Introduction

After enumerating the reasons why nationality is important for children, Professor Bhabha of Harvard Law School concludes that “though nationality does not, on its own, guarantee well-being or enjoyment of the constituent elements of a safe and rights endowed life, its absence is strongly correlated with serious rights violations and profound human suffering”. This, she demonstrates, is the case not only for adults who are affected by statelessness, but also – and perhaps even more so – for children who are forced to grow up without a nationality. It is not a surprising conclusion by any means. Rather, it is a truth so foundational, that those who are working to address childhood statelessness consider so evident, that it is often assumed to be universally known and understood. Yet the public perception of nationality, and of children’s enjoyment of nationality, often betrays a certain disregard for the reality of childhood statelessness as a feature of today’s world. Successfully asserting the right of every child to a nationality – the central focus of this chapter – requires us to challenge the prevailing misconceptions of children’s experience of nationality.

Firstly, while the vast majority of children do acquire a nationality immediately, automatically and without difficulty at birth, it is a false assumption that this is the case for all children. The office of the United Nations High Commissioner for Refugees (UNHCR) reports that over 70,000 children are born into statelessness each year. That their situation is often overlooked is testament to the fact that statelessness can have the effect of rendering a person invisible, but this does not make their predicament any less real. Secondly, as Bhabha’s essay shows, having a nationality is not something that only starts to be meaningful upon the attainment of adulthood when, for instance, the participatory rights of citizenship may kick in. Nationality matters right from the start, for a child’s enjoyment of other rights, for family life, for stability and security, for identity, for education, for a sense of belonging and much more. Thirdly and relatedly, childhood statelessness should not be misconstrued as a transient problem that is easy for a person to resolve, for instance, once they reach majority. To the contrary, statelessness and the disadvantage that it creates have the worrying tendency of becoming entrenched. At and soon after birth, evidence of relevant facts and links is most fresh, witnesses likely available and procedures relatively straightforward. Without help early on, a stateless child will readily grow up to be a stateless adult, who may live their entire life without ever acquiring a nationality. This underlines the importance of taking early, ideally even preventative action, to stay ahead of statelessness and negate its impact. A final and central message that must be made to resonate more strongly is that the right of every child to a nationality is just that: a right. Taking the necessary measures to grant nationality to a child who would otherwise be stateless is not an act of privilege or charity, it is the fulfilment of a fundamental child right, protected – as this chapter shows – under human rights law.

The contributions featured in this chapter centre the discussion of childhood statelessness in a rights-based discourse, which recognises nationality as an integral aspect of a child’s identity and acknowledges its function as a gateway right, enabling the enjoyment of other child rights. The common thread is how the right of every child to a nationality has gained a strong foothold in international and regional human rights frameworks alike, with different essays exploring different dimensions of the right and how it has been interpreted. Broader human rights and child rights principles, such as non-discrimination and best interests of the child, have clearly played an important part in the latter and helped to shape the review of states’ performance by United Nations (UN) human rights bodies as well as the content of human rights jurisprudence on the child’s right to a nationality. Despite the tremendous progress that has been achieved in clarifying states’ obligations in respect of this right at a doctrinal level, in response to specific country situations or individual complaints, real change on the ground has proven harder to deliver. As contributors who have engaged with different human rights mechanisms in support of their advocacy on behalf of stateless children attest, securing improvement to law, policy and practice requires a long term mindset and the deployment of a range of strategies. Bringing the issue of childhood statelessness before human rights bodies is recognised to be an important avenue for combating the invisibility of this problem, generating international guidance to and pressure on states to improve their response, and sustaining a rights-based approach to the issue. The contributors to this chapter provide helpful information and inspiration that can serve to strengthen this area of engagement.

This chapter opens with a series of contributions relating to the Convention on the Rights of the Child (CRC), the most universally ratified human rights treaty in the world, in which the right of every child to a nationality is enshrined in Article 7. As Benyam Dawit Mezmur, Chairperson of the Committee which supervises the implementation of the CRC explains in his interview piece, “nationality is fundamental in part because it is crosscutting; 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”. Praxis Serbia, a Non-Governmental Organisation (NGO) that assists children who face the risk of statelessness , shares its motivation for working within the CRC framework as a means to promote the right to a nationality in the Serbian national context. Praxis’ contribution demystifies the process of submitting information to and participating in discussion with the Committee. It is accompanied by the first of several short interviews with families affected by statelessness – in this case 10-year old stateless Erduan and his father – helping to illuminate their lives, hopes and struggles. The next essay, by Francesco Cecon , offers some strategic reflections from his experience of working as a Programme Officer with Child Rights Connect on two possible avenues for consolidating and strengthening the guidance of the Committee on the Rights of the Child on the child’s right to a nationality or childhood statelessness more broadly. He explores the potential added value of a General Comment or a Day of General Discussion on Article 7 CRC, laying out the groundwork that should be put in place for such an initiative to succeed. This essay is followed by a brief summary of the Institute on Statelessness and Inclusion’s (ISI) 'CRC Toolkit' – a resource designed to encourage and inform civil society engagement with the Committee as it engages in dialogue with states to monitor the implementation of state obligations under the CRC. The CRC Toolkit builds on and makes available the analysis conducted by ISI of the Committee’s guidance to states on the interpretation and implementation of this right to date, as well as providing ready-to-use instruments for engagement such as a checklist for identifying relevant issues and template for reporting to the Committee.

