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Laura van Waas

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Dr. Laura van Waas is a founder and Co-Director of the Institute on Statelessness and Inclusion, as well as a part-time Assistant Professor at Tilburg Law School in the Netherlands. Her PhD manuscript, ‘Nationality Matters’ (Intersentia, 2008), is widely used as a reference for understanding international statelessness law by researchers and practitioners all over the world, as is Nationality and Statelessness under International Law which she edited together with Alice Edwards (Cambridge University Press, 2014). In more than a decade of working on the issue of statelessness, Dr. van Waas has carried out a wide array of research and teaching projects, both within academia and for the Office of the United Nations High Commissioner for Refugees (UNHCR) and other actors.

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International and regional safeguards to protect children from statelessness

Laura van Waas

1. Introduction

Most newborns take their first breath unassisted. A big, clumsy gulp of air finally inflates the lungs that have been developing in utero for months. This is accompanied by the sound of crying, signalling to the anxious and adrenalin-filled mother that her child has arrived safely. Very occasionally though, things are less straightforward. A baby’s breathing will be impaired and someone will need to intervene. Medical staff will take action—suction, ventilation, and intubation—to help kick-start what most of us take for granted. They will step in to protect the child’s right to life.

Most newborns acquire their nationality unassisted. By virtue of their very existence—of that first breath, in fact—they simply are British (in my case), or Argentinian, or Ugandan, et cetera. The connection that they have to the country in which they are born (jus soli), the country of nationality of their parents (jus sanguinis), or both, forms the basis for their acquisition of nationality. It happens automatically, by operation of the law, without anyone having to intervene or take action. Very occasionally though, things are less straightforward. The parents may be stateless and have no nationality to pass on to their child, or there may be a conflict between the terms set out in the nationality laws of the country of birth and country of the parents such that the child does not immediately acquire a nationality under either. In such cases, specially constructed safeguards can help to kick-start what most of us take for granted. These safeguards are needed to protect the child’s right to acquire a nationality.

This essay explores the system of safeguards set out in international law which guide states, in that minority of cases where extra ‘help’ is needed, on how to avoid childhood statelessness. It offers an overview of the type of problem that arises and of the content of safeguards which aim to ensure the realisation of the child’s right to a nationality in such circumstances. Thereafter, the essay explores a number of common challenges in the interpretation and application of these safeguards. The chapter closes by calling for a back-to-basics approach to safeguarding against childhood statelessness: one that holds true to the object and purpose of the safeguards and is informed by our understanding of the right to acquire a nationality as nothing less than a fundamental right of every child.

2. Preventing childhood statelessness: a ‘safeguards approach’

Since the League of Nations era, states have sought to reduce the incidence of statelessness through the promulgation of safeguards in international agreements. The 1930 Hague Convention on certain questions relating to the conflict of nationality laws contains an early set of such provisions, aimed at addressing situations in which a person may be left without a nationality. Thus, while it is up to states to determine the general conditions for acquisition and loss of nationality, they have committed to including certain rules within their domestic legislation which are designed to ensure the avoidance of statelessness. For instance, “a child whose parents are both unknown shall have the nationality of the country of birth” (Article 14 1930 Hague Convention). Such safeguards were needed, the preamble to the convention explained, because states were “convinced that it is in the general interest of the international community to secure that all its members should recognise that every person should have a nationality”.

With the adoption of the Universal Declaration of Human Rights, eighteen years later, the recognition that it is “in the general interest of the international community” that everyone hold a nationality paved the way for the recognition of the right to a nationality as a fundamental right of every human being. This and subsequent restatements of the right to a nationality across a wealth of binding international and regional instruments reinforce the need for states to take action to avoid statelessness not (only) as a matter that is in their own interest but as a legal imperative because every human being enjoys the right to a nationality. Protecting the right of every child to a nationality is a particular focus of these human rights norms.

