Discrimination and childhood statelessness in the work of the UN human rights treaty bodies
1. Introduction
Each United Nations (UN) human rights treaty is overseen by a Treaty Body: an independent committee of experts mandated to review the implementation by states parties of the rights set out in the treaty, to interpret the text of the treaty and to hear individual and group complaints brought before them. Through these roles, Treaty Bodies can play an important role in addressing childhood statelessness through human rights law. Firstly, they can draw attention to particular issues by asking questions of and making recommendations to individual states in their regular reviews of the implementation of treaties. Secondly, through their interpretation of the treaties they can help to develop the understanding of childhood statelessness as a violation of the child’s rights and therefore as a matter which states have an obligation to address.
The latter is particularly important in light of the extent to which the question of who is a national of a state falls within the domain of state sovereignty and as such is left to the discretion of each state, without interference from other states or the international community. One way in which international law and particularly international human rights law attempts to balance this respect for state sovereignty with the right of the individual to a nationality is by setting out general principles that states should respect in their laws and practice on granting and refusing nationality, rather than dictating to states which individuals they should consider nationals. Non-discrimination is one such principle, enshrined in Article 2 of the Universal Declaration of Human Rights (UDHR) and reiterated in every subsequent human rights treaty. One of the roles the treaty bodies can play is therefore to help define, both in general and in relation to specific situations, how this principle applies to the right to a nationality and what the acceptable parameters of state discretion are in this respect.
Discrimination is understood as:
The Convention on the Rights of the Child (CRC) further specifies that protecting children against discrimination includes prohibiting discrimination based on the status or origin of their parents or legal guardian.
The importance of non-discrimination as a means of balancing the demands of State sovereignty with the right of each individual to a nationality are reflected in the wording of the right to a nationality in the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the Convention on the Rights of Persons with Disabilities (CRPD). These treaties emphasise that women and persons with disabilities, respectively, should not be discriminated against in the matter of nationality rather than providing a positive right to a nationality. Where a positive right to a nationality is asserted in human rights treaties it is ascribed to children; the International Covenant on Civil and Political Rights (ICCPR) includes the right to a nationality under Article 24 (Rights of the Child) rather than as a separate right guaranteed to all persons. In interpreting this right, the Human Rights Committee has stressed the importance of non-discrimination:
It is therefore unsurprising that 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. The discrimination framework has also allowed Treaty Bodies to address access to rights by stateless children.
2. Discrimination in Access to Nationality
Discrimination in access to nationality may take the form of provisions of national law that directly exclude some individuals from nationality or limit the circumstances in which individuals can acquire nationality in a discriminatory manner. However, it can also occur where apparently neutral provisions are interpreted or implemented in a discriminatory way or where the situation of particular groups makes it more difficult for them to fulfil certain conditions for access to nationality. The non-discrimination aspects of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), CEDAW and CRPD have meant that the relevant treaty bodies consistently address access to nationality as a discrimination matter. However, the broad reach and importance of non-discrimination provisions have meant that other Treaty Bodies (including those whose treaties do not contain the right to a nationality) have also raised concerns about direct or indirect discrimination in access to nationality. While the Committee on the Rights of the Child, more than any other Treaty Body, has considered access to nationality and the prevention of statelessness as positive rights, it has also regularly highlighted discriminatory factors affecting this right.
1.1 Discrimination on grounds of race or religion
A small number of states maintain clearly discriminatory laws that restrict nationality to individuals of a particular race or religion. The Committee on the Rights of the Child has criticised such laws as a violation of the right to nationality read in conjunction with the prohibition of discrimination. On the other hand, the Human Rights Committee’s recommendation to the Maldives on revising the constitutional bar on non-Muslims being citizens makes no mention of the right to nationality, but addresses this as a question of freedom of religion combined with the prohibition of discrimination. This reflects the way that the prohibition of discrimination can be invoked to support access to nationality even in the absence of an explicit right to nationality.
In other states, instead of defining who is eligible for nationality, the law (or the interpretation of the law), serves to exclude certain groups or individuals. Such exclusionary measures are recognised, for instance, in the Committee on the Elimination of All Forms of Racial Discrimination’s (CERD) recommendation that States “ensure that legislation regarding citizenship and naturalisation does not discriminate against members of Roma communities”. Other Treaty Bodies have made recommendations to particular States where they have identified problems, such as the Committee on the Rights of the Child’s criticism of Israeli legislation preventing the children of Israeli citizens and individuals from the Occupied Palestinian Territories from acquiring Israeli nationality.