The next set of contributions in the chapter zoom out from the CRC to look at the broader UN framework, demonstrating that the right of every child to a nationality is not 'merely' a child rights issue, it is a human rights issue. The essay by Hernan Vales, Human Rights Officer in the Rule of Law and Democracy Section of the UN Office of the High Commissioner for Human Rights (OHCHR), draws from General Assembly and Human Rights Council Resolutions as well as Secretary-General Reports, to elucidate the impact of arbitrary deprivation and denial of nationality for children affected. This is followed by a poem, authored by Amal de Chickera, Co-Director of the ISI, which expresses in a different yet powerful way how children fall victim to statelessness, often not as a simple bureaucratic oversight but rather as part of a long-standing policy of exclusion which spills over to affect new generations. Such situations which often arise out of deeper societal failures are also the theme at the centre of the next essay by Peggy Brett, an ISI 2016 Fellow. She discusses how “discrimination, in one form or another, underlies almost all cases of childhood statelessness” and through a systematic canvassing of the UN's work in this area, demonstrates that, in response, “the UN human rights treaty bodies have used discrimination as an important framework in addressing the right to a nationality and particularly the right of the child to a nationality”.

Digging deeper into the dilemmas encountered at the national level, Betsy Fisher, an attorney in the United States who represents and advocates for vulnerable refugees in the Middle East, confirms that discrimination can be at the root of nationality problems because it manifests in not just nationality law, but also in other areas of law which can impact on access to nationality. Drawing from examples in the Gulf Cooperation Council states, she shows how gender discrimination in civil registration law, family law and even criminal law can conspire to put children at risk of statelessness. The complex interaction of different areas of law and processes of exclusion comes to the fore also in the second short interview with an affected family – this time with Axin, a Syrian mother whose seven children are stateless as a result of multiple forms of discrimination, gender and ethnicity. “I have never had peace of mind about my children”, she reflects, serving as a reminder that when statelessness affects even a single member of a family, it affects them all. The essay by Bernadette Habib of Ruwad Houkouk of Frontiers Rights, a national human rights NGO specialising in refugee rights and statelessness in Lebanon, brings the focus back to the question of where opportunities lie within the UN human rights framework. Habib explains how the systematic use of UN human rights reporting mechanisms – including both treaty bodies and the Universal Periodic Review (UPR) – to raise awareness of the issues affecting the populations they work with in Lebanon is part-and-parcel of their overall engagement strategy. While this has yet to lead to a reform of the country’s gender discriminatory nationality law, Habib says that the visibility that such advocacy brings to the issue carries real value and using these UN systems is nevertheless an important means to strengthen national advocacy efforts for law and policy change.

The chapter closes by looking at how the right of every child to a nationality has been constructed within regional human rights frameworks. Francisco Quintana, a Program Director at the Center for Justice and International Law (CEJIL), introduces the Inter-American system, touching on the background to a truly landmark ruling – Yean and Bosico v. Dominican Republic  – in which a regional human rights body in an individual complaint declared for the first time that a state had violated the right of a child to a nationality. After a concise summary of Council of Europe (CoE) efforts in the field of childhood statelessness is presented, the last essay of this chapter is offered by Mustafa Mahmoud Yousif, who dives into the African human rights system. His contribution looks at the Nubian Rights Forum’s experience in Kenya, where a case was also brought before a regional body. In its ruling, the African Committee of Experts on the Rights and Welfare of the Child (ACERWC) also affirmed the child’s right to a nationality to be a justiciable right, finding the state in violation. The third and final interview gives a sense of the context of this decision and brings the chapter full circle to the right to a nationality as a fundamental child right, the realisation of which impacts a child’s enjoyment of other rights. Sultan, a Nubian boy who is battling discriminatory procedures to acquire a birth certificate, has already missed a year of schooling and faces an uncertain future unless he can secure recognition of his status as a Kenyan national.