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Maria Jose Recalde Vela

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Maria Jose Recalde Vela holds an LL.M in international and European Law, a M.Sc. in Victimology and Criminal Justice and an LL.M in Legal Research, all from Tilburg University. She is currently doing a traineeship with the Institute on Statelessness and Inclusion, acting as assistant editor for the second volume of the Institute's flagship publication, 'The World's Stateless', and is co-managing editor of the Institute's Statelessness Working Paper Series. She is the 2014 winner of the UNHCR Award for Statelessness Research in the undergraduate category.

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Maria Jose Recalde Vela

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An interview with Benyam Dawit Mezmur, Chairperson of the United Nations Committee on the Rights of the Child

Maria Jose Recalde Vela

1. What makes the right to a nationality so fundamental for children? 

I think one can argue this from a moral, a legal, a political point of view – even an economic argument can be made as to why it is so fundamental. I want to start maybe with some of the words that are often used to describe stateless persons. ‘Invisible’, as the UN High Commissioner for Refugees has mentioned on a few occasions. Or illegal, non-belonging, Bidoon, unwelcome, unwanted… These are already indications of the extent to which, when a child/person is without a nationality, they can be vulnerable to the violations of many of the rights which are provided by the Convention on the Rights of the Child (CRC). I think that when stateless persons are adults you can often say they are invisible, they are in the shadows, but when they are children they actually become the ‘invisible of the invisible’, which increases the vulnerability further.

Personally, I usually introduce myself by saying ‘Benyam Dawit Mezmur is my name, and I am Ethiopian’. I do not say my nationality as a side-line issue; I say it with the heavyweight importance of highlighting the effect it had and still has on me as a human being. The fact that many people are not able to experience this is obviously shameful. In fact, in a world full of states — more than 190 states globally — to talk about 10 million stateless persons, I think, is a clear indication of our collective failure as a society, legally and morally. Nationality is a right; this is why it was included — long before the adoption of the Convention on the Rights of the Child (CRC) — in the Universal Declaration of Human Rights (UDHR). There is also a reason why it has been identified as being closely linked with the right to birth registration, which is a right we have from the very beginning of our lives. I think it is not an exaggeration to say that the right to nationality is also supposed to be a right from the start, because the longer time lapses with someone not having a nationality, usually the worse the consequences become.

We also say nationality is fundamental in part because it is cross-cutting; if we look at the 41 provisions within the CRC, there is almost no provision which does not have at least some level of interaction or implication in relation to the right to nationality. One cannot really label nationality as being a civil and political right, or as being a social, economic, and cultural right; it is an ‘enabling right’. Nationality — to a certain extent — can be compared to the right to education, because when people have education, this ‘enables’ people to do things and has a positive effect on other rights. When people do not have an education, this impacts on the enjoyment of other rights. It is therefore not an exaggeration to say that nationality is a fundamental right because, similar to the right to education, it can be labelled as an ‘enabling right’.

Even though in human rights law we hardly use numbers as a justification, to be able to urge action and address violations, here we are talking about 10 million people. This is extremely large, which makes statelessness a real cause of concern and is another reason why we need to acknowledge nationality as a fundamental right. It is also important to realize that we constantly have to strive to create a world for all. The more this group of children (and their families) are disenfranchised, the worse off are the socio-economic, health, and security prospects of countries with stateless populations. For many children, statelessness is also like poverty, in the sense that it follows a cycle: if the parents are living in poverty, then there is a very high chance that their children will also live in poverty, and that their descendants for many generations will too. In a sense, it is the same in the context of statelessness: in the instances where the parents are stateless, the chances that the children will be stateless will be higher, and so on and so forth. The trans-generational transmission of statelessness means we are not just talking about the current generation of stateless persons, but we are also talking about the future generations.

Dr. Benyam Dawit Mezmur

Chairperson of the UN Committee on the Rights of the Child;

- Chairperson of the African Committee of Experts on the Rights and Welfare of the Child;

- Associate Professor of Law, Dullah Omar Institute for Constitutional Law, Governance, and Human Rights at the University of the Western Cape, Cape Town, South Africa

2. Can you tell us about how you became interested in children’s right to a nationality and what drives you to champion this issue?

The link between the right to birth registration and the right to acquire nationality is something I became familiar with as a consequence of my initial interest in birth registration, which is a particularly critical issue, especially in the African continent. I was 17 years old when I started working on children’s rights, volunteering at an orphanage in Ethiopia- called Medical Missionaries of Mary. At that point, I already became acquainted with the importance of the right to birth registration, and the subsequent violations that are further facilitated in its absence. That issue came up again in my first job after completing university, when I joined the African Child Policy Forum (ACPF) as a junior legal officer.

