The first question we must answer is what statelessness is? It is important to note that some decades ago the term ‘refugee’ and ‘stateless’ was considered synonymous, however, after the II World War the difference between the two concepts began to become more evident. Thus, according to article 1 of the Convention relating to the Status of Stateless Persons (1954) the term "stateless person" means a person who is not considered as a State under the operation of its law." With this definition, we can clearly understand the difference between the concept of ‘refugee,’ because this refers to a person who is feared to be persecuted by a government. The causes for a person to be stateless are awfully diverse, we could talk about a conflict of law -where principles of ius sanguinis and ius soli have a dispute-; an arbitrary deprivation -where a government deprives a person of its nationality-; discrimination; state succession; and some new causes like international surrogacy and counter-terrorism movement, among others.
In this context, we have to understand why the right to nationality has a significant impact and is of paramount importance. In the words of the OHCHR (n.d.) the right to a nationality is a fundamental right, and states must comply with their human rights concerning the granting and loss of nationality". Moreover, the deprivation of nationality directly affects people and places them at a disadvantage position; they cannot enjoy their human rights because these rights depend on lawful limitations related to nationality. In this perspective, nationality plays an important role in building a State, and have vital elements that construct the idea of Right of Nationality: acquisition of a nationality; prohibition of discrimination, naturalization, prohibition of deprivation of nationality, prevention of loss of nationality, and change a nationality. Thus, these people are in a situation of high vulnerability to human rights violations. In other words, we are talking about a right that acts like a "door," that is to say that without the guarantee of this right we can not have access to the other rights. The right to nationality as the "right to rights." Under this scenario, we can see an evident tension between human rights and national interests. With the intention of protecting stateless people or who can be considered stateless for some reason, the international legal framework refers on several occasions to the right to nationality and defends it through several international legal instruments. Likewise, there are explicit prohibitions to the states of arbitrary deprivation of nationality and recommendations such as the inclusion of safeguards to prevent statelessness. Two conventions specifically address the issue of statelessness: 1954 Convention and 1961 Convention.
1954 Convention entered into force in 1960. Before this moment, the world was going through critical historical events. French Revolution, end of the Second World War, change towards modern states and towards the notion of "nation-state" system, among others, are events that caused massive displacements of people, refugees and stateless. The problem of displacement and security worldwide began to grow and required international cooperation to find solutions. After the Second World War, the UN Commission on Human Rights recognized that international agreement concerning stateless people and refugees was insufficient, for this reason, the UN began a study on the national law, international treaties and, conventions related to this issue, and started to make a draft of a new convention. This draft focused on the refugees, and the stateless problem remained in the protocol, which was discussed until 1954 after different attempts (Arakaki, 2015, p. 20). In addition to defining ‘stateless’, 1954 Convention determined the scope of stateless persons, a list of rights of this group and four standards of treatment. Also, 1954 Convention has significant differences with the Refugee Convention: the subject of protection in the former is stateless persons, not refugees; neither include non-refoulment protection from penalties for illegal entry; and right to work and association were less protected (Arakaki, 2015, p. 22). One of the most critical moments in the development of statelessness’ topic was the United Nations Conference on the Elimination or Reduction of Future Statelessness that held in 1959 with 35 States represented. The Conference focused on the prevention of statelessness, a different approach to the previous ones where it was only about protection to this group of people. This conference significantly influenced the following Convention on statelessness that was adopted in 1961 and entered into force on 1975. 1961 Convention has as primary objective the prevention of future statelessness, and has an essential difference with the other instruments, placed obligations on contracting states to some extent. This Convention states in its first articles (1-4) how to avoid statelessness among children and foundlings, in the following articles (5-7) it described some different conditions as naturalized persons and born abroad nationals, and in the following articles (8-9) speaks of the non-deprivation of nationality under different reasons: racial, ethnic, religious and political. At this moment, only 71 States of 195 ratified the Convention. As we can see in history, decades ago the stateless concern have left aside, and the interest of the international community focused on other issues. For this reason, the low number of contracting states to the 1954 and 1961 Conventions can be explained. Now, in addition to mention the number of few contracting states, it is necessary to review the quality in the implementation of these Conventions. According to Arakaki (2015), in the 1954 Convention the definition of stateless persons and the determination method were not pursued seriously until recently. Before, the focus was on the refugee issue, which became a universal phenomenon. However, today there is an outstanding international movement led by the Office of the UNHCR that intends to develop improved methods of implementation to prevent statelessness situation, with international cooperation and NGO support. Thanks to this movement, today we can see organizations involved as UNICEF, and the revision not only of the content of the Conventions but also of the other treaties related to human rights that may influence this particular issue. Thus, the discussion on the right to nationality has placed on the table, and today its importance in different scenarios is being discussed.