1.2 Discriminatory application of laws
Not all distinctions are discriminatory. In addition to special measures to address existing inequalities, states are permitted to make distinctions based on reasonable and objective criteria provided that the aim of the measures is legitimate. In particular, given the extent to which decisions on nationality are protected by state sovereignty, states have a significant degree of freedom in deciding what constitutes a sufficiently close connection to the state to enable an individual to claim nationality. As a consequence, laws that provide an exception to the right to nationality for children born in the territory to those ‘in transit’ are not, per se, discriminatory. The fact of being in transit rather than resident in the state is an objective criterion and the exclusion of such persons from nationality is not unreasonable. However, the Treaty Bodies have raised concerns about cases where the implementation of these provisions has, in practice, resulted in discrimination. In particular, they have criticised the application of such provisions to migrants in an irregular situation whatever the duration of their residence in the state. Where a particular group (for instance persons of Haitian descent in the Dominican Republic) is targeted by these measures there is an obvious element of discrimination. However, even if applied to all national groups, these measures introduce discrimination into the national law, since they discriminate against certain children based on their parents’ migratory status.
1.3 Discrimination related to acquisition of nationality from parents
Other treaty bodies have made similar recommendations, stressing the gender-based discrimination inherent in such laws and, in some cases, echoing the concern that they increase the risk of statelessness. Such recommendations have, however, rarely considered the extent to which these laws discriminate against the child on the basis of the nationality of their father, as well as against the parent who is unable to transmit nationality. This is particularly striking in the work of the CERD since the question of discrimination on grounds of the parent’s nationality would seem to fit naturally into its mandate.
Similarly, the Committee on the Rights of the Child has framed its recommendations on gender-based discrimination in nationality laws as a matter of prevention of statelessness and discrimination against women. When addressing a woman’s ability to transmit nationality to her children, this omission is not significant, but articulating the ways in which such laws also discriminate against the child could help to draw out why other provisions of nationality laws may be problematic from the perspective of the child’s right to a nationality. For instance, this approach provides a framework to talk about provisions which discriminate against fathers in the transmission of nationality to their children, or where there is no gendered aspect to the laws, but distinctions are made between citizens from birth and naturalised citizens.
Discrimination on grounds of their birth out of wedlock particularly affects children. Often the impact on the right to nationality is linked to gender-based discrimination that prevents women transmitting their nationality to children and recommendations by the Committee on the Rights of the Child and CEDAW have been made on this basis. However, in some cases the issue has been addressed as a matter of discrimination against the child on the basis of the status of their parents. For example, the Human Rights Committee recommended that Japan “remove any provisions discriminating against children born out of wedlock from its legislation”. Similarly the Committee on the Rights of the Child has made recommendations relating to the ability of parents to transmit nationality to their children born out of wedlock on an equal basis with those born within marriage, such as the recommendation to the UK on the ability of fathers to transmit nationality:
1.4 Administrative and Practical Barriers to Nationality
Discrimination in access to nationality often arises where particular groups or individuals are already marginalised or subject to discrimination. For instance, low levels of birth registration among certain sections of the population can affect their access to nationality by leaving children without proof of their place of birth and parentage (and therefore their eligibility for nationality). On this basis, Treaty Bodies have recommended special measures to promote birth registration among marginalised groups.
Recommendations have also been made on removing administrative and practical measures preventing access to nationality for certain individuals or groups. In its General Comment on People of African Descent, the CERD highlights the need to address both discriminatory laws and other barriers to people of African descent accessing nationality. The Committee on the Rights of the Child has also recommended that Croatia:
Naturalisation laws that impose unreasonable requirements, such as a high level of knowledge of the language of the state, have been criticised by the CERD. The CRPD has also highlighted the discriminatory aspect of naturalisation laws that exclude persons with disabilities. Such provisions may be particularly problematic, since children with disabilities are sometimes discriminated against in nationality laws and are less likely to be registered at birth, increasing their risk of statelessness and, therefore, the need to apply for naturalisation.
Treaty Bodies have also addressed the intergenerational impact of statelessness arising from historic exclusion and marginalisation. In this context, they have made recommendations stressing the need for special measures to promote access to nationality for persons, particularly children, from these stateless populations.
3. Deprivation or Loss of Nationality
As with access to nationality, states have a degree of freedom to define the conditions under which an individual may lose their nationality and the reasons for which the state may deprive them of their nationality. However, human rights law prohibits arbitrary deprivation of nationality. In order to not be arbitrary, a deprivation of nationality must be in accordance with national law, not for reasons incompatible with international human rights law, reasonable, and with an impact on the individual that is proportionate to the outcome the state expects from the deprivation of nationality. The CERD has highlighted that deprivation of nationality on discriminatory grounds “is a breach of States parties’ obligations to ensure non-discriminatory enjoyment of the right to nationality”. Such deprivation would also be arbitrary, since a discriminatory measure would not be for a purpose permissible under international human rights law.
Proportionality is a particularly important consideration where deprivation of nationality affects children or will result in statelessness, since the wide-ranging and severe effects of statelessness make it particularly hard to justify such measures as proportionate. Furthermore, the Committee on the Rights of the Child has taken the position that children should never be deprived of their nationality, due to the profound effect this can have on their identity and access to other rights. This is the case whether the child is the subject of the deprivation of nationality or would lose nationality due to a parent’s deprivation of nationality. The treaty bodies have not often dealt with situations in which children are directly deprived of their nationality. An exception is the Dominican Republic, where the effective deprivation of nationality from Dominicans of Haitian descent has been condemned by a number of Treaty Bodies, not least because of the element of racial discrimination. Recommendations have included the reform of the relevant laws and the restoration of nationality to those affected.
