This section of the Toolkit contains a 10-point Checklist which serves as a tool to guide civil society stakeholders in the assessment of issues, legal gaps, and conditions in which statelessness may arise and manifest in countries under review.
Questions 8-10 of the Checklist relate to the current State practice in the country: are all children born in the country able to access birth registration, is there access to justice and a right to a remedy where problems of childhood statelessness arise and are stateless children in the country able to exercise all of the rights to which they are entitled under the CRC?
© Greg Constantine
8. IS THERE UNIVERSAL BIRTH REGISTRATION WHICH IS FREE AND ACCESSIBLE FOR ALL?
The majority of countries have not achieved universal birth registration. Minority, rural, migrant and refugee communities are likely to be disproportionately impacted. The decentralisation of birth registration responsibilities to local government can also have an impact, as this
may result in different local authorities implementing the law differently. The lack of birth registration and documentation is not the same as statelessness, but it heightens the risk of statelessness, in particular in a context of forced displacement, irregular migration or where a population’s belonging is challenged. Questions to be mindful of include:
- What role does birth registration and documentation play in the law and policy framework related to acquisition of nationality? I.e. is birth registration and documentation required in any situation for a child to acquire a nationality?
- Is a federal/national or local authority responsible for birth registration? Are there different practices depending on the region where the child is born or where the family tries to register the birth, and to what extent do local authorities have discretion in setting the rules and process for registration?
- Is the nationality of both parents mentioned on the birth certificate? Is the presumed nationality of the child mentioned? If yes, is this in all cases or just some (e.g. if born to a national)? What happens if nationality is unclear?
- What role does birth registration play in the country for the recognition of nationality in practice? I.e. are there any circumstances in which a child who should enjoy nationality under the law is not recognised as a national due to lack of birth registration?
- Is the country appropriately guaranteeing the right of every child to have his or her birth registered and certified?
- Are there challenges pertaining to access to birth registration in the State? In particular, are minority or indigenous groups, undocumented persons, (irregular) migrants, asylum seekers, refugees, stateless persons likely to find obstacles to birth registration, being ultimately unable to register the birth of a child? Are there barriers to registering the births of children born out of wedlock or children born out of hospitals? And are there discriminatory laws/codes which penalise having children out of wedlock, or limit the number of children per family, which can serve to discourage registration?
- Do inherent structures and attitudes that are gender discriminatory mean that girl children are less likely to have their births registered?
- Are there any structural barriers to achieve universal birth registration, and ensure it is free and accessible to everyone born in the territory, regardless of:
i. The parent’s residence status?
ii. Whether the parents are foreign nationals?
iii. Whether the parents are, themselves, undocumented?
iv. Whether the parents are stateless?
It is important to note that the realisation of universal birth registration features in the Sustainable Development Goals. Goal 16.9 aims to “By 2030, provide legal identity for all, including birth registration”. This Goal cannot be achieved without the full implementation of CRC Article 7. Therefore, it is also important to monitor national action plans and their implementation in relation to this goal.
If there are questions around the practice of birth registration in the country concerned, it is likely to be important to draw this to the attention of the Committee through a submission. More information about birth registration principles and practices globally can be found, for instance, in the UNICEF reports Birth Registration – Right from the Start and Every Child’s Birth Right: Inequities and Trends in Birth Registration.
It is also important to assess how this situation relates to the other 9 points in the Checklist. (e.g., in addition to there being challenges related to birth registration,
is there a large stateless population in the country, is there a discriminatory legal framework, are there gaps in data etc.)
SAMPLE OF RECOMMENDATIONS ISSUED BY THE COMMITTEE
The Committee recommends that the State Party ensure that all children born in Indonesia are registered and issued birth certificates, regardless of their nationality, religion and status at birth, and that birth registration is facilitated and free of charge everywhere and under all circumstances.
The Committee recommends that the State party (…)
(b) Implement special measures for improving the birth registration system, greater access to registry services and sensitization and training for registry officials, with a view to ensuring that all children, including children born in remote areas, and displaced and stateless children, especially Rohingya children, are duly registered at birth and provided with birth certificates and identity cards.