I became directly involved in the issue of nationality when the communication against the government of Kenya was brought to the African Committee of Experts on the Rights and Welfare of the Child in 2010. We went through the submission made by the Institute for Human Rights and Development in Africa (IHRDA) together with Open Society Justice Initiative (OSJI). At that stage the communication alleged a number of violations, including the right to acquire a nationality in relation to children of Nubian descent. Through the research process in the consideration of that individual complaint, statelessness became a major interest of mine. I was directly involved in writing the decision of the Committee, which held violations of various rights of these Nubian children living in Kenya. After that, I had the opportunity to take part in meetings, lectures, trainings, workshops, etc., and as they say, the rest is history. I should mention that I am very interested in a number of other (children’s) rights, including children and armed conflict, alternative care, inter-country adoption which was the area of my PhD research. But the issue of children’s right to a nationality continues to be one of the top issues that I believe I can contribute to, but also still have a lot to learn about and I definitely see myself continuing to be involved in the issue in the future. In other words, I consider that childhood statelessness is an area that can certainly benefit from people joining the circle, and I am very happy to be part of that circle and contribute in any way I can.

3. What has been the Committee on the Rights of the Child’s approach to protecting and promoting every child’s right to a nationality?

There was a very interesting recent publication by the Institute on Statelessness and Inclusion which gave us very a detailed insight into some of the ways in which the CRC has dealt with the issue of statelessness. One of the conclusions that actually came out from that report is the fact that over the course of about 22 years —it explored the first Committee recommendations issued in 1993, until some of the most recent recommendations of 2015 — is that we have made close to 120 recommendations. The recommendations have dealt with nine different issues or themes related to children’s right to nationality. Gender equality is one of them, birth registration, foundlings, and non-discrimination, among others. Furthermore, the Committee has also flagged issues related to international adoption and the issues of remedies. Our recommendations in relation to loss and deprivation of nationality also related to article 8 of the CRC, which specifically addresses the right of the child to preserve his/her identity. These are all areas in which we have tried to engage states.

In terms of substance, the Committee has, for instance, called for the ratification of the two Statelessness Conventions. These continue to be critical instruments and we systematically recommend ratification. We have also called for the withdrawal of reservations that states have made in relation to article 7 of the CRC and article 9 of the CEDAW. In fact, because the CEDAW Committee often gives recommendations to states to withdraw reservations to article 9, we have often reinforced those recommendations and we have often used those recommendations from the CEDAW Committee to make the argument that they should not only withdraw reservations to article 7 CRC, but, where applicable, also to article 9 CEDAW. One of the other issues that I think we have tried to engage states on is the prevention of statelessness among children born on their territory. In this regard, we have often recognised that states could not accept an obligation to grant nationality to every child born on their territory, regardless of the circumstances. This is one of the reasons why during discussions on the nationality provision in the ICCPR, states said ‘we cannot give the right to nationality; we actually have to say the right to acquire a nationality’. However, we have to understand that in circumstances where the child would otherwise be stateless, I think that the prevention of childhood statelessness becomes a very critical issue. We are not prescribing universal jus soli, but we are actually saying that in instances where a child would otherwise be stateless, there must be a safeguard in place within legislation and practice.

Our engagement with the issue of children’s right to nationality has not only increased in terms of numbers over the years, but I think that the quality of the engagement has also improved. A whole range of stakeholders — from members of the secretariat of the UN High Commissioner for Human Rights, the members of the Committee, civil society organisations, UN Agencies particularly UNHCR, and other stakeholders including children themselves — can take credit, not only for the number of recommendations but also for the quality of recommendations and the extent to which the Committee continues to cover the various important themes that I mentioned earlier. I also recall occasions during the child participation process when civil society organizations brought children with them to the pre-sessions and issues of nationality were raised by some of the children, which I think is very useful. With the advancement of technology, for instance in-vitro fertilization and the use of surrogate mothers, I believe there are few more emerging themes within the issue of nationality that will naturally grow in the conversations with stakeholders and within the Committee.

At this juncture I want to point out a couple of methodology issues related to our engagement. We usually say that as the Committee, our engagement with states is as good as the information base that we have in front of us. You have to remember that during the constructive dialogue with a state time is very limited: a maximum of six hours of dialogue with a state party. The questions that are raised range from article 1 to article 41. Therefore, the issue of children’s right to nationality has to contend with a whole range of other issues that will also be important. This means that the more precise, the more nuanced, and the more up-to-date the information the Committee has in relation to the right to nationality, the better the engagement with the state. I found it especially useful when there are specific court decisions that have covered legislation or practice on nationality, to be provided with this information so we can have a nuanced conversation with the state. I also personally found it very useful when the relevant provision(s) of a state’s law are actually provided word by word, so that the engagement with the state is more informed. Therefore, there are instances where issues of nationality are actually very important, but as a Committee, we have been unable to engage with the state party with the necessary vigour and depth. In part, this is because we do not have adequate information before we engage with the state-party. In those instances where we might try to engage with the state party without the necessary details, we might run the risk of appearing to be out of our depth. So a detailed information base on the situation of nationality in a state is crucial for a nuanced dialogue with a state as well as to draft focussed, and precise recommendations.