As I said earlier, this research report focuses on determining the specific situation for children. I should start by saying that the most critical moment to guaranteeing a person's rights to a nationality is the moment of birth, if we do not ensure a nationality at birth, this child will be left stateless for many years, or even a lifetime. We already mentioned the consequences: statelessness does not allow access to education, social assistance, documentation, healthcare, among others. According to the UNHCR (2015) “(…) stateless child being born somewhere in the world at least every 10 minutes, this is a problem that is growing. In countries hosting the 20 largest stateless populations, at least 70,000 stateless children are born each year.” Because of this paramount importance, the child's right to acquire nationality is contained in several international instruments; this report intends to review the child’s right to a nationality under international human rights law and the general standards we have today.
First of all, in article 15, the Universal Declaration of Human Rights states:
Article 15.
Everyone has the right to a nationality.
No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
Here we can see the first problem. The Convention does not indicate which nationality a person may have and which state must grant it. Another instrument is the International Covenant on Civil and Political Rights (ICCPR) that in its article 24 establishes:
Article 24
1. Every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.
2. Every child shall be registered immediately after birth and shall have a name.
3. Every child has the right to acquire a nationality.
In this article, we can recognize different elements. First, the article does not indicate to which state a child may claim his or her right to a nationality. Further, the article says, “right to acquire,” the question is by which time this right has to be implemented. Still, the good thing is the ICCPR articulates the right of a child to acquire a nationality. If we analyze the second point, the ICCPR is telling us it is not acceptable to postpone the right to acquire a nationality under a person reaches the age of 18. Besides, the Human Rights Committee states that with this article, states are required to adopt every appropriate measure (internally and in cooperation with other states) to ensure that every child has a nationality when he is born.
The Convention on the Rights of the Child (CRC) is even more concrete in this point. This convention states:
Article 7
1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.
2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.
Even if the article is more specific at this point, we have the same problem as above. Neither the ICCPR nor the CRC indicates which nationality a child has right. There’s also a discussion with this article, should the state part introduce the ius soli approach? According to De Groot (2014) if we analyze different sources, the answer will be no. The states parties should guarantee all the necessary measures to prevent a child from having no nationality. With this article, we can see another critical element. The obligation that imposed the article is not exclusive to the country of birth of the child, but to all countries, which with the child has a link -because of this parents, residence or place of birth. We have to take a look also to the Convention on the Elimination of All Forms of Discrimination Against Women. This convention states:
Article 9
1. States Parties shall grant women equal rights with men to acquire, change or retain their nationality. They shall ensure in particular that neither marriage to an alien nor change of nationality by the husband during marriage shall automatically change the nationality of the wife, render her stateless or force upon her the nationality of the husband.
2. States Parties shall grant women equal rights with men with respect to the nationality of their children.
From the aforementioned article, it can be deduced that where nationality is attributed from the descent, states should not discriminate on the basis of gender. The above means, a child should have equal access to the state’s nationality whether it is the mother or the father who holds it. Women have an equal opportunity to pass on their nationality to their children. Now, we should discuss the access of children to nationality under the 1961 Statelessness Convention. The Convention states:
Article 1
1. A Contracting State shall grant its nationality to a person born in its territory who would otherwise be stateless. Such nationality shall be granted:
(a) at birth, by operation of law, or
(b) upon an application being lodged with the appropriate authority, by or on behalf of the person concerned, in the manner prescribed by the national law. Subject to the provisions of paragraph 2 of this Article, no such application may be rejected.
