Realising the right of every child to a nationality through the Convention on the Rights of the Child

Laura van Waas, Co-Directory, Institute on Statelessness and Inclusion
/ 8 mins read

When talking about how to end childhood statelessness in Europe, we often jump straight to the special standards that are contained in the 1961 Convention on the Reduction of Statelessness or the 1997 European Convention on Nationality. This blog focuses on a somehow less obvious but actually hugely significant tool that deserves far greater attention: the Convention on the Rights of the Child (CRC)…

The CRC is the most widely ratified human rights convention in the world: all but two states have signed up to it and all countries in Europe have committed themselves to fulfilling the child rights it contains. One of these is the right of every child to acquire a nationality, spelled out in article 7 – a provision which adds in its second paragraph, just for good measure, that states must ensure implementation of this right in particular where the child would otherwise be stateless! But what does this mean? What, exactly, is the content of state parties’ obligations when it comes to realizing the right to nationality for children and addressing childhood statelessness?

The body responsible for interpreting and monitoring state parties’ implementation of the CRC is the Committee on the Rights of the Child – one of the UN human rights Treaty Bodies – comprised of 18 independent experts from different parts of the world. One of the ways in which the Committee helps to guide states in the implementation of their obligations is through the issuance of authoritative guidance in the form of ‘General Comments’, and it also organizes ‘Days of General Discussion’ to explore particular issues or articles of the CRC. However, to date, none of these General Comments or Days of General Discussion have focused on understanding the content of the child’s right to a nationality. Rather, to get to the bottom of how the Committee interprets this treaty obligation, we must look at the guidance which it has issued directly to state parties, through the ‘Concluding Observations’ that it has adopted as part of the regular state reporting and review process.

Over the past few months, the Institute on Statelessness and Inclusion has been compiling and analyzing the recommendations made to states in the Committee’s Concluding Observations, culminating in the launch last week of an Analytical Database, Factsheet with key findings and Draft Policy Paper on how to strengthen the role of the CRC and its Committee in realizing children’s right to a nationality. Some of the highlights of this work and a number of key findings of relevance to ending childhood statelessness in Europe are presented below:

General trends

During the 22 years that the CRC Committee has been reviewing state party reports, starting in 1993,[1] it adopted 443 Concluding Observations. In 94 of these (one in every five Concluding Observations), the CRC Committee has issued recommendations interpreting the content of children’s right to acquire a nationality. In some instances, several relevant recommendations were made in respect of a single state under review, such that a total of 111 recommendations on the content of children’s right to acquire a nationality have been made to date. Furthermore, 136 Concluding Observations contain recommendations on measures of implementation that states should take in order to improve the protection of children’s right to acquire a nationality (equivalent to 30% of Concluding Observations) – such as ratifying relevant international instruments or collecting data on stateless children. Again, some states were issued multiple recommendations on implementing measures within the Concluding Observations adopted, such that a total of 209 recommendations address such matters.

Recommendations made to European countries

A significant advantage that the CRC holds above such instruments as the 1961 Convention on the Reduction of Statelessness and regional human rights conventions is its almost universal acceptance. This allows the CRC Committee to consider problems and make recommendations on the realisation of children’s right to acquire a nationality across all regions of the world. The following overview shows how many relevant recommendations have been made in each region as a percentage of how many Concluding Observations, in total, have been issued to countries from the region:

  • Middle East and North Africa: 64% of Concluding Observations
  • Asia and the Pacific: 25% of Concluding Observations
  • Europe: 20% of Concluding Observations
  • Africa: 14% of Concluding Observations
  • Americas: 8% of Concluding Observations

In Europe then, in one of five state party reviews, the Committee has made recommendations to the state relating to the right to a nationality (not including recommendations on implementing measures, such as the recommendation that a state become party to the UN statelessness conventions). The most common issue on which European countries have received recommendations from the Committee has been strengthening protections to ensure that children born on the territory, who would otherwise be stateless, are able to acquire a nationality.