I also want to mention the importance of ‘making the circle of stakeholders bigger’. When alternative reports are submitted to the Committee—which are often submitted by coalitions of civil society organizations—it is important to ensure that the issue of statelessness is given the attention it deserves in the report. We continue to benefit from the submission of separate reports focusing on nationality, and I am aware that the Institute on Statelessness and Inclusion has been doing this for more than a year, and a number of other organisations—including the confidential submissions by UN Agencies, in particular UNHCR—highlight the issue of statelessness. One cannot over-emphasise the importance of these submissions; they allow the Committee to engage with the state party in a more informed and nuanced manner. One of the areas where I believe there needs to be better engagement is the extent to which National Human Rights Institutions engage with the Committee, but also the extent to which various civil society organizations working on the issue of statelessness engage with NHRIs. The issue of statelessness should become an issue that the NHRIs deal with in their alternative submissions, in their engagement with the government, and in their engagement with various stakeholders.

Finally, I think that we need to be aware that in a number of countries we have engaged with, we have come across instances where the administrative system in place for the acquisition of nationality creates so many unnecessary obstacles for parents and children. They must appear before a special committee, and an overseeing committee, and another committee, and in a number of instances, these special committees distribute rights in an arbitrary manner. They are not always just and not always legal, and are sometimes biased or based on individual connections, and there is uncertainty within these processes. In a number of instances, we have also found these processes to be inaccessible. They are often not accessible and understandable to adults let alone children. The more inaccessible and the less understandable these processes are, the more prone they are to corrupt practices. I think that, moving forward, this is one of the areas where we can improve engagement, not only the Committee but also those who provide information to the Committee, so that the administrative processes that states have are scrutinised closely from a variety of child rights angles.

4. Has the right of every child to a nationality received the attention it deserves? What are some of the challenges?

It depends on what time frame we are looking at. From five years ago – when I started to engage with the subject-matter – until now, i.e. the end of 2016, I think there has been significant progress. There has been significant progress in terms of increasing the number of stakeholders involved in the process and in terms of increasing the attention that this issue is getting from UNHCR. I will be a bit critical here: in 2011, when UNHCR was celebrating the 50th anniversary of the 1961 Convention, I was in Geneva for its Executive Committee meeting. Even though UNHCR made great efforts to give the Convention the attention it deserves, I think it could have given it additional attention, particularly given the fact that it was the 50th anniversary of the Convention. Still, one of the positive things that came out of that exercise was that there were a number of pledges that were made in 2011, which actually led to better awareness raising and ratification of the two Statelessness Conventions. So, it depends on the time-frame we are looking at, and compared to what other child rights issue. However, generally speaking, I feel that the right of every child to a nationality still has a long way to go to be able to conclude that it has received the attention that it deserves.

I would like to clarify a bit more; when we say ‘it is getting the attention it deserves’, we are talking about the attention that it deserves for instance in terms of ratification of the two Statelessness Conventions and the ratification of human rights instruments that some states have not yet ratified but that promote children’s right to nationality and the removal of reservations. We are also talking about the granting of nationality to stateless persons within a country; about research; about efforts undertaken to raise awareness; about the number of organizations that are working on the issue; about the funding environment and how funding is being channelled and made available to address the issues affecting stateless persons; and we are talking about undergraduate, graduate and post-graduate teaching. A whole range of things come into the mix before we can say it is getting — or not getting — the attention it deserves. We can probably categorically say — and I am sorry about this reality — it is not getting the necessary attention in the political agenda of states that it actually deserves. It is simply not. If it was getting the necessary political attention, then we would have been able to make significant progress on eradicating statelessness around the world. We would also be making significant progress in preventing statelessness. Also identifying and undertaking advanced work to reduce or prevent statelessness, particularly among those who are at risk of statelessness is an issue that should be within the radar of many states.

To sum up, I think we have made progress as compared to 10 years ago, and 5 years ago on giving the issue of right of every child to a nationality. But whether it is now getting the necessary attention it deserves? I do not think so. Particularly, it still is not on the political agenda of a number of states. And even when it features and gets attention, the right to a nationality is not being seen through a human/child rights lens; it is often being seen from a political lens, a financial lens, and another lens.