A Contracting State which provides for the grant of its nationality in accordance with sub-paragraph (b) of this paragraph may also provide for the grant of its nationality by operation of law at such age and subject to such conditions as may be prescribed by the national law.
We can see here how the Convention gives different alternatives to implement this requirement. We can identify two options: an automatic acquisition of its nationality upon birthday in its territory and an acquisition with an application. To apply for the acquisition of nationality, the second part of the article points out the list of conditions:
You can lodge the application beginning no later than after the applicant reaches 18 years old, and ending no earlier than the age of 20;
The state can require a criminal conviction test, it means that the person cannot be convicted of an offense against national security, and has not been sentenced to imprisonment for 5 years or more;
The state can require an applicant to establish habitual residence in the territory of the Contracting State for such period as may be fixed by that State;
The person concerned has always been stateless.
The part three of the same article states:
3. Notwithstanding the provisions of paragraphs 1 (b) and 2 of this Article, a child born in wedlock in the territory of a Contracting State, whose mother has the nationality of that State, shall acquire at birth that nationality if it otherwise would be stateless.
Along with the Convention on the Elimination of All Forms of Discrimination Against Women, this article is an enormous step towards gender balance and non-discrimination against women. Thus, women can transmit their nationality to their children, and in this way, more cases of stateless children are prevented, bearing in mind that in many occasions the father of the child is not known or he is not present.
The part four and five of the article 1 refers to the person who was not able to acquire the nationality of birth due to the age or residence conditions (the conditions that we saw in the second part of article 1). This part of the article refers to two different situations:
A child of two parents who are nationals of two different contracting states. In this case, states can determine whether the child can acquire the nationality of the father or the mother under the national law.
A child is born in the territory of a non-contracting state but has a parent who possesses the nationality of a contracting state at the time of birth of the child. In this situation, the state of nationality of the parent must grant its nationality to the child because the Convention can’t force the non-contracting state of birth to confer its nationality.
Likewise, it is necessary to mention the European Convention on Nationality, because of its progress concerning children's rights to nationality and because with it, we can make a comparison with the instruments that we already discussed. In addition, reference should also be made to Recommendation 2009/13 of the Council of Europe, who drafted rules to improve nationality issues and the nationality position of adopted children. This recommendation has 23 principles, which are an inspiration to develop the regulations related to avoiding and reducing cases of statelessness.
In this table, we can see some of the differences between these instruments:
As mentioned in the introduction of the present research report, below is shown some of the patterns that can be presented when talking about children in a situation of statelessness.
1. Foundlings
When we talk about foundlings, we do not have key facts that allow us to identify the origin of the child, meaning that their origin is unknown.
According to article 2 of 1961 Convention:
Article 2
A foundling found in the territory of a Contracting State shall, in the absence of proof to the contrary, be considered to have been born within that territory of parents possessing the nationality of that State.
By reading this article, we can identify several questions, when we consider a child a foundling? The term ‘foundling refers only to newborn babies or children too? What happened if we do not know the parentage? With these questions, we can identify another gap. However, we can choose the interpretation that most favors the child, in this case, could be that the child posses the nationality of the country in which he had been found until he or she obtains another nationality (De Groot, 2014). UNHCR's Guidelines on Statelessness No. 4 recommend that this safeguard "apply to all young children who are not able to communicate accurate information pertaining to the identity of their parents or their place of birth." Even if the 1961 Convention places the primary responsibility to prevent statelessness among children on the State of birth, a State Party to the Convention also has children of their nationals born outside its territory.
2. Adopted children
With adoption, a family relationship is created between the child and the parents, so the adopted child’s legal position should be as far as possible identical to the position of a biological child. Even though the treaties consider adoption of a child should not lead to statelessness, there are no concrete rules about adopted children; indeed we have here another gap. If we analyze this situation with the Recommendation 2009/13, states must be guided with the right of blood. Besides, according to the same Recommendation, the revocation or annulment of the inter-country adoption should not cause the loss of nationality acquired by this adoption. In this case, states should not require more than five years of permanent residence, because with the child’s residence in the territory the link with the State involved is understood. This state has the responsibility for the future of this child.
