Advancing children's right to a nationality through the UN Committee on the Rights of the Child
1. The added value for civil society in engaging with the Committee on the Rights of the Child
Article 45 of the United Nations Convention on the Rights of the Child (CRC) sees civil society as an active actor for the implementation of the CRC. The advocacy strategies of Non-Governmental Organisations (NGOs) carried out in the framework of the Committee’s activities have resulted in real change on the ground in many cases. Article 7 of the CRC stands as a central provision in the Convention: the Committee asks each state party about their efforts to ensure universal birth registration and children’s right to a nationality, and systematically includes recommendations related to Article 7 in its Concluding Observations.
The Committee’s Concluding Observations, which are the main outcome of its reporting cycle, constitute a strong tool for NGOs’ advocacy strategies at national and international levels. They also serve as a basis for civil society’s engagement with other United Nations (UN) treaty bodies, the Human Rights Council (HRC), and its Universal Periodic Review (UPR). As children’s rights are cross-cutting, the exercise of cross-referencing UN recommendations can be extremely valuable in terms of pressure exercised on states. In this sense, the strategic cross-referencing of recommendations issued by independent bodies, such as the Committee on the Rights of the Child, and political ones, such as the UPR, can exert pressure on states. In the case of Article 7, using the interpretation of the Article’s provisions carried out by the Committee and the recommendations made to states, can serve as a strong basis for the engagement of NGOs with other UN human rights mechanisms.
As mentioned previously, the CRC and the working methods of the Committee on the Rights of the Child envisage a strong civil society engagement, on which the Committee is highly dependent, both for its dialogue with state parties and for its Concluding Observations. NGOs can invoke Article 7 and obtain country specific recommendations on it. However, given the lack of a comprehensive, established interpretation of the provision by the Committee, this can lead to different recommendations depending on the state. This essay therefore aims to provide a short overview of how NGOs could jointly call for a General Comment and/or a Day on General Discussion (DGD) on Article 7 and how these instruments could advance their advocacy and campaigns.
2. Advancing the interpretation of the rights of children to a nationality: the General Comments
Advancing the interpretation of the provisions of the Convention is not only one of the outcomes of the Committee’s reporting cycle and of the dialogue between governments and the Committee, but it also constitutes a major area of the Committee’s work. In this respect, the General Comments issued by the Committee, “provide an authoritative interpretation of the rights contained in the articles and provisions of the Convention on the Rights of the Child”. These instruments can have a significant impact as they do not only provide guidance to States on how to best implement specific provisions, they can also be used for advocacy and jurisprudential purposes with relevant stakeholders. In this sense, reference to the Committee’s General Comments is a widespread practice among national courts and can influence the development of new laws, policies and programmes. In the case of the right of a child to a nationality, General Comments can also be a good basis for the mainstreaming of the issue as “the Committee generally shares draft general comments with selected experts, including those from the other treaty bodies, for comments”.
To date, no General Comment on Article 7 has been formulated; however, existing General Comments do make reference to issues related to statelessness. Having a General Comment on the provisions of the Article would provide better guidance to states on how to put these into practice. The themes of each General Comment are not chosen in a systematic manner, but they can be the result of proposal by individual Committee members’, UN agencies and/or NGOs. In addition, the Committee has also formulated joint General Comments with other Treaty Bodies. Civil society organisations can therefore choose to propose a theme to the Committee alone or together with other committees. Proposing a theme to more Committees would help in mainstreaming the issues related to the implementation of Article 7. This consideration is particularly relevant in this case, as the issues are cross-cutting through different UN Conventions. In practice, NGOs have to explain, in writing, the reasons why a General Comment on the issue of statelessness is necessary.
However, some considerations need to be made before discussing this process. First of all, the Committee does not have a standardised decision making process for the selection of themes of General Comments. The process varies according to a series of factors. The weight that NGOs could exercise in the selection process would depend, inter alia, on the relationship that NGOs have with Committee members, the strength of the proposal and also the relevance or urgency in addressing a specific issue at that time. It would be therefore important to be strategic in demonstrating the relevance of the issue of statelessness at the specific time. The first step, in this direction, would be to identify gaps in the understanding of the issue in existing General Comments. NGOs can also suggest a list of elements that can be taken into account and included in the Comment. Statelessness being a cross-cutting issue, the possibility of suggesting a list of elements to be included can be a beneficial resource for NGOs working on the theme. During the preparation process and the review of the draft, some UN agencies, experts and NGOs can provide further inputs and comments. In general, the timeframe for the adoption of a General Comment theme lasts 18 months. NGOs need to keep this in mind when proposing a theme. Besides, NGOs can also participate and provide input into the drafting of other General Comments in the areas where they have expertise. It is therefore important to be aware of the themes discussed in the General Comments of the Committee to be able to explore possibilities for the integration of considerations related to Article 7 in these instruments. In particular, the Committee, while drafting, encourages NGOs working on thematic issues locally to provide feedback on the text of the General Comment and on how to tailor it to address questions of implementation on the ground.