The Convention on the Rights of the Child (CRC) spells out explicitly that states “shall ensure the implementation of [the child’s right to acquire a nationality] in particular where the child would otherwise be stateless” (Art. 7(2)). That every child now enjoys the right to a nationality does not mean that states have forfeited their freedom to regulate access to nationality at birth or during childhood, nor that nationality legislation must be harmonised. Rather, a ‘safeguards approach’ continues to inform how states can fulfil their duty to avoid childhood statelessness. Certain rules must be in place and implemented, as the CRC indicates, “where the child would otherwise be stateless”. These measures must be informed by broader child rights principles of non-discrimination, the best interests of the child, the right to life, survival and development, and respect for the views of the child. In particular, in situations of childhood statelessness, regardless of the context in which this arises, it is the child whose life is “substantially affected” by the failure to access a nationality and “a serious question arises as to the compatibility of that situation with the child’s best interests”.1 Effectively implementing safeguards to avoid childhood statelessness is therefore much more than a technical fix to a legal anomaly, but the route through which to realise a fundamental child right and protect the child’s best interests.

The 1961 UN Convention on the Reduction of Statelessness (1961 Convention) remains the most comprehensive international legal instrument to date which informs states as to the situations in which special measures are needed and outlining appropriate safeguards. This under-appreciated instrument is not a human rights treaty but provides detailed guidance on the implementation of the right to a nationality which can be readily transposed into states’ domestic legislation. It offers a common approach to meeting the common interest of avoiding situations of statelessness, firmly embedded in principles of nationality attribution that are already widely recognised by states and without impinging on their overall freedom to legislate on nationality matters. For example, where birth on the territory does not generally lead to the acquisition of nationality in a particular state, Article 1 of the 1961 Convention nevertheless prescribes the adoption of a jus soli safeguard in situations where a child would otherwise be stateless. In the same vein, where descent from a parent who holds nationality does not generally lead to the inheritance of that nationality for a child born abroad under the laws of a particular state, the 1961 Convention prescribes a jus sanguinis safeguard where a child would otherwise be stateless (Art. 1(4) and 4). Similarly to the 1930 Hague Convention, the 1961 Convention also has a specific provision to facilitate the acquisition of nationality by foundlings, under Article 2, as well as the avoidance of statelessness in a number of other circumstances specifically affecting children, for instance, in the context of adoption or of loss of nationality by a parent, under Articles 5 and 6 (Ch. 3).

A ‘safeguards approach’ to fulfilling the right of every child to a nationality is also apparent in a number of regional instruments. The central norm that cuts across these is that nationality shall be conferred by the country of birth if otherwise the child would be stateless, echoing the approach of article 1 of the 1961 Convention. This safeguard is prescribed, among others, by the American Convention on Human Rights (Article 20), the African Charter on the Rights and Welfare of the Child (Article 6), and the European Convention on Nationality (Article 6).2 Tallied together, 107 states worldwide are parties to the 1961 Convention and/or one or more of these three regional instruments (As at 1 August 2016). Moreover, as evident from the authoritative interpretation of the Committee on the Rights of the Child (the Committee) in its Concluding Observations on states' party reports, the implementation of a safeguard to grant nationality to all children born on the state’s territory who would otherwise be stateless is also an obligation which flows directly from Article 7 of the CRC. The Committee has also directed explicit recommendations to states to introduce or improve other safeguards designed to prevent childhood statelessness, such as in respect of foundlings or in the context of international adoption.

The rapid growth in number of parties to the 1961 Convention over the past decade, understood against the background of a broader contemporary framework of regional and international (human rights) standards that affirm the duty of states to safeguard against childhood statelessness, is evidence of this responsibility being taken increasingly seriously. A quick scoping of legislative practice confirms that states widely acknowledge that, regardless of the principles that inform their general approach to nationality, they must make special accommodation to deal with cases in which a child would otherwise be stateless. According to analysis undertaken by UNHCR, over 70% of states have made some provision in their nationality law to safeguard the right to a nationality for children born stateless in their territory and for foundlings. Nevertheless, as the saying goes, the devil is in the detail. A closer inspection of the exact formulation of such safeguards, the mechanisms through which they can be invoked and their execution in practice reveals significant challenges.

3. Helping children who are ‘otherwise stateless’: key challenges

In order to protect every child’s right to a nationality, international instruments such as the CRC and the 1961 Convention specify that a special route to nationality must be made available for children who would otherwise be stateless. Using such a linguistic construction is perfectly logical, and perhaps unavoidable, but not unproblematic. An exploration of how states have taken up their responsibility for ‘‘otherwise stateless’’ children through domestic legislation and practice uncovers three distinct problems. A common theme across these three areas is a certain fixation on “getting it right”, so as to not unduly privilege any child who may turn out not to have needed the safeguard to help them realise their right to a nationality (and may now as a consequence have two). Yet, as these examples demonstrate, this is actually getting in the way of the effective operation of these safeguards in cases where they are needed.

