Landmark case notes from Africa and Europe
In the past few years, there has been a series of landmark judgments issued by the regional courts of Africa, the Americas and Europe, which confirm the well-entrenched position of the right of every child to a nationality and the duty to safeguard against childhood statelessness under the regional and international human rights frameworks. The essay by David Baluarte, also in this chapter, provides a detailed analysis of the two Inter-American Court of Human Rights judgments on the right to nationality in the Dominican Republic: The Girls Yean and Bosico v Dominican Republic and Expelled Dominicans and Haitians v Dominican Republic. Below, are shorter case notes on equally important judgments from Africa and Europe.
Although the Nubians have lived in Kenya for over 100 years, they have historically been regarded as 'aliens' with uncertain citizenship status. On reaching the age of 18, all Kenyan children apply for ID cards that prove citizenship. For most Kenyan children, this is a simple process. However, Nubian children must go through a long and complex vetting procedure with an uncertain result. In this case before the African Committee of Experts on the Rights and Welfare of the Child (ACERWC), the petitioners argued that the following rights of the Nubian children in Kenya are violated through this system:
- A violation of the child’s right to acquire a nationality at birth, protected by Article 6 of the African Charter on the Rights and Welfare of the Child (ACRWC);
- Unlawful discrimination against Nubian children on grounds of their ethnic and religious origins, in violation of the prohibition of discrimination in Article 3 of the ACRWC; and
- Consequential violations in relation to denial of access to education, health care, property rights etc.
The ACERWC found Kenya’s actions violated the Charter’s provisions protecting children’s right to nationality, observing that statelessness is the antithesis of the best interests of the child. The ACERWC also found that Kenya’s vetting system unlawfully discriminates against Nubian children in violation of Article 3 of the ACRWC, leaving them stateless or at risk of statelessness, with no legitimate hope of gaining recognition of their citizenship. As a result, Nubian children lack access to adequate healthcare and education, in violation of Kenya’s obligations to provide the highest attainable standard of health and education to all children (Articles 14(2)(a)-(c), (g) and Article 11(3) of the ACRWC, respectively). The ACERWC issued five detailed recommendations including legislative and administrative reforms, an obligation to consult with affected communities in developing implementation strategies and the requirement that Kenya implement a non-discriminatory birth registration system. It also established implementation monitoring mechanisms, including an obligation that Kenya report back on implementation within six months and a dedicated ACERWC member to monitor implementation.
The case of Genovese v Malta concerned a young man, Genovese, who was born out of wedlock and is the son of a British mother and a Maltese father. His father, whose paternity was established judicially and scientifically, had not acknowledged his son and did not want to have any relationship with him. Genovese is a British national, but also wanted to become a Maltese national (because his father is a Maltese citizen). After applying for Maltese nationality, he learned that Maltese citizenship could not be granted to a child born out of wedlock, if the child’s mother is not Maltese and the father is . Litigation in Malta was unsuccessful and Genovese complained to the European Court of Human Rights (ECtHR) that the Maltese laws on the acquisition of citizenship discriminated against him contrary to Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to respect for private and family life) of the European Convention on Human Rights (ECHR).
The Court agreed with Genovese and found a violation of Article 14 in conjunction with Article 8 in this case, because the difference in treatment between children born in and out of wedlock could not be justified. In its judgment, the Court made two important points that relate to addressing childhood statelessness. Firstly, the Court expressly stated that nationality falls within the scope of protection of the ECHR as part of a person’s social identity, which is part of the concept of private life under Article 8. Secondly, the Court clarified that countries with laws and procedures that grant a right to citizenship by descent, such as Malta in this case, must ensure that this right is secured without discrimination.
The case of Mennesson v France dealt with one of the more complex issues related to childhood statelessness: surrogacy . This case concerned two French commissioning parents and their two children born abroad through a surrogacy arrangement. They tried to secure legal recognition of the parent-child relationship in France, but their claims were dismissed throughout the domestic judicial process up to the French Court of Cassation. Subsequently, the family complained of a violation of Article 8 (right to respect for private and family life) of the ECHR to the ECtHR. Their complaint was based on the inability to obtain recognition of the parent-child relationship that had been established abroad through the surrogacy arrangement, which they found to harm the children’s best interests.
The government emphasised in this case that French law prohibits surrogacy as a method of assisted reproduction and therefore must refuse to register the French commissioning parents as the parents of a child, because permitting such registration would present a risk to consistent application of this prohibition. The Court, however, attached more weight to the consequences of non-recognition of the legal parent-child relationships for the children as part of their right to respect for private life. Furthermore, it questioned the compatibility of that situation with the best interests of the child. Thus, the Court found a violation of Article 8 of the ECHR with regard to the two children in this case. The Court stated that respect for the child’s best interests should guide any decision in their regard, which would include one that concerns children’s right to a nationality.