Human Rights and Legal Identity
Approaches to Combating Statelessness and Arbitrary Deprivation
New York, May 8-9 2006
The CRC and legal protection against statelessness and
Deprivation of/denial of nationality
Jaap E. Doek
Chairperson CRC Committee
In line with and in fact as an elaboration of art. 5 UDHR (everyone’s right to a nationality + no arbitrary deprivation nor denial of nationality) and art. 24,3 ICCPR (every child has the right to acquire a nationality) the UN Convention on the rights of the child (CRC) contains specific provisions in article 7 and 8.
Let me briefly comment on both articles followed by some observations regarding the protection of these provisions.
Article 7 CRC deals with birth registration in strong terms “ shall be registered immediately after birth”. The importance of this registration cannot be underestimated and major campaigns have been conducted and are carried out to promote immediate registration at birth. This registration is crucial for the other rights mentioned in article 7: the right to a name and the right to acquire a nationality. The wording of art. 7 in this regard is similar to art. 15 (1) UDHR and art. 24 (3) ICCPR. But article 7 contains a second paragraph explicitly requiring States Parties to ensure the implementation of this right. Measures in this regard should be taken in accordance with the national law and obligations under relevant international instruments and should particularly focus on children who are stateless. This provision has been the result of a compromise in the drafting group (Detrick, p. 150-152). The originally proposed text was based on the principle of jus soli: The States Parties (..) shall ensure recognition of the principle that a child shall acquire the nationality of the State in 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. But fear was expressed that this provision would result in a lot of reservations. In that regard it should be noted that the 1961 Convention on the Reduction of Statelessness that is also based on the principle of jus soli (art.1: A contracting State shall grant its nationality to a person in its territory who would otherwise be stateless) has so far received a very limited number of ratifications (19 in 1997).
The current text with a reference to the national law means that it is left to the
States Parties to decide on the use of the principle of jus soli or jus sanguinis. But this freedom should not affect the core obligation based in art. 7 par. 2: States Parties have to adopt every appropriate measure, both internally and in cooperation with other States, to ensure that every child has a nationality when he is born (see GC 17 of the HR Committee (1992), par. 8)
In reviewing the implementation of the CRC in the respective States Parties the Committee has identified two major areas of concern:
- children born out of wedlock;
- children born to stateless person(s);
- children born in mixed marriages.
Some remarks on both categories of children.
Children born out of wedlock are discriminated against in many ways in quite a number of States Parties to the CRC. In addition to the fact that the mother of a child born out of wedlock is not allowed to care for her child (or is, due to societal discrimination, forced to give up her child), it is often impossible for the child to acquire a nationality. National laws in the same countries often do not allow acquisition of the nationality of the mother. The net result of all this is that the child is born stateless, although it is possible that a child acquires a nationality thanks to a legal recognition by the father or via adoption. The Committee is afraid that in many instances the child remains stateless. This may have serious discriminatory consequences, particularly in countries that make a distinction between citizens and non-citizens when it comes to access to social services, health care and education. So one of the measures States Parties should take under art. 7, par. 2 is the full elimination of the discrimination of children born out of wedlock. This should include introducing the rule that children can acquire the nationality of their mothers. The Committee has regularly made recommendations to that effect, particularly but not exclusively to States Parties with Sharia/Islamic Law (1)
Children born to stateless person(s) These children usually do not acquire a nationality at birth. This problem is quite prevalent among children/parents in refugee camps and among (illegal) immigrants (or migrants).
The problem is worsened by the lack of proper registration of children born in camps. This makes it more difficult to answer the question whether they have a nationality at all or if they supposedly or alledgedly have one whether it is the nationality of the mother and/or the father.
For children born and staying for some years in those camps it may be theoretically possible to acquire the nationality of the State in which they are born (particularly when it is clear that they are stateless), but administrative and practical difficulties are such that it remains a theoretical possibility (2). This also applies to those children of refugees and migrant workers who end up in institutions (3)
For these children measures of States Parties should focus on registration of all those children of refugees and migrant workers born on their territory and of all those children who arrive (unaccompanied or not) and to make a full assessment (as full as possible) of their nationality. If they are given a residence permit the State Party should for those who are stateless undertake actions to facilitate the acquisition of the nationality of that State.
Children of mixed marriages. The committee has regularly recommended States Parties to provide the child with the possibility to acquire the nationality of both her/his parents. This is not only a matter of equality between the parents, but also in the best interest of the child, particularly when the parents are separated/divorced or are forcefully separated.
If the child is born in the State of his mother who is married to a foreigner and the national law does not give him the nationality of her/his mother, the child may face serious forms of discrimination and/or other problems if her/his father disappears (forcefully or otherwise). He then has the status of a non-citizen or foreigner, who does not have e.g. equal access to education.
The Committee is aware of the fact that States Parties like to avoid double nationality because of the problems it entails. But at the same time and as a minimum the child should not suffer from the rule that he can derive her/his nationality only from her/his father. States Parties should allow that children in case their fathers disappear acquire the nationality of the mother (simple procedures/no administrative harassments).
More can be said about article 7 e.g. with regard to international cooperation, but let me move to the other and in the Human Rights arena quite unique article 8.