Firstly, some states maintain safeguards that are not fully inclusive. Often, the difficulty is that the safeguard focuses on the situation of the parents rather than that of the child: nationality is granted to a child born on the territory if, for instance, the parents are stateless (e.g. Art. 8) or of undetermined citizenship (e.g. Art. 4(9)). This approach, once upon a time actually prescribed by the 1930 Hague Convention (Article 15), is clearly intended to prevent cases of statelessness among children, but is based on a false premise about the operation of nationality laws. The reality is that sometimes even when one or both parents hold a nationality themselves, this nationality cannot be passed on. In such circumstances, the child will be left stateless but will be unable to benefit from the requisite safeguard.

Moreover, the scope of application may also be restricted in other ways, for instance by requiring the parents to hold a particular form of residence status for the child to qualify. The safeguard contained in Vietnam’s legislation is a case in point in respect of both of these limitations, conferring nationality to a child born on the territory “whose parents, at the time of his/her birth are both stateless persons with a permanent residence in Vietnam” (Art. 17(1)). In Europe, research has uncovered a worrying trend of making access to nationality for an otherwise stateless child contingent on either the parents or the child (or both) holding a particular residence status. Such criteria have severe implications for the child, whose right to acquire a nationality is undermined as a result of particular choices or actions on the part of the parent. This situation runs counter to the principle of non-discrimination contained in Article 2 CRC, which requires in paragraph 2 that states “take all appropriate measures to ensure that the child is protected against all forms of discrimination or punishment on the basis of the status, activities, expressed opinions, or beliefs of the child's parents”.3 Another common example of a statelessness safeguard which is not comprehensive in its coverage is the provision of nationality to a foundling whereby the child in question must be a “newborn”. While the question of when a child should be treated as a foundling if he or she is only “found” at a later age is a challenging one, where a safeguard is specifically designed for the avoidance of statelessness, its effectiveness can be readily undermined by an overly restrictive formulation. A child who is no longer a newborn, but is abandoned at a young age and whose parents are unknown will remain stateless.

A second challenge, which arises even where the terminology of a child who is ‘‘otherwise stateless’’ is correctly adhered to in the relevant safeguard in the law, is the operation of the safeguard in practice. Identifying situations in which the safeguard must be applied can be highly problematic, for a number of reasons not least of which is that statelessness as a phenomenon is often poorly understood. Given that it is the norm for children to acquire a nationality at birth through the operation of states’ regular rules and relying on a statelessness safeguard is very much the exception, the need to apply special measures can readily be overlooked. The competent authorities may, for instance, assume that the child acquired a nationality through his or her parents, when in fact that is not the case. The parents may also be ignorant as to the workings of the relevant nationality regulations and thereby the statelessness of their child. In certain contexts, ascertaining whether the child is considered as a national or not under the operation of the law of the country of nationality of the parents is particularly challenging. This may be the case for children born to refugees in exile, children born to a prisoner inside a detention facility, children whose parent belongs to a minority group which regularly suffers discrimination in access to citizenship or faces problems with intergenerational lack of documentation of identity.

Generally speaking, statelessness is a largely hidden issue, and data on childhood statelessness is even more scarce, making it difficult to monitor the implementation of safeguards. Yet, the signs are not encouraging. Where research or individual casework has been undertaken, it shows children—or their parents, on their behalf—face an uphill battle in trying to convince the requisite state that they are “otherwise stateless” and should be granted nationality on that basis. In the Netherlands, for example, the decentralised authorities responsible for determining whether a child can opt for Dutch nationality on the basis of being “otherwise stateless” (and born in the territory) very often demand evidence which simply cannot be furnished. In the absence of proof of acquisition of a foreign nationality but also of sufficient proof of statelessness, a child will be labelled as being of ‘unknown nationality’, leaving them ineligible under the statelessness safeguard. Even while recognising this outcome to be unsatisfactory, the Dutch courts have been hesitant to intervene and determine a child to be stateless. Elsewhere, problems have also been encountered where a similarly high threshold is maintained for establishing that a child’s parents are unknown for the purposes of granting nationality through a foundling safeguard. There have been cases where a birth is witnessed (for instance, by medical staff in a hospital), such that the mother is deemed to be ‘known’—even if her identity is not clear or has been falsified and she abandons the baby immediately after the birth.