In other cases, children may not be the direct subjects of laws depriving individuals of nationality on discriminatory grounds, but may be affected when a parent is deprived of nationality and this is automatically extended to his or her children. While the Treaty Bodies have expressed concern about these issues, they have tended to focus on the reasons for deprivation of nationality from the adults, including highlighting discrimination in such deprivation, without addressing it as a matter of discrimination against the child. In addressing this issue, even the Committee on the Rights of the Child has emphasised the prevention of childhood statelessness and the right to a nationality, rather than focusing on the discriminatory aspects of such deprivation. Where the reasons for the parent’s loss or deprivation of nationality are discriminatory (or arbitrary) it is clear that the child’s loss of nationality as a result will also be prohibited on the grounds that it too is discriminatory or arbitrary. It is where the parent’s loss of nationality is permissible under international law that the importance of the child’s right to nationality and not to be discriminated against because of the status of a parent could be significant. This may be the implication of the Committee on the Rights of the Child’s recommendation to Australia to “ensure that no child is deprived of citizenship on any ground regardless of the status of his/her parents”.
4. Access to Rights for Stateless Children
Human rights treaties generally guarantee rights to all those within the territory or jurisdiction of the State. That stateless persons are included within the scope of human rights treaties and protected from discrimination in access to rights is beyond doubt, and has been laid out in the General Comments of Treaty Bodies. For example, the Committee on Economic Social and Cultural Rights’ General Comment on non-discrimination specifically mentions children born of stateless parents among those who are protected from discrimination based on birth and includes stateless children in the list of non-nationals to whom the rights set out in the Covenant also apply “regardless of legal status and documentation”.
In their concluding observations Treaty Bodies have highlighted in particular the need to avoid discrimination in access to education and health care for stateless children. For instance, the Committee on Economic, Social and Cultural Rights recommended that Vietnam "recognise and register children […] who are currently stateless, and ensure that they receive the necessary education, health care and other social services”. Other recommendations have referred to the obligation to ensure all rights, or made specific reference to rights such as freedom of movement.
In addition to discrimination because of their status as stateless persons, children whose statelessness is the result of discrimination may face problems in accessing rights because of that discrimination. Such discrimination would be linked to, but not necessarily the result of, their statelessness. However, in some instances it may be hard to distinguish whether discrimination arises from the fact of statelessness, or the underlying discrimination that caused the statelessness. Equally, stateless children may officially be in the same position as other non-nationals, but face greater difficulties in accessing rights due to their marginalisation. In particular, treaty bodies have recognised that lack of documentation may be a major barrier to accessing rights. For instance, the CERD recommended that Georgia “solve the documentation issues of stateless persons so that they can be registered, including through mobile registration centres, and have access to public services”.
While emphasising the importance of guaranteeing stateless children’s access to rights, the Treaty Bodies have made it clear that this does not abrogate the state's obligations with regard to the right to nationality. For instance, in its General Recommendation on the rights of non-citizens the CERD asks states to:
5. Conclusion
Discrimination, in one form or another, underlies almost all cases of childhood statelessness: from children unable to inherit nationality from their mother, to disabled children whose births are unregistered and who therefore have no proof of their nationality, to those from marginalised ethnic groups. UN human rights Treaty Bodies have recognised the link between discrimination and statelessness in a wide range of situations relating to access to nationality, loss or deprivation of nationality and access to rights for stateless children. They have called on states to amend discriminatory laws and take special measures to ensure access to nationality for children who are likely to be marginalised. While stressing that stateless children should have access to all the rights guaranteed under international law, they have recognised both the importance of nationality as a right and an aspect of identity and the extent to which statelessness renders children vulnerable to violations of their other rights. In this context, they have consistently stressed the need to find solutions involving access to nationality for all stateless children, rather than only a better implementation of their other rights. However, there remain some situations in which the discriminatory aspect of nationality laws have not been explored, for example, deprivation of nationality because of a parent’s loss or deprivation of nationality.
While the link between discrimination and statelessness helps clarify and crystallise state's obligations to protect the right to nationality, it raises problems in finding lasting solutions since these must address or at least circumvent the underlying discrimination. However, it is also true that solutions which resolve the statelessness of children without tackling the discrimination that caused their statelessness are likely to be incomplete in that they resolve one part of the problem without ensuring that the children can benefit from the full range of human rights. Unfortunately addressing discrimination is a complex problem which requires long term efforts to bring about societal change and build tolerant and inclusive societies as well as the introduction and reform of laws and policies. A key element in such changes is the involvement of both the marginalised and dominant communities to bring about solutions that work in the particular context and respond to the history, culture and needs of the population while being held to account by human rights standards.