Introduction

Every child has the right to acquire a nationality. This principle, enshrined in international and regional human rights instruments alike, is clear and unambiguous. The Convention on the Rights of the Child (CRC) also specifies that states must ensure the implementation of this right “in particular where the child would otherwise be stateless” (Art. 7(2)), emphasising the particular obligation that states have to identify and remedy situations in which a child would be left without any nationality. This chapter takes a closer look at the mechanics of how this is to be achieved by exploring the theory and use of “safeguards”: specific rules that all countries should have in place and which are designed to kick in when a child faces the prospect of statelessness. Such safeguards form an essential part of the nuts-and-bolts through which every child’s right to a nationality is protected in practice.

Although the topic of legislative safeguards may seem a rather technical one, it would be overstating the complexity to suggest that this is the domain of lawyers and specialists only. In fact, safeguards against childhood statelessness can, and should, be simple and straightforward. The focus must be on the child: has he or she acquired a nationality through the regular operation of the nationality laws of the country or countries with which he or she is connected by birth and parentage? If the answer is no, for whatever reason, the requisite safeguard applies and this is the route through which the child nevertheless secures a nationality.

The notion of safeguards protecting children from statelessness is perhaps most readily illustrated through the example of a foundling, in other words, a child who has been abandoned, perhaps on the steps of a hospital or orphanage, and who is then “found” by someone unconnected to the child. The ordinary rules through which all countries in the world confer nationality to a newborn are based on the connection of birth on the territory (jus soli) or to one or more parents who is a national (jus sanguinis), or some combination of the two. In the case of a foundling, the parents of the child are unknown and evidence may also be lacking of exactly where the birth took place. A foundling can therefore appear to satisfy neither the jus soli nor the jus sanguinis link and so fail to acquire a nationality. To address this and realise the right of every child to acquire a nationality, a safeguard for foundlings should be included within the nationality law, providing specifically for the conferral of nationality to a foundling found on the territory of the state through the presumption that he or she was born there to parents who hold that state’s nationality. In this way, responsibility is attributed and a solution is offered for those cases in which the regular rules that apply for acquisition of nationality by a child would otherwise fall short.

As this chapter demonstrates, the idea of establishing safeguards to deal with those cases in which a child would otherwise be stateless is widely accepted, but the implementation is not without its challenges. The first essay, by Laura van Waas, Co-Director of the Institute on Statelessness and Inclusion and Assistant Professor at Tilburg Law School in the Netherlands, explains how a ‘safeguards approach’ has permeated international and regional legal frameworks dealing with the avoidance of childhood statelessness since the era of the League of Nations. Such a system allows states to retain significant freedom in the establishment of rules relating to nationality, only requiring special measures for the small minority of cases in which a child is ‘otherwise stateless’. Despite this, as van Waas discusses, there remain significant gaps in the incorporation, formulation and implementation of safeguards, with states too often allowing other considerations to interfere with the realisation of the fundamental right of every child to a nationality. The short piece ‘A nationality for Denny’, that immediately follows the opening essay, offers a stark reminder that the best interests of the child must be the central consideration in the implementation of safeguards because the alternative may be a legal limbo that is severely detrimental to a child’s well-being – for Denny, six years and counting. Thereafter, the essay by Ayalew Getachew Assefa, legal researcher at the Secretariat of the African Committee of Experts on the Rights and Welfare of the Child, takes a closer look at the evolution of safeguards in the African human rights system and how these have been informed by key rights principles such as the best interests of the child. He also offers a flavour of what may come, with a discussion of the draft Protocol to the African Charter on Human and Peoples’ Rights on the Specific Aspects of the Rights to Nationality and the Eradication of Statelessness in Africa.

The next four contributions look at specific contexts in which special measures to safeguard against childhood statelessness are critical. In the short piece by Laura Parker, Protection Officer (statelessness) with UNHCR in Côte d’Ivoire, the central problem is the lack of any parents to help a child secure a nationality. She talks about the problems which resulted from the lack of a safeguard for foundlings in the nationality law of Côte d’Ivoire, in a context of civil war, mass displacement and family separation, and what efforts are now being made to address them. This piece is complemented by a short reflection on the lost children of Côte d’Ivoire, which looks at the stories of three such children. In the essay by Sanoj Rajan, Professor and Dean at the School of Law of Ansal University in India, the challenge is a potential excess of parents. Where a child is born from a surrogacy arrangement, as many as six different individuals could be identified as a parent, yet the operation of conflicting policies on international commercial surrogacy can leave the child with no access to a nationality. As Rajan discusses, this relatively new phenomenon has yet to be met with effective legal solutions. Laurel Townhead’s essay explores the problems that can arise for access to nationality in another relatively uncommon and potentially challenging context: where a baby is born in prison, to a mother who is incarcerated. She reminds us that realising the right of every child to acquire a nationality, without discrimination, demands that no child is overlooked.

Moving away from the discussion of specific circumstances in which statelessness safeguards are necessary, the chapter closes with two contributions which drive home the fact that more attention is needed for implementation issues in safeguarding against childhood statelessness. The essay by Juliana Vengoechea Barrios offers a fresh take on the often-debated question of whether the most straightforward and effective “safeguard” for the avoidance of childhood statelessness could be the conversion of all countries to a jus soli system. Focusing on the Americas region, where jus soli is prevalent, she scratches beneath the surface to reveal a number of implementation problems that can obstruct access to birth-right citizenship. Liesl Muller presents a series of cases in which children they are assisting in South Africa have confronted seemingly insurmountable obstacles in fulfilling their right to a nationality. The piece demonstrates how even a complex situation can be distilled to a simple problem and, when presented as such, the child rights imperative for solving it becomes clear. The final contribution in this chapter is from Tini Zainudin and offers a personal reflection of one woman’s quest to navigate the legal system of Malaysia and secure a nationality for her stateless child.