Finally, where there is an inclusive safeguard which applies to all situations in which a child is “otherwise stateless” and such cases can be effectively identified, the mechanism which is triggered and through which nationality can be conferred may still be problematic. International norms allow states a certain measure of leeway in legislating the details of the requisite safeguards, so long as these comply with general child rights principles such as non-discrimination and the best interests of the child. The 1961 Convention explicitly offers a choice of two pathways to nationality for states to adopt when dealing with children who are otherwise stateless. They may elect to grant nationality in such cases automatically, at birth (Arts. 1(1a) and 4(1a)); or they may make nationality available through a non-discretionary application procedure once the child has fulfilled certain conditions.4 The latter route necessitates action being undertaken by or on behalf of the child, which can present a problem where, for instance, the parents or guardians are ignorant of the child’s exposure to statelessness, of the entitlement to nationality via a specialised safeguard, of the procedure through which to invoke that entitlement or of the importance of undertaking the steps to do so.

Where the granting of nationality to otherwise stateless children is made subject to application, a waiting period may also be imposed. According to the terms of the 1961 Convention, the longest someone who is born stateless can be made to wait before being given the chance to apply for nationality is until his or her eighteenth birthday (Art. 1(2a)). In other words, this instrument appears to tolerate condemning a child to spend their entire childhood without a nationality — yet such a policy can be deemed highly problematic in light of subsequent developments in human rights law and contemporary child rights principles.5 Even if the waiting period is shorter, statelessness can have a severely adverse effect on children from a young age and leave a lasting impression on a person’s life, even once resolved. A child’s circumstances may also change between the moment of birth and the moment at which the entitlement to nationality is engaged, such that the safeguard may never be activated, for instance because the family migrates (or is expelled) and the requisite period of residence is never met. Moreover, establishing evidence of the relevant facts, such as place of birth, for the implementation of safeguards can also become a greater challenge as time passes – for instance if the child in question does not have a birth certificate and other forms of proof must be obtained.

In other cases, the mechanism for conferral of nationality to children who are otherwise stateless is straightforward, but the law provides for the subsequent withdrawal of nationality if the child’s circumstances change, for instance if the parents of a foundling are later identified (e.g. Art. 6). If the law does not make such loss conditional upon the child’s actual possession of another nationality, he or she may then end up stateless after all. Regardless of whether statelessness will result, withdrawing a child’s nationality is an act which states should approach with caution, given the impact that this can have on his or her social identity and on the ability to continue to exercise other rights in respect of the state of which the child had previously been a citizen.

4. Back-to-basics: every child has the right to a nationality

As set out in the introduction of this essay, most children acquire a nationality at birth, immediately and effortlessly. Sometimes though, a little extra help is needed. Rather than divesting states of the freedom to regulate nationality or seeking to harmonise nationality legislation worldwide, international law prescribes the adoption of a number of safeguards which are designed to specifically address cases in which a child would otherwise be stateless. The longevity and spread of such safeguards across a multitude of international agreements, the recognition of the right of every child to a nationality as a fundamental human right and the widespread presence of safeguards in one form or another in domestic legislation, are all testament to how strong the consensus is among states that childhood statelessness must be prevented. Although the principle that all children should enjoy a nationality appears to be uncontroversial, a closer look at the integration and implementation of the requisite safeguards in domestic law and practice reveals a tension. Too often, the interpretation and application of safeguards which have been designed for one purpose only (i.e. to realise a child’s fundamental right to a nationality) are interpreted not in light of that purpose, but in accordance with various other interests of the state.