Protecting children in Europe from statelessness, through the CRC

The recent ENS report ‘No child should be stateless’ identifies a variety of challenges that we face in seeking to end childhood statelessness in Europe. What the analysis of the work of the Committee on the Rights of the Child has helped to uncover and make more accessible, is that this Committee has issued relevant guidance in respect of many of these issues. As mentioned, the most common theme or concern addressed by the Committee in the review of European states is the need to strengthen safeguards to grant nationality to children born in the territory who would otherwise be stateless. ENS’ research demonstrated that 24 countries in Europe have only partial or even minimal safeguards to realise the child’s right to nationality in these circumstances. Two of the most common problems are safeguards which are conditional on the citizenship status of the parents (they must be stateless or of unknown nationality themselves) or the residence status of the parents and/or the child. The Committee on the Rights of the Child has clarified that neither condition may stand in the way of securing a nationality for stateless children: under the CRC, state parties’ have the obligation to grant nationality to all children born in the territory who would otherwise be stateless, regardless of their parents’ citizenship or immigration status or of their own immigration status. Moreover, the Committee has also provided important guidance on – among others – the right to nationality for foundlings, on the role of birth registration in helping to protect children’s right to nationality, on the deprivation of nationality of children and on the avoidance of statelessness in the context of inter-country adoption. Such guidance is critical in helping European states to address those situations in which children may still be confronted with statelessness in this region.

What can all this data be used for?

The findings from the analysis of the work of the Committee on the Rights of the Child can help to raise awareness of the right to nationality under international law and of the problems that arise in respect of preventing childhood statelessness; to bolster national level advocacy for necessary reforms to legislation or for the improved implementation of relevant legal safeguards; and to strengthen the role of the UN human rights machinery in promoting an end to childhood statelessness in Europe and around the world. While the Factsheet and Draft Policy Paper already offer some useful highlights in this respect, stakeholders working on these issues can also extract further information from the Analytical Database in support of their specific activities. This is why, although the database was originally compiled as an internal tool for the purposes of undertaking this assessment of the Committee’s work on the issue to date, the Institute has decided to make it publically available. It may not be the most attractive of spreadsheets, but the database allows you to:

  • Filter by individual country
  • Filter by region or group of countries (e.g. those with gender discrimination in their nationality laws)
  • Filter by theme (e.g. to look at recommendations on nationality and adoption)
  • See where statelessness is specifically mentioned
  • See which article the Committee has made a recommendation under
  • Access the text of the relevant recommendation, to see how the Committee has formulated its concerns / recommendations

Thus, if for instance you are concerned about or working on issues of childhood statelessness in Cyprus – a country with no safeguard in its nationality legislation to protect children born on the territory from statelessness – the database will help you to discover that this problem was not flagged by the Committee in the recommendations issued to Cyprus in its 1996 or 2003 review. This points to a gap that can be remedied when the country next submits its state party report by providing relevant information to the Committee and perhaps even pointing to recommendations that have been made to other states in respect of similar problems elsewhere and that the Committee can use to guide its response to the situation in Cyprus. Along similar lines, if your concern is with the legislation of one of the 14 European states that make access to nationality for stateless children born on the territory contingent on the child or his/her parents’ residence status, the database can help you to access relevant recommendations that have already been made on this issue – for instance to Switzerland, in January 2015.

When the Institute launched these tools with a series of events in Geneva last week, we were pleased with the unanimously encouraging response – including, significantly, from the Committee on the Rights of the Child itself. 14 of the Committee members attended a briefing during their lunchbreak at which we outlined the research process and main findings. They indicated a real interest in receiving further information on the issue of children’s right to a nationality as part of the state party reporting process so that they can pay closer and more consistent attention to the problems encountered. We hope that the Analytical Database will make it easier for civil society organisations to engage with the Committee on these issues and hope to provide further tools to facilitate this process in the coming months.

[1] Note that the Analytical Database on which this report is based includes all Concluding Observations adopted up to and including the January 2015 session of the CRC Committee. 

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