“Everyone has the right to a nationality”

Using the UN Human Rights Special Procedures to address statelessness

1 October 2015 | Rachel Brett

Non-governmental organisations (NGOs) have not to date made as much use as they could of the United Nations (UN) Special Procedures to raise and address statelessness issues.

The UN Human Rights Council took over from its predecessor the system of 'Special Procedures'.  These cover all States, whether or not they are members of the UN, and whether or not they are parties to any or all of the human rights treaties.  Different names are used for the various Special Procedures: Special Rapporteur, Independent Expert or Working Group but essentially they perform the same tasks.  The main difference is that a Working Group has five members (from different regions of the UN) while the other two are a single individual.  These people are not government representatives but unpaid independent experts, supported by staff in the Office of the UN High Commissioner for Human Rights.  The official information about the Special Procedures can be found here.

There are two types of Special Procedures: country and thematic.  The distinction is that a 'country' mandate is concerned about all human rights in one State, whereas a 'thematic' mandate covers a single issue in relation to all States.

Country Mandates

There are currently 14 country mandates.  In terms of statelessness, the Special Rapporteur on Myanmar is obviously relevant and has raised the issue.

The most recent report (A/HRC/28/72 of 23 March 2015) stated:

The proposed Child Law is an opportunity to remove ambiguity in existing laws in order to ensure a universal right to birth registration for all children born in Myanmar.  In particular, provisions should ensure that children of stateless parents acquire a nationality through official mechanisms.

And its recommendations to the Government included:

Resolve the citizenship status of habitual residents of Myanmar, including Temporary Registration Card holders, and ensure that they have equal access to citizenship through a non-discriminatory process;

Amend the discriminatory 1982 Citizenship Law to bring it into line with international standards.  In particular, remove any provisions that provide for the granting of citizenship on the basis of ethnicity or race.

Provided the State agrees, the Special Procedure can visit the country, meet with officials, non-governmental organisations and others, visit different areas of the country or places of particular interest such as prisons or detention facilities and so on.  The mandate-holder then reports annually to the UN Human Rights Council.  Whether or not a country visit can be made, there is an obligation to report to the Human Rights Council, but of course, information from NGOs and others is even more important in the absence of a country visit.

Which States are covered by country mandates is highly political.  Of course, this does not mean that there are not good human rights reasons for the mandates that do exist, although there should perhaps be more of them.  However, few countries themselves wish for such coverage, and often resist strenuously and refuse to co-operate.  Nevertheless, over time, with a good mandate-holder the government may become more willing to cooperate and seek to learn from the analysis and expertise being offered, or, of course, the government may change.  In any event, the process enables public reporting and discussion of the human rights situation in that country and can provide some validation of information from NGOs by giving it a UN imprimatur.  It may also bring particular issues to the attention of relevant UN or regional bodies or other actors who can provide political pressure or offer technical assistance, for example in relation to birth registration.

Thematic Mandates

Of more general relevance to statelessness are the thematic Special Procedures.  There are now 41 of these covering a broad range of civil, cultural, economic, political and social rights, particular groups and a range of other issues.  Their tasks are to prepare studies and reports on their issue, to visit countries which agree to them coming and report on these 'Missions', to receive and respond to allegations of violations of the right concerned, and to report annually to the Human Rights Council, and sometimes also to the UN General Assembly.

Some of the thematic Procedures of clear relevance to statelessness are: the Special Rapporteurs on Minorities, on the Right to Education, on the Right to Health, on the rights of Indigenous Peoples, on the human rights of Migrants, on Contemporary Forms of Racism, and the Working Groups on Arbitrary Detention, and on Discrimination against Women in Law and Practice.

Recently, the Special Rapporteur on Minorities undertook a study of the Roma (A/HRC/29/24 of 11 May 2015) and reported:

Statelessness also disproportionately affects Roma, who despite being born in or having long-standing ties to a country, speaking the local language and having no other country of citizenship, often have no access to nationality.  Lack of documentation also hampers not only Roma political participation, but also access to services, thereby reinforcing the vicious circle of poverty and marginalization.

And the Working Group on Discrimination against Women in Law and Practice included a section on nationality laws in their report (A/HRC/23/50 of 19 April 2013) which focussed on eliminating discrimination against women in political and public life.

Although they report annually to the Human Rights Council, the Special Procedures work year round, so information and allegations of violations can be submitted at any time.  As with all parts of the UN Human Rights system, information from non-governmental organisations is essential.  There are specific guidelines for submitting complaints of human rights violations, and the contact emails are available from the above link.  In addition to considering violations which have occurred, they may also take urgent action to prevent violations, in particular where there is a threat to the life or integrity of one or more persons, and they issue press releases (often several Special Procedures issue these jointly).

Advantages and Disadvantages of the Special Procedures

The Special Procedures are a political rather than legal human rights process.  Their mandates are created by the Human Rights Council (which is an inter-governmental body) to whom they also report, and the mandate-holders are appointed by the President of the Council, endorsed by the Council as a whole.  Their reports are considered to a greater or lesser extent by the governments represented in the Council, although national human rights institutions and NGOs also have the opportunity to comment.  Without adequate follow-up, the reports may be overlooked or quickly forgotten.  However, this also means that there is scope for considerable NGO use to be made of them – for example, publicising important findings on an issue or in relation to a specific country.  Because the mandate-holders are not paid, many are highly skilled and dedicated experts who welcome not only information from NGOs, but also working with NGOs to ensure that their work is used to best effect.

Because they are not limited to States who are parties to the human rights treaties, the Special Procedures can be particularly useful in relation to those States who are not party to a relevant treaty, or have not accepted an individual or other complaint procedure.  Equally, because they work year round, there is no time lag in waiting for the next time the State is reporting to a human rights Treaty Body or being reviewed under the Universal Periodic Review procedure.

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