One concern which underlies a number of the challenges identified above is avoiding the misapplication of safeguards. For instance, some states place a significant burden of proof on the child (or his or her parents) to establish the absence of nationality or restrict the scope of the safeguard to children of stateless parents or, in the case of foundlings, to newborn babies only. Another factor which evidently affects how states articulate and administer safeguards designed to prevent childhood statelessness is apprehension about the potential that there might be for misuse. For instance, some states are reticent to confer nationality to an otherwise stateless child born on the territory unless the child and/or the child’s parents hold a regular residence status. Granting nationality may otherwise be considered to undermine the operation of the state’s immigration laws.

States have a legitimate interest in avoiding the misapplication or misuse of safeguards to protect children from statelessness, but it is crucial that these concerns do not serve to undermine children’s enjoyment of the right to a nationality. Even in challenging contexts, such as where the parents’ own action or inaction has contributed to the difficulty the child is encountering in acquiring a nationality, this does not nullify the right that the child holds. It is unthinkable that a doctor would be within his right to sit back and watch as a newborn struggles to catch his or her first breath because it is apparent that the mother made some very poor choices during her pregnancy, for instance taking illegal drugs which have affected the baby’s health. The parent’s actions have not and cannot nullify the child’s separate and inherent right to life, so why should the child’s right to acquire a nationality be any different?6 As the African Committee of Experts on the Rights and Welfare of the Child has concluded, “being stateless as a child is generally antithesis to the best interests of children.” Furthermore, in the overwhelming majority of cases the parents of a stateless child are powerless to influence their offspring’s fate as it is not their (in)action that has caused the lack of nationality but the failure of the state or states concerned to accord nationality (for instance due to discriminatory laws).

As acknowledged in this essay, successfully implementing a ‘safeguards approach’ to protecting children from childhood statelessness is not without its practical challenges. Nevertheless, it is ultimately to the detriment of the state to focus too heavily on the potential risks of misapplication or misuse of safeguards as this leaves children unprotected. States must instead go back-to-basics and recall the object and purpose of these which can accompany these special measures, which are designed to guarantee the enjoyment of the right to a nationality by all children. The interpretation and application of safeguards designed to realise a child’s foundational right to nationality must informed by this object and purpose, as well as by general child right’s principles, including that of the best interests of the child.

1 The view of the European Court of Human Rights in the case of Mennesson v. France, (ECtHR, 2014) Application No. 65192/11, in which even though the parents had broken the law in commissioning a child through an international surrogacy arrangement, the French authorities' legitimate interest of deterring people from such behaviour could not override the child’s right to recognition of the parent-child relationship and thereby access to French nationality.
2 This safeguard can also be found in context-specific instruments such as the International Law Commission’s Articles on nationality of natural persons in relation to the succession of states. The Covenant on the Rights of the Child in Islam delineates more generally that states “shall make every effort to resolve the issue of statelessness for any child born on their territories or to any of their citizens outside their territory” (Article 7).
3 Such criteria are also incompatible with the best interests of the child where they prevent the child from realising his or her right to a nationality. See further, for example, Committee on the Rights of the Child, Concluding Observations: The Netherlands (2015) CRC/C/NDL/CO/4; Mennesson v. France, (ECtHR, 2014) Application No. 65192/11.
4 Articles 1(1b and 2) and 4(1b and 2) of the 1961 Convention. Note that the conditions specified in these articles of the 1961 Convention are limitative – states may not add further requirements. The conditions that may be imposed relate to the timeframe for the lodging of the application, a period of habitual residence prior to application that may be prescribed, that the applicant has not been convicted of particular criminal offences and that he or she has always been stateless.
5 The CRC protects the right of every child to a nationality, affirming that nationality should be acquired during childhood. This has been interpreted as meaning that nationality should be conferred at birth or as soon as possible after birth to a child who would otherwise be stateless. See Committee on the Rights of the Child, Concluding Observations: Czech Republic; UNHCR, Guidelines on Statelessness No. 4: Ensuring every child’s right to acquire a nationality through articles 1-4 of the 1961 Convention on the Reduction of Statelessness; African Committee of Experts on the Rights and Welfare of the Child (ACERWC), General Comment on Article 6: Name and Nationality.
6 Note, in this respect, that the right of every child to a nationality is contained within article 24 of the International Covenant on Civil and Political Rights which is directed towards “special measures of protection [which belong] to every child because of his status as a minor”. See further Human Rights Committee, General Comment No. 17: Rights of the Child