Can strategic litigation help end childhood statelessness in the Middle East and North Africa (MENA)? And could the outcomes of strategic litigation for the nationality rights of children in Europe help advance children’s nationality rights in the MENA? Both theoretically and pragmatically, this is a question that has preoccupied us both since the landmark Zhao decision by the United Nations Human Rights Committee (HRC) back in January 2021.
Background on Zhao
The Zhao decision relates to a child born in the Netherlands, and the HRC found that - through prolonged failings to determine the child’s nationality status (or whether he was stateless) - the Dutch state had violated its obligations under Article 24(3) of the International Covenant on Civil and Political Rights (ICCPR) to ensure that “Every child has the right to acquire a nationality.” Given that Zhao was the first HRC decision to directly address state duties under Article 24(3), the Committee reviewed sources outside its own jurisprudence. Principally, it relied on UNHCR Guidelines on Statelessness to argue that no child should be left in the limbo of “undetermined citizenship” for a period exceeding five years.
In this decision, we welcome the HRC’s recognition of the importance to limit the suspension of a child’s right to citizenship, which often suspends access to other, secondary rights. Indeed, in a blog post published through ENS around the time of the decision, advocates in the case described the outcome of Zhao as a ‘victory for human rights’. In terms of potential beneficiaries from the ruling, it is worth noting - most immediately - that there are ‘more than 13,000 children in the Netherlands facing a similar legal position, more than 5,000 of whom have been classed as “unknown” nationality for more than five years.’
Applying Zhao in the MENA: anticipated challenges
As advocates and researchers working on the Middle East and North Africa (MENA), where domestic legal tools to curtail childhood statelessness are sparse, it is our conviction that the potential of every normative “win” should be explored.
We have, therefore, grappled with what the Zhao case might mean for that region. Where and how might it be applied? What might these applications look like? What challenges are anticipated, and where might there be opportunities? It is these questions that we have sought to address in a commentary piece recently published in a Special Issue of the Statelessness and Citizenship Review (SCR) on Children and Statelessness. Our reflections within the commentary developed out of an exploratory workshop organised by the MENA Statelessness Network (Hawiati) in June 2021 to discuss possible operationalisation of Article 24(3) in MENA contexts following the Zhao decision.
A key factor that might limit the application of the decision within MENA states is the absence of the constellation of conditions that enabled the filing of the Zhao case in the first place. In terms of legal landscape, while most MENA states are parties to the ICCPR, only three states (Algeria, Libya and Tunisia) have acceded to its Optional Protocol allowing the consideration of individual communications (as was the case in Zhao). Secondly, while Dutch law allows for registration as ‘stateless’ by municipal authorities, there is no such status within the legal and administrative frameworks present in MENA countries. Additionally, it is unclear whether the fact that the Netherlands has ratified the international Statelessness Conventions, while few MENA states have done so, would impede the possibility to apply Zhao in the latter.
In terms of the resources available to Zhao’s representatives, they and the HRC could draw on a ‘mapping study on statelessness in the Netherlands [...] and careful documentation of statelessness in the Netherlands and regionally by the European Network on Statelessness and its members’. Meanwhile, the architecture to support strategic litigation in the MENA region is relatively limited. In contrast to the numerous ‘Mapping Statelessness’ studies UNHCR has carried out or commissioned for European countries, to date the only such study in MENA covers a single governorate in Lebanon. Moreover, a regional network — the MENA Statelessness Network (Hawiati) — was only established in mid-2020.
The fact that strategic litigation in the MENA region is a relatively fledgling phenomenon is also likely to impede efforts to bring a case to an international adjudication mechanism. While other regions of the world have seen sustained international support and funding dedicated to strategic litigation, the MENA has largely been neglected in this respect. No doubt this is partly due to the challenges of successfully litigating cases that concern statelessness in a region where nationality issues are considered outside the jurisdiction of national courts (and no regional human rights court effectively exists). Nonetheless, this lack of attention and support is perpetuating an unequal landscape for the application of supposedly universal principles, such as the right to acquire a nationality.
Despite all of the above, and in view of the dearth of other avenues available in the MENA, we remain hopeful that the Zhao decision provides, at least, a new basis through which advocates in the MENA can invoke duties under Article 24(3).
Recent Progress in the MENA: Foundations for Strategic Advocacy and Litigation?
Over the last years, a number of actors have made efforts to respond to some of the research gaps on statelessness in the MENA region. The International Human Rights Clinic at Boston University, the American University of Beirut and other partners have launched a platform for statelessness research and advocacy in the MENA that prepares and hosts country-specific reports. Meanwhile, the Global Citizenship Observatory (GLOBALCIT), which works on citizenship laws and policy around the world, has recently added reports by country experts on a number of MENA states. Recently, diaspora actors have also developed tools (including in Arabic) to increase recognition of strategic litigation within the region.
The importance of Europe-MENA collaboration on statelessness going forward
The Zhao case sets an important precedent for the interpretation of Article 24(3) of the ICCPR. Now, it is imperative that the new norm heralded by the decision be amplified globally. In the MENA, however, how should it inform advocacy for stateless persons? If more than five years of undetermined nationality status violates a child’s rights under international law, what then when statelessness spills over several generations of children in MENA states, or when the Kuwaiti government determines without evidence that stateless Bidoon born on its territory are citizens of countries they have never known? Strategic litigation in authoritarian states may seem like a farce to statelessness advocates in Europe where even powerful courts often struggle to rein in executive discretion on matters of nationality. But confronting MENA states and their citizens with evidence of state sanctioned cruelty can be possible, even through the court system. Further, it need not engage the levers of conventional litigation, but could instead entail connecting the established protections for the rights of the child in the domestic and regional law of MENA states to the principles articulated by HRC.
While such questions remain to be navigated in practice, we are hopeful that strengthened collaboration between actors working on statelessness in Europe and the MENA will be beneficial for both contexts. Addressing the situation of stateless migrants and refugees coming to Europe from MENA, as well as recognising the prevalence of statelessness among some of the well-established MENA diasporas in Europe, ENS’s Stateless Journeys project unpacks some of the statelessness connections between the two continents. Such cross-cutting endeavours are of vital importance as actors in MENA seek to build capacity and collaboration partnerships for strategic litigation. As members of the MENA Statelessness Network (Hawiati), we hope to be part of these efforts going forward.