5. What is the most positive development that you have seen in your work addressing childhood statelessness? 

The issue of statelessness is a self-inflicted challenge. It is different, for instance, from children who are affected by flooding, or children who die from water-borne diseases, or children who die from malaria. Statelessness is self-inflicted, and it is actually man-made. Therefore, if it is man-made, the solutions are also man-made; they can actually be achieved. However, I would like to emphasize — a point I emphasized a few weeks back in Geneva for the UNHCR High Commissioner’s Protection Dialogue — that even if we were to succeed in generating 10 million dollars or 100 million dollars tomorrow and would throw it at the issue of statelessness, I do not think we would be able to solve it. I do not think that the issue of statelessness can be addressed simply by throwing money at it, because of deep-seated stereotyping, because of discrimination, because of deep-seated pigeon-holing of those “individuals who belong” and “those who do not belong”. I agree that the notion that says that more money must be raised to eradicate statelessness is to some extent true; to raise awareness, conduct training, collect and analyse data, manage information etc. funds are always necessary. Resources are also necessary to cater to the needs of stateless children who are currently living at the margins of society. However, unless the political discourse changes, unless political commitment is there, we are definitely not going to make much progress in terms of eradicating childhood statelessness.

Now, in terms of positive developments, I do believe the #ibelong campaign — which was launched in 2014 — is very useful. It is very ambitious, since its main target is to wipe out statelessness by 2024. But the fact of expressing the ambition to eradicate statelessness within the next 10 years has helped to drive significant progress. For instance, we have had close to 10 new states that have ratified the statelessness conventions. The number of countries—Thailand, Ivory Coast, Malaysia etc.—that have managed to make progress in reducing the number of stateless persons in their territories is very impressive. The government of Kenya has managed to make progress in relation to giving nationality to one of its minority groups. That is also progress. Also in relation to children of Nubian descent, they have now been identified as an ethnic group and have been included in the national census. These are some positive developments. Additionally, the number of countries that have entered reservations to CEDAW and the CRC has also been reduced. There was a report written by UNHCR, which highlighted progresses made in the MENA region regarding reduction of statelessness. Such progress should be commended and further consolidated. But I think the challenge that we face, and the road we have to travel, not just to address the 10 million and the part of that population that are children, but also the efforts we have to undertake to prevent statelessness is a very serious challenge we need to invest on intellectually, financially, and through political commitment.

6. Where do you see the issue going and what is your hope for the future?

In an ideal world, the issue would be addressed now and we would not even have to wait until 2024. If the political commitment is there, the issue can be addressed within a few years. One of the issues that I am concerned about in going forward is the fact that conflicts — particularly armed conflicts — will continue to increase the challenges that we are facing in efforts to address statelessness as a result of the destruction of documents, but even more directly, because of the number of children being born in exile due to war. I think the Syrian conflict is a classic example of this: hundreds of thousands of children are being born in exile and are at risk of statelessness. Therefore, the risk that armed conflict, and the challenge that it imposes on the goals we want to achieve is something we should pay very close attention to.

The second point that I want to emphasize is how I personally see the issue going forward. I do not think that working to address statelessness and working on the prevention of statelessness are mutually exclusive efforts. I think that there is a tendency to look at the situation of eradicating statelessness as a priority, which is OK, but in the meantime states have to exert much more energy and be proactive with a view to also prevent statelessness. They need to undertake efforts through legislation, through policy, through identification of populations that are at risk of becoming stateless. Efforts towards prevention of statelessness will need to be increased even more so we can make some gains in moving forward.

In terms of the various partners that are involved in the field, I think there needs to be more concerted and sustained energy and intellectual investment from various UN Agencies, not only UNHCR but also from IOM, UNICEF, OHCHR, both among their staff and also within their partners that often work at the grassroots level. I think for the future, in moving forward, this needs to happen in a more systemic way. I think one of the positive things that have happened in the last few years is the fact that the number of organisations, particularly civil society organisations that are working on the issue has increased. The stakeholders—in this case the children—are invisible, and if the organisations that are also working on the subject-matter are also invisible, then we might be losing the battle. So, visibility in terms of numbers is very important, and as I said earlier, it is not just the numbers of civil society organisations working on the subject-matter at the international level, but also the engagement at the national level with the NHRIs, which I believe are very critical. Another positive development is in the area of research and training- as, for instance, more training courses are taking place; for instance, UNHCR just held a course in Ghana, which was being provided to a number of academics in the African continent. This, I believe, is part of the strategy that needs to be consolidated moving forward. The more lawyers get to know about it, the more lecturers know about it and are qualified to teach about it, the more national measures in terms of law drafting, in terms of policy, in terms of litigation in court, and so forth, then the process can benefit from the expertise that the new breed of professionals will bring to the table.