3. Surrogate mother
Problems may arise when a third person is involved and does not share the nationality of the biological parents. Until today, no treaty deals with this situation. De Groot presents in his text (2014) a case where we can detect the difficulties that can be found in surrogate mother situations. An Austrian couple settled a surrogacy contract with an American woman who gave birth two children in the United States. The Austrian spouses were the genetic parents of these children. By birth in the United States, the children were considered American citizens, but American courts recognized the Austrian couple as their parents. The children were taken to Austria and registered as Austrian citizen in Vienna. When the mother alleged child benefits, the government said that the children did not possess Austrian nationality because surrogate motherhood was illegal under Austrian law and the Austrian mother could not be identified as the legal parent of the child. In the end, the Constitutional Court denied these arguments; it stated that it would be against the best interests of the child to force the American surrogate mother into the status of the legal mother against her will because of the application of Austrian law, this woman was neither the biological mother nor the legal mother. This decision of the Austrian Court was considered as a best practice because the best interest of the child guided the final decision.
4. Children of nationals born abroad
The article 4 of the 1961 Convention requires a State to recognize the nationality of a child born outside its territory to a parent who has its nationality if the child would otherwise be stateless. The problem with this article is many countries following ius sanguinis rules provide for unlimited transmission of nationality for multiple generations of those born abroad to their nationals. Others, however, do not allow transmission of nationality for the children of a parent who has been resident outside the country for an extended period, or for a second or third generation born abroad. Collecting several of the recommendations made in the bibliography analyzed (mostly by the UNHCR and by academics such as Gerard-René De Groot), below there is a table that summarizes these recommendations or that try to identify some of the elements that should be taken into account when we are dealing with the case of a child that is or could be considered stateless:
In addition to the above, four elements that more than recommendations, should be considered as principles in all states that try to prevent more cases of statelessness.
After identifying the current global problem about stateless people, and analyzing individually the case of children, I share some of the conclusions from my perspective on this problem below. Several failures can be evidenced in the existing Conventions on statelessness (1954 and 1961), flaws that must be fixed. However, the person who is under a non-contracting state has very few possibilities of being able to guarantee their rights; this person will be at a level of a disadvantage even higher than that of other stateless people. For this reason, it is essential to promote that states adhere to these conventions, these treaties contain the guiding principles that any state must follow to guarantee the rights of stateless people, in this case of children. Furthermore, it is well known that UNHCR has been providing technical advice to governments to reform nationality laws, policies and procedures to close legal gaps that may lead to statelessness, to ensure that stateless people can acquire a nationality and that they are identified and protected. As a result, there are signs of a shift in attitudes. Within last four years, the number of accession to two Statelessness Conventions increased significantly: the number of contracting states for the 1954 Convention relating to the Status of Stateless Persons increased from 65 to 86, and the number of contracting states for the 1961 Convention on the Reduction of Statelessness increased from 33 to 63 (Arakaki, 2015).
The above is undoubtedly a very considerable advance to prevent and reduce statelessness in the world, but it is necessary to continue promoting the adherence of all states to the 1961 Convention. This problem should be part of the agendas of all governments, as it is a humanitarian crisis that blocks the possibility of enjoying any right, and that brings severe consequences in the lives of these people. The UNHCR has a double mission: to prevent and protect. Prevent possible cases of statelessness around the world, and protect the rights of people who are now stateless. These two tasks must be performed at the same time; none can be considered more important than the other. Fulfilling this mission is a complex job, involving the commitment of international organizations and states. The goal of ending statelessness in the next few years is a challenging goal to fulfill - the figures are very high and are growing over time - but the complexity of the task cannot be a justification to stop working. We can identify some gaps or flaws in the law that must still be resolved. An example can be the conditions that are required in the procedures for applying to nationality, such as "good conduct." Finding alternatives as an automatic attribution or a non-discretionary procedure and not subject to such conditions as a legal residence or the "good conduct" of the parents or child is a job that must be done, but always guided by the principle of the best interests of the child. This problem is an emerging situation that the states have not adequately identified. Adopt the appropriate mechanisms to solve this problem, implies understanding its origins and causes, and also, identify the people who are living this problem today. The problem with data is immense; we do not know precisely how many people and with what characteristics are experiencing this problem today. It is vital to identify the complexity of the problem, and not to continue talking about statelessness as a vague situation with invisible victims.