3. Days of General Discussion
General Comments can also sometimes be the direct result of a Day of General Discussion (DGD) of the Committee on the Rights of the Child. The DGD is a one-day event taking place in Geneva every other year. The discussion focuses on a specific child rights theme related to one or several articles of the CRC. The purpose of the DGD is to “foster a deeper understanding of the contents and implications of the Convention as they relate to specific articles or topics.” As with General Comments, DGDs are also decided by Committee members, but proposals can also come from UN agencies and NGOs. Interestingly, the discussions held at previous DGDs led to important outcomes in addition to the traditional recommendations to state parties to the Convention. The UN Study on Children in Armed Conflict and on Violence against Children also stand as a result of former DGDs. NGOs who are willing to suggest a theme for a DGD have to demonstrate the importance of the proposed theme and establish links with the Articles of the CRC. During the event, working groups will take place around different aspects of the issue and NGOs should also be able to propose and develop the concepts around the specific themes being discussed on these occasions.
As is the case with General Comments, NGOs willing to propose an issue as a theme for discussion should be very strategic in demonstrating the reasons why having a DGD on Article 7 is essential. This is an important preliminary consideration to make as the Committee often decides to opt for the theme in which there is a current lack of expertise and where therefore there is a need for further recommendations to be made to state parties. NGOs working on issues related to the implementation of Article 7 should work collectively to demonstrate the implications, the challenges but also the best practices that could be shared on such an occasion. The emphasis should be placed on the challenges that states face in the implementation process. In this regard, an analysis of the Committee’s dialogues, recommendations and jurisprudence on the issue should be the first step. For instance, several of the dialogues between Committee members and government representatives focus on the difficulties that states face in the collection of data and the subsequent reporting to the Committee. Establishing links on the importance of having a deeper understanding of the implications related to Article 7 to assist States in addressing the issue is thus paramount.
Furthermore, the interpretations and recommendations issued by the Committee can assist other relevant stakeholders. With this in mind, suggestions on the theme of discussion should also demonstrate how the recommendations made by the Committee could improve the national frameworks of action on children’s rights to a nationality. This means that NGOs could reinforce their proposal on a DGD by demonstrating how the recommendations made to States could also assist other actors or institutions working at the national level on the implementation of the provisions listed by Article 7.
4. Mainstreaming Article 7 across Treaty Bodies: the call for a joint General Comment
The effective implementation of Article 7 and the full realisation of children’s right to a nationality have an impact on several other rights protected by the CRC. The Committee has demonstrated an understanding of this inter-relation of rights and the importance of making strong recommendations to states in this regard. However, because of the very nature of childhood statelessness, receiving further guidance on how to consider all aspects related to the issue could be particularly beneficial for states, and for civil society. In this sense, viewing the CRC as part of a bigger system is fundamental. Indeed, Concluding Observations should not constitute the only basis for the mainstreaming of the issue across human rights mechanisms. As General Comments and DGDs provide for a more solid understanding of issues, they can serve as valuable tools for the further engagement with other mechanisms.
In the case of children’s right to a nationality, cross-referencing becomes even more effective. Approaching additional Committees to call for a Joint General Comment could bring about significant benefits in terms of both understanding childhood statelessness’ implications and mainstreaming the question. If guidance provided to states takes into account most of the aspects related to the issue and if recommendations are formulated on the basis of the expertise of members from different Treaty Bodies, the impact on the development of legal and policy frameworks at national level will be stronger. In addition, two or more Committees will start making reference to a joint General Comment in their dialogues with states, and this would most likely be reflected in the Committee’s recommendations to states. On the same line, the engagement in the reporting cycle of civil society to the Committee and other Treaty Bodies would also benefit from such an instrument. Passing clear and comprehensive messages regarding children’s right to a nationality would allow for stronger advocacy in the framework of the Committees’ work.
All the areas of work of the Committee are inter-related and, although recommendations formulated in General Comments are made to state parties, the interpretation of the CRC provisions represent a powerful tool for NGOs in their work. The submission of information on the implementation of Article 7 by states, which is in line with the Committee’s understanding of the question, would make the overall engagement of NGOs through the Committee’s reporting cycle even more effective, coherent and impactful. This would, in turn, strengthen recommendations to states on how to implement Article 7 and ensure that every child has his/her right to nationality fully realised.
Similarly to the process of selection, the impact of such instruments on the ground can differ. It goes without saying that the political will of governments is fundamental. However, the level of pressure exercised by NGOs can make a difference. Before asking for a DGD or a General Comment on statelessness, NGOs should first make sure they have a clear follow-up plan in mind. This includes making sure that NGOs have the necessary resources to support such a plan. In this sense, it would be important to have strong coordination between NGOs advocating a specific theme, facilitating the sharing of resources and responsibilities throughout the process. Obtaining a General Comment or a DGD on Article 7 would not be enough in itself. The capacity of NGOs to engage in a series of raising awareness and advocacy activities for the implementation of such instruments needs to be an element of consideration from the outset.
Why is a General Comment on Article 7 necessary? What are the elements that should be addressed? Do we have the capacity to follow-up and advocate for the implementation of the outcomes by states? These are only some of the questions that need to be asked before engaging in this process. The selection of the theme, the relevance of the instrument chosen and its impact not only depend on NGO pressure and capacity but also on the answer to one question: are we ready?