsibility to protect against discrimination and arbitrariness, and to uphold international standards, including CRC Article 7. Statelessness most often occurs when States fail to do so.

The main causes of statelessness can be set out as follows:

-          Conflict of nationality laws:

When the nationality laws of two States are at odds with each other, statelessness can arise in situations of migration and/or those in which two people from different countries parent a child together. The classical example is where State A confers nationality by descent while State B confers nationality by place of birth, but the combination of a particular individual’s birthplace and parentage is such that neither nationality is acquired.

-          State succession:

When part of a State secedes and becomes independent, or when a State dissolves into multiple new States, the new nationality laws of successor States may conflict and leave people without any nationality, while the redefinition of who is a national of the original State (where it continues to exist) may also render people stateless. Most often in the context of State succession, it is vulnerable minorities who are deprived of nationality, exposing the discriminatory motivations and arbitrary nature for such exclusion.

-          The legacy of colonisation:

Many of the most large scale and entrenched situations of statelessness in the world today were born out of the experiences of colonisation, de-colonisation and consequent nation-building. In such contexts, newly independent States (many of which never had a common pre-colonial national identity) have had to deal with borders arbitrarily drawn (often dividing ethnic groups), peoples forcibly migrated (for labour) and the consequences of decades, sometimes centuries, of colonial rule. Colonial history does not justify in any way discrimination, arbitrariness and disenfranchisement, but this historical context must be understood and addressed.

-          Arbitrary deprivation of nationality:

Arbitrary acts can involve the collective withdrawal or denial of nationality to a whole population group, commonly singled out in a discriminatory manner on the basis of characteristics such as ethnicity, language or religion, but it can also impact individuals who are deprived of their nationality on arbitrary and discriminatory grounds including sex.

-          Administrative barriers and lack of documentation:

The hand of discrimination can often be seen at play, with ethnic and religious minorities, nomadic communities and the rural poor more likely to face administrative barriers in accessing documentation. Many (now) entrenched situations of statelessness stemmed from poor administration or documentation when citizenship registration was first carried out. Even today, individuals and groups who have had difficulties accessing birth or other forms of civil registration are at heightened risk of statelessness. 

-          The inheritance of statelessness by new-borns:

Many contemporary situations of statelessness have their roots at a particular moment in history as outlined above. Yet these situations grow over time because the States concerned have not put any measures in place to stop statelessness being passed from parent to child – or do not implement existing measures to that effect.

Where a child lacks a nationality, i.e. is stateless, this creates a situation of severe disadvantage and vulnerability. Statelessness undermines the enjoyment of childhood and the child’s opportunity to develop to his or her full potential. Many stateless children are excluded from the benefits of education and are denied equal access to other rights. Stateless children and their families are often trapped in poverty and grow up knowing only discrimination and marginalisation. Stateless children also face human rights challenges in accessing birth registration and documentation, and being able to benefit from social security. Furthermore, they can be vulnerable to arbitrary and lengthy detention, trafficking and even persecution. Statelessness can also have significant implications on the identity of the child. As held in Mennesson v. France, “everyone must be able to establish the substance of his or her identity” and the uncertainty the applicants faced in this regard “is liable to have negative repercussions on the definition of their personal identity”.

For these reasons, Article 7 CRC not only affirms the right of every child to acquire a nationality, it also goes on to require States to ensure, in the implementation of this right that children are not left stateless. In spite of the clear prescription, in the most widely ratified UN convention, that childhood statelessness should be avoided, it remains a serious challenge. United Nations High Commissioner for Refugees (UNHCR) estimates that a child is still born stateless every ten minutes.

While the CRC is an autonomous instrument, it sits within the broader body of international and regional standards and mechanisms relating to children’s right to a nationality. As such, and particularly given the almost universal ratification of the Convention, the norms and principles contained within the CRC inform the interpretation of other human rights standards and the recommendations made by their monitoring mechanisms. Consequently, by further clarifying and expanding the normative content on the right of every child to acquire a nationality, the Committee can positively influence the work of other mechanisms. In the same vein, the work of the Committee in interpreting Article 7 CRC may equally draw on the broader normative development on the right to nationality and avoidance of childhood statelessness.

The right to a nationality is reaffirmed in Article 7 CRC, which pays particular attention to the avoidance of childhood statelessness, setting out that:

1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents.
   
   
2. States Parties shall ensure the implementation of these rights 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.

Moreover, in accordance with Article 8 CRC, “States Parties undertake to respect the right of the child to preserve his or her identity, including nationality […] without unlawful interference” and “[w]here a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.” The article ensures that a child’s right to preserve their identity, including their nationality, name and family relations, must be protected. Not only should these be protected, but where a child has not obtained, or has had any aspect of their identity taken away from them, the State must make efforts to remedy this.