Non-access to nationality has a significant impact on the social identity of a child. The identity process for a child is essential for its development; it is related to the recognition of his community, his family and himself. Now, the figures show that children most affected by statelessness are generally those belonging to vulnerable groups, such as ethnic, religious or linguistic minorities. This problem acts as a vicious circle, as children repeat the stories of their parents, and without the right to nationality, it is almost impossible to get out of this situation and change their history. For this, a child's right to preserve his or her identity, including nationality, must be assured. States must do more to defend children's right to nationality, whatever the circumstances, and ensure that their laws and practice reflect this commitment.
Works Cited:
Arakaki, Osamu. (2015). Statelessness Conventions and Japanese Laws Convergence and Divergence.
Covenant on Civil and Political Rights. (1976).
Convention on the Elimination of All Forms of Discrimination Against Women. (1979).
Convention on the reduction of statelessness. (1961).
Convention on the Rights of the Child. (1989).
Convention relating to the Status of Stateless Persons. (1954).
De Groot, Gerard-René. (2014). Children, their right to a nationality and child statelessness. Pp. 144 – 168.
European Convention on Nationality. (1997).
European Network on Statelessness. (2015). No child should be stateless. Retrieved from https://www.statelessness.eu/sites/www.statelessness.eu/files/ENS_NoChildStateless_final.pdf.
European Network on Statelessness. (#StatelessKids). (2016). No child should be stateless. Retrieved from https://www.youtube.com/watch?v=VvUMZanVToA.
Office of the High Commissioner for Human Rights. (n.d.). Right to a Nationality and Statelessness. Retrieved from https://www.ohchr.org/EN/Issues/Pages/Nationality.aspx.
UNHCR, the UN Refugee Agency. (#IBelong:). (2016). "Try To Understand Our Lives" - Kavita, Malaysia. Retrieved from https://www.youtube.com/watch?time_continue=102&v=06LLibCCJ0M.
Universal Declaration of Human Rights. (2015).
United Nations High Commissioner for Refugees. (2015). I am here, I belong. The urgent need to end childhood statelessness. Retrieved from http://www.unhcr.org/ibelong/wp-content/uploads/2015-10-StatelessReport_ENG16.pdf.
United Nations High Commissioner for Refugees. (2017). Ensuring that no child is born stateless. Good practices paper. Action 2. Retrieved from https://www.statelessness.eu/resources/unhcr-good-practices-paper-action-2-ensuring-no-child-born-stateless
United Nations High Commissioner for Refugees. (n.d.). Minority children & statelessness. Retrieved from http://www.unhcr.org/ibelong/wp-content/uploads/IBELONG_Minority-Children-and-Statelessness.pdf.
United Nations High Commissioner for Refugees. (n.d.). What is Statelessness?. Retrieved from https://www.unhcr.org/ibelong/wp-content/uploads/UNHCR-Statelessness-2pager-ENG.pdf.
United Nations High Commissioner for Refugee’s Guidelines on Statelessness No. 4. (2012).
Universal Declaration of Human Rights. (2015).
May 15, 2019
3:30 pm Wednesday, Tokyo (GMT+9)
inivisible children, Human Rights, Refugees, Stateless
About the author
Andrea Luna
She earned her Master of Science in Andrea Luna holds a Bachelor of Laws from the University of Los Andes (Colombia) with additional studies in social psychology and postgraduate degree in State, Public Policy and Development from the same University. She has experience in the defense of human rights and in formulation of actions of development, specifically in issues related to the right of education, the rights of people with disabilities, the rights of children and gender equality. In Colombia, Andrea joined different government entities such as the Colombian Family Welfare Institute, where she worked for the prevention and protection of infancy, childhood, adolescence and well being of families in Colombia.
International Christian University
3 Chome-3-１０−２ Ōsawa, Mitaka-shi, Tōkyō-to 181-8585
Email: adpacem.icu@gmail.com