In the light of the Committee’s General comments no. 6 on the treatment of unaccompanied and separated children outside their country of origin and no. 7 on implementing child rights in early childhood, it recommends that the State Party:
A)TAKE MEASURES TO ENSURE THAT ALL CHILDREN BORN IN THE STATE PARTY HAVE THE LEGAL RIGHT TO BE REGISTERED AT BIRTH WITH A NAME REGARDLESS OF THEIR PARENTS’ CITIZENSHIP STATUS AND/OR COUNTRY OF ORIGIN, AND HAVE EQUAL ACCESS TO HEALTH CARE, PROTECTION, EDUCATION AND OTHER SOCIAL SERVICES.
9. IS THERE ACCESS TO JUSTICE AND A RIGHT TO A REMEDY?
Access to justice is a matter of significant importance, both in relation to remedying denials of the right to a nationality and other human rights violations faced by stateless children. In this regard, the full implementation of Article 12.2 of the CRC – one of the Guiding Principles of the Convention (See Section 2 of the Toolkit) – which states that:
“The child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.”
Is extremely important.
Questions to be mindful of include:
- Do children who have been arbitrarily denied or deprived of a nationality, have access to legal recourse and a fair remedy?
- In such legal proceedings, are all procedural and substantive guarantees under international law in place? In particular, are the Guiding Principles of the CRC adhered to?
- Does this remedy include the retro-active granting of nationality?
- Does it include the provision of fair and adequate compensation?
- Do stateless children who are denied access to other human rights, also have access to legal recourse and a fair remedy, with all procedural and substantive guarantees in place?
If there are questions around access to justice and the right to a remedy in the country concerned, it may be important to draw this to the attention of the Committee through a submission.
It is also important to assess how this situation relates to the other 9 points in the Checklist. (e.g., in addition to there being challenges related to access to justice, is there a large stateless population in the country, is there a discriminatory legal framework, are there barriers related to the enjoyment of other human rights.)
SAMPLE OF RECOMMENDATIONS ISSUED BY THE COMMITTEE
In the light of its general comment No. 12 (2009) on the right of the child to be heard, the Committee urges the State party to:
(a) Ensure the incorporation of that right into all laws, policies and programmes relating to children, particularly regarding education, healthcare, the family environment, alternative care and the administration of justice;
(b)Guarantee that children are actively consulted and involved in the formulation and implementation of policies and programmes affecting them, and pay particular attention to the active involvement of children in vulnerable situations, including children with disabilities, minority children and stateless children;
(c)Develop awareness-raising programmes, including campaigns and the training of professionals working with or for children, to promote the meaningful and empowered participation of all children in judicial proceedings, in the school, the community, the family and alternative care settings.
The Committee strongly urges the State Party to:
(a) Ensure the restoration of nationality to all individuals, including children, born before the Constitution of 2010 who are affected by the Constitutional Court's Ruling of 23 September 2013.
The Committee urges that the State party to (…)
(b) Immediately reinstate full citizenship of children and their families who follow unrecognized religious denominations and ensure their equal access to public services, including issuance of official identity cards.
The Committee calls upon the State party to (…)
(c) Accelerate the reinstatement process for the Faili Kurd population, and provide Faili Kurd children with identification.
Bosnia and Herzegovina
The Committee recommends that the State party (…)
(d) Consider the expeditious adoption of its pending law on the right to legal aid free of charge, aimed at providing free legal aid for those unable to afford it, including persons in need of international protection, stateless persons, victims of trafficking and unaccompanied minors.
10. DO STATELESS CHILDREN IN THE COUNTRY BENEFIT FROM THE PROTECTION AND ENJOYMENT OF OTHER HUMAN RIGHTS ENSHRINED IN THE CRC?