In interpreting the content of the rights protected under the CRC, the Committee gives particular consideration to the General or Guiding Principles that inform the implementation of all rights in the convention. The General Principles that the Committee has identified as cross-cutting in the CRC are:

• Non-discrimination (Article 2)
  
• Best interests of the child (Article 3)
  
• Right to life, survival and development (Article 6)
  
• Respect for the views of the child (Article 12)
  
  

All of these General Principles are relevant to the problem of childhood statelessness and the protection of children’s right to a nationality. However, the principle of non-discrimination has had a particularly strong influence in informing the interpretation of States Parties’ obligations. Indeed, a number of relevant recommendations on the child’s right to a nationality have been made in respect of improving the application of Article 2, rather than Article 7, of the CRC.

The principle of non-discrimination dictates that children have the right to acquire a nationality, irrespective of the child’s or his or her parents’ or legal guardians’ race, colour, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status. “Where a child is precluded from obtaining a nationality on discriminatory grounds, this amounts to arbitrary deprivation of nationality”. Article 9(2) of the Convention on the Elimination of All Forms of Discrimination Against Women requires States to grant women equal rights with men with respect to transmitting their nationality to their children, echoing the obligation contained in Articles 2 and 7 of the CRC. In fact, it is important to note that the CEDAW requires that all women have equal nationality rights with men in relation to acquisition, changing, retention and conferral of nationality to their children and spouses.

The principle of the best interests of the child, which gives the child the right to have his or her best interests assessed and taken into account as a primary consideration in all actions or decisions that concern him or her, both in the public and private sphere, has also been explicitly referenced by the CRC Committee within recommendations on nationality. This principle must be respected by States in legislative and administrative acts in the area of nationality, including in the implementation of safeguards for the avoidance of statelessness among children. This principle and its influence on the scope and content of children’s right to acquire a nationality has received only limited attention by the Committee to date, especially as compared to the central role it has played in relevant regional jurisprudence and in the ACERWC General Comment on children’s right to a name and nationality under Article 6 of the African Charter on the Rights and Welfare of the Child. As the African Committee of Experts on the Rights and Welfare of the Child has explained, being stateless as a child is generally an antithesis to the best interests of children. The importance of this principle is underscored in the Mennesson v. France decision (on nationality in the context of surrogacy) in which the Court ruled that even though the children’s parents had broken the law (as surrogacy is prohibited under French legislation), causing the denial of certain elements of the children’s identity, “a serious question arises at to the compatibility of that situation with the child’s best interests, respect for which must guide any decision in their regard”.

The application of this principle implies, among other things, that a child must acquire a nationality at birth or as soon as possible after birth, children must not be left stateless for an extended period of time, nor with their nationality status undetermined.

The right to life, survival and development aims to ensure that all children have opportunities to develop fully in all areas of life, i.e. physical, mental, spiritual, moral, psychological and social development.  This is confirmed by the Committee’s statement that it expects States Parties to interpret “development” in its broadest sense as a holistic concept. In its first General Comment the Committee on the Rights of Persons with Disabilities noted the importance of birth registration in protecting the right to life of children with disabilities, noting that lack of birth registration “not only denies them citizenship, but often also denies them access to health care and education, and can even lead to their death. Since there is no official record of their existence, their death may occur with relative impunity.” This is, of course, not only true of children with disabilities; any child whose birth is not registered is placed in a more vulnerable position. Furthermore, birth registration and thus official documentation of the existence of the child will help the State to fulfil its obligations in relation to the development of the child. The right to life, survival and development also relates to the right of the child to acquire a nationality and the importance of ensuring that the child acquires a nationality as soon as possible after birth. While in theory human rights and the provisions of the CRC guarantee rights to all children, and “there is no legal basis upon which States that have arbitrarily deprived a child of his or her nationality can justify the denial of other human rights to the child on grounds of his or her resulting statelessness”, in practice access to rights and the services needed for the ‘physical, mental, spiritual, moral, psychological and social development’ may be limited or more difficult to access for non-nationals, including stateless children. More generally, stateless or undocumented children may find themselves living in a precarious situation which in itself can impede their full development.