The article is unique because it is the only provision in an international human rights instrument which not only recognizes that a person (here: the child = a person < 18) has an identity but also establishes the right to preserve that identity (art. 8 par. 1). This right includes in case the child is deprived of her/his identity the right to have that speedily re-established. A full discussion of this article goes beyond the scope of this meeting (4).
As background information: the article and its inclusion in the CRC is directly linked with the disappearances of children under the Videla regime (1975-1983) in Argentina; disappearances which occurred in other Latin American countries during that time (also the period during which the CRC was drafted) and which still occur daily around the world (e.g. sale and trafficking of children for adoption purposes or worse, economic/sexual exploitation).
I will focus on “nationality” as one of the elements of the child’s identity and make
some comments to article 8 in this regard.
a. the article requires States Parties to respect the right of a child to preserve her/his nationality. The phrase “as recognized by law without unlawful interference” has given rise to some interpretation problems. Historically “as recognized by law” referred to the term “family identity” which was not known in every State. It may mean that this part should be linked to either “family relations” or to the wider concept of “identity” but not to the right to (acquire) a nationality (see art. 7 CRC and 24 (3) ICCPR). An unlawful interference is an interference that – even if the interference is based in the national law – is not in compliance with the provisions, the aims and objectives of the CRC.
When a child is illegally deprived of some or all elements of her/his identity the State shall provide appropriate assistance and protection in order to speedily re-establish her/his identity (par. 2) (5) what does it mean? A question not easy to answer, particularly in case the deprivation happened a long time ago. It creates difficult questions related to the best interest of the child. For example: if a child has been abducted at a very young age (e.g. from a hospital shortly after birth) and has been adopted by and raised in a family, he/she considers as her/his (biological) family.
Does it serve the best interest of that child to substitute this identity 20 or more years later by an identity he/she had at the time of birth? But at the same time one could agree that it would be possible to maintain that identity and to inform the child about her/his origins. It is therefore that the CRC Committee recommended the Argentina government that the National Commission for the Right to an Identity should continue and strengthen its efforts to recover the children who disappeared during the military regime. Recovery would create an opportunity for the child to reclaim the nationality he/she had at the time of birth.
But the question can be raised whether the application of article 8 should be limited to kind of situations it was introduced for, that is the disappearances of children. I think that in line with e.g the opinion of the European Court for Human Rights (Strassbourg) we could an should opt for a dynamic interpretation of the CRC, meaning an interpretation that takes into account new developments relevant for the implementation of the provisions in the Convention (think e.g. on the right to know your parents (art.7) and the new technologies in the area of reproductive health).
It means that in addition to the traditional use of article 8 we should apply the provisions also in situation where the child has lost one or more elements of her/his identity. This is often the case when children (alone or with their family) have to flee from the country because of armed conflicts, political persecution or religious intolerance or are internally displaced. If these events result in a deprivation of some or all of the elements of her/his identity States Parties shall take actions with the goal set in para. 2 of article 8. That deprivation has to be illegally suggesting that the deprivation is the result of an intended action of some authorities, but I would not limit “illegally” to that kind of activities. The deprivation could also be the result of one or a series of illegal actions (armed conflicts or other forms of violence/ forced removal from a region, etc). If these actions result in e.g. the loss of nationality (due to existing rules or decrees issued by the persons in power) the Sates Parties shall provide appropriate assistance and protection with a view to re-establishing speedily (this element of) her/his identity (art. 8, para. 2). This implies that the State Party on which territory the events took place (country of origin of the child; where the child was born) that resulted in the loss of nationality is the first with the obligation to take the action required for re-establishing the nationality the child had. But it may be that the child is living on the territory of another State Party to the CRC. The wording of article 8 para.2 does allow for an interpretation in which the State Party where the child lives has an obligation to assist the child in her/his efforts to re-establish her/his nationality as part of her identity. This most likely will require negotiations with the State of origin of the child with a view to get her/his nationality re-instated and officially recognised by the country of origin. If these efforts do not have the intended result it may mean that the child is stateless. The State Party is then under art. 7 under the obligation to allow the child to acquire a nationality, preferably of the State of residence but not necessarily so. This (possible) interpretation of article 8 raise a couple of questions and deserve further discussion. But it may become in addition to article 7 a useful instrument for a child in search of her/his nationality.
1) See e.g. the Recommendations made to Lebanon, Iraq, Egypt, Saudi Arabia.
2) See e.g. the Recommendation to the Syrian Arab Republic on its initial report paragraphs 15 and 27.
3.) See Concluding Observations/Recommendations to first reports of Czech Republic, Federal Republic of Yugoslavia, Burundi and Lithuania.
4) In particular the concept of “identity” has given rise to discussion and questions regarding its scope. What are the constituting elements of a person’s identity and can we distinguish racial, national and cultural identity? See Detrick (1992) p. 159-168 and
D. Hodgson, The international protection of the Child’s Right to a legal identity and the problem of statelessness, Intern. Journal of Law and the Family 1993, p. 255-270.
5) The term “illegally” suggests that a “legal” deprivation is possible but a proposal to delete it was not accepted (Detrick (1992), p. 165).
Detrick (1992),The United Nations Convention on the Rights of the Child. A Guide to the “Travaux Preparatoires”, Compiled and edited by Sharon Detrick. Contributors Jaap Doek and Nigel Cantwell. 1992 Martinus Nijhoff Publishers. Dordrecht/Boston/London