While this toolkit focuses on the child’s right to a nationality and the protection from statelessness, it is also important, to where relevant, draw the attention of the Committee to other human rights challenges faced by children who are stateless (as a consequence of them being denied their right to a nationality). Significantly, while under international law, statelessness should not result in denial of enjoyment of basic human rights, in reality, this is often the case. It is important to ascertain therefore, if access to any other rights under the CRC and services related to the enjoyment of such rights is being barred or limited either in law or practice, because of not holding the nationality of the State under review? These include, but are not limited to:
- Non-discrimination and the best interests of the child: The guiding principles of non-discrimination (Article 2) and the best interests of the child (Article 3) are relevant both to the prevention of statelessness and the protection of stateless children. Furthermore, the child’s right to not be discriminated against is likely to be undermined by statelessness, which can be the basis for further discrimination.
- The right to an identity: The Article 8 right to the preservation of the child’s identity is undermined by the child being denied a nationality; nationality being a core element of the child’s identity.
- The right to education: Article 28 which protects every child’s right to an education is often violated through the denial of education to stateless children.
- The right to the highest attainable standard of health: Similarly, the Article 24 right to healthcare is often denied to stateless children.
- The right to family life: is upheld by various provisions of the Convention (7, 9, 10, 16 and 18). Childhood statelessness can have an impact on the enjoyment of these rights, particularly in the context of migration, and the deportation of persons.
- Freedom of movement: The lack of documentation (including passports) and in extreme cases, travel restrictions imposed within countries, undermine the freedom of movement of stateless children.
- The right to an adequate standard of living: While this right is enshrined in Article 27, stateless persons are routinely denied the right to work, making it impossible for stateless parents to adequately provide for their children.
- Protection from economic exploitation: Article 32 obligates states to protect all children from economic exploitation and hazardous work. However, due to poverty (see above) and lack of documentation, stateless children often have no choice but to undertake such work.
- Child trafficking: While prohibited under Article 35, stateless children can be easy targets for traffickers due to lack of documentation, legal status and poverty.
- Freedom from torture and freedom from arbitrary deprivation of liberty: Articles 37 (a) and (b) respectively protect children from these two violations. However, stateless children in a migratory context, are more vulnerable to arbitrary and lengthy immigration detention, which can be in violation of these rights.
If there are questions around enjoyment of other human rights by stateless children in the country concerned, it may be important to draw this to the attention of the Committee through a submission.
It is also important to assess how this situation relates to the other 9 points in the Checklist. (e.g., in addition to there being challenges related to enjoyment of other human rights, is there a large stateless population in the country, is there a discriminatory legal framework, are there barriers in access to justice etc.)
SAMPLE OF RECOMMENDATIONS ISSUED BY THE COMMITTEE
In line with its general comment No.6 (2005) on the treatment of unaccompanied and separated children outside their country of origin, the Committee recommends that the State party:
(a) Provide birth registration and access to basic rights, such as health and education, to all stateless children and their families on the State party’s territory, irrespective of their legal status;
The Committee urges the State party to shift from its humanitarian approach to a child rights-based response to the situation of Bidoon children and to take immediate measures to ensure that all Bidoon children enjoy all their rights enshrined in the Convention without discrimination. The Committee urges the State party to report in detail about these measures and their outcome in its next periodic report.
The Committee is deeply concerned that a number of stateless, expatriate and migrant children resort to selling goods on the street in dangerous conditions. The Committee is also concerned that these children may be considered as subject to “perversity” in accordance with article 1 of the Juveniles Act and may therefore be prosecuted and placed in social homes.
The Committee urges the State party to:
(a) Address the root causes of such issues as poverty, statelessness and discrimination, as well as school dropout;
(b) Strengthen the support and assistance for families with children working on the street and take concrete measures to enable them to have access to a decent source of income; and
(c) Set up programmes and reporting mechanisms that provide children in street situations with relevant information in order to prevent them from becoming victims of trafficking and economic and sexual exploitation and to assist and advise them.
In the light of its general comments No. 6 (2005) on the treatment of unaccompanied and separated children outside their country of origin and No. 7 on implementing child rights in early childhood, the Committee recommends that the State party:
a)Take measures to ensure that all children born in the State Party have the legal right to be registered at birth with a name regardless of their parents’ citizenship status and/or country of origin, and have equal access to health care, protection, education and other social services.