Respect for the views of the child (or the right to be heard) entails a child’s right to express his or her views freely in “all matters affecting the child”, and for those views to be given due weight in accordance with the age and maturity of the child. This principle reflects the position of a child as an active participant in the promotion, protection and monitoring of his or her rights. The Committee stresses that this principle applies equally to all measures adopted by States to implement the CRC, thus, also measures regarding children’s right to a nationality. The right to be heard is directly relevant to the child’s right to a remedy, since this depends on the child’s ability to access procedures for remedying the violation. One area in which this could be particularly relevant to the right to nationality is situations where a child may have the possibility of acquiring multiple nationalities at birth, for instance if the child’s parents are of different nationalities and could each transmit their nationality to the child. The principle that the views of the child should be taken into consideration would suggest that in this situation the child should be allowed to hold both nationalities, or if assigned one nationality, have the option of reclaiming the other nationality once they are of an age to express an opinion on the matter. This provision, considered with the right of the child to acquire a nationality, might also suggest that provisions on naturalisation need to take into consideration the rights of the child. In particular rules which prevent children (particularly stateless children) applying for naturalisation in their own right or do not give them an opportunity to be heard if the naturalisation of a parent would affect their status might be problematic. Furthermore, the Committee underlines the importance for States to respect this principle when dealing with stateless children outside their country of origin to ensure that such particularly vulnerable children are included in decision-making processes within the territories where they reside. This would also apply, for example, to decisions relating to the deportation of stateless children or members of their families. This principle is also of relevance to civil society actors reporting to the CRC as a reminder of the importance of ensuring that the views of children are taken into consideration in reporting and developing recommendations and where possible supporting children to produce their own reports and engage directly in the process.

It must be noted that there remains scope for the Committee to further elucidate the significance and impact of the General Principles of the CRC on the interpretation and application of Article 7 of the Convention.

In addition to the CRC, various other international instruments also have provisions related to the child’s right to a nationality. The Universal Declaration of Human Rights recognises the right to a nationality in its Article 15. This right is reaffirmed across many core UN human rights conventions, including the International Covenant on Civil and Political Rights (ICCPR Article 24), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD Article 5), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW Article 9), the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CRMW Article 29) and the Convention on the Rights of Persons with Disabilities (CRPD Article 18).

Alongside the core UN human rights treaties, numerous other international instruments also recognise the right of every child to a nationality and provide for the avoidance of statelessness among children. Central among these are the 1961 Convention on the Reduction of Statelessness (Articles 1-4) and a number of regional conventions, such as the American Convention on Human Rights (Article 20), the African Charter on the Rights and Welfare of the Child (Article 6), the European Convention on Nationality (Article 6) and the Covenant on the Rights of the Child in Islam (Article 7). The right of every child to a nationality has also been recognised and further elaborated through the decisions of regional human rights courts and committees, including in the Inter-American Court of Human Rights case of Yean and Bosico v. Dominican Republic, the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) case of Children of Nubian descent in Kenya v. Kenya, and the European Court of Human Rights cases of Genovese v. Malta and Mennesson v. France.

Moreover, in 2014, the ACERWC adopted a General Comment on children’s right to a name and nationality under Article 6 of the African Charter, outlining how this right is to be interpreted and implemented in the African region. At the UN level, further guidance can also be found on the content of norms relating to children’s right to a nationality and the avoidance of childhood statelessness in a number of resolutions adopted by the UN Human Rights Council and reports issued by the UN Secretary-General, as well as in the Guidelines issued by UNHCR on the interpretation of the relevant provisions of the 1961 statelessness convention. Finally, the Universal Periodic Review (UPR) provides an opportunity for stakeholders to make submissions on the human rights performance of every State in the world and for other States to make recommendations to States under Review in four year cycles. The child’s right to a nationality and the consequences of being denied this right are increasingly being taken up in the UPR process.

More (excerpts of) Treaties, work by Treaty Bodies and Special Procedures that relate to the child’s right to a nationality and the protection of statelessness are listed in Section 8 of this Toolkit.

It is also important to note the wider international context as it relates to this issue. In late 2014, UNHCR launched a global campaign to end statelessness within the next decade. One of the central components of the Action Plan that UNHCR has outlined is to ensure that no child is born stateless. Over the past year, this goal has garnered key support of government and civil society in different regional fora, including through the Brazil Declaration and Plan of Action agreed by Latin American and Caribbean States, the Abidjan Declaration endorsed by ECOWAS Heads of State, the Regional Action Framework adopted at a ministerial conference on Civil Registration and Vital Statistics in Asia and the Pacific, the Parliamentary Assembly of the Council of Europe report on the eradication of childhood statelessness in Europe and draft resolution, and the Action Statement agreed at the European Network on Statelessness’ regional campaign conference None of Europe’s children should be stateless. Equally significant is the relevance of the right to a nationality and the eradication of statelessness to Goal 16.9 of the Sustainable Development Goals. As set out in the 2015 UN Secretary General’s Report on the impact of arbitrary deprivation of nationality on the enjoyment of the rights of children:

“Target 16.9 of the Sustainable Development Goals is to provide, by 2030, legal identity for all, including birth registration. The arbitrary deprivation of nationality of children is a significant barrier to the realization of this target, which will not be fully met unless Articles 7 and 8 of the Convention on the Rights of the Child are universally respected and fulfilled and childhood statelessness has